Tag Archives: Comparative Law and Religion

Lombardi on Islamic Constitutions

In many Muslim-majority countries, voters say they favor Sharia as a source of civil law. It’s not always clear what this means. Does “Sharia” refer to classical fiqh or something else? Is “Sharia” meant to apply as law or serve as a background norm for judging the validity of other laws? In a new article, Designing Islamic Constitutions: Past Trends and Options for a Democratic Future, Clark Lombardi (University of Washington) explores the trend of enshrining Sharia in recent constitutions in Muslim-majority countries. Here’s the abstract:

In recent years a growing number of countries have adopted constitutional provisions requiring that state law respect Islamic law (sharia). Muslims today are deeply divided, however, about what types of state action are consistent with sharia. Thus, the impact of a “Sharia Guarantee Clause” depends to a large degree on questions of constitutional design — on who is given the power to interpret and apply the provision and on what procedures that they follow when making their decisions. This article explores the trends that gave rise to SGCs and provides a history of their incorporation into national constitutions. It then surveys a number of the remarkably varied schemes that countries have developed to interpret and enforce their SGC’s, and it considers the impact that different schemes have had on society. Building on this background, the article considers what type of SGC enforcement scheme, if any, are likely to permit (and ideally promote) a state to pursue democratic policies. As it notes, SGC’s are often found in authoritarian or imperfectly democratic constitutions. Unsurprisingly, the designers of SGC enforcement schemes in non-democratic countries have generally tried to ensure that their SGC will be interpreted and applied in a way that permitted or even promoted non-democratic policies. Nevertheless, we can draw from the experience of these countries some important lessons about the types of SGC enforcement scheme that will allow more democratic states to promote both democratic political participation and rights. At the same time, recent debates have erupted in Western liberal democracies about how best to reconcile rights enforcement with democracy. These debates clarify some issues that aspirational Islamic democracies will face as they try to develop SGC enforcement schemes for a democratic society, and they provide insight into the qualities that an institution must possess if it is to address such issues effectively. A number of Muslim countries are currently debating how best to square a constitutional commitment to respect Islam with parallel commitments to democracy and rights. Acknowledging that these countries will need to tailor their SGC enforcement schemes to very different local conditions, this paper describes some basic design features that effective democratic SGC enforcement schemes are likely to share.

Good-Bye to All That?

A report in last week’s Telegraph suggests that British Christianity is declining more rapidly than previously understood. Initial reports about the 2011 census showed the number of people in England and Wales who describe themselves as Christians had fallen by 10 percent since 2001. But it turns out those figures included Christian immigrants, such as Polish Catholics and African Pentecostals. When one looks only at the native born, the percentage of people who describe themselves as Christians has fallen by an even greater amount–by 15% in the space of one decade. The decline is particularly pronounced among the young. At this rate, the Telegraph predicts, Christianity could become a minority religion in Britain within the next decade.

These numbers have worrisome implications for the future of the Established Church. In a country where only a minority is willing to describe itself as Christian, what would be the basis for maintaining state Christianity? A spokesman for the Church of England admits the census numbers present a challenge, but notes that recent attendance figures have been stable, and that the committed core “of the faithful remains firm.” Maybe so, but state churches, almost by definition, need to draw support from society as a whole, not only the people who attend every Sunday. Perhaps those respondents who said they weren’t Christians nonetheless think the established church serves a useful social function and want it to endure. But maybe not.

Panel on Islamic Law and the Arab Spring (June 4)

In Washington on June 4, the Law Library of Congress will host a panel, “The Role and Impact of Islamic Law in Transitioning Arab Spring Countries”:

The panel, led by moderator Mary-Jane Deeb, Chief of the African and Middle Eastern Division, will discuss the role of Shari’a law in the recent and ongoing constitutional drafting processes of Egypt, Tunisia and Libya. The discussion will also concentrate on the broader impact of Islamic law on the legal systems of Arab Spring states, looking particularly at personal status issues. Other points of discussion will include the compatibility of Shari’a law and human rights, and some of the challenges facing women and minorities in transitioning Arab Spring countries.

The distinguished panel will include Nathan J. Brown, Professor of Political Science and International Affairs at the Elliot School of International Affairs at the George Washington University; Lama Abu-Odeh, Professor of Law at Georgetown University Law Center; and Issam Saliba, Senior Foreign Legal Specialist at the Law Library of Congress.

Details are here.

Castellino & Cavanaugh, “Minority Rights in the Middle East”

MinorityRights_MIddleEastThis April, Oxford University Press published Minority Rights in the Middle East by Joshua Castellino (Middlesex University) and Kathleen A. Cavanaugh (National Univ. of Ireland, Galway). The publisher’s description follows.

Within the Middle East there are a wide range of minority groups outside the mainstream religious and ethnic culture. This book provides a detailed examination of their rights as minorities within this region, and their changing status throughout the twentieth and twenty-first centuries. The rights of minorities in the Middle East are subject to a range of legal frameworks, having developed in part from Islamic law, and in recent years subject to international human rights law and institutional frameworks. The book examines the context in which minority rights operate within this conflicted region, investigating how minorities engage with (or are excluded from) various sites of power and how state practice in dealing with minorities (often ostensibly based on Islamic authority) intersects with and informs modern constitutionalism and international law.

The book identifies who exactly can be classed as a minority group, analyzing in detail the different religious and ethnic minorities across the region. The book also pays special attention to the plight of minorities who are spread between various states, often as the result of conflict. It assesses the applicable domestic legislative instruments within the three countries investigated as case studies: Iraq, Syria, and Lebanon, and highlights key domestic remedies that could serve as models for ensuring greater social cohesion and greater inclusion of minorities in the political life of these countries.

UK Supreme Court Decides Important Ministerial Employment Case

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

Ahdar & Leigh, “Religious Freedom in the Liberal State”

This week, Oxford University Press publishes a new edition of Religious Freedom in the Liberal State, by Rex Ahdar (Otago) and Ian Leigh (Durham). The publisher’s description follows:

Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on United Kingdom, the United States, Canada, New Zealand, Australia, and EU, it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen.

Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment; education; parental rights and childrearing; controls on pro-religious and anti-religious expression; medical treatment; and religious group (church) autonomy.

This new edition is fully updated with the growing case law in the area, and features increased coverage of Islam and the flashpoint debates surrounding the accommodation of Muslim beliefs and practices in Anglophone nations.

Religion and the Yasukuni Shrine Controversy

At Via Meadia, Walter Russell Mead has been doing a great job covering the controversy surrounding visits last week by top Japanese officials to the Yasukuni Shrine in Tokyo. Yasukuni is a Shinto shrine; in Shinto belief, it houses the souls of millions of people who died in the service of the Japanese Empire, including during World War II. Among the millions commemorated are approximately 1000 convicted war criminals, including wartime Prime Minister Hideki Tojo.

Japan’s neighbors, China and Korea, perceive official visits to the shrine as an outrageous insult and a sign that Japan has not fully repudiated the imperialism of its past. (In response to last week’s visits, China sent a fleet of patrol ships into Japanese territorial waters.) The latest controversy erupted when top officials in Prime Minister Shinzo Abe’s cabinet, as well more than 150 parliamentarians, visited the shrine for the annual Shinto Spring Ceremony–the largest official delegation in decades. In response to Chinese and Korean complaints, Abe doubled down, declaring in a parliamentary debate, ”It’s only natural to honor the spirits of those who gave their lives for the country. Our ministers will not cave in to any threats.” Abe doubtless feels buoyed by opinion polls showing that he has a 70% approval rating from the Japanese public.

Official participation in ceremonies at Yasukuni have been controversial inside Japan as well. The Japanese Constitution, adopted after the war, disestablished Shintoism and effected, in the words of the Japanese Supreme Court, the “separation of state and religion.” In fact, in 1997 the Supreme Court ruled that the government officials could not make financial contributions to Yasukuni for use in Shinto ceremonies. With respect to this month’s visits, the officials involved were careful to point out that they were participating only as private citizens, not government officials, but that explanation has not satisfied critics. “”It doesn’t matter how or in what role Japanese leaders visit the Yasukuni shrine,” a Chinese spokesman said. “We feel it is in essence a denial of Japan’s history of militarist invasion.” And Japanese legal scholar Keisuke Abe (no relation to the Prime Minister, I believe) argues in a symposium in the St. John’s Law Review that most Japanese wouldn’t recognize the distinction, either. “Whatever the purpose of” a visit to the shrine, he writes, “the general public is likely to consider it as the government giving special support to Shintoism, associated with ancestor worship.”

USCIRF Report on Religious Freedom in Syria

Last week, the US Commission on International Religious Freedom issued a report, Protecting and Promoting Religious Freedom in Syria, that describes the religious contours of Syria’s civil war and makes recommendations for US policy with respect to the conflict. The report accuses both the Assad regime and the opposition of sectarian violence. The regime, the report says, has targeted Sunni Muslims, while Islamists in the opposition have targeted Alawites and Christians. Indeed, the report accuses the regime of deliberately setting religious communities against one another as a way of maintaining control.

Exploiting religious tensions in Syria is not too difficult. Although Sunni Muslims, Christians, and Alawites historically have lived in peace under Ba’ath rule, tensions always have existed beneath the surface. The Assads, who are Alawites, have kept the country’s Sunni majority in check, and Sunnis deeply resent it. I remember a Christian friend who grew up in Syria once telling me that his Sunni classmates had a slogan, which apparently rhymes in Arabic, about their proposal for Syria’s future:  ”The Christians to Beirut and the Alawites to the grave.” The report says that the regime is now paying people to pose as opposition figures  and chant that slogan at pr0tests, in order to frighten minority communities into supporting Assad.

The regime probably doesn’t have to work too hard to get that support. Just looking at the numbers, and knowing the fault lines in Syrian society, it’s obvious that minority groups like Christians have much to lose if Assad falls. The report suggests as much:

Many minority religious communities have tried to stay neutral in the
conflict, but opposition forces increasingly see their non-alignment, or perceived non-alignment, as support for the al-Assad regime. Minority religious communities thus have been forced by circumstances to take a position either in favor of the al-Assad regime, which historically
provided them some religious freedom protections, or in favor of the uncertainties of the opposition. As these sectarian fissures deepen, it is increasingly likely that religious communities will be targeted not for their political allegiances, but solely for their religious affiliation. . . .

[I]t is clear that sectarianism is increasing and religiously-motivated attacks are being perpetrated by the al-Assad regime and its proxies, as well as at times by opposition forces seeking his overthrow, resulting in severe violations of religious freedom. These violations also threaten Syria’s religious diversity by increasing the likelihood of religiously-motivated violence and retaliation continuing in a post-al-Assad Syria, where religious minorities will be particularly vulnerable.

Three commissioners dissented from the report, arguing that its policy recommendations go beyond the commission’s mandate. In other Syria news, the two Orthodox bishops kidnapped at gunpoint last week, presumably by opposition forces, remain missing.

Failinger, Schiltz & Stabile (eds.), “Feminism, Law and Religion”

This July, Ashgate Publishing will publish Feminism, Law and Religion edited by Marie A. Failinger (Hamline University School of Law), Elizabeth R. Schiltz (University of Saint Thomas School of Law), and Susan J. Stabile (University of Saint Thomas School of Law). The publisher’s description follows.

With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women’s rights and the place that religious law has assigned to women in ecclesiastic life.

Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.

An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011).  Professor Haupt has an interesting reply as well just below the review.  The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area.  From Professor Thiel’s review:

The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.

And from Professor Haupt’s reply:

Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.