Tag Archives: Legal Pluralism

Possamai, et. al. (eds.), “Legal Pluralism and Shari’a Law”

This month, Routledge publishes Legal Pluralism and Shari’a Law, edited by Adam 9780415826334Possamai (U. of Western Sydney, Australia), James T. Richardson (U. of Nevada, Reno), and Bryan S. Turner (Graduate Center of CUNY & U. of Western Sydney, Australia). The publisher’s description follows.

Legal pluralism has often been associated with post-colonial legal developments especially where common law survived alongside tribal and customary laws. Focusing on Shari‘a, this book examines the legal policies and experiences of various societies with different traditions of citizenship, secularism and common law. Where large diasporic communities of migrants develop, there will be some demand for the institutionalization of Shari‘a at least in the resolution of domestic disputes. This book tests the limits of multiculturalism by exploring the issue that any recognition of cultural differences might imply similar recognition of legal differences. It also explores the debate about post-secular societies specifically to the presentation and justification of beliefs and institutions by both religious and secular citizens.

Bratt, “Abraham Kuyper: Modern Calvinist, Christian Democrat”

Dutch neo-Calvinism has had a major, though understudied, impact on Abraham KuyperAmerican thinking about church and state.  And one can see the influence of one of neo-Calvinism’s greatest minds, Abraham Kuyper, in the “Souvereiniteit in Eigen Kring,” or “sphere sovereignty,” legal pluralist scholarship of writers like Nicholas Wolterstorff, Paul Horwitz, Richard Garnett, and, at perhaps a somewhat greater distance, Frederick Schauer.  This full-scale biography, Abraham Kuyper: Modern Calvinist, Christian Democrat (Eerdmans 2013), by James D. Bratt (Calvin College), will be of special interest to students of neo-Calvinist influence in contemporary political thought.  The publisher’s description follows.

In this first full-scale English biography of Abraham Kuyper, the highly influential religious and political leader of Dutch Calvinists in the late nineteenth and early twentieth century, historian James D. Bratt draws connections between the life and thought of Kuyper and current debates in America today. Bratt’s study covers Kuyper’s early years, his development as a person, his various leadership roles and spheres of influence, and the considerable ongoing impact of his ideas.

A convinced Calvinist and a distinctly modern public figure, Kuyper held a wide variety of roles over the course of his life — minister, newspaper editor, educational innovator, politician, religious reformer, and prime minister of the Netherlands (1901-1905). Kuyper’s life demonstrates how devotees of any faith can carry on a responsible public life in contention — and concert — with people of other convictions.

Putting the Legal in Religious Legal Theory

I just finished reading Samuel Levine’s essay RLT: A Preliminary Examination of Religious Legal Theory as a Movement, which considers the challenges facing the creation of a Religious Legal Theory (RLT) movement akin to Critical Legal Studies, Law & Economics and Empirical Legal Studies.  As Levine notes, the growing – and, to mind, successful – Religious Legal Theory conferences (the three annual RLT conferences thus far have been held at Seton Hall, St. John’s and Pepperdine) indicates that there is a conglomeration of research and scholarship revolving around some central concept captured by the label “religious legal theory.”

Among the challenges to the RLT movement detailed by Levine, I was most drawn to the tension between the pluralism embedded within RLT – it brings together different methodologies, disciplines and faith perspectives – and the need for a movement to advance a “foundation of meaningful concepts” in order to retain coherence, integrity and longevity.

As I’ve thought about this challenge, I’ve wondered whether RLT can do more to capitalize on the legal within religious legal theory.  By that I mean, further focus its efforts on the ways in which religion and religious life incorporates legal structures and norms.  This inquiry might itself be described as two-fold: to what extent does religious life mimic that of a legal system – and how might those similarities impact the nation-state’s treatment of religion.  As example, RLT might further explore the methods of authority, interpretation, and norm-creation within religious communities and compare those methods to compare to other legal structures.  Moreover, to the extent religion and law share important similarities, questions of accommodation, deference and enforcement might require considering religion alongside, for example, international law and foreign law where the nation-state has contemplated navigating the competing claims of conflicting legal norms.  Such an approach would incorporate insights of legal pluralism, international legal theory, political philosophy, and indigenous law into the RLT movement.

This is not to say that this isn’t already happening; to the contrary, there is growing amount of writing on this very issue – and probably more to come in light of the Supreme Court’s recent pronouncements in Hosanna-Tabor v. EEOC.  Some examples that come to mind – just to name a few – include Paul Horwitz’s work on First Amendment Institutions (here and here), Joel Nichols recent book Marriage and Divorce in a Multicultural Context, Ayelet Shacher’s book Multicultural Jurisdictions, Perry Dane’s work on church autonomy and legal pluralism (see, e.g., here and here), Rick Garnett’s work on religious institutions, (see, e.g., here and here), Chaim Saiman’s Jesus Legal Theory, and Mark Movsesian’s Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence.

Consider this a pitch for more of the same and for moving this focus into the center of the RLT movement.

Israel’s Rabbinical Court Jails Husband Indefinitely for Refusing to Divorce Wife

A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.

This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”

Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals.  Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.

Zucca on the Case For Monism in European Law

Lorenzo Zucca (King’s College London) has posted Monism and Fundamental Rights in Europe.  Though the piece does not directly reference or discuss cases of religious liberty in Europe (nor, curiously, Isaiah Berlin for that matter), the application of the author’s approach to such questions should be evident.  Among other reasons, I am posting the piece because it represents a point of view nearly diametrically opposed to the one that I defend in my forthcoming book, Tragedy and History: The Quality of Religious Liberty.  The abstract follows.  — MOD

Fundamental Rights in Europe are protected by national, supranational and international judicial bodies. Yet, the likelihood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralists claim that the risk of conflicting views should not be regarded as a problem, and should instead be regarded as an occasion to engage in a dialogue between various jurisdictions.

In this article I resist the legal pluralist claim and suggests that the only way of understanding the relationship between fundamental rights and law is monist. There are two opposite monist understandings of the same relationship. On the one hand, there is a value monist approach which argues for the unity of value across law and morality. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter legal monist position and suggests that that is the best way of understanding law and fundamental rights at the national, supranational and international level.

Solanki on Religious Family Laws in India

Gopika Solanki (Carelton University, Ottawa) has published Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India (Cambridge 2011). A description follows. — MLM

How do multireligious and multiethnic societies construct accommodative arrangements that can both facilitate cultural diversity and ensure women’s rights? Based on a study of legal adjudication of marriage and divorce across formal and informal arenas in contemporary Mumbai, this book argues that the shared adjudication model in which the state splits its adjudicative authority with religious groups and other societal sources in the regulation of marriage can potentially balance cultural rights and gender equality. In this model the Continue reading

Büchler, “Islamic Law in Europe?”

Legal pluralism is much discussed these days, particularly with respect to religious law. Andrea Büchler (University of Zurich) addresses the subject in the newly-released Islamic Law in Europe? Legal Pluralism and Its Limits in European Family Laws (Ashgate 2011), a monograph on the relationship of European legal systems and Islamic law, particularly Islamic family law. A description follows.  – MLM

Cultural and religious identity and family law are inter-related in a number of ways and raise various complex issues. European legal systems have taken various approaches to meeting these challenges. This book examines this complexity and indicates areas in which conflicts may arise by analysing examples from legislation and court decisions in Germany, Switzerland, France, England and Spain. It includes questions of private international law, comments on the various degrees of consideration accorded to cultural identity within substantive family law, and remarks on models of legal pluralism and the dangers that go along with them. It concludes with an evaluation of approaches which are process-based rather than institution-based.