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Mohammedi on Sharia-Compliant Wills

Omar T. Mohammedi (Fordham U. School of Law) has posted Sharia-Compliant Wills: Principles, Recognition, and Enforcement. The abstract follows.

Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Sharia law is obligatory upon all Muslims wishing to comply with their religious obligations. Thus, when it comes to inheritance, many Muslims living in the United States must make the necessary arrangements to ensure that their legacy will pass under the precepts of Sharia law while also maintaining compliance with state law. As Muslim populations across the United States continue to expand, practitioners in the field will face new, interesting dilemmas and challenges. Due to its complexity and differences with the established legal theories of intestacy laws in the United States, Islamic inheritance law proves to be an engaging and important subject.

In ensuring that Sharia-compliant wills that are also in line with state law, practitioners will likely face certain challenges. This article seeks to identify and address such challenges. There are three major areas where these challenges come to the forefront: basic conflicts between U.S. intestacy laws and Islamic inheritance laws; conflicts with the Establishment Clause of the First Amendment of the U.S. Constitution; and potential public policy conflicts arising from the enforcement of certain interpretations of Sharia law.

First, this article will provide an overview of Islamic inheritance laws. It will then compare such laws with U.S. intestacy laws and subsequently discuss how the two might be synthesized and reconciled to satisfy both bodies of law. This article then presents recommendations on how the aforementioned conflicts may be addressed to comply with both Sharia and U.S. law while avoiding Establishment Clause issues. Finally, this article hopes to demonstrate the extent to which a Sharia-compliant may be enforceable in U.S. courts.

Posted on by Mark Movsesian

Update on English Sabbath-Observance Case

An update on an earlier post about an English appellate court decision on the right of Christian employees to decline to work on Sundays. The decision was released to the public last week, and it turns out that initial press reports were a bit misleading.

The case involved Ms. Celestina Mba, a caregiver in a children’s home who wished to abstain from work on Sundays for religious reasons. When her employer told her she would have to work Sundays, Ms. Mba sued for religious discrimination. A lower court held for the employer and, last month, an  appellate court affirmed.

Under English law, employers can require Christian employees to work Sundays  if there is a legitimate need and the work requirement is proportionate to that need. Press reports, particularly this one in the Telegraph,  made it seem like the appellate court had ignored that balancing test and held categorically that Sunday observance is not a core Christian belief and that Christians could be required to work.

As it turns out, the appellate court did discuss the balancing test. The facts of the case were these. The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children. These were surely legitimate business needs. And the center had only required Ms. Mba to work some Sundays — roughly two out of three. This seemed a proportionate response to that need.

So where did the language about Sunday observance not being a core Christian belief come in? The lower court had reasoned that, because many Christians do not feel an obligation to abstain from Sunday work, abstention could not be considered a core Christian belief. The appellate court criticized the lower court’s language on this point, but basically agreed with the lower court’s reasoning. In determining whether a work requirement were proportionate to a legitimate business need, the appellate court explained, one had to consider what percentage of a faith community the requirement would affect. If the requirement would affect a large segment of the community, that would suggest that the requirement were disproportionate. If, by contrast, the requirement would affect only a small percentage, that would suggest the opposite. Here, the appellate court reasoned, in requiring Sunday work, the center could take into account the fact that many Christians would have no objection at all to working Sundays.

This is all a bit complicated, the way legal opinions often are. Frank Cranmer at the Law and Religion UK blog has a good description of the opinion, if you’re interested in more details. The bottom line is that the appellate court’s decision was narrower and more subtle than the Telegraph’s report conveyed.

Why did the Telegraph get it wrong? The appellate court’s judgment was announced on December 13, but the opinion was not released to the public until January 10. The Telegraph reported the story at the end of December, before the opinion was available. Apparently the reporter relied on lawyers’ accounts of the case.

Posted on by Marc O. DeGirolami

Law as Tradition: Law’s Pastness

This is perhaps not directly connected to religion, but — indirectly — the connection could not be much closer.

One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986).  Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts.  The essay is well worth reading in full.  Krygier identifies and discusses three special features of law as tradition: law’s pastness, law’s authoritative presence, and law’s transmission or continuity from past to present.

Here’s the sense of Professor Krygier’s discussion of law’s pastness.  As in every tradition, law records, preserves, and ‘hands down’ across the generations a composite of opinions and values.  But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized.  And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).

Judging, he writes,

that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one’s decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)

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Ten Napel on An Alternative Approach to Limiting Government Religious Displays in the Public Workplace

Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.

One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.

First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.

Posted on by JCPW

Moseley, “Nations and Nationalism in the Theology of Karl Barth”

51G+ef0ZdGL._SS500_In March, Oxford University Press will publish Nations and Nationalism in the Theology of Karl Barth by Carys Moseley (University of Edinburgh). The publisher’s description follows.

Karl Barth was well-known for his criticism of German nationalism as a corrupting influence on the German protestant churches in the Nazi era. Defining and recognising nationhood as distinct from the state is an important though underappreciated task in Barth’s theology. It flows out of his deep concern for the capacity for nationalist dogma – that every nation must have its own state – to promote warfare. The problem motivated him to make his famous break with German liberal protestant theology.

In this book, Carys Moseley traces how Barth reconceived nationhood in the light of a lifelong interest in the exegesis and preaching of the Pentecost narrative in Acts 2. She shows how his responsibilities as a pastor of the Swiss Reformed Church required preaching on this text as part of the church calendar, and thus how his defence of the inclusion of the filioque clause in the Niceno-Constantinopolitan Creed stemmed from his ministry, homiletics and implicit missiology.

The concern to deny that nations exist primordially in creation was a crucial reason for Barth’s dissent from his contemporaries over the orders of creation, and that his polemic against ‘natural theology’ was largely driven by rejection of the German liberal idea that the rise and fall of nations is part of a cycle of nature which simply reflect divine action. Against this conceit, Barth advanced his famous doctrine of the election of Israel as part of the election of the community of the people of God. This is the way into understanding the division of the world into nations, and the divine recognition of all nations as communities wherein people are meant to seek God.

Posted on by Mark Movsesian

Coming Economic Crisis in Egypt?

Here at CLR Forum, we’ve been thinking about the role of Islamic law in Egypt’s new constitution, which voters approved last month. The new constitution represents a significant victory for Morsi’s Muslim Brotherhood. But, as Walter Russell Mead points out on his blog today, the Brotherhood still faces major problems. Egypt is on the brink of an economic crisis that the Morsi government seems unable to handle.

Since the Arab Spring, foreign investors and tourists have fled Egypt and the country’s currency has plummeted. Regional allies like Turkey and Qatar have lent Egypt billions of dollars, but the IMF, which has the real money, is refusing to advance roughly $5 billion until the Morsi government implements an austerity package. This would mean political disaster for Morsi, since many Egyptians depend on government food subsidies to survive. So things are in a holding pattern. Meanwhile, the bad economy is creating a security crisis. Egyptians complain about a lack of basic safety.

It’s hard to know what will come next. Perhaps frustrated Egyptians will decide that the problem is that the Muslim Brotherhood is not Islamist enough and turn to the even more radical Salafis. I can’t imagine the Salafis would have a better relationship with the IMF, though. Or perhaps a military strongman who mouths the correct pieties will take charge. Anyway, it’s hard to imagine a situation in which Egyptians turn to the secular liberals whom the West hoped would run Egypt after the fall of Mubarak.

Posted on by JCPW · 1 Comment

Esposito, “The Future of Islam”

0195165217This March, Oxford University Press will publish The Future of Islam by John L. Esposito (Georgetown University). The publisher’s description follows.

John L. Esposito is one of America’s leading authorities on Islam. Now, in this brilliant portrait of Islam today–and tomorrow–he draws on a lifetime of thought and research to sweep away the negative stereotypes and provide an accurate, richly nuanced, and revelatory account of the fastest growing religion in the world.

Here Esposito explores the major questions and issues that face Islam in the 21st century and that will deeply affect global politics. Are Islam and the West locked in a deadly clash of civilizations? Is Islam compatible with democracy and human rights? Will religious fundamentalism block the development of modern societies in the Islamic world? Will Islam overwhelm the Western societies in which so many Muslim immigrants now reside? Will Europe become Eurabia or will the Muslims assimilate? Which Muslim thinkers will be most influential in the years to come? To answer this last question he introduces the reader to a new generation of Muslim thinkers–Tariq Ramadan, Timothy Winter, Mustafa Ceric, Amina Wadud, and others–a diverse collection of Muslim men and women, both the “Martin Luthers” and the “Billy Grahams” of Islam. We meet religious leaders who condemn suicide bombing and who see the killing of unarmed men, women, and children as “worse than murder,” who preach toleration and pluralism, who advocate for women’s rights. The book often underscores the unexpected similarities between the Islamic world and the West and at times turns the mirror on the US, revealing how we appear to Muslims, all to highlight the crucial point that there is nothing exceptional about the Muslim faith.

Recent decades have brought extraordinary changes in the Muslim world, and in addressing all of these issues, Esposito paints a complex picture of Islam in all its diversity–a picture of urgent importance as we face the challenges of the coming century.

Posted on by Mark Movsesian

Muslim Parents Sue Greek Orthodox School for Banning Head Scarves

Here’s an unusual case. Muslim parents are suing a public school in south London for refusing to allow their nine-year old daughter to wear a head scarf to class. That’s not so unusual in itself. Law school casebooks are full of cases in which parents sue public schools for failing to accommodate their children’s religious practices. What makes this case unusual is that the public school in question, St. Cyprian’s in Croydon, is an Orthodox Christian school.

To Americans, faith-based public schools are unfamiliar. As Ashley Berner explains here, however, such schools are common in England. According to the official government website, roughly 7000 “maintained,” as in publicly maintained, “faith schools” exist, the large majority of which are affiliated with the Church of England. St. Cyprian’s is affiliated with the Greek Orthodox Church — it is the only Greek Orthodox school in England, in fact. As a faith-based school, St. Cyprian’s may give priority in admission to Greek Orthodox students, though by law it must admit students of other faiths if places remain unfilled. As far as I can tell, like other public schools, St. Cyprian’s may adopt its own school uniform policy, subject to very broad guidelines.

I’m not sure how the English courts will resolve this dispute. But the whole situation is puzzling and it’s a shame things have come so far. It’s odd, in the circumstances, that the parents would insist on a Greek Orthodox school for their daughter. If it’s so important to them that she maintain Muslim practices, why put her in a school in which a different religion is pervasive? Isn’t that a bit unreasonable, and unfair to her? The school says the parents petitioned to send their daughter to St. Cyprian’s, and that the school’s rule against head scarves was explained to them before she matriculated. St. Cyprian’s has very high academic ratings; perhaps that explains why the parents are so eager to have their daughter attend. Still, it’s all rather odd.

On the other hand, the school’s position is puzzling as well. There’s nothing in Orthodoxy that forbids the wearing of head scarves; in fact, some Orthodox women wear head scarves in church. Perhaps St. Cyprian’s is concerned that a visible non-Orthodox presence would dilute the school’s identity. That’s a valid concern, in my opinion. And I can understand how school officials might think they’ve been sandbagged by the parents in this case. If the parents knew about the rule against head scarves before their daughter matriculated, why are they complaining now? But the law requires St. Cyprian’s to admit non-Orthodox students if it has places for them, and it doesn’t seem tenable to admit such students and then forbid them from wearing their religious attire. Anyway, mightn’t it be better, in the circumstances, to allow this student to wear her head scarf? What would demonstrate more effectively the essential nature of Christianity — its willingness, even joy, in serving everyone and anyone?

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Amira El-Azhary Sonbol, “Gulf Women”

ImageLast fall, Syracuse University Press published Gulf Women (2012) edited by Amira El-Azhary Sonbol (Georgetown University). The publisher’s description follows.

This groundbreaking collection of essays provides a greater understanding of the history of the Gulf and the Arab world and is of relevance to Muslim women everywhere. Featuring research never published before, Gulf Women is the result of a project aimed at finding sources and studying the history of women in the region. The chapters cover ancient history and the medieval, early modern, and contemporary periods. Presenting discourses on the life of women in early Islam, women’s work and the diversity of their economic contribution, the family—and how it changed over time—as well as the legal system and laws dealing with women and family from the pre-modern to the modern periods, this is a pioneering collection by leading scholars from Arab and international universities.

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Jeffery J. Langan, “The French Revolution Confronts Pius VI”

Layout 1This February, St. Augustine Press will publish The French Revolution Confronts Pius VI translated by Jeffery J. Langan (Holy Cross College). The publisher’s description follows.

The writings of Pope Pius VI, head of the Catholic Church during the most destructive period of the French Revolution, were compiled in two volumes by M.N.S. Guillon and published in 1798 and 1800. But during the Revolution, the reign of Napoleon, and the various revolutionary movements of the 19th century, there were extraordinary efforts to destroy writings that critiqued the revolutionary ideology. Many books and treatises, if they survived the revolution or the sacking from Napoleon’s armies. To this day, no public copy of Guillon’s work exists in Paris.

Now, for the first time in English, these works comprising the letters, briefs, and other writings of Pius VI on the French Revolution are available. Volume I treats the first shock of the Revolution and the efforts of the Pope in 1790 and 1791 to oppose the Civil Constitution of the Clergy (which famous revolutionary and shrewd diplomat Talleyrand referred to as “the greatest fault of the National Assembly”). Volume II will be published later, and deals with the aftermath of the Civil Constitution through Pius’s death in exile). Editor and translator Jeffrey Langan presents the materials leading up to and directly connected with these decrees, in which the National Assembly attempted to set up a Catholic Church that would be completely submissive to the demands of the Assembly. Volume I also covers Pius’s efforts to deal with the immediate aftermath of the Constitution after the National Assembly implemented it, including his encyclical, Quod Aliquantum.

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