Tag Archives: Religious Law

Netanel, “From Maimonides to Microsoft: The Jewish Law of Copyright Since the Birth of Print”

In March, Oxford University Press will release “From Maimonides to Microsoft:  The Jewish Law of Copyright Since the Birth of Print” by Neil Weinstock Netanel (University of California at Los Angeles School of Law). The publisher’s description follows:

Jewish copyright law is a rich body of jurisprudence that developed in parallel with modern copyright laws and the book privileges that preceded them. Jewish copyright law owes its origins to a reprinting ban that the Rome rabbinic court issued for three books of Hebrew grammar in 1518. It continues to be applied today, notably in a rabbinic ruling outlawing pirated software, issued at Microsoft’s request.

In From Maimonides to Microsoft, Professor Netanel traces the historical development of Jewish copyright law by comparing rabbinic reprinting bans with secular and papal book privileges and by relaying the stories of dramatic disputes among publishers of books of Jewish learning and liturgy. He describes each dispute in its historical context and examines the rabbinic rulings that sought to resolve it. Remarkably, the rabbinic reprinting bans and copyright rulings address some of the same issues that animate copyright jurisprudence today: Is copyright a property right or just a right to receive fair compensation? How long should copyrights last? What purposes does copyright serve? While Jewish copyright law has borrowed from its secular law counterpart at key junctures, it fashions strikingly different answers to those key questions.

The story of Jewish copyright law also intertwines with the history of the Jewish book trade and with steadfast efforts of rabbinic leaders to maintain their authority to regulate that trade in the face of the dramatic erosion of Jewish communal autonomy in the eighteenth and nineteenth centuries. This book will thus be of considerable interest to students of Jewish law and history as well as copyright scholars and practitioners.

Reynolds, “How Marriage Became One of the Sacraments”

In February, Cambridge University Press will release “How Marriage Became One of the Sacraments: The Sacramental Theology of Marriage from its Medieval Origins to the Council of Trent” by Philiip Reynolds (Emory University). The publisher’s description follows:

Among the contributions of the medieval church to western culture was the idea that marriage was one of the seven sacraments, which defined the role of married folk in the church. Although it had ancient roots, this new way of regarding marriage raised many problems, to which scholastic theologians applied all their ingenuity. By the late Middle Ages, the doctrine was fully established in Christian thought and practice but not yet as dogma. In the sixteenth century, with the entire Catholic teaching on marriage and celibacy and its associated law and jurisdiction under attack by the Protestant reformers, the Council of Trent defined the doctrine as a dogma of faith for the first time but made major changes to it. Rather than focusing on a particular aspect of intellectual and institutional developments, this book examines them in depth and in detail from their ancient precedents to the Council of Trent

Zahalka, “Shari’a in the Modern Era: Muslim Minorities Jurisprudence”

This month, Cambridge University Press will release “Shari’a in the Modern Era: Muslim Minorities Jurisprudence” by Iyad Zahalka (Chief Judge, Shari’a Court, Jerusalem). The publisher’s description follows:

Written by the Qadi (judge) of the Shari’a Court of Jerusalem and former director of the Shari’a Court system in Israel, this book offers a unique perspective on the religious law of Muslim minorities living in the West. Specifically, it explores the fiqh al-aqalliyyāt doctrine of religious jurisprudence developed by modern Islamic jurists to resolve the challenges of maintaining cultural and religious identity in majority non-Muslim societies. The author examines possible applications across numerous cultural and geographical contexts, answering such questions as: what are the rules for assuming political and public roles, and should one deposit money that incurs interest? Building on a growing scholarship, this book aims to resolve points of view and facets of religious law that have been neglected by previous studies. Accessibly written, Shari’a in the Modern Era is designed to promote cross-cultural understanding among readers of all faiths.

 

Kondo, “Islamic Law and Society in Iran”

In January, Routledge will release “Islamic Law and Society in Iran: A Social History of Tehran” by Nobuaki Kondo (Tokyo University of Foreign Studies). The publisher’s description follows:

This book explores the legal aspects of urban society in nineteenth-century Iran. It provides the social context in which political process occurred and examines how authorities applied law in society, how people utilized the law, and how the law regulated society. The legal system was primarily derived from Islamic la

In his thorough analysis, the author focuses on two themes: the shari‘a court and vaqf (endowments). The shari‘a court was the location, where law was applied, and the author shows that the majority of courts in the country did not engage in disputes, lawsuits, and litigation, but were instead involved primarily in popular transactions such as sales, loans, leases, gifts, and other commercial contracts. This is one of the main reasons that led to the development of close ties between religious clerics as legal professionals, on the one hand, and, on the other, merchants, traders, and shopkeepers in Iranian society during this time period. The second topic, the law of vaqf, is considered to be the strongest among the contracts of Islamic law and an essential part in the development of an Islamic city. Vaqf deeds constituted one of the most common and important types of transactions dealt with by any shari’a court in Iran. Using the alterations that occurred in the legal terms of very important vaqf deeds as an example, the author argues that this traditional legal system was itself not static but had the potential for change and modification.

The relationship between Islamic law and society is still an important issue in Iran under the Islamic Republic. Despite all the debates that began from the middle of the nineteenth century and which promoted legal reform, little was changed substantively in the area of the day-to-day practice of law in Iranian courts until the present day. This book provides an understanding of this legal system and its role in society, and offers a basis for assessing the motives and results of modern reforms as well as the modernist discourse.

“Jewish Law Annual Volume 21” (Lifshitz ed.)

In December, Routledge will release “Jewish Law Annual Volume 21” edited by Berachyahu Lifshitz (The Hebrew University of Jerusalem). The publisher’s description follows:

Volume 21 of The Jewish Law Annual adds to the growing list of articles on
Jewish law that have been published in volumes 1- 20 of this series, providing English-speaking readers with scholarly articles presenting jurisprudential, historical, textual and comparative analysis of issues in Jewish law.

Shavit, “Shari’a and Muslim Minorities”

This month, Oxford University Press will release “Shari’a and Muslim Minorities: The Wasati and Salafi Approaches to Fiqh al-Aqalliyyat al-Muslima” by Uriya Shavit (Tel Aviv University). The publisher’s description follows:

Based on a comparative analysis of several hundred religio-juristic treatises and fatwas (religious decisions), Shari’a and Muslim Minorities: The Wasati and Salafi Approaches to Fiqh al-Aqalliyyat al-Muslima offers the most systematic and comprehensive study to date of fiqh al aqalliyyat al-Muslima – the field in Islamic jurisprudence that treats issues that are unique to Muslims living in majority non-Muslim societies. The book argues that two main contesting approaches to fiqh al-aqalliyyat al-Muslima, the wasati and the salafi, have developed, in part dialectically. While both envision a future Islamizing of the West as a main justification for Muslim residence in the West, the wasati approach is pragmatic, facilitating, and integration-minded, whereas the salafi calls for strict application of religious norms and for introversion.

The volume examines diverse and highly-debated juristic issues, including the permissibility of naturalizing in non-Muslim states, participating in their electoral systems and serving in their militaries and police forces; the permissibility of taking mortgages and student loans; the permissibility of congratulating Christians on Christmas or receiving Christmas bonuses; and the permissibility of working in professions that involve breaching of religio-legal prohibitions (e.g. serving pork). Discussions highlight the diversity within contemporary Islamic jurisprudence and introduce new nuances to highly-charged concepts such as proselytizing, integration, and multiculturalism.

“Women’s Rights and Religious Law: Domestic and International Perspectives” (Banda & Joffe, eds.)

In January, Routledge will release “Women’s Rights and Religious Law: Domestic and International Perspectives” edited by Fareda Banda (SOAS, UK) and Lisa Fishbayn Joffe (Hadassah-Brandeis Institute of Brandeis University). The publisher’s description follows:

The three Abrahamic faiths have dominated religious conversations for millennia but the relations between state and religion are in a constant state of flux. This relationship may be configured in a number of ways. Religious norms may be enforced by the state as part of a regime of personal law or, conversely, religious norms may be formally relegated to the private sphere but can be brought into the legal realm through the private acts of individuals. Enhanced recognition of religious tribunals or religious doctrines by civil courts may create a hybrid of these two models.

One of the major issues in the reconciliation of changing civic ideals with religious tenets is gender equality, and this is an ongoing challenge in both domestic and international affairs. Examining this conflict within the context of a range of issues including marriage and divorce, violence against women and children, and women’s political participation, this collection brings together a discussion of the Abrahamic religions to examine the role of religion in the struggle for women’s equality around the world. The book encompasses both theory and practical examples of how law can be used to negotiate between claims for gender equality and the right to religion. It engages with international and regional human rights norms and also national considerations within countries.

Ahmed, “Religious Freedom under the Personal Law System”

In December, Oxford University Press will release “Religious Freedom Under the Personal Law System” by Farrah Ahmed (Melbourne Law School, University of Melbourne). The publisher’s description follows:

The personal law system is hugely controversial and the subject of fierce debates. This book addresses a vital issue that has received inadequate attention in these debates: the impact of the personal law system on religious freedom. Drawing on scholarship on the legal reform of the personal law system, as well as philosophical literature on multiculturalism, autonomy, and religious freedom, this book persuasively argues that the personal law system harms religious freedom. Several reform proposals are considered, including modifications of the personal law system, a move towards a millet system, internal reform of individual personal laws, the introduction of a Uniform Civil Code, and a move towards religious alternative dispute resolution.

This book will be of significant interest to students and scholars of law, politics, and gender studies, as well as lawyers and policymakers across jurisdictions interested in multiculturalism, particularly contemporary debates on the legal accommodation of religious and cultural norms.

 

Ahdash, “Copyright in Islamic Law”

In October, The Islamic Texts Society released “Copyright in Islamic Law” by Mohamed Ahdash (Muslim College, London). The publisher’s description follows:

Copyright in Islamic Law is the first work in English to systematically address the ideas of intellectual property and copyright from an Islamic perspective. The author builds a framework from within Shari’a law to address the concepts of intellectual property and copyright. In so doing, he adopts the classical usul al-fiqh approach by firstly defining the key terms associated with the field, namely: right (haq), ownership (milkiyya), wealth (mal), and utility (manfa’a). Dr Ahdash then analyses how these terms are used in the Qur’an and in the Hadith before looking at how the secondary sources of qiyas (analogy), maslaha (public interest), ‘urf (custom) and al-qawa’id al-fiqhiyya (legal maxims) can be applied to copyright. The result of this study is a framework wherein the concept of copyright is defined and understood in an Islamic manner. This then gives a consistent approach from which specific rulings can be derived. Copyright in Islamic Law is a ground-breaking study not only within Shari’a law, but also by making a contribution to the on-going debates on copyright in general.

The Unwritten Laws of Greece

The Spectacle of Death

Ancient Greek cities were frequently at war with each other, and death took its toll. Male citizens must often have been battle-hardened veterans, accustomed to the spectacle of battlefield carnage. Families and near relatives, who took part in washing the corpses and readying them for burial, must also have become sickeningly familiar with the look of violent death. The Greek preoccupation with the honorable interment of the combat-dead may have stemmed from a desire to hold the horror of such spectacles at a certain remove.  It must surely have been hard to forget such sights as those that the First World War poet Siegfried Sassoon described in his Counter-Attack:

           The place was rotten with dead; green clumsy legs

          High-booted, sprawled and groveled along the saps

          And trunks, face downward, in the sucking mud,

          Wallowed like trodden sand-bags loosely filled;

          And naked sodden buttocks, mats of hair,

          Bulged, clotted heads slept in the plastering slime.

          And then the rain began, — the jolly old rain!

The Fifth Century: Sophocles

By the fifth century, the Greeks had come to conclude that an enemy’s battle-dead were entitled to respect and should not be mistreated. In Miasma (1983), an important work on Greek religion, the Oxford classicist Robert Parker summarized the outcome that had been reached by the fifth century:

The individual’s right to receive burial was, of course, supported by powerful social and supernatural sanctions. The ‘common law of the Greeks’ agreed with the ‘unwritten, unshakeable laws of the gods’ in insisting that even the body of an enemy should be given up after battle for burial.

The “Antigone”

The “unwritten, unshakeable laws of the gods” to which Parker alludes are those expounded in the great speech of Antigone, in the play of that name by the fifth century Athenian tragic poet Sophocles. (Sophocles’ Antigone is fashioned from the same body of mythic material as Euripides’ Suppliants.) Antigone, daughter of King Oedipus of Thebes and sister of his son Prince Polynices, wishes to bury her brother’s remains after he has died at the hands of their brother Eteocles, whom Polynices has himself killed in their battle at one of the seven gates of Thebes. While Creon, Eteocles’ successor as King of Thebes, gives honors to Eteocles’ remains, he refuses to allow Polynices to be buried. Antigone defies Creon’s orders and attempts to bury Polynices. Challenged by Creon as to whether she had disobeyed him, she replies:

          Of course I did. It wasn’t Zeus, not in the least,

          Who made this proclamation—not to me.

          Nor did that Justice, dwelling with the gods

          Beneath the earth, ordain such laws for men.

          Nor did I think your edict had such force

          That you, a mere mortal, could override the gods,

          The great, unwritten, unshakable traditions.

          They are alive, not just today or yesterday:

          They live forever, from the first of time,

          And no one knows when they first saw the light.

Antigone, ll. 499-508 (Robert Fagles trans.).

Bear in mind that Polynices was not merely a fallen enemy warrior but also (in Creon’s view) a rebel, a regicide and a fratricide, a leader in an invading foreign army and a pretender to the crown of Thebes. Refusing him burial might therefore arguably be seen as a permissible exception to the obligation to grant burial which, as Parker notes, was “never absolute,” and which allowed Greek cities to cast away the bodies of at least some criminals.  The city’s treatment of corpses, as Parker shows, was “one of the means by which men could hurt, humiliate, or honour one another, express contempt or respect;” hence, “the theme could be of central importance in great works of literature.”

In the Antigone, as Hegel famously argued (Aesthetics: Lectures on Fine Art, Pt. II, sec. 2, c. 1), Sophocles revealed the very essence of tragedy, which arises when “the ethical substance” is “divided against itself,” or in other words when there is an irreconcilable collision between two valid and compelling norms: here, the right of the family to bury its dead as against the State’s prerogative to punish those who disloyally take up arms against it. Antigone argues: “Death longs for the same rites for all;” and Creon answers, “Never the same for the patriot and the traitor” (ll. 384-85).

As legal scholar Martha Nussbaum (following Hegel) has pointed out, both major protagonists in The Antigone have unduly narrow and unreflective moral views. Surely the claims of the city do not always count for more than those of the family; for what is a city but an association of families? On the other hand, is not Creon right to say that our country is our safety (l. 211)?  See The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis (2000),

In the end, however, it is Antigone, not Creon, whose claim prevails in Sophocles’ drama: Creon’s treatment of Polynices’ brings pollution and plague to Thebes.   Nature itself rises up against the violation of the unwritten and unshakeable laws. The blind prophet Tiresias tells Creon that the birds of the sanctuary where he sits, which used to hover at his hands, began to scream madly and to rip each other apart with flashing talons. The fires over which the sacrifices were offered would not light; the birds, gorged with blood and fat, drop scraps of Polynices’ body on the altar. Prophecy becomes impossible; the city’s link to the gods is entirely severed. And the fault, Tiresias tells him, is Creon’s:

And it is you—

Your high resolve that sets this plague on Thebes.

The public altars and sacred hearths are fouled,

One and all, by the birds and dogs with carrion

Torn from the corpse, the doomstruck son of Oedipus!

And so the gods are deaf to our prayers, they spurn

The offerings in our hands, the flame of holy flesh.

No birds cry out an omen clear and true-

They’re gorged with the murdered victim’s blood and fat.

Take these things to heart, my son, I warn you. . .

Where’s the glory, killing the dead twice over?

Antigone ll. 1123-40.

Readers of J.R.R. Tolkien’s The Two Towers may recall the last march of the Ents, an ancient race of tall, human-like trees, against the fortress of Saruman at Isengard, which they destroy. There too, nature itself rises up against the unholy forces that would violate it.

Oedipus the King

Sophocles also addresses the subject of the “unwritten” and “unshakeable” laws of the gods in a Chorus in Oedipus the King. (Rémi Brague suggest that Sophocles is writing here in response to the Sophists who had attacked the divine origin of those laws. See The Law of God: The Philosophical History of an Idea (English trans. 2007 (2005)). Although the context here is that of Oedipus’ violations – parricide and incest – not that of burial, the lines reinforce the action and speeches of the Antigone:

Great laws tower above us, reared on high

          Born for the brilliant vault of heaven—

          Olympian Sky their only father,

          Nothing mortal, no man gave them birth,

          Their memory deathless, never lost in sleep:

          Within them lives a mighty god, the god does not grow old. . .

          God, my champion, I will never let you go.

 Oedipus the King, ll. 957-971 (Robert Fagles trans.).

 What were these laws, variously called “unwritten laws,” “common laws” or laws “of the gods”?  Edith Hall of King’s College, London, finds that they “constituted simultaneously an expression of the most fundamental and ancient taboos, and a didactic charter of ‘decent’ behavior which was invested at times with a sanctity far greater than the strict observance of ritual. . . [T]hese laws seem to have enshrined such integral taboos as the killing of guest or host, family member or suppliant, incest, and the failure to bury the dead.” See Inventing the Barbarian: Greek Self-Definition through Tragedy (1989).

In grasping that the norm forbidding the non-burial of the dead was, for the Greeks, of the same magnitude as the prohibition on incest, we can understand Euripides’ Suppliants more deeply. The cause that drove King Theseus and Athens to war against Thebes touched a matter of the utmost sensitivity for the Athenian audiences that watch Euripides’ drama.

Divine law or human law?

The questions whether the laws in question were divine (without beginning or end) or human (customary), and whether they applied universally or only to the Greeks, were debated in fifth and fourth century Athens. In the Rhetoric (though not elsewhere), Aristotle drew this distinction, and in a passage that refers to the Antigone, see Rhetoric 1373b, places on one side the law that is proper to a particular city (which may or may not be written) and the universal law, which is according to nature (“kata phusin”).

We see signs of both views in The Suppliants, and perhaps they had not yet been fully distinguished. (Indeed, they are arguably not distinguishable when fully thought through.)  King Theseus describes the norm about burial as “the law of all Hellas” (Philip Vellacott trans.)), but he also speaks of it as “this ancient, divine ordinance.” Aethra, Theseus’ mother, at first characterizes them as “the gods’ law,” but later calls them “the established laws/Of all Hellas.” Other Euripidean dramas also leave the question in some doubt. In The Hecuba (l. 1247 (E.P. Coleridge trans.)), the Greek King Agamemnon says to the Thracian Polymester, “Perhaps among you it is a light thing to murder guests, but with us in Hellas it is a disgrace,” implying that the norms surrounding guest-friendship are characteristic of (a higher) Greek civilization, but are not universal. The latter view – if indeed it is Euripides’ – would seem to resemble the post-Enlightenment non-foundationalism of the late Richard Rorty.

So much for the treatment of the warrior burial norm in Sophocles. In the next installment, we shall consider evidence of that norm in the historians Herodotus and Thucydides.