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Kilborn on Islamic Bankruptcy Law

Jason J. Kilborn (The John Marshall Law School) has posted Foundations of Forgiveness in Islamic Bankruptcy Law: Sources, Methodology, Diversity. The abstract follows. –YAH

This article provides a detailed examination of the structure, sources, and ultimate content of the Islamic law of distressed debt. With specific illustrations from the Qur’an, sunna, and fiqh (Islamic jurisprudence), it orients non-specialists on the path to understanding where Islamic law comes from, how it is structured, and what its most salient provisions say about the proper treatment of insolvent debtors. Tracing the various divisions within Islam on the proper identification of shari’a, this article reveals a rich tapestry of contrasting views among and within the shi’a and sunni doctrinal schools of thought. Both the original sources and the secondary juristic analyses of these sources struggle with a delicate balance between forcing debtors to pay their debts while enjoining creditors to be patient and forgiving with respect to distressed debtors. It is hoped that this detailed and sensitive discussion will enhance the increasingly frequent insolvency law reform conversations between Westerners and those in Muslim nations by encouraging the former to respectfully engage with classical Islamic sources and methods, as opposed to advancing arguments based merely on Western views of economic expediency, efficiency, and experience.

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Brandes on Education in Religious Communities

Tamar Hostovsky Brandes (Ono Academic College) has posted Between Vowels and Values: Education in Religious Communities. The abstract follows. –YAH

This paper examines the extent of autonomy religious minorities should enjoy in the area of education, specifically in determining the curriculum children belonging to religious minorities are required to study. While there is an abundance of scholarship on the topics of exemptions from educational requirements, this paper focuses on two issues that are relatively neglected. The first regards the different types of rights on the basis of which requests for exemptions are being made. This paper examines whether requests exemptions that are based on religious liberty are different than requests for exemptions based on culture, and argues that requests based on religious obligations are often more absolute that claims based on culture. As a result, mitigating measures short of exemptions, which may be able to resolve the issues that stand at the basis of the latter, do not resolve claims based on religious obligations.

The second issue this paper addresses is whether the state’s interest in promoting social solidarity justifies, at least in some circumstances, rejecting claims for such exemptions. In examining claims for exemptions in the field of education, liberal scholars usually concentrate on the interests the state has in ensuring that its citizens are self-sufficient and in instilling in them democratic values. The state’s interest in maintaining social solidarity is often overlooked. This paper argues that the state’s interest in maintaining social solidarity must be weighed separately from the state’s interests in self-sufficiency and democracy. It then suggests guidelines for assessing the effect a granting or rejecting a request for exemption may have on social solidarity. These guidelines include examining whether the exemption is requested by an individual or by a group, the scope of the exemption requested and the nature of educational material which the exemption covers.

Posted on by Mark Movsesian

Gaudreault-DesBiens on Religious Expression

Jean-François Gaudreault-DesBiens (University of Montreal) has posted a new piece, Religion, Expression, and Freedom: Offense as a Weak Reason for Legal Regulation (in French).  The abstract follows.  — MLM

Some forms of religious expression tend to stir controversy among citizens who share a secular conception of public morality, whether or not they are themselves religious in the ‘private sphere.’ As well, religious individuals are often shocked by expression criticizing their beliefs or desacralizing the religious figures that they worship.

This paper examines some difficult questions raised by the interplay of freedom of expression and freedom of religion. Drawing on Raymond Boudon’s distinction between strong and good reasons, it offers a reflection on the quality of reasons invoked in support of claims demanding the censorship of either public manifestations of religious belief or anti-religious expression, observing that several of them, being neither strong nor good, are more often than not rather weak. It defends the thesis that the equilibrium between the two freedoms cannot be judged in the abstract but must instead be resituated within the particular historical and legal context within which it is established. However, it warns against the creation of double standards between religious expression and anti-religious expression, arguing that if the former is strongly protected, the other should be protected as strongly, irrespective of believers’ offended sensitivities. Secular moralities are no more, but no less, important, than religious ones.

Posted on by Mark Movsesian · 1 Comment

Latterell on “In God We Trust”

The National Motto, “In God We Trust,” poses a bit of a problem for the “endorsement test,” the most-widely used test for the constitutionality of state-sponsored religious expression.  Under the endorsement test, government cannot communicate a message that suggests either approval or disapproval of religion, even religion in general.  Yet the words  “In God We Trust” appear on American currency, and have since the Civil War.  Some excuse the motto as a historical remnant or an example of merely “ceremonial deism,” and it seems unthinkable that the Court would ever order its removal; but the tension with the endorsement test remains.

Justin Latterell (Emory) has published an interesting-looking historical piece, In God We Trust: Abraham Lincoln and America’s Deathbed Repentance, that focuses  on Abraham Lincoln’s role in establishing the motto.   The abstract is below. – MLM

This article maps several key moments in the evolution of religious symbolism and language on U.S. currency, focusing largely on Abraham Lincoln’s overlooked role in signing the motto ‘In God We Trust’ into law. Interpreting the motto through the lens of Lincoln’s “Second Inaugural Address” — which he delivered just one day after Congress passed the first statute allowing ‘In God We Trust’ to be stamped on U.S. coins — offers a counter-intuitive interpretation of the motto that functions as a deep, ironic, and historically significant critique of religious nationalism.

Posted on by Marc O. DeGirolami

Doe’s “Law and Religion in Europe”

This book, Law and Religion in Europe: A Comparative Introduction, by Norman Doe (Cardiff — see our Links page for the Centre for Law and Religion there) (OUP 2011), will be of deep and immediate interest to students of international and comparative law and religion.  I’m excited to get my copy of this important book.  The publisher’s description follows.  — MOD

Each state in Europe has its own national laws which affect religion and these are increasingly the subject of political and academic debate. This book provides a detailed comparative introduction to these laws with particular reference to the states of the European Union. A comparison of national laws on religion reveals profound similarities between them. From these emerge principles of law on religion common to the states of Europe and the book articulates these for the first time. It examines the constitutional postures of states towards religion, religious freedom, and discrimination, and the legal position, autonomy, and ministers of religious organizations. It also examines the protection of doctrine and worship, the property and finances of religion, religion, education, and public institutions, and religion, marriage, and children, as well as the fundamentals of the emergent European Union law on religion.

The existence of these principles challenges the standard view in modern scholarship that there is little commonality in the legal postures of European states towards religion – it reveals that the dominant juridical model in Europe is that of cooperation between State and religion. The book also analyses national laws in the context of international laws on religion, particularly the European Convention on Human Rights. It proposes that national laws go further than these in their treatment and protection of religion, and that the principles of religion law common to the states of Europe may themselves represent a blueprint for the development of international norms in this field. The book provides a wealth of legal materials for scholars and students. The principles articulated in it also enable greater dialogue between law and disciplines beyond law, such as the sociology of religion, about the role of religion in Europe today. The book also identifies areas for further research in this regard, pointing the direction for future study.

Posted on by Marc O. DeGirolami

Of Amusement Parks and Head Scarves

This controversy hit extremely close to my home.  A fight broke out yesterday at Rye Playland Park when a number of Muslim women were told by park staff members that they would not be permitted to wear their head scarves on certain rides.  The park had received a number of Muslim visitors who were celebrating the end of Ramadan.  A scuffle broke out after the refusal to allow some of the women to ride without removing their hijabs, and there was also some kind of report that a park employee touched one of the women.

The park has a safety policy against the wearing of any “headgear.”  I’ve been to Playland a number of times with my own family, and I’ve been required to take off my hat when I went on some of the faster rides. 

What makes this a possible constitutional question is that Playland Park is government owned and operated.  It is, in fact, the only such amusement park in the United States.  But I cannot see any way in which, should a law suit be brought against Westchester County, the plaintiffs would win.  This policy is clearly a law of general application, it is not targeted at any group, and it is overwhelmingly justified by serious safety concerns.  The rides to which the policy applies (and those that the Muslim customers report being barred from  riding) are extremely fast moving and jerky (I hate “Crazy Mouse” for this reason).  Any First Amendment claim would almost surely fail.  A sad episode nonetheless.  — MOD (picture of the excellent 1929 “Dragon Coaster” at Rye Playland Park) (x-posted MOJ).