Posted on by

Osanloo on Gender, Honor, and Compensation in Iranian Criminal Sanctioning

Arzoo Osanloo (U. of Washington) has posted When Blood Has Spilled: Gender, Honor, and Compensation in Iranian Criminal Sanctioning. The abstract follows. NB: The full article is behind a pay wall.

This article explores the gender implications of retributive punishment in Iran’s criminal justice system with specific attention to the Islamic mandate of forgiveness. Iranian penal codes allow victims’ families to forgive an offender through forbearance of their right of retribution. To mitigate or even cancel the retributive component of punishment in numerous crimes, including murder, defendants usually offer compensation. Through a study of the gendered logics of criminal sanctioning, forbearance, and compensation, this article brings to light some of the issues victims’ families and defendants face. In doing so, this article explores the debates around one of the formal gender gaps in Iranian laws, unequal compensation in sanctioning, where the amount of reparation for the loss a woman’s life is legally half that of a man’s. Because of this, some accounts of Islamic criminal processes suggest that female family members are helpless victims or nonactors in legal negotiations. By studying how gendered social relations operate in Iran’s criminal legal process, this article finds women playing key roles in family decisions to forgive or not. The examination of judicial processes, moreover, reveals some of the complexity of gender relations, which are not fixed, as static legal texts might suggest.

Posted on by Marc O. DeGirolami

New York Times Story on the HHS Mandate Suits

Here’s a story published yesterday in the Times on the HHS Mandate law suits.  The story has several problems, among which are:

(1) It gives the impression that courts are, at this point, either dismissing these cases because they believe that “contraception is a vital health need and a compelling interest” or finding for the plaintiffs because “they [the plaintiffs] have been told that their beliefs appear to outweigh any state interest and that they may hold off complying with the law until their cases have been judged.”  The reality is that the large majority of these  suits have been dismissed without prejudice on standing or ripeness grounds, as we have noted again and again here at CLR Forum.  Standing does not appear at all in the story.

(2) Its focus on the Free Exercise Clause is odd.  It mentions the Religious Freedom Restoration Act, but it focuses on the Free Exercise Clause and it mistakenly calls the O Centro case a free exercise case.  It was a RFRA case.  Here is some important language in that case:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.”

The discussion of the Smith decision in the news story also gives the misimpression that Smith is an iron clad rule with no exceptions, but that is not true, as I have noted before.

(3) The story references the possibility that “[a] compromise for religious institutions may be worked out” and then proceeds to talk about the previously announced putative plan to shift the cost of contraception to insurers.  Standing alone — i.e., without an expansion of the category of religious employers and without dealing with the issue of self-insured plaintiffs — that compromise will work very little out for religious institutions.  But I guess we’ll see by roughly the end of the first quarter.

That said, the reporter is to be commended for getting a variety of perspectives on the issue.

Posted on by Mark Movsesian

On the Dual Role of Christian Leaders in the Middle East

At the British blog Ekklesia, Harry Hagopian has an interesting essay on recent leadership changes in Christian communions in the Middle East. In the past year, he writes, new patriarchs have been selected by Maronite Catholics, the Coptic Orthodox, the Antiochian Greek Orthodox, and, this week, the Armenian Orthodox Church in Jerusalem. These changes have more than just spiritual significance. In the Middle East, Christian leaders traditionally have important civil responsibilities as well: they are seen as representatives of their co-religionists in the wider society. This dual role–spiritual and secular–is a remnant of the Ottoman millet system, which conferred civil  responsibilities on Christian religious leaders. Here’s Hagopian:

It often seems bizarre for many Western minds that Armenians place such hullabaloo on the election of their church hierarchs. I agree that it goes against the grain somewhat, and more so from our own Western perspective where God and Caesar are kept deliberately – and at times constitutionally – apart. Perhaps we interpret the prophetic fire of our faith differently.

However, the Middle East and North Africa region also enjoys a rich but somewhat different culture whereby each community still looks generally at its religious leaders for guidance and support – no more so than in those difficult moments facing the whole region where mounting violence and discrimination or economic hardships are together challenging the quest for dignity and citizenry.

So even though this ‘coming round’ a church leader is gradually diminishing in this part of the world too, I believe that it is still part of the intuitive and cultural genes of its inhabitants and one of the prisms that many Christians, Muslims and Jews use in their daily interplay with each other and with their neighbours – consciously or perhaps even unconsciously.

It’s important to keep the dual role of spiritual leaders in mind when trying to understand intercommunal relations in the Middle East.

Posted on by Mark Movsesian

Lecture: Toward a Theory of Religious Pluralism (Feb. 5)

On February 5 at Georgetown’s Berkley Center, the always-interesting sociologist Peter Berger will deliver a lecture, “Toward a Theory of Religious Pluralism”:

Renowned sociologist Peter Berger argues that secularization theory—the idea that modernity necessarily leads to a decline of religion—has been falsified. Rather than an age of secularity, ours is an age of pluralism. In other words, the problem of modernity is not that the gods have fled, but that there are too many of them around. Berger will discuss his ideas on religion and modernity, and sketch an outline of a possible theory of pluralism for the modern era.

Details are here.

Posted on by JCPW

Around the Web This Week

Here are some interesting law & religion stories from around the web this week:

Posted on by JCPW

Walker, “Reason and Religion in Late Seventeenth-Century England”

WalkerThis January, I.B. Tauris will publish Reason and Religion in Late Seventeenth-Century England: The Politics and Theology of Radical Dissent (2013) by historian Christopher J. Walker. The publisher’s description follows.

Reason has always held an uncertain position within Christianity. “I believe because it is absurd’,” wrote Tertullian in the third century as he dismissed rational thought. For Augustine of Hippo, reason had some merit as a route to faith but otherwise was of limited value, since it could undermine a person’s ability to approach God: “the wisdom of the creature,” he opined, “is a kind of twilight.” In seventeenth-century England, reason had come to mean, most usually, a spirit of free enquiry: the exercise of human intelligence upon some form of truth, whether religious or scientific. The notion of revelation, by contrast, indicated the wider accepted divine scheme within which human existence was situated. Christopher J Walker here explores the tensions between the forces of reason and revelation within English religion in the volatile period following the end of the Civil War. Ranging widely across the ideas of The Great Tew Circle, the Cambridge Platonists and dissenters like Paul Best and John Bidle (the “father of English Unitarianism”), the author shows, controversially, that the rational thinking and politics of many of the most supposedly radical figures of the era were not antipathetic to Christian faith but actually integral to it. His book makes an important contribution to the history of both religion and ideas.

Posted on by

Bostom, “Sharia versus Freedom”

Sharia-v-FreedomIn October, Prometheus Books published Sharia versus Freedom by Andrew G. Bostom (Brown University Medical School). The publisher’s description follows.

Author Andrew G. Bostom expands upon his two previous groundbreaking compendia, The Legacy of Jihad and The Legacy of Islamic Antisemitism, with this collection of his own recent essays on Sharia—Islamic law. The book elucidates, unapologetically, Sharia’s defining Islamic religious principles and the consequences of its application across space and time, focusing upon contemporary illustrations.

A wealth of unambiguous evidence is marshaled, distilled, and analyzed, including: objective, erudite studies of Sharia by leading scholars of Islam; the acknowledgment of Sharia’s global “resurgence,” even by contemporary academic apologists for Islam; an abundance of recent polling data from Muslim nations and Muslim immigrant communities in the West confirming the ongoing, widespread adherence to Sharia’s tenets; the plaintive warnings and admonitions of contemporary Muslim intellectuals—freethinkers and believers, alike—about the incompatibility of Sharia with modern, Western-derived conceptions of universal human rights; and the overt promulgation by authoritative, mainstream international and North American Islamic religious and political organizations of traditional, Sharia-based Muslim legal systems as an integrated whole (i.e., extending well beyond mere “family-law aspects” of Sharia).

Posted on by Marc O. DeGirolami · 1 Comment

Constitutions as Establishments

I’ve been thinking a little bit about the difference between establishments and disestablishments of religion.  Constitutions serve several functions, but for this post, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation.  Could one say this about established religions in constitutional states?  The argument would be that established religions in constitutional states place the constitutional state above its ordinary law, and they thereby control and restrain (the reach of) ordinary law.  If the claim works, then as a functional matter, one might think of the Constitution as an establishment of religion.  The Constitution — and, even more specifically, the First Amendment — is our establishment.  It enshrines limits on the power of government, and in the case of the Free Exercise Clause, it can even subordinate the ordinary acts of government to higher law.  And the First Amendment is an establishment inasmuch as it incorporates certain relationships between the state and religion right into the fabric of the governmental structure — relationships which it then fixes and removes from the purview of ordinary law.  The difference between constitutional states with establishments of religions and those without them is that in the former, God or the gods establish the state, while in the latter, people do.  But in both cases, constitutions ‘establish’ the (for lack of a better term) sacredness of the state and cement its position above ordinary law.  And so, from this perspective, the opposite of establishment is not so much disestablishment as tyranny.

Posted on by Mark Movsesian · 1 Comment

Proposed Christian Law School in Canada: A Response

A couple of days ago, I posted about the controversy surrounding a proposed new Christian law school in Canada. I questioned whether it’s a good idea to found a new law school in the current environment and wondered whether Canadian law would allow the proposed school, at Trinity Western University in British Columbia, to require its students, faculty and staff to adhere to traditional Christian sexual ethics. Over at First Thoughts, Dr. Janet Epp-Buckingham, a professor at Trinity Western and member of the group that developed the proposal for the new school, objected to some elements of my post, and I offered her the chance to respond more fully. Janet’s response follows below:

Mark Movsesian wrote a blog on January 22 questioning the wisdom of trying to start a law school at Trinity Western University. The university has a 50 year history and is located in a suburb of Vancouver, British Columbia. Mark based some of his concerns on the downturn for lawyers and law schools in the U.S. While legal education has had its issues in the last few years in Canada, the situation is much different in Canada than in the U.S. Actually, the whole university structure is much different, and more regulated, in Canada.

Trinity Western is the largest of only a handful of Christian universities in Canada. There are very few private universities. Most universities are public universities and subsidized by provincial governments. Before a new program can start at any university, public or private, it must be approved Read more

Posted on by Mark Movsesian

Panel on Bronx Household of Faith (Feb. 20)

The New York Lawyers Chapter of the Federalist Society will host a panel discussion, “Can Government Deny the Use of Public Space for Religious Services? Bronx Household of Faith v. NYC Department of Education,” in New York on Wednesday, February 20. Speakers include Jordan Lorence (Alliance Defending Freedom) and CLR Forum Guest Author Nelson Tebbe (Brooklyn Law School). Details are here.