Posted on by Marc O. DeGirolami

Burnside on the Spirit of Biblical Law

Here’s a very interesting article just published by Jonathan Burnside (Bristol), The Spirit of Biblical Law.  The abstract follows:

The Bible—paradoxically—has been deeply influential on Western civilization, including law, yet our assumptions are deeply hostile to its having any influence in the modern world at all. This article subverts the view that there is nothing we can learn from biblical law. Instead, it suggests that it is possible to speak of ‘the spirit of biblical law’. This means seeing biblical law as more than just an object of textual critique. Biblical law can be caricatured in a number of ways; however, this is an inadequate way of reading the subject. We need to recover the spirit of biblical law by looking at a number of its substantive areas, including: property and money; economic organization; race relations and immigration; the role, nature and accountability of Government; family structure; our relationship with the environment and the pursuit of justice. As we do so, we discover that the spirit of biblical law has an ethos which is worth exploring as an imaginative and moral resource.

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Tagari on Human Rights and Personal Systems of Family Law

Hadas Tagari (student at Bar-Ilan University–Faculty of Law) has posted Personal Family Law Systems – A Comparative and International Human Rights Analysis.  The abstract follows.

This article analyzes the structures and substances of personal systems of family law based on religious affiliation within their social, political and historical contexts, explores the varied ways in which they infringe on the human rights of those governed by these systems – gender equality implicated by most – and the way international law and jurisprudence of human rights respond to these challenges. This analysis wishes to suggest that looking at the specific manifestations of personal family law systems in concrete contexts illuminates significant human rights implications which have not hither to received sufficient attention in mainstream human rights discourse, for various legal, cultural and political reasons. The contexts which this article will draw on are personal family law systems in Israel, India, Lebanon and Morocco, which comprise a varied sample of family law structures and legal, cultural, social and political contexts.

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Hussein on Legal Reform and Women’s Rights in Yemen

Douaa Hussein  (American U. in Cairo – Dept. of Law) has posted Legal Reform as a Way to Women’s Rights: The Case of Personal Status Law in Yemen. The abstract follows.

In this paper, the researcher argues that the legal reform of the Personal Status Law is not sufficient to ensure gender equality within the Yemeni context where the religious and cultural value systems of rights remain untouched. Narrow and conservative interpretation of sharia forms the main conceptualization of the rights in the current law. The tribal value system and conceptualization of rights and its practices on the ground has affected the equitable marital rights. The researcher further claims that the current law which is premised mainly on sharia, consolidates the concept of ‘Wrong Rights’, obstructing women’s efforts to ensure equality in the Personal Status Law. Read more

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Schwartzman on Questioning the Special Treatment of Religion

Micah Schwartzman  (U. of Virginia School of Law) has posted What if Religion is not Special? The abstract follows.

This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.

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Raccuia on RLUIPA and Burdens of Proof

Thomas E. Raccuia (student at Fordham University School of Law) has posted RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases. The abstract follows.

Zoning and other land use regulations are often used to hinder the operation of religious institutions or the construction of their facilities. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), which protects religious land use. RLUIPA’s Equal Terms provision forbids governments from imposing land use regulations that treat religious institutions on less than equal terms with secular institutions.

Despite the apparent clarity of the statutory language, federal circuit courts have disagreed over the allocation of burdens of proof in Equal Terms cases. Some circuits have held that religious plaintiffs have the burden of persuasion, while others have held that the burden of persuasion falls on government defendants.  Read more

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Horwitz on “Tie Games” in Law and Religion

As a commentary chapter for a new book based on the Matters of Faith conference held at University of Alabama, Paul Horwitz (University of Alabama School of Law) has posted Law, Religion, and Kissing Your Sister. The abstract follows.

This paper was written as a commentary chapter for a forthcoming book titled “Matters of Faith: Religious Experience and Legal Response” (Austin Sarat, ed.). The book is based on a conference held at the University of Alabama School of Law in October 2011. Five papers were presented at that conference: on the principal issues discussed, the result was a stark 2-2 tie (with the fifth paper, by a historian, valuable in itself but not taking sides on the disputed matters.) Given the normative orientation of legal scholars, the normal course of business would be to say who is right. But this comment instead focuses on a broader but perennial question: the nature of “tie games” in law and legal scholarship in the area of law and religion.

Church-state conflicts, given the contested and incommensurable issues they involve, are particularly prone to end in ties. That fact has recently encouraged some scholars (myself included) to focus more on the “tragic” nature of church-state law, and the moral remainders that are inevitable in this field, than on the “comic” search for a single value or approach that might resolve some of these disputes once and for all. From that perspective, rather than try to “break the tie,” there may be more value in considering why church-state issues are prone to end in ties, and what if anything we ought to do or feel about it. Read more

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Bateman on Nicaea and the Beginnings of State Sovereignty

C.G. Bateman (U. of British Columbia Faculty of Law) has posted Nicaea and Sovereignty: The Introduction of an Idea About the Beginnings of State Sovereignty. The abstract follows.

This research is concerned with the development of international law in so far as it relates to the historical background for the Peace of Westphalia, which itself is understood as a seminal event in the history of the growth of both the theoretical notion of sovereignty and, in its present milieu, as an attribute of states. My suggestion in this research is that the late antiquity transformation of the Christian church from spiritual and cultural governance to temporal imperial sovereignty in Europe suggests a trenchant indication of what Nicaea represented in terms of setting a trajectory for the church’s political sovereignty, a sovereignty which ultimately begun to be wrested back from it at Westphalia. This research suggests that the sovereignty which characterized the Late Antiquity Roman Empire under the Emperor Constantine was bequeathed to the Christian Church at Nicaea by fiat. In other words, this research is suggesting a starting point for the development of European sovereignty at which Europe’s most enduring institution of eighteen-hundred plus years was the main actor: the Roman Catholic Church.

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Garnett on School Choice and the Future of Catholic Schools

Nicole Stelle Garnett (Notre Dame Law School) has posted Are Charters Enough Choice? School Choice and the Future of Catholic Schools. The abstract follows.

This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices.  This essay is, in essence, a response to this “charters are enough,” argument. It proceeds from the simple reality that current education policy in most states offers Catholic school leaders an unacceptable ultimatum: If you want access to public education funds for your schools, then secularize and relinquish control of them. As a result of this ultimatum, Catholic schools will continue to close by the dozens in the inner city neighborhoods each year, and many of them will be replaced by charter schools, either by design or default. For reasons addressed in the essay, Catholic schools’ departure is a loss for civil society, especially for the urban communities where they have served for decades. Furthermore, it is a loss that could be mitigated by school-choice devices that make private schools financially accessible for the children living in these communities who desperately need the high-quality education that Catholic schools have long provided. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.

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Nasab and Meghdadi on Human Rights Education in Muslim Societies

Ahmad Erfani Nasab (Mofid University Legal Clinic) and Mohammad Mahdi Meghdadi (Mofid University) have posted Muslim Clerics and Leadership in Human Rights Education in Muslim Societies. The abstract follows.

Several human rights instruments have declared that human rights education is a fundamental right for all. However, human rights education in Muslim societies is still facing serious challenges most of which arise from lack of effective educational methods. Our research shows that Muslim clerics can be considered as leaders of human rights education in Muslim societies, playing an important role in addressing and dealing with most of the challenges and enhancing universal culture of human rights. The findings indicate that in an effective human rights education method resulting in flexible, accessible, acceptable and sustainable human rights, Muslim clerics can be considered to play an active role. In addition, the results highlight that this educational method can promote, localize and institutionalize human rights in such societies and can help prevent and resolve the possible conflicts between religious and human rights discourses.

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Huq on Private Religious Discrimination and the First Amendment

Aziz Z. Huq (University of Chicago Law School) has posted Private Religious Discrimination, National Security, and the First Amendment. The abstract follows.

This essay identifies a negative feedback loop between private discrimination directed at American Muslims and security against terrorism. The first part of the loop is familiar: Concerns about terrorism animate greater antipathy toward outsiders. The second part is novel: social discrimination corrodes trust in the police and makes cooperation with police less likely. Insecurity thus creates discrimination, which deepens insecurity. The Religion Clauses of the First Amendment, now greatly weakened, still provide one tool to break this negative feedback loop.