Posted on by L&R Forum

Franck: Religious Liberty–Cores and Peripheries, Courts and Legislatures

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Matthew J. Franck (Witherspoon Institute) responds to Muñoz. For other posts in this series, please click here. 

In his most recent work, Vincent Phillip Muñoz continues to make his mark as one of our most thoughtful and searching students of the American founding, of the constitutional principle of religious liberty, and of the meandering course of the Supreme Court’s jurisprudence on the free exercise of religion. In his latest articles in the American Political Science Law Review and the Notre Dame Law Review, and in his briefer essay for the Law and Religion Forum to kick off this symposium, he writes with his characteristic verve and clarity, as well as his usual familiarity with a wealth of relevant sources in the founding era.

I propose in this response to discuss Muñoz’s most significant contributions to our understanding of the constitutional law of religious freedom, and then to enumerate some more problematic features of his argument, along the way posing some questions. In some cases these questions will be real questions—that is, the kind to which I do not claim to have the answer, but to which I think Muñoz has not supplied one either. Attentive readers should be able to tell which those are.

The Good Stuff

Muñoz is right to remind us that, in the thought of the founding generation, religious freedom is a natural right, not merely a species of toleration granted or withheld at the government’s discretion. From the founders’ perspective, religious liberty is pre-political, grounded in our duty to God as we understand it, and taking precedence over the competing claims of the state, or even of the civil society that exists prior to the state and is responsible for creating it.

For multiple purposes, not just for understanding religious freedom, we do well to understand, as Muñoz does, that the founders’ social compact theory entailed two crucial but distinct steps in the creation of political authority. First is the formation of civil society itself, by the mutual and unanimous compact of natural persons with one another. Second is the establishment of government, by the choice of a majority of those persons in that society. What those individuals surrender, and what they retain—including those things not even in their power to surrender—will determine the boundaries of power that constrain a limited government.

Among the things identified by many of the founders—and implied in many of their public documents declaring rights, and establishing and limiting governments—as never surrendered, nor subject to being surrendered, is what Muñoz calls the individual’s “natural right to religious liberty.” It Read more

Posted on by Christina Vlahos

Syed, “Coercion and Responsibility in Islam”

In November, Oxford University Press will release “Coercion and Responsibility in Islam: A Study in Ethics and Law,” by Mairaj Syed (University of California, Davis). The publisher’s description follows:

In Coercion and Responsibility in Islam, Mairaj Syed explores how classical Muslim theologians and jurists from four intellectual traditions argue about the thorny issues 9780198788775.jpegthat coercion raises about responsibility for one’s action. This is done by assessing four ethical problems: whether the absence of coercion or compulsion is a condition for moral agency; how the law ought to define what is coercive; coercion’s effect on the legal validity of speech acts; and its effects on moral and legal responsibility in the cases of rape and murder.

Through a comparative and historical examination of these ethical problems, the book demonstrates the usefulness of a new model for analyzing ethical thought produced by intellectuals working within traditions in a competitive pluralistic environment. The book compares classical Muslim thought on coercion with that of modern Western thinkers on these issues and finds significant parallels between them. The finding suggests that a fruitful starting point for comparative ethical inquiry, especially inquiry aimed at the discovery of common ground for ethical action, may be found in an examination of how ethicists from different traditions considered concrete problems.

Posted on by Christina Vlahos

Jalajel, “Women and Leadership in Islamic Law”

In November, Routledge will release “Women and Leadership in Islamic Law: A Critical Analysis of Classical Legal Texts,” by David Jalajel (King Saud University).  The publisher’s description follows:

Islamic law has traditionally prohibited women from being prayer leaders and heads of state. A small number of Muslims today are beginning to challenge this stance, but they face considerable opposition from the broader Muslim community.

9781138123137.jpgWomen and Leadership in Islamic Law examines the assumption within much existing feminist scholarship that the patriarchal nature of pre-Islamic and early Muslim Near Eastern Society is the primary reason for the development of Islamic legal rulings prohibiting women from leadership positions. It claims that the evolution of Islamic law was a complex process, shaped by numerous cultural, historical, political and social factors, as well as scriptural sources whose importance cannot be dismissed. Therefore, the book critically examines a broad survey of legal works from the four canonical Sunni schools of law to determine the factors that influenced the development of the legal rulings prohibiting women from assuming various leadership roles. The passages that elaborate rulings about women’s leadership are presented in translation as an appendix to the research, and are then subjected to a variety of critical analyses to identify the reasons, influences, and assumptions underlying those rulings.

This is the first time works of all four schools of law have been subjected to this kind of analysis for the express purpose of determining the extent to which gender attitudes have influenced and determined the rulings. This book will therefore be a vital resource for students and scholars of Islamic Studies, Religious Studies and Gender Studies.