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Woehrling & Jukier on Religion in Canada

José Woehrling (University of Montreal) and Rosalie Jukier (McGill University) have posted Religion and the Secular State in Canada. The abstract follows.

This article reflects the National Report from Canada on Religion and the Secular State prepared by the co-authors for the XVIIIth International Congress of Comparative Law that took place in Washington, D.C., in July 2010. This Report provides a snapshot of the state of the law with respect to religion in Canada from a multitude of perspectives, touching on both its private law and public law dimensions, against the backdrop of the diverse and changing social and religious composition of Canada. The theoretical and constitutional frameworks, as well as important questions of the definition of secularity and the need for reasonable accommodation, are canvassed. Particular applications of religion and the secular state in the arenas of education, marriage and divorce, contracts, religious symbols and hate speech are also discussed.

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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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Kapai on Freedom of Conscience in Hong Kong

Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law) has posted Freedom of Conscience and Religious Belief. The abstract follows.

Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.
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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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Enright on Ireland and the Hijab

Máiréad Enright (University of Kent, Canterbury) has posted Girl Interrupted: Citizenship and the Irish Hijab Debate. The abstract follows.

This article discusses the case of Shekinah Egan, an Irish Muslim girl who asked to be allowed to wear the hijab to school. It traces the media and government response to her demand, and frames that demand as a citizenship claim. It focuses in particular on a peculiarity of the Irish response; that the government was disinclined to legislate for the headscarf in the classroom. It argues that – perhaps counter-intuitively – the refusal to make law around the hijab operated to silence the citizenship claims at the heart of the Egan case. To this extent, it was a very particular instance of a broader and ongoing pattern of exclusion of the children of migrants from the Irish public sphere.

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Sezgin on Women’s Rights Under Religious Law

Yuksel Sezgin (Harvard Divinity School) has posted Women’s Rights in the Triangle of State, Law, and Religion: A Comparison of Egypt and India. The abstract follows.

The main premise of this Essay is that personal status laws, whether based on Muslim, Jewish, or Hindu tradition, are men-made (implying that no females were involved in this process), socio-political constructions that have come invariably to discriminate against women and deny them equal rights in familial relations. However, women do not silently acquiesce in violation of their rights and liberties by male-dominated religious norms and institutions. On the contrary, women-led hermeneutic communities all over the world are spearheading a silent but steady revolution that redefines women’s role as rights-bearing and equal individuals in familial and public space. In doing so, women’s groups contest the scriptural monopoly of state-sanctioned religious institutions, reinterpret religious laws, and reinvent the tradition by vernacularizing international human rights and womens’ discourses. Against this background, Part I of this Essay demonstrates the implications of personal status laws on the rights and freedoms of women by looking at the Egyptian and Indian personal status systems. Part II of this Essay traces women-led reform movements emerging in the last two decades in these two countries and demonstrates how Egyptian and Indian women have claimed the rights and freedoms that current systems have denied them by forming reinterpretive hermeneutic communities.

Posted on by Marc O. DeGirolami

Shah, Stepan & Toft (eds.), “Rethinking Religion and World Affairs”

Here is a new collection of essays, Rethinking Religion and World Affairs (OUP 2012), edited by Timothy Samuel Shah (Georgetown), Alfred Stepan (Columbia), and Monica Duffy Toft (Harvard), which should be very interesting to CLR Forum readers.  The list of contributors is superb.  The publisher’s description follows.

In recent years, the role of religion in the study and conduct of international affairs has become increasingly important. The essays in this volume seek to question and remedy the problematic neglect of religion in extant scholarship, grappling with puzzles, issues, and questions concerning religion and world affairs in six major areas. Contributors critically revisit the “secularization thesis,” which proclaimed the steady erosion of religion’s public presence as an effect of modernization; explore the relationship between religion, democracy, and the juridico-political discourse of human rights; assess the role of religion in fomenting, ameliorating, and redressing violent conflict; and consider the value of religious beliefs, actors, and institutions to the delivery of humanitarian aid and the fostering of socio-economic development. Finally, the volume addresses the representation of religion in the expanding global media landscape, the unique place of religion in American foreign policy, and the dilemmas it presents. Drawing on the work of leading scholars as well as policy makers and analysts, Rethinking Religion and World Affairs is the first comprehensive and authoritative guide to the interconnections of religion and global politics.  

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Alderman on The Designation of West Bank Mosques as Israeli National Heritage Sites

Kimberly L. Alderman (University of Wisconsin Law School) has posted The Designation of West Bank Mosques as Israeli National Heritage Sites: Using the 1954 Hague Convention to Protect Against in Situ Cultural Appropriation. The abstract follows. – ARH

This Article considers whether the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Hague Convention”) should extend to protect against in situ appropriation of culturally significant sites. This Article examines the text and spirit of the 1954 Hague Convention, and inquires whether the 1954 Hague Convention imposes an obligation on its Signing Parties to protect not just the physical integrity of culturally significant sites, but also the relationship of local peoples with those sites. This Article uses the recent dispute over the Ibrahimi and Bilal Bin Rabah Mosques (also called the Cave of Machpelah and Rachel’s Tomb, respectively) on the Palestinian West Bank as a lens through which to make this inquiry.

Posted on by Mark Movsesian

Protecting Believers, Not Beliefs

Some news out of the UN this week. For the first time since 1998, the General Assembly’s annual resolution against religious intolerance has dropped the call for banning “defamation of religions.” Muslim nations typically have supported the ban, but Western countries like the US have opposed it as a violation of freedom of speech. This year, Western and Muslim countries were able to agree to remove the reference to defamation in favor of a new approach that calls for ending discrimination against people on the basis of religion, an approach that Reuters describes as “protecting believers” rather than “beliefs.”  The deletion of the reference to defamation must be accounted a diplomatic victory for the US and other Western countries, but the new resolution also calls on nations to end “incitement to religious hatred.” I suppose some countries might interpret “incitement” to cover defamation as well, since defaming a religion could incite violence against its followers. So the defamation concept might still be lurking out there. The resolution is non-binding, in any case.

Posted on by Mark Movsesian

Bethlehem Church to Get New Roof

As Christmas approaches, word this week that the Church of the Nativity in Bethlehem (left), the traditional site of Jesus’ birth, will get a new roof. The roof, which is centuries old, has needed replacing for some time, but the three Christian communions that share the church – Armenian Apostolic, Greek Orthodox, and Roman Catholic – have been unable to agree on a plan. The story behind their disagreement, and the reason why they have had such a hard time resolving it, is a fascinating one.

The three communions share the church under the “Status Quo,” a set of rules and customs that date back centuries to Ottoman times, and which also govern other Christian sites like the Church of the Holy Sepulcher in Jerusalem. The provisions are incredibly detailed. For example, the Status Quo specifies the times of day when communions may have access to specific altars, the permissible length of religious services, the proper placement of chalices, the ownership of lamps and icons, and, crucially, the right to repair sections of the church. According to custom, to repair part of the church, or even to pay for repairs, is an assertion of ownership. As a result, each communion carefully guards against the possibility that another will undertake repairs in common areas, like the roof, and thereby gain rights by a sort of adverse possession.

All this seems a bit arcane today to outsiders, but the Status Quo has occupied a major place in diplomatic history and international law. In the 19th Century, France, seeking to increase its influence in the Middle East, agitated for Catholic control of the church and other Christian shrines in the Holy Land; Russia, seeking to resist French influence, agitated on behalf of the Orthodox. The Status Quo was in fact an attempt by the Ottomans to freeze everybody in place as of 1852 and avoid further conflict. When someone removed a silver cross the French had donated to the church (above), the theft sparked an international incident that led ultimately to the Crimean War. In the treaty that ended the war in 1856, the belligerents endorsed the Status Quo, and it has been honored by the rulers of Bethlehem – the Ottomans, the British, the Jordanians, the Israelis, and now the Palestinians – ever since.

The present agreement to replace the roof has been brokered by the Palestinian Authority, which has somehow persuaded everybody to cooperate. Really, there isn’t much choice, as experts say the roof could collapse at any time. Work is to begin next year.