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Quraishi-Landes on What American Judges Do with Islamic Family Law in Their Courtrooms

Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.

American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.

The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.

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Carpenter on Limiting and Empowering American Indian Religious Freedoms

Kristen A. Carpenter (U. of Colorado Law School) has posted Limiting Principles and Empowering Practices in American Indian Religious Freedoms. The abstract follows.

Employment Division v. Smith was a watershed moment in First Amendment law, with the Supreme Court holding that neutral statutes of general applicability could not burden the free exercise of religion. Congress’s subsequent attempts, including the passage of Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act, to revive legal protections for religious practice through the legislative and administrative process have received tremendous attention from legal scholars. Lost in this conversation, however, have been the American Indians at the center of the Smith case. Indeed, for them, the decision criminalizing the possession of their peyote sacrament was only the last in a series of Supreme Court cases denying American Indian Free Exercise Clause claims. Moreover, the Supreme Court’s Indian cases share a common and previously overlooked feature: in all of them, the Court assessed the Indian claims as too broad or too idiosyncratic to merit Free Exercise Clause protection and instead denied them through a succession of bright line formulations.

Identifying the unrequited search for a “limiting principle” as a basis for analysis, this Article reassesses the religion cases and underlying theoretical questions of institutionalism and equality, in their Indian context. It then identifies two contemporary policy shifts—namely Congress’s decision to entrust accommodation of Indian religious freedoms to federal agencies and its decision to do so at the tribal, versus individual, level—that have, in some respects, facilitated an “empowering practices” approach to American Indian religious liberties in the post-Smith era. Taking a descriptive and contextual approach, the Article illuminates opportunities for additional law reform in the American Indian context and also larger questions of institutionalism, equality, and pluralism in religious freedoms law.

Posted on by Mark Movsesian

Awad, “And Freedom Became a Public-Square”

One of the stories we’ve been following closely at CLR Forum is the Arab Spring and its impact, often unfavorable, on Christian populations. Here is a new book from theologian Najib George Awad (Hartford Seminary) on the topic, And Freedom Became a Public-Square: Political, Sociological and Religious Overviews on the Arab Christians and the Arabic Spring, released last month by LIT Verlag (Berlin). The publisher’s description follows:

This book is an attempt at introducing the readers to some of the substantial components and pivotal ramifications of the latest revolutions in the Arab World, known as “the Arabic Spring.” It aims at offering a fresh, timely and intellectual reading of the promising “Spring” in Syria and in the rest of the “born-again” Arab world. This text is an interdisciplinary study in three parts. The first part is on the uprisings in general. The second is on the Christians in the Arab world and their view of the uprisings, with primary attention to the case of Syria, while the third part is an invitation for developing an Arabic contextual religious discourse out of the recent Arabic (deeply religious) world’s context and changes. What we have here is a book to be beneficial for both those who would like to have a general idea about what happened, and is still happening, in the Arab world, as well as those who would like to get some insightful and coherent understanding of why, how and on what presumptions the Arab Christians base their appraisal of, and stances on, the Arabic Spring.

Posted on by Mark Movsesian

The Book is Probably Better

In my law and religion seminar this week, we’ve been discussing justifications for religious freedom. Why should the state protect religion? One argument is that religion, on the whole, contributes greatly to social capital. Take aesthetics, for example. How much great art and music has Christianity alone inspired? What a diminished culture we would have without the St. Matthew Passion, the Sistine Chapel, and The Brothers Karamazov.

But, critics object, religion isn’t the only possible source of artistic inspiration. The Enlightenment inspired great works too, like Candide and The Magic Flute. And then there’s this:  John Rawls’s  “A Theory of Justice”: The Musical, a current student production at Oxford. (Better hurry, the February 1 performance is already sold out). “A Theory of Justice,” the producers tell us, will be “the world’s first feature-length musical about political philosophy.” Here’s the plot:

In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a selection of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and his objectivist lover, Ayn Rand. Will he achieve his goal of defining Justice as Fairness?

Well, Handel it’s not, but it could be fun in a nerdy sort of way. And it’s nice to see that the musical theater is finally taking Rawls seriously.  (H/T: First Thoughts).

Posted on by JCPW

Around the Web This Week

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

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Brekus, “Sarah Osborn’s World: The Rise of Evangelical Christianity In Early America”

OsbornThis past December, Yale University Press published Sarah Osborn’s World: The Rise of Evangelical Christianity in Early America by Catherine A. Brekus (University of Chicago). The publisher’s description follows.

In 1743, sitting quietly with pen in hand, Sarah Osborn pondered how to tell the story of her life, how to make sense of both her spiritual awakening and the sudden destitution of her family. Remarkably, the memoir she created that year survives today, as do more than two thousand additional pages she composed over the following three decades. Sarah Osborn’s World is the first book to mine this remarkable woman’s prolific personal and spiritual record. Catherine Brekus recovers the largely forgotten story of Sarah Osborn’s life as one of the most charismatic female religious leaders of her time, while also connecting her captivating story to the rising evangelical movement in eighteenth-century America.

A schoolteacher in Rhode Island, a wife, and a mother, Sarah Osborn led a remarkable revival in the 1760s that brought hundreds of people, including many slaves, to her house each week. Her extensive written record—encompassing issues ranging from the desire to be “born again” to a suspicion of capitalism—provides a unique vantage point from which to view the emergence of evangelicalism. Brekus sets Sarah Osborn’s experience in the context of her revivalist era and expands our understanding of the birth of the evangelical movement—a movement that transformed Protestantism in the decades before the American Revolution.

Posted on by JCPW

Brems (ed.), “Diversity and European Human Rights”

BremsThis January, Cambridge University Press published Diversity and European Human Rights: Rewriting Judgments of the ECHR edited by Eva Brems (Universiteit Ghent). The publisher’s description follows.

Through redrafting the judgments of the ECHR, Diversity and European Human Rights demonstrates how the court could improve the mainstreaming of diversity in its judgments. Eighteen judgments are considered and rewritten to reflect the concerns of women, children, LGB persons, ethnic and religious minorities and persons with disabilities in turn. Each redrafted judgment is accompanied by a paper outlining the theoretical concepts and frameworks that guided the approaches of the authors and explaining how each amendment to the original text is an improvement. Simultaneously, the authors demonstrate how difficult it can be to translate ideas into judgments, whilst also providing examples of what those ideas would look like in judicial language. By rewriting actual judicial decisions in a wide range of topics this book offers a broad overview of diversity issues in the jurisprudence of the ECHR and aims to bridge the gap between academic analysis and judicial practice.

Posted on by Marc O. DeGirolami · 2 Comments

Law as Tradition: The Inescapability of Tradition

The third feature of law as tradition discussed by Professor Martin Krygier in his article, “Law as Tradition,” besides its pastness and its presence, is its transmission or handing down (“traditus” is often translated as that which is ‘handed’ down, and I have sometimes wondered whether there is a related but somewhat more distant etymological root: ‘tra’ means across, and ‘dita’ means ‘fingers’ in Italian, making ‘tradita’ transliterate to ‘across fingers.’  But probably the root of ‘dita’ is from the Latin, ‘dare’ — to give — making the transliteration, ‘giving across’).  “Traditions,” writes Krygier, “depend on real or imagined continuities between past and present.  These continuities may be formalized and institutionalized as they are in the institutions of law and religion, though they need not be.”  (251) Cultures which have well developed sacred and secular institutions entrust the task of transmission to various sorts of experts (“kings, priests, judges, scholars”), who are arranged in a hierarchy of  tradition-interpreting and transmitting authority.

Krygier makes a nice move at this point.  He writes that the conventional dichotomy between “tradition” and “change” is false because “the very traditionality of law ensures that it must change.  Although authoritative interpreters might police the present to see that it does not stray too far from their interpretation of the past, it is impossible for traditions to survive unchanged.”  Change can occur deliberately (as when, for example, a new revelation or a new legislation is then incorporated into the tradition) or, in the case of written traditions, simply as a feature of the interpretive instability in the reading of a text (not the wild indeterminacy of text, just its lack of fixity).  In written traditions, “the past becomes available for controversy . . . . Written traditions are continually subject to modification.  Their transmission necessarily involves interpretation of writings.  This ensures change.”  (252)  That is because, in a tradition, texts do not stand alone but must be interpreted so as to be consistent and coherent with the tradition itself.  Krygier is not describing only, or even primarily, the interpretive tradition of the common law:

[G]iven the impossibility of univocal interpretation of most complex texts, there is a sense in which legislation forces interpreters to rely more rather than less heavily on tradition than does the common law. For a relevant statute, still more a code, forces itself on an interpreter. Its words cannot be sloughed aside as dicta or dissent; they have to be interpreted. Since their meanings often will be plural, and since later lawyers nevertheless have to give meaning to them, they are bound to repair to interpretations which have become settled and accepted and/or to canons of statutory interpretation which, as we have seen, are highly traditional. (254)

This is an interesting point, and one might extend it to constitutional interpretation.  Here’s a passage from Edward Shils’s wonderful book, Tradition, quoted by Krygier, which seems pertinent to constitutional interpretation today:

It might be the intention of the recipient to adhere ‘strictly’ to the stipulation of what he has received but ‘strictness’ itself opens questions which are not already answered and which must be answered. If it is a moral or a legal code, or a philosophical system, the very attempt by a powerful mind to understand it better will entail the discernment of hitherto unseen problems which will require new formulations; these will entail varying degrees of modification.  Attempts to make them applicable to particular cases will also enforce modification. Such modifications of the received occur even when the tradition is regarded as sacrosanct and the innovator might in good conscience insist that he is adhering to the traditions as received. (Shils, 45)

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Bennett, Traditional African Religions in South African Law

Traditional African ReligionsThis past November, Juta – Academic published Traditional African Religions in South African Law by Tom Bennett (University of Cape Town). The publisher’s description follows.

Traditional African beliefs, together with African cultural traditions, are enjoying a new-found respect in South Africa, due in large part to the advent of the country’s democratic constitution.  In fact, a large majority of the South African population adheres to some form of traditional belief, often in combination with observance of other religions.  Even so, the traditional faiths are poorly understood and, in spite of constitutional guarantees, receive far from equal treatment, a situation quite at odds with the country’s commitment to equality and religious and cultural diversity.

While there are numerous works on the subject of religion in Africa, there are no works on traditional African religions and their legal implications.  The issue is nevertheless of serious political and legal concern in South Africa, since it raises diverse questions involving freedom of religion, the equal treatment of religions, traditional healing, witchcraft, animal sacrifice, circumcision, marriage and burial.

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Rao, “Animal Rights and Animal Laws in the Bible: The Daily Practice of Reverence for Life”

This month, Edwin Meller Press published Animal Rights and Animal Laws in the Bible: The Daily Practice of Reverence for Life by Chilkuri Vasantha Rao (Andhra Christian Theological College). The publisher’s abstract follows.

What characterizes the proper ethical treatment of animals as outlined in the Old Testament? Animals play an important role in the Old Testament, and in particular the Pentateuch. Ritual sacrifices were a part of the ancient traditions, and there are rules written into the laws that pertain to this practice as well as the religious approach to animals and nature. In the oft quoted passage from Genesis the call is to not only be fruitful and multiply, but to reign over the earth and subdue it along with the animals that God created. The author explores the fallout of an anthropocentric way of approaching nature that he claims is a misreading of Genesis. Taken out of context this can seem as though ethics is arbitrary in the pursuit of such dominion, but in reality the Pentateuch shows a rather rigid set of laws revealing the careful treatment of animals as sacred beings necessary for the flourishing of human life on earth.