Munir on Taliq and the Pakistani 1961 Family Law

Muhammad Munir (International Islamic University Islamabad) has posted Talaq and the Muslim Family Law Ordinance, 1961 in Pakistan: An Analysis. The abstract follows. – ARH

Divorcing one’s wife is considered as one of the most hated but legal acts by God, yet divorces do happen among married couples. Muslims attach tremendous significance to issues involving Talaq. Unfortunately, Pakistani law on Talaq is one of the most controversial and confusing and its interpretation by our superior judiciary has made it even more confusing. The current law is not only against the injunctions of Islam, it has also been misinterpreted by the judiciary.

Establishment Clause Discussion at SCOTUSblog

Today’s discussion at the extremely valuable SCOTUSblog concerns the Establishment Clause. SCOTUSblog has invited CLR Forum readers to participate. The description is below. Have fun!– MLM

Today’s discussion involves the Establishment Clause.  The Court has pending before it two petitions (here and here) – which it has relisted three times – involving a Utah program that posts crosses at the locations where highway patrol officers are killed.  Recent decisions involving the Establishment Clause include cases addressing the Mojave Cross and the Summum religion.  Please contribute your thoughts on the Court’s Establishment Clause jurisprudence, and on these cases specifically.


Liveblogging Forum 2000: Religious and Secular Law

(UPDATE: A video of the panel discussion, “Religious and Secular Law,” can be viewed in the player below.  This post was originally posted on October 11, 2011 – ARH)  

I just participated in Forum 2000’s final law-and-religion panel, “Religious and Secular Law.”  The panel was chaired by Anna Teresa Arco, the Chief Feature Writer for the Catholic Herald, who opened the panel with an erudite introduction to the topic.  In my remarks, I argued that the relationship between secular and religious law will be a crucial issue in the years ahead. Religion is resurging around the world, and there will likely be many occasions of conflict between secular and religious law. I discussed two doctrinal examples from the United States: the ministerial exception, currently before the Court in Hosanna-Tabor, and restrictions on religious practice under Employment Division v. Smith.  Czech Judge Ivana Hrdličková followed with a discussion of the interaction between Islamic and secular law in Europe, especially with regard to family law.  Professor Luboš Krobáček, a scholar of Islamic civilization at Charles University in Prague, closed the panel with an overview of the different schools of Islamic law.  – MLM

[vodpod id=Video.15563504&w=425&h=350&fv=bufferlength%3D5%26amp%3Brepeat%3Dalway]

Lund on The New Victims of the Old Anti-Catholicism

Christopher C. Lund (Wayne State University Law School) has posted The New Victims of the Old Anti-Catholicism.  The abstract follows. – ARH

This short piece examines four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse — one is a Wiccan, one is a Muslim, one is an evangelical Protestant, and one is an atheist. Unsurprisingly, their claims find support in very different political communities. But the plaintiffs in these cases all have certain things in common. They are all, in their own ways, religious minorities. All of their legal cases were ultimately lost. And most importantly for our purposes, each of their cases connects deeply with the nineteenth century history of anti-Catholicism in this country.

In various ways, Catholics of that century were mistreated by the Protestant majority. The injustices they faced were sanctioned by courts as well as legislatures, and legal rules were created to render their injuries both judicially noncognizable and socially invisible. Our four modern plaintiffs are, in some ways, latter-day Catholics. They suffer some of the same injustices; indeed, they are often inhibited by the some of the very same legal doctrines created to repress the Catholic minority over a century ago. We can think of these four plaintiffs as the new Catholics — or, to put it more accurately, as the new victims of the old anti-Catholicism. As we struggle with our twenty-first century challenges of religious pluralism, it helps to realize how much our struggles have in common with earlier ones. Perhaps, armed with this knowledge, we can do a bit better now than our forefathers did then.

Religious Law and the Financial Crisis

In this recent interview in L’Express (in French), Gilles Bernheim, the Chief Rabbi of France, makes some points about the relationship between religious law, specifically Talmudic Law, and contemporary economics. Although the Talmud could not imagine today’s financial arrangements, he concedes, it did teach, in the language of its time, that individualism was the worst enemy of communal confidence. According to the Talmudic view, we should place confidence in work, solidarity, and justice, not the “audacity” of rugged individualism “that dares all without concern for others.” The Talmudic worldview, one infers, would help avert crises like the one we’re currently experiencing.

Rabbi Bernheim’s critique of market economics from a religious perspective is quite familiar; it is very similar, for example, to the critique in Catholic Social Thought (another reminder that one should not reflexively link religion with the political right). And the financial crisis we’re living through does reflect reckless behavior by people who should have known better. A sense of responsibility to the community, which a religious worldview might have imparted, might have helped to avert the crisis.

That said, we should avoid being simplistic about things. Of course individualism “that dares all without concern for others” is incompatible with a religious worldview, but egotism like that is inconsistent with sane market economics as well. And in the United States, at least, the housing bubble that led to the Panic of 2008 was caused in part by government programs that encouraged people to purchase homes they could not afford. In other words, the crisis was not caused only by rugged individualism and greed; it was also caused by a misguided egalitarian project that had terrible consequences for everyone, including its supposed beneficiaries. Anyway, the relationship among selfishness, communal solidarity, and financial collapse is a complicated one that the Chief Rabbi more or less slides by. Though perhaps one shouldn’t expect too much from a newspaper interview – or a blog post. – MLM

Call for Papers: Religious Traditions and Business Behavior at Maryland

The Henry Kaufman Forum on Religious Traditions and Business Behavior at the University of Maryland Business School has issued a call for papers on two subjects:

First, what do the world’s major organized religious traditions – Protestantism, Catholicism, Islam, Hinduism, Buddhism, Judaism – proscribe about business and financial ethics and behavior?

Second, how and why have business and financial actors seriously compromised the leading religious traditions of their cultures?

Those who are interested in the conference can find more information here.  — MOD

Sullivan on the Ministerial Exemption

Professor Winnifred Fallers Sullivan has a column on the ministerial exemption here.  Mostly it is a summary of Hosanna-Tabor and the background issues, but there is also this:

There are thousands of American laws giving special legal privileges to churches and to ministers. Many of these are extended well beyond the historically established churches to persons and institutions of a variety of religious commitments. When they support the autonomy of religious institutions in the disciplining of their members they tend toward the support of alternative normative orders. While individual conscience under Smith must bow to secular neutral laws of general application, church autonomy laws would require individuals also to bow to ecclesiastical law in a variety of contexts . . . .

The presumption under this exception seems to be that churches must be protected by the state because it is in churches that individual consciences are formed. Most cases under this exception involve schoolteachers. The ministerial exception assures that children will be taught by schoolteachers who are under church discipline and that the church will exercise a public ministry with respect to those children. This is a robust claim for legal pluralism.

While most Americans undoubtedly believe that the government should not tell churches who should exercise religious leadership, arguably it is also the case that most Americans think that ministers are not the last word on what religion and moral formation is about—that the life of religion is not in the rules of established churches but in the faith-filled spiritual life of the people who only occasionally listen to their pastors, rabbis, priests, monks, gurus, or other would-be spiritual leaders—anyway.

It’s certainly true that religious institutions are not the only place in which “moral formation” occurs.  It can, of course, also occur in the kind of individualized spiritual seeking that Sullivan highlights and seems to favor in the last paragraph.

But I thought that one of the core ideas supporting the ministerial exemption was that religious institutions — traditionally, “churches” — have a unique role to play in the development of moral traditions independent of the state.  They are therefore ideally and specially suited to cultivate loyalties to loci of authority other than the state.  Just as the state has its institutional agents, who actively promote its norms and its vision of right, it is the clerics and other institutional actors within these religious organizations which take part in the communal effort to develop alternative claims to moral authority.  Sullivan rightly acknowledges this at the end of the second paragraph above. 

Yet that makes her third paragraph difficult to understand.  For all of her criticisms in the column that the law uses archaic Christian and specifically Protestant concepts and categories to understand the importance of religious autonomy, there is a kind of liberal Protestant theology which colors her discussion of the ways in which “faith-filled spiritual . . .  people” happily and regularly ignore “would-be” religious leaders.  But it is the participation of those leaders and other actors in the larger “spiritual life” of the religious institutions themselves which, for many, makes the ministerial exemption worth preserving in the first place. — MOD