Via Professor Howard Friedman: Nima Mersadi Tabari, Ph.D. candidate at the University of London’s Institute of Advanced Legal Studies, has timely posted The Sharia’h Dimension of the Persian Gulf’s Hydrocarbon Resources. Tabari illustrates how Islamic law governs extraction of Middle Eastern oil, financing oil operations, and sale of this indispensable and all consuming resource. Such a study promises to illuminate the originating motives of the global oil politics that permeate American domestic policy (consider the congressional Arctic National Wildlife Refuge drilling dispute, which remains active after decades [NYT, Feb. 3]) and its foreign concerns (the Iranian threat to blockade the Strait of Hormuz, and naval buildup there, is a frightening tinderbox [NYT, Feb. 13]. Please find Tabari’s abstract after the jump. Read more
Neo on Free Speech & the Offense of Promoting Hostility Between Different Groups
Jaclyn Ling-chien Neo (Nat’l U. of Singapore, Faculty of Law) has posted Seditious in Singapore! Free Speech and The Offence of Promoting Ill-Will and Hostility between Different Racial Groups. The abstract follows.
In 2005, the archaic laws of sedition were summoned to counteract speech considered offensive to racial and religious groups in Singapore. Under the Sedition Act, it is seditious, inter alia, to promote feelings of ill-will and hostility between different races or classes of the population. In a later case involving religious proselytization, a Christian couple was charged and convicted of sedition under the same section. This article examines this new phenomenon. It investigates the manner in which these laws have been employed and jurisprudentially developed to restrain speech on race and/or religion in Singapore. The article argues that the current state of the law is highly problematic for its adverse impact on free speech as well as for its conceptual confusions with alternative bases for restraining speech. It contends that failure to extricate the existing conceptual confusions is adverse to free speech and community integration in the long run. A threefold legal framework is proposed to provide clearer guidance on inter-racial and inter-religious interaction within the Singaporean society.
Eng, Ruskola & Shen on China and the Human
David L. Eng (U. of Penn.), Teemu Ruskola (Emory U. School of Law) Shuang Shen (Penn. State. U.) has posted China and the Human. The abstract follows.
China is everywhere in the news. Most stories seem to fall into one of two categories: accounts of China’s astounding economic development, and reports of equally astonishing human rights abuses in China. Paradoxically, as it turns into a global economic powerhouse, China’s relationship to political freedoms and rights appears to stand in an almost inverse relationship to its economic success. To make sense of the contemporary political moment, this essay examines the politics and histories of China and the human. At the same time, it constitutes a critical introduction to a special double issue of the journal Social Text on the same theme. The special issue, consisting of eleven essays and a visual dossier, considers the problematic conceptual, political, historical, and cultural relationship between Chineseness and humanity. By juxtaposing “China” and “the human” as two discrete categories, this introductory essay does not assume either concept as a pre-given object of knowledge. Rather — together with the other essays in the volume — it examines both China and the human as set of relational, differential, and contrapuntal events, in specific historical and geopolitical contexts.
The introductory essay provides a conceptual and historical map for this inquiry, in a comparative context that examines Euro-American, Chinese, and transnational itineraries of the human and their global crossings. It analyzes China’s potential to undo the universalizing claims of Western idealized norms of the human, while refusing to re-essentialize a Chinese otherness as an alternative perspective. More specifically, the essay interrogates the domination and limitations of the universal human while tracing alternative cosmologies and discourses of Chinese humanism and anti-humanism, informed by Confucianism, Daoism, and Buddhism, as well as other religious and political traditions. It also examines Marxist and Maoist conceptualizations of the human from transnational perspectives, and finally it considers the status of the human in contemporary China, defined increasingly as a bearer of a set of political and legal rights. What humanity means in China today — and in the world — and what it will mean in the future, is part of an ongoing struggle over the meaning of the past and the politics of the present. This essay offers “China” as a methodology in itself, rather than simply an object of inquiry.
Crimm on Muslim Relief Organizations
Nina Crimm (St. John’s) has posted Reframing the Issue and Cultivating U.S.-Based Muslim Humanitarian Relief Organizations. The abstract follows.
Funded by Muslim-American donors, legitimate U.S.-based Muslim charities for decades provided crucial funds and services in geographic areas ravaged by natural disasters, many with Muslim populations. These charities’ humanitarian aid, offered directly or through local non-governmental organizations, benefited the affected people, winning their gratitude and allegiance during the rescue, relief, recovery, and reconstruction operations following tsunamis, earthquakes, floods, and other such catastrophes. Their assistance also conserved and expanded opportunities to provide development aid to these same regions and individuals, not only to improve their communities and lives but also to secure their hearts and minds.
The U.S. government’s “war on terror” dramatically impacted these constructive influences and relationships. The post-9/11 counterterrorism laws and their stern enforcement fomented fear and anger among Muslim-Americans, substantially diminishing their goodwill toward the government. The government’s actions also engendered an inhospitable philanthropic environment for Muslim-Americans. These resulted in a significant reduction in Muslim- Read more
Fiddes on the Roots of Religious Freedom
Paul S. Fiddes (University of Oxford) has posted The Root of Religious Freedom: Interpreting Some Muslim and Christian Sacred Texts. The abstract follows.
A comparison of a recent Open Letter from Islamic scholars entitled A Common Word Between Us and You (2007) with an earlier Christian text, A Short Declaration of the Mistery of Iniquity by Thomas Helwys (1612), shows that both locate a claim for religious freedom in a theological appeal to the sovereignty of God. Both also state or imply a claim for freedom of conscience with the same theological grounding. A Common Word proffers an exegesis of the Qur’anic text Aal ‘Imran 64 in which the phrase ‘that none of us should take others for lords besides God’ is understood as a defence of religious liberty. Three reasons are offered for this interpretation: consistency with the commentary tradition, the situational need for religious co-existence and a hermeneutic in which love is predominant. The Mistery of Iniquity proffers an exegesis of New Testament texts, and especially John 18:36 (‘My kingdom is not of this world’), which similarly roots religious freedom in the sovereign claims of God over human life. This ‘theological’ approach seems to have resonance with an unease about the anthropocentric nature of ‘human rights’ as expressed recently in some Christian theology. However, there are gains in setting a theological approach alongside an appeal to human rights rather than allowing one to suppress the other. Comparison of the two texts under consideration, and of the reasons why they adopt the hermeneutic they do, allows us to understand how an assertion of religious freedom might be framed in terms that carry conviction within different religious communities.
Galadari on Qur’anic Understandings of Diversity and Tolerance
Abdulla Galadari (Higher Colleges of Techonology; American University in Dubai) has posted Diversity in Heaven: Qur’anic Perspective Beyond Pluralism. The abstract follows.
There are difficulties in the practicality of the theory for multiculturalism. Living in a tolerant society means to accept the other, but keeping a distinct identity. The main ingredient that makes people remain apart from each other is often rooted from within their faith and religion. This study looks into the Qur’anic perspective of diversity and pluralism. Like many Christians, many Muslims believe in exclusivism, in which Heaven is exclusive to the adherents of a certain faith and tenets, whether within different sects of the same religion or different religions. This study proves that such an ideology is a misunderstanding of the Qur’an. It shows how the Qur’an portrays not only pluralism, but goes beyond pluralism. Tolerance is to accept the other, but to remain distinct. However, the Qur’an teaches that the distinction between faiths is only a farce appearance used to prove the true merits of people. Although many Muslim scholars convey a message of exclusivity of Heaven, the Qur’an calls such people who make such claims as people without knowledge. Exclusivity of Heaven is an invention by traditional scholars that the Qur’an explicitly speaks against. The proof provided in the paper uses the Qur’anic text and analyzing its linguistics, grammar, and context. The Qur’an not only accepts diversity within society, but proves that this diversity is due to misunderstanding reality, which is the oneness of people and heavenly religions. The terms ‘Islam’ and ‘Muslims’ are mentioned many times in the Qur’an, but most Qur’anic commentators define it as the surrender to the will of G-d, except in few verses, where it is defined as the religion known today as Islam. It is this inconsistency in defining the Qur’anic term that brings a false sense of exclusivity within Islam.
Deb on Hindu Child Marriage Law
Shakti Deb (KIIT Law School) has posted A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law. The abstract follows.
Child Marriage is considered to be a violation of human rights, according to UNICEF, it represents perhaps the most prevalent form of sexual abuse and exploitation of girls. In many parts of the world especially underdeveloped countries parents give consent to child marriages hoping that it would benefit the girl both economically and socially. This practice is especially common in rural areas and amongst economically backward families, the daughter is married off at an young age to relieve the family from her economic responsibilities.
Strang & Breen on Catholic Legal Education at the Middle of the Twentieth Century
Lee J. Strang (U. of Toledo College of Law) and John M. Breen (Loyola U. Chicago School of Law) have posted The Road Not Taken: Catholic Legal Education at the Middle of the Twentieth Century. This article dovetails nicely with Ashley Berner’s recent article on the CLR Forum, Education and Belief: Ontology. The abstract for Strang and Breen’s article follows.
The Road Not Taken describes the history and animating themes of American Catholic legal education. The heart of The Road Not Taken is a now forgotten episode in the history of American legal education. In the late 1930s, a number of leading Catholic legal scholars issued a call for reform — a proposal which urged Catholic law schools to educate in a manner distinctive from their non-Catholic peers. While open to students from diverse faith backgrounds, the proponents of this reform argued that teaching and scholarship at Catholic law schools should be grounded in the Catholic intellectual tradition. As we demonstrate, however, this call for reform went unanswered. Had it succeeded, it could have profoundly changed both the landscape of legal education and the face of the legal profession.
In this Article, we accomplish three goals. First, we describe the founding and early years of Catholic legal education. Second, we detail the national effort to reform Catholic legal education that began in the 1930s and which was driven, in large measure, by the rise of Legal Realism at home and the threat of totalitarianism abroad. Third, we explore the social, institutional, and historical reasons that explain why the reform effort failed.
Gedicks on Defending Establishment Clause Incorporation
Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted Establishment Clause Incorporation: A Logical, Textual, and Historical Defense. The abstract follows.
Incorporation of the Establishment Clause against the states is logically and textually impossible — so say most academics, many lower-court judges, and a Supreme Court justice. They maintain that because the Clause was originally understood as a mere structural protection of state power, it cannot coherently restrain state power or protect a personal due process liberty as required for incorporation. Anti-incorporationists also seem to think that the purported incoherence and textual inconsistency of Establishment Clause incorporation excuse serious engagement of Reconstruction history, since they ignore it except for the irrelevant Blaine Amendment defeated as the Reconstruction era ended.
If anti-incorporation critics are right, the entire body of Establishment Clause doctrine is doomed: Nearly every Supreme Court decision interpreting the Clause has involved a challenge to state action. Establishment Clause doctrine thus cries out for an account of its incorporation against the states that is both logically coherent and consistent with the liberty-protecting text of the 14th Amendment. Read more
Beschile on Defining Religion
Donald L. Beschile (The John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”?. The introduction follows.
In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.