In May, Routledge will release “Religion as Empowerment: Global Legal Perspectives,” edited by Kyriaki Topidi (University of Lucerne) and Lauren Fielder (University of Texas). The publisher’s description follows:
This volume shows how and why legal empowerment is important for those exercising their religious rights under various jurisdictions, in conditions of legal pluralism. At the same time, it also questions the thesis that as societies become more modern, they also become less religious.
The authors look beyond the rule of law orthodoxy in their consideration of the freedom of religion as a human right and place this discussion in a more plurality-sensitive context. The book sheds more light on the informal and/or customary mechanisms that explain the limited impact of law on individuals and groups, especially in non-Western societies. The focus is on discussing how religion and the exercise of religious rights may or may not empower individuals and social groups and improve access to human rights in general.
This book is important reading for academics and practitioners of law and religion, religious rights, religious diversity and cultural difference, as well as NGOs, policy makers, lawyers and advocates at multicultural jurisdictions. It offers a contemporary take on comparative legal studies, with a distinct focus on religion as an identity marker.
In April, Springer Press will release “Religious Rules, State Law, and Normative Pluralism: A Comparative Overview,” edited by Rossella Bottoni (Università Cattolica del Sacro Cuore), Rinaldo Cristofori (University of Milan), and Silvio Ferrari (University of Milan). The publisher’s description follows:
This book is devoted to the study of the interplay between religious rules and State law. It explores how State recognition of religious rules can affect the degree of legal diversity that is available to citizens and why such recognition sometime results in more individual and collective freedom and sometime in a threat to equality of citizens before the law. The first part of the book contains a few contributions that place this discussion within the wider debate on legal pluralism. While State law and religious rules are two normative systems among many others, the specific characteristics of the latter are at the heart of tensions that emerge with increasing frequency in many countries. The second part is devoted to the analysis of about twenty national cases that provide an overview of the different tools and strategies that are employed to manage the relationship between State law and religious rules all over the world.
In January, Columbia University Press will release “Religion, Secularism, and Constitutional Democracy” edited by Jean L. Cohen (Columbia University) and Cécile Laborde (University College London). The publisher’s description follows:
Polarization between political religionists and militant secularists on both sides of the Atlantic is on the rise. Critically engaging with traditional secularism and religious accommodationism, this collection introduces a constitutional secularism that robustly meets contemporary challenges. It identifies which connections between religion and the state are compatible with the liberal, republican, and democratic principles of constitutional democracy and assesses the success of their implementation in the birthplace of political secularism: the United States and Western Europe.
Approaching this issue from philosophical, legal, historical, political, and sociological perspectives, the contributors wage a thorough defense of their project’s theoretical and institutional legitimacy. Their work brings fresh insight to debates over the balance of human rights and religious freedom, the proper definition of a nonestablishment norm, and the relationship between sovereignty and legal pluralism. They discuss the genealogy of and tensions involving international legal rights to religious freedom, religious symbols in public spaces, religious arguments in public debates, the jurisdiction of religious authorities in personal law, and the dilemmas of religious accommodation in national constitutions and public policy when it violates international human rights agreements or liberal-democratic principles. If we profoundly rethink the concepts of religion and secularism, these thinkers argue, a principled adjudication of competing claims becomes possible.
In July, Ashgate will release “Religion and Legal Pluralism” edited by Russell Sandberg (Cardiff University, UK). The publisher’s description follows:
In recent years, there have been a number of concerns about the recognition of religious laws and the existence of religious courts and tribunals. There has also been the growing literature on legal pluralism which seeks to understand how more than one legal system can and should exist within one social space. However, whilst a number of important theoretical works concerning legal pluralism in the context of cultural rights have been published, little has been published specifically on religion. Religion and Legal Pluralism explores the extent to which religious laws are already recognized by the state and the extent to which religious legal systems, such as Sharia law, should be accommodated.
In February, Edinburgh University Press will release “Contemporary Islamic Law in Indonesia: Shari’ah and Legal Pluralism” by Arskal Salim (University of Western Sydney). The publisher’s description follows:
Indonesia has probably the fastest changing legal system in the Muslim world. This ethnographic account of legal pluralism in the post-conflict and disaster situation in Aceh addresses changes in both the national legal system and the regional legal structure in the province. Focusing on the encounter between diverse patterns of legal reasoning advocated by multiple actors and by different institutions (local, national and international; official and unofficial; judicial, political and social cultural) it considers the vast array of issues arising in the wake of the December 2004 earthquake and tsunami in Aceh.
It investigates disputes about rights to land and other forms of property, power relations, the conflict of rules, gender relationships, the right to make decisions, and prevailing norms. These disputes are presented on multiple levels and in various forums, either through negotiation or adjudication, regardless of whether they are settled or not. The cases involve various actors from villages, the courts, the provincial government and the legislature, the national Supreme Court and the central government of Indonesia.
This month, Routledge publishes Legal Pluralism and Shari’a Law, edited by Adam Possamai (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.
Dutch neo-Calvinism has had a major, though understudied, impact on American 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.
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.
Posted in Commentary, Mark L. Movsesian
Tagged Comparative Law and Religion, Israel, Israeli Law, Jewish Divorce, Jewish Law, Legal Pluralism, Marriage, Recent Cases, Religious Accommodation, Religious Courts
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.