Law and Religion

Secular law and the realm of false religion

by Jakob De Roover

Published in After Secular Law, edited by Winnifred Fallers Sullivan, Robert Yelle and Mateo Taussig-Rubbo (Stanford: Stanford University Press, 2011).

In countries as far apart as the US and India, courts of law have faced the difficult question of deciding what counts... more In countries as far apart as the US and India, courts of law have faced the difficult question of deciding what counts as religion. In such cases, judges and other legal authorities end up smuggling in a particular theological conception of religion into secular courts of law and rejecting certain practices or beliefs as not truly (and therefore only falsely) religious. My chapter argues that this happens because the religious and the secular were originally configured within the Christian religion in relation to a third sphere, that of idolatry and false religion. During the expansion of Roman-Catholic and Protestant forms of Christianity, clerical authorities were obsessed with drawing the line between the 'secular' sphere of practices indifferent to religion and that of idolatrous practices. My argument explains this tendency in terms of a particular theory of religion and shows how the trichotomy between the (truly) religious, the secular and the idolatrous or falsely religious was necessary to the dynamic of expansion of the Christian religion. It then examines the case of colonial India and its legal system to show how the sphere of idolatry and false religion disappeared from the equation. The hypothesis is that the notion of false religion had become an obstacle to an internal Christian dynamic of expansion or 'secularization', whereby Christian structures are spread in secular guise. However, the realm of false religion remains present implicitly in the institutions and practice of secular law and, thus, certain models of religion are spread insidiously.

Empire chrétien et Église aux ive et ve siècles: intégration ou «concordat»? Le témoignage du Code Théodosien, textes rassemblés et édités par Jean-Noël Guinot et …

by Roberto Alciati

Christianity and the Rights of Women

by M. Christian Green

In John Witte, Jr., and Frank Alexander, eds., Christianity and Human Rights: An Introduction (New York: Cambridge University Press, 2011), 302-319.

Christianity, like other religious traditions, has often had an ambivalent relationship to women’s rights. While some... more Christianity, like other religious traditions, has often had an ambivalent relationship to women’s rights. While some passages in the New Testament prescribe for women a posture of submission, subjection, silence, and subordination, others hold out the tantalizing prospect of equality. When it comes to the rights of women, Christianity is rife with dualities of subordination and liberation, equality and difference, sacrifice and virtue, creation and redemption. In this chapter, I provide a brief historical overview how Christian women, both comfortably ensconced and sometimes alienated from the tradition, have addressed, resisted, and reconciled these tensions. I relate these historical struggles to the ongoing evolution of women’s rights in the international human rights frameworks established in the Convention on the Elimination of Discrimination Against Women (CEDAW) in 1981, the International Conference on Population and Development at Cairo in 1994, and the Fourth World Conference on Women at Beijing in 1995. From these historical and contemporary tensions between Christianity and the human rights of women, I distill some key tensions in the relationship between Christianity and women’s rights that continue to be present, even as Christian women around the world today are advocating both for women’s rights and wider frameworks of “third generation” human rights with the potential to benefit all humanity.

Religious Pluralism in Recent African Constitutional Reform

by M. Christian Green

Journal of Law and Religion (accepted for publication, forthcoming Spring 2013)

Something unexpected has been happening in Africa—and not just Northern Africa, which, along with the Middle East, has... more Something unexpected has been happening in Africa—and not just Northern Africa, which, along with the Middle East, has seen a winter and spring of revolution in 2011. Over the last several years, several sub-Saharan African nations have managed to conduct elections, produce new constitutions, and even partition themselves in relative peace, despite the often dire predictions of foreign governments, media, and election-monitoring organizations. In each of these cases, religion and religious freedom were high-profile concerns, but despite conventional assumptions about the propensity for religious contestation to lead to conflict, the constitutional procedures seem, at least in the near term, to have unfolded peacefully and productively. While the specter of rising Islamist movements in North Africa has led some to view the specifically religious dimensions of the revolutions with caution, religious actors are playing important and often positive roles in the referenda and new constitutions. Even so, as detailed in this paper issues of religious freedom, sharia courts, Muslim-Christian relations, and the relation of religion and state have been key concerns in the new constitutionalism. Countries in focus include Kenya, Tanzania, and Zambia, with brief reference to developments in Nigeria and South Sudan.

Dall’essere uguali al diventare diversi. Il caso dell’apostasia nel Codice Teodosiano

by Alessandro Saggioro

In: SQUARCINI F.. Mai praticamente uguali. Studi e ricerche sulla disuguaglianza e sull’inferiorità nelle tradizioni religiose. p. 147-178, FIRENZE: Società Editrice Fiorentina, ISBN: 9788860320599

Il XVI libro del Codice Teodosiano contiene un titolo, il settimo, che raccoglie 7 costituzioni sul tema... more Il XVI libro del Codice Teodosiano contiene un titolo, il settimo, che raccoglie 7 costituzioni sul tema dell’apostasia, emanate a partire da Teodosio I (CTh 16, 7, 1 del 381) e fino al 426 (CTh 16, 7, 7), a ridosso della pubblicazione del Codex. Il saggio prende in considerazione e analizza nel dettaglio queste sette costituzioni, mettendo in evidenza il progressivo inasprimento delle sanzioni nei confronti degli apostati, fino alla definizione complessiva di un crimen specifico, secondo la formula giuridica della individuazione del nomen apostatarum. Lo scopo di questo insieme di leggi consiste nel chiarire la posizione giuridica e sociale di una fattispecie religiosa fino a pochi decenni prima impensabile, che diviene ora anche fattispecie criminosa. L’apposizione di un nomen si traduce in condanna permanente, che procede dal passato, resta costante e certa nel presente, è concepita dal legislatore perchè si perpetui nel futuro.

In pursuit of the pagans: Muslim law in the English context

by Prakash Shah

Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the... more Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as nondominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.

Thank You For Not Smoking: Defining “Religion” and Marijuana Use in Canadian Courts

by Gabrielle Desmarais

Work in progress. Estimated completing in May 2012.

The proposed essay will investigate the notion of “religion” in law by engaging  in a discourse analysis of the... more The proposed essay will investigate the notion of “religion” in law by engaging  in a discourse analysis of the Federal Court of Canada case Bennett v Canada, which dealt with the claim of marijuana use as “religion”. Given the influence of multiculturalism policies and the emphasis placed on First Nations spiritualities, the Canadian court system is well-equipped to handle peripheral claims to religious identity - yet, their interpretation of “religion” is still heavily reliant on a Christian framework.  Drawing on the work of Michel Foucault, this paper will trace the meanings of “religion” employed in Bennett v Canada, noting how assumptions about the nature of religion limit the possibilities of new religious movements. It will utilize the works of Judith Butler and Christopher Eisgruber to interpret the continuing use of “religion” as a legal category and posit a solution in the event of its obsolescence.

"Exclusively Charitable": Wiccan Churches, Tax Exemption and the Performance of "Religion"

by Gabrielle Desmarais

As of yet unpublished, but presented at a conference at Indiana University in February 2012.

This article seeks to queer the category of “religion” in North American law, arguing that the process by which the... more This article seeks to queer the category of “religion” in North American law, arguing that the process by which the concept is delimited remains ambiguous and problematic. It investigates how the category is defined within the legislature of the United States and Canada, with a focus on the delimitations which govern tax exemption privileges, accorded by the state to specific religious organizations. Using the theories of post-structuralist philosopher Judith Butler, it examines the performative and subvertive nature of Wiccan churches, whose attempt to conform to state requirements of “religion” simultaneously reify and call into question the validity of the category.

Prison Religion: Faith-Based Reform and the Constitution

by Todd Matthews

Book review in Sociology of Religion (2011)

laicidad y derecho

by Fabio Macioce

The concept of secularism can be defined in a legal or in a political perspective.
In a political perspective,... more The concept of secularism can be defined in a legal or in a political perspective.
In a political perspective, this concept leads to a particular relationship between the two communities, the State and the Church. This report can be regulated by agreements, if the two authorities recognize each other and limit areas of their sovereignty, and if it is recognized (in principle) that a person can belong to both groups. In a legal perspective the problem of secularism refers to the content of legislative choices, in a multicultural and pluralistic society. In this sense, the concept of secularism is often reduced to that of neutrality, but incorrectly. More convincing is the possibility of interpreting the concept of secularism as objectivity,  in a perspective that is neither relativistic nor ideological.

SOLON members' interests entry

by Chloë Kennedy

Appeared in SOLON online journal Law Crime and History 1 (2012) 110-112

La rilevanza del diritto ebraico nello Stato di Israele

by Serena Baldin

in S. Baldin (a cura di), Diritti tradizionali e religiosi in alcuni ordinamenti contemporanei, E.U.T, Trieste, 2005

Religion in the Constitutional Order of the Republic of Ireland

by Eoin Daly

in Cumper and Lewis (eds.), Religion, Human Rights and Secular Society in Europe (Elgar, 2012, forthcoming).

The relationship of law and religion in the Republic of Ireland is unusual and interesting primarily because of the... more The relationship of law and religion in the Republic of Ireland is unusual and interesting primarily because of the apparent paradox of a notoriously close Church-State relationship in the political and institutional practice of the independent State, juxtaposed against a broadly liberal constitutional framework which accords ostensibly strong priority to religious freedom and equality on religious grounds. The historically close relationship between the Irish state and the Roman Catholic Church was constructed on a largely informal basis which finds no clear footing in the constitutional and legislative framework pertaining to religion. The quasi-establishment of the dominant Church throughout the earlier part of the State’s history was facilitated, rather than being actively stipulated or formalised, by the constitutional text. Indeed, as will be seen, this elusive constitutional compromise allowed for a mediation of the two distinct traditions of Irish nationalism, the secular-republican tradition represented by the Jacobin-influenced, anti-sectarian revolutionaries of the 18th century,  and the romantic-Gaelic nationalism which associated Irish identity with Christianity, and to some extent, more specifically with Roman Catholicism. Thus, a recurrent theme in this chapter is the tension, in the constitutional framework, between a liberal and republican heritage which emphasises equality before the law and therefore leans against religious “establishments”, and a parallel tendency to promote recognition of the determinate religious needs and traditions of the people.

Competing concepts of religious freedom through the lens of religious product authentication laws

by Eoin Daly

(2011) 13 Ecclesiastical Law Journal 298

Religious product authentication laws, predicated on conceptions of doctrinal authenticity, risk curtailing the... more Religious product authentication laws, predicated on conceptions of doctrinal authenticity, risk curtailing the religious freedom of dissenting adherents engaged in non-orthodox forms of the regulated practice. They may also entail discrimination between, or even the “establishment” of, the competing doctrinal viewpoints within religions. This raises important constitutional and theoretical questions surrounding the conceptual necessity, to religious freedom, of state neutrality in religious controversies. Comparative church-state jurisprudence reveals strikingly different approaches to the question of the compatibility of religious product authentication laws with constitutional guarantees of religious freedom and state neutrality. The religion clauses of the United States Constitution preclude regulatory schemes incorporating doctrinal concepts of authenticity, whereas a failed constitutional challenge in Ireland, to a law regulating the sale of Mass cards in Ireland, rejected the contention that such laws rejected constitutional guarantees of religious freedom and non-discrimination on religious grounds. In this article, I argue that these contrasting approaches to the constitutionality of religious product authentication laws illustrate a deeper conflict surrounding the very concept of religious freedom. In particular, this comparative constitutional jurisprudence crystallise broader normative debates surrounding the competing claims of recognition and neutrality with regard to religion. 

Blasphemies: a speech act perspective (2011)

by Neri Marsili

Lecture for the XII ‘Pathaphisical Symposium held Prague, September 2011

This study presents an innovative challenge for speech act theory: understanding blasphemy. The results shows that a... more This study presents an innovative challenge for speech act theory: understanding blasphemy. The results shows that a pragmatic approach can offer significant improvement to theological and moral comprehension of blasphemy.

‘Rastafari and Cannabis: Framing a Criminal Law Exemption’

by Matt Gibson

(2010) 12 (3) Ecclesiastical Law Journal 324 - 344.

Rastafari cannabis use presents a challenge in reconciling the doctrines of freedom of religion and the criminal law.... more Rastafari cannabis use presents a challenge in reconciling the doctrines of freedom of religion and the criminal law. Hitherto, the domestic courts have not resolved this clash in favour of religion, displaying reluctance to explore the doctrinal limits of religious freedom. This has occurred at a time of increasing Rastafari numbers across the United Kingdom, forcing some followers to choose between adherence to either their religion or generally applicable criminal laws. Such ‘choice’ inhibits the development of domestic religious freedoms where they conflict with criminal laws protecting wider societal and communitarian interests. This dilemma could be addressed through a statutory exemption in England and Wales from domestic anti-drugs legislation for purposes of religious manifestation. This paper examines the difficult balance between the criminal law and Rastafari cannabis claims in the relevant jurisprudence. A comparative analysis highlights that treatment of religious freedom in Rastafari cannabis case law outlines not only doctrinal scope for a domestic religious drug-use exemption, but also some ways in which regulation could be practically framed. Other jurisdictions' attitudes to non-religious recreational drug use are also instructive in this task.

Giuliano imperatore e l'edictum de professoribus. Integrazione e senso della storia

by Alessandro Saggioro

In: N. SPINETO (ed.) La religione come fattore di integrazione. Modelli di convivenza e di scambio religioso nel mondo antico. Torino, 29-30 settembre 2006, p. 161-188, ALESSANDRIA: Edizioni dell’Orso, ISBN: 9788862740821

Sul così detto Edictum de professoribus attribuito all’imperatore Giuliano sono state proposte molteplici... more Sul così detto Edictum de professoribus attribuito all’imperatore Giuliano sono state proposte molteplici interpretazioni e letture, già in antico e, con alterne vicende, fino ai giorni nostri. Lo studio di questo atto di gestione del campo dell’educazione viene affrontato sullo sfondo del ruolo e della politica dell’imperatore. Nel periodo storico successivo all’editto di Milano del 313 si pongono le premesse per una transizione verso una società improntata all’autonomia del religioso dallo stato e alla potenziale esplicazione del religioso in senso plurale anche in funzione della comparabilità fra orizzonti religiosi differenti. L’analisi della politica giulianea in materia di insegnamento si svolge su questo sfondo. CTh 13, 3, 5 presenta delle norme che non riguardano espressamente i maestri cristiani, ma la generica probatio dei maestri, una sorta di investitura che faceva capo, in ultima analisi, all’imperatore stesso. La letteratura ha visto invece nella lettera 61c di Giuliano una sorta di corollario a questa norma, su cui si impernia la coeva e successiva polemica contro la politica educativa restrittiva messa in atto dall’imperatore. La possibilità di un legame fra i due documenti è data solo della congettura che esista un nomos, non pervenuto, in cui in effetti fosse promulgato un divieto esplicito ai maestri cristiani di esercitare la professione. La lettera, infatti, richiama i maestri alla coerenza, dato che la loro professione non riguarda solo la forma, ma anche la sostanza, e l’uso dei testi ‘tradizionali’ non può prescindere da un’adesione ideologica. La storia delle gesta dell’imperatore rischia di dipendere più dalla condanna per apostasia che dalla realtà; più da una prospettiva apotropaica che dai dati. Di fatto, un’indicazione certa del quadro persecutorio contro i maestri cristiani non ci è pervenuta né dallo stesso Giuliano, che pure era abile legislatore, né dalla polemica coeva, che non fornisce dati espliciti e chiari in questo senso. Giuliano avrebbe invece applicato in maniera forzata la prerogativa che si era attribuito, di effettuare la probatio dei maestri, determinando una occasionale, non normata, disparità di trattamento nei confronti dei maestri cristiani che non sentiva coerenti con i principi basilari della loro professione.

The ambiguous reach of constitutional secularism in republican France: revisiting the idea of laïcité and political liberalism as alternatives

by Eoin Daly

forthcoming in (2012) Oxford Journal of Legal Studies [issue 3]

In the scholarship and discourse on French republicanism it has become something of a received wisdom that the... more In the scholarship and discourse on French republicanism it has become something of a received wisdom that the distinct, yet amorphous concept of laïcité in the French history of thought is set apart from the political liberalism of the Anglo-American world. While embracing the separation of religious and civil authority, laïcité is also associated with a highly abstracted and unitary ideal of citizenship, seeking to commit religious, cultural and ethnic differences to the “private sphere”, and a formal equality of rights that eschews the deterministic politics of “difference”. It is true that the origins of the ideal lie partly in the perfectionist zeal of the late 19th century – when the neologism ‘laïcité’ emerged – during which the anticlericalists of the Third Republic conceived constitutional secularism as a tool with which to emancipate the citizenry from servile, irrational belief-systems. Audard claims that even today, the “positivist epistemic” basis of laïcité renders it unsuitable as a basis for public justification within the “political” strictures of Rawlsian liberalism. I argue that this overlooks the very mixed ideological pedigree of laïcité in the French history of thought – its committal of religious identities to the “private sphere” being compatible with the Rawlsian recognition of “reasonable pluralism”. Moreover, this juxtaposition also overlooks certain underexplored, Rawlsian resonances in the French republican history of thought.

THE CONTROVERSIAL CRIMINALIZATION OF SAME SEX MARRIAGE IN NIGERIA

by Chinyere Ugomma Eze-Nliam

A Legal Review.

A legal review of the anti gay bill that has just been passed in the senate on Nov 29 2011. The author is of the... more A legal review of the anti gay bill that has just been passed in the senate on Nov 29 2011. The author is of the opinion that religiously motivated laws set a dangerous precedent in a country which avers to be secular but which is torn apart by religious strife and bigotry.

"...when religious aspects seem to dominate" - A systems theoretical analysis of notions of religion in international law (in Norwegian)

by Helge Årsheim

Master's thesis submitted at the University of Bergen in 2007.

A thesis exploring relations between law and religion in Norwegian legislation and legal practice. Main findings... more A thesis exploring relations between law and religion in Norwegian legislation and legal practice. Main findings circulate around the coherence and conceptual clarity of normative codes on religion created by legislators - elaborate and unambiguous legislation minimizes the requirements to interpretation by legal actors, while short, unclear legislation creates uncertainty and instability, forcing legal actors to craft ideas of religion from their own individual experiences.

The thesis was submitted as part of the requirements under the Religious Studies Master's program at the University of Bergen in 2007. It is presently only available in Norwegian. A short recap of the main thrust of the argument will be published in English in 2012.