Religion Law Commons^™

An Imperial History Of Race-Religion In International Law, Rabiat Akande

Articles & Book Chapters

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality …

Neutralizing Secularism: Religious Antiliberalism And The Twentieth-Century Global Ecumenical Project, Rabiat Akande

Articles & Book Chapters

A marked feature of the contemporary U.S. constitutional landscape is the campaign by an Evangelical- Catholic coalition against the idea of secularism, understood by this alliance to mean the exclusion of religion from the state and its progressive marginalization from social life. Departing from the tendency to treat this project as a national phenomenon, this article places it within a longer global genealogy of an earlier international Christian ecumenical effort to combat secularism. The triumph of that campaign culminated in the making of Article 18 of the Universal Declaration of Human Rights, now considered the paradigmatic international legal provision on …

Echoes Of The Zong Confronting Legal Realism In The Arguments For Reparations From The Atlantic Slave Trade And Modernday Human Trafficking, Glenys Spence

Faculty Scholarship

This Article is based on the premise that modern day human trafficking, like the transatlantic slave trade, violates jus cogens norms, and thus the practice was and still is a violation of US laws under customary international law. The analysis will examine the laws that were applied to chattel slavery in England and her colonies through the lens of some seminal slavery cases to unearth the tyranny of interpretation in human trafficking reparations and liability claims under the current Supreme Court jurisprudence and the Alien Tort Statute (“ATS”). The featured cases will reveal that the same philosophies undergirding the jurisprudence …

Islamic Law And Colonialism, Rabiat Akande, Halimat Adeniran

All Papers

No abstract provided.

An Imperial History Of Race-Religion In International Law, Rabiat Akande

All Papers

More than half a century after the United Nations General Assembly’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention. Much of the momentum for that endeavor comes from sustained local and global advocacy against racism. An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation to address the unique precarity of persons inhabiting marginalized axes of identities and experiences. United Nations (UN) debates over repowering the ICERD have therefore featured …

Recommendations For Strengthening The Kingdom Of Saudi Arabia's Management Of Non-Hazardous Solid Waste Informed By A Comparative Assessment Of The Management Of Non-Hazardous Solid Waste In The United Arab Emirates, Saud Hani Arab

Dissertations & Theses

Despite significant changes in the category and volume of waste, the Kingdom of Saudi Arabia (KSA) still manages refuse the same way it did decades ago. Before 1975, waste generators were responsible for collecting and disposing of nonhazardous solid waste (NSW). The KSA later set up the Ministry of Municipalities and Rural Affairs (MOMRA) in 1975 as a result of the oil boom. One of the initial tasks of MOMRA was to manage and develop NSW system. In addition to management, MOMRA also distributed waste bins throughout the KSA and hired waste haulers to be responsible for NSW. As I …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails There Is The Possible Application Of Bostock V. Clayton County, Kevin D. Brown, Lalit Khandare, Annapurna Waughray, Kenneth G. Dau-Schmidt, Theodore M. Shaw

Articles by Maurer Faculty

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

The Modern Architecture Of Religious Freedom As A Fundamental Right, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Global Energy Poverty: The Relevance Of Faith And Reason, Lakshman Guruswamy

Publications

The challenge of energy poverty (EP) primarily confronts the least developed countries (LDCs) of the world, located in Africa and Asia, but is also prevalent within segments of more advanced developing countries in Asia. This article will first delineate the nature of global energy poverty that results in the premature deaths of millions of people and leads to pervasive sickness among many more millions. The article will next sketch the legal and political responses to this problem that have generally applied principles of sustainable development (SD) and the seventeen Sustainable Development Goals (SDGs) of 2015 adopted by the General Assembly …

The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen

Scholarly Works

A feature of the Norman J. Shachoy Symposium: The Rabbinic Idea of Law: Interactions and Implications

Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. …

Consociationalism Vs. Incentivism In Divided Societies: A Question Of Threshold Design Or Of Sequencing?, Clark B. Lombardi, Pasarlay Shamshad

Articles

Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be …

The Vatican View On Sport At The Service Of Humanity, Ed Edmonds

Journal Articles

Participation in sport, particularly the opportunity for children to enjoy and learn through play, is a human right and strongly supported by the goals of Catholic social teaching and the efforts of the Olympic Movement and the United Nations. On October 5-6, 2016, the Vatican held the Sport at the Service of Humanity Conference, the first global conference on sport and faith, an initiative promoted by Pope Francis and supported by the International Olympic Committee and the United Nations. This essay focuses on the conference, its vision and goals, and a challenge to use sport to advance human development and …

The Global Struggle For Lgbtq Rights: Legal, Political, And Social Dimensions, Macarena Saez

Articles in Law Reviews & Other Academic Journals

No abstract provided.

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …

Israel’S Rosit The Riveter: Between Secular Law And Jewish Law, Pnina Lahav

Faculty Scholarship

In the world of Judaism, the “end of men” is not in sight. Surely, tectonic plates are sliding and shifting, and a great deal of change is unfolding, but men are fighting hard to keep patriarchy alive. Deep inside, the Orthodox patriarchal man may be motivated by the sheer impulse to maintain his power, but outwardly he projects a profound commitment to his religious law, the law of God. He believes that his fight is a noble one ordained by divine will and that God is on his side. The problem is global; it appears in every Jewish community around …

The Unanimous Verdict According To The Talmud: Ancient Law Providing Insight Into Modern Legal Theory, Ephraim Glatt

Pace International Law Review Online Companion

Part I of this paper will provide background information regarding the current academic discussion surrounding the unanimous verdict. Part II will discuss the startling Talmudic passage on the unanimous verdict. It will additionally focus on one explanation that radically reinterprets this passage. Part IIIA will introduce two schools of thought on the rationale behind the anti-unanimity rule. Part IIIB will highlight two areas of modern legal theory affected by such rationales.

Shari'ah Law As National Security Threat?, Cyra Akila Choudhury

Faculty Publications

This Article examines the recently proposed anti-shari’ah laws of Tennessee, Oklahoma and Arizona. It begins by examining the laws and their justifications and analyzes the 10th Circuit decision in Awad v. Ziriax upholding the injunction against Oklahoma’s Save Our State amendment. It then carefully analyzes the cases that have been cited as examples of shari’ah-creep and reveals that they are actually routine examples of comity and conflicts of law rules applied properly by a properly functioning judiciary. If these laws are not national security measures, what is their true purpose? The Article posits that the new laws are the latest …

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …

Due Process In Islamic Criminal Law, Sadiq Reza

Faculty Scholarship

Rules and principles of due process in criminal law--how to, and how not to, investigate crime and criminal suspects, prosecute the accused, adjudicate criminal cases, and punish the convicted--appear in the traditional sources of Islamic law: the Quran, the Sunna, and classical jurisprudence. But few of these rules and principles are followed in the modern-day practice of Islamic criminal law. Rather, states that claim to practice Islamic criminal law today mostly follow laws and practices of criminal procedure that were adopted from European nations in the twentieth century, without reference to the constraints and protections of Islamic law itself. To …

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle …

Repugnancy In The Arab World, Haider Ala Hamoudi

Articles

“Repugnancy clauses” -- those constitutional provisions that, in language that varies from nation to nation, require legislation to conform to some core conception of Islam -- are all the rage these days. This clause, a relatively recent addition to many modern constitutions, has emerged as a central focus of academic writing on Muslim state constitutions generally, and on Arab constitutions in particular. Much of the attention it has received has been enlightening and erudite. Yet one aspect of the broader repugnancy discourse that deserves some attention is an important, often de facto, temporal limitation on the effect of the clause. …

No More 'Sha Still', Kenneth Lasson

All Faculty Scholarship

This op-ed laments the consequences of staying quiet in light of recent national and international events. It takes President Obama to task for blaming Israel for lack of progress in Middle East peace negotiations, as well as Congress for its ineptitude during the recent national debt ceiling negotiations.

How To Judge Shari'a Contracts: A Guide To Islamic Marriage Agreements In American Courts, Nathan B. Oman

Faculty Publications

This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.

Pakistan's Failed Commitment: How Pakistan's Institutionalized Persecution Of The Ahmadiyya Muslim Community Violates The International Covenant On Civil And Political Rights, Qasim Rashid

Law Student Publications

The United Nations (“UN”) adopted the International Covenant on Civil and Political Rights (“ICCPR”) in 1966 and officially implemented it in 1976 to ensure, among other guarantees, that no human is denied his or her right to equal voting, freedom of political association, due process of law, freedom of life, freedom of religion, freedom of speech, and freedom of assembly. The Islamic Republic of Pakistan is among 166 nations that have signed and ratified the ICCPR. Since signing the ICCPR in 2008 and ratifying it in 2010, however, Pakistan has perpetuated state-sanctioned and violent persecution of religious minority groups such …

Elusive Equality: The Armenian Genocide And The Failure Of Ottoman Legal Reform, Mark L. Movsesian

Faculty Publications

I would like to thank the organizers for inviting me to deliver some remarks this morning. By way of background, I am not a historian or genocide scholar, but a law professor with an interest in comparative law and religion. Comparative law and religion is a relatively new field. It explores how different legal regimes reflect, and influence, the relationships that religious communities have with the state and with each other. My recent work compares Islamic and Christian conceptions of law, a subject that has engaged Muslims and Christians since their first encounters in the seventh century.

When I approach …

The Death Of Islamic Law, Haider Ala Hamoudi

Articles

That lawmaking in many modern Muslim nation states appears to give rather short shrift to shari’a, seemingly ignoring it in all areas save the law of the family and replacing it elsewhere with European transplanted law, has been discussed. That the Muslim world is replete with political institutions and leaders that seek a greater role than this for the shari’a in the affairs of the state is obvious to anyone even faintly familiar with the region.

However, left undiscussed is the fact that the Islamist, who derives his authority precisely on the basis of returning sovereignty to God in all …

Empowerment Or Estrangement: Liberal Feminism's Visions Of The “Progress” Of Muslim Women, Cyra Akila Choudhury

Faculty Publications

This paper presents some thoughts on the progress of Muslim women towards gender justice. It argues that Liberal Legal feminism shares a common understanding of history and progress with those Liberal political theories that justified the British Empire. Because of this genealogy, Liberal feminism seeks to reform cultures and societies that do not comport with a particular Liberal teleology that forecloses the expression of alternative ideas of history, progress, and human flourishing. It further argues that Muslim women's organizations that partner with Northern organizations sometimes seek to fulfill Liberal expectations of victimhood at the hands of their culture. The consequence …

Religious Freedom, Democracy, And International Human Rights, John Witte Jr., M. Christian Green

Faculty Articles

Clearly, religion and freedom do not yet coincide in many countries, however rosy their new constitutional claims are as to religious rights and freedoms for all. Apostasy, Blasphemy, Conversion, Defamation, and Evangelization-these are the new alphabet of religious rights violation in a number of regions around the world. Occurring at the intersection of religion and international human rights, these violations are also challenges to the universality of human rights and the democratic institutions that generate and affirm them.

Islam’S Fourth Amendment: Search And Seizure In Islamic Doctrine And Muslim Practice, Sadiq Reza

Faculty Scholarship

Modern scholars regularly assert that Islamic law contains privacy protections similar to those of the Fourth Amendment to the U.S. Constitution. Two Quranic verses in particular - one that commands Muslims not to enter homes without permission, and one that commands them not to 'spy' - are held up, along with reports from the Traditions (Sunna) that repeat and embellish on these commands, as establishing rules that forbid warrantless searches and seizures by state actors and require the exclusion of evidence obtained in violation of these rules. This Article tests these assertions by: (1) presenting rules and doctrines Muslim jurists …