Law Commons^™

Natural Law And Universal Human Rights, David F. Forte

Law Faculty Articles and Essays

Abdullahi An-Na'im has set his life's quest on attempting to find a way that Muslim society can be attuned to the moral commands of the Universal Declaration of Human Rights, a Western creation. At present, the Shari'a and the Declaration are in obvious tension, if not conflict, in areas such as freedom of religion and the rights of women. An-Na'im finds that the Shari 'a is a creation of man derived in history from an interpretation of Islamic sources. Muslims today can legitimately develop their own interpretation relying on the root sources of Islam, but only so long as those …

Rethinking Religious Objections (Old-Testament Based) To Same-Sex Marriage, Doron M. Kalir

Law Faculty Articles and Essays

In Obergefell v. Hodges, the Supreme Court closed the door on one issue only to open the floodgates to another. While recognizing a constitutional right for same-sex marriage, the Court also legitimized religious objections to such unions, practically inviting complex legal challenges to its doors. In doing so, the Court also called for an "open and searching debate" on the issue. This Article seeks to trigger such debate.

For millennia, objections to same-sex marriage were cast in religious and moral terms. The Jewish Bible ("Old Testament"), conventional wisdom argues, provided three demonstrable proofs of the Bible's abhorrence of same-sex …

Same-Sex Marriage And Jewish Law: Time For A New Paradigm?, Doron M. Kalir

Law Faculty Articles and Essays

In recent years the Supreme Court, as well as important segments of society, has come to accept and even celebrate same-sex relations that, in the past, and for some still today, have generated contempt, hostility, and violence. This change in law and culture poses a unique challenge for those who are moved by the plight of gay people yet concomitantly feel bound by their religious convictions and therefore prevented from providing religious legitimacy to people who yearn to be part of their community. Professor Kalir meets this challenge by proposing that the Torah (and Jewish law), read in context, accepts …

The Government Needs Prayers, David Forte

Law Faculty Articles and Essays

This essay, published in the Washington Times, was adapted from from “Religion and the Republic,” published by Public Discourse. Forte argues that a true republic respects religious speech and such speech represents a different authority from governing power and affirms its limited nature.

Fathers, Foreskins, And Family Law, Dena S. Davis

Law Faculty Articles and Essays

In the United States, a custodial parent has the right and responsibility to make medical decisions for one's child. But does that right encompass consenting for a surgical procedure for which there is little or no medical justification? What if the noncustodial parent opposed the procedure? And when is a child old enough to make the decision for him- or herself? How should a physician respond when asked to perform a surgical procedure when the decision is enmeshed in family controversy? These and other questions are considered in Boldt, a recent family law case decided by the Supreme Court of …

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Professor Oh briefly describes Locke v. Davey in which the U.S. Supreme Court, in its 2003-04 term, attempted to clarify its First Amendment jurisprudence on the religion clauses. In a 7-2 decision, the Court held that the State of Washington did not violate the First Amendment Free Exercise Clause by denying government financial aid to college students seeking to pursue a course of study in religious devotional studies.

Book Review, Stephen Werber

Law Faculty Articles and Essays

This a review of Jewish Law (Mishpat Ivri): Cases and Materials by Menachem Elon, Bernard Auerbach, Daniel D. Chazin and Melvin J. Sykes. The reviewer concludes that this book is not only the first of its kind, it is also an outstanding contribution to law teaching that will be of substantial assistance to the growing number of professors teaching Jewish law in American law schools. The extensive presentation of Talmudic and other Jewish law sources, combined with the inclusion of Israeli court decisions, make this book an excellent research tool for both student and professor. Its use of authority and …

Book Review, Dena S. Davis

Law Faculty Articles and Essays

This is a review of Women and Jewish Law: The Essential Texts, Their History, and Their Relevance for Today by Rachel Biale (1995). It is a minor miracle. It is readable and free of unnecessary jargon, and accessible to the educated reader who has only some introduction to the nature of Jewish law (Halakhah). At the same time, it is serious and scholarly and would work very well as a text for a graduate seminar on Jewish law, women and law, or religion and law. The author celebrates the increasing power and visibility of women in all denominations of Judaism, …

Book Review, Stephen J. Werber

Law Faculty Articles and Essays

This is a review of The Essence of Talmudic Law and Thought by Samuel N. Hoenig. The reviewer concludes that though this text is sometimes overly concise, it provides an excellent introduction to the essence of Talmudic thought. That Dr. Hoenig may overstate the importance of the Talmud as a factor in the ability of the Jewish people and Judaism to survive (ch. 11) does not detract from his book's contribution as a text that presents a comprehensive, understandable and readable introduction to one of the most complex and long-living sources of law ever created. When the person seeking to …

Understanding Islam And The Radicals, David F. Forte

Law Faculty Articles and Essays

The United States is in a war, but it is not a war between Islam and the West. Radical Islamic terrorists hijacked four airplanes and killed thousands of innocent Americans on September 11. But their enmity was not just directed against the United States and the civilization it represents. These terrorists also mean, as President Bush made clear in his speech to the Joint Session of Congress recently, to hijack Islam itself and destroy Islamic civilization. In the developing battle on behalf of these two great civilizations, it is imperative that we understand something about the basic traditions of Islam …

Mother Of All Rights: Making The World Safe For Religion, David F. Forte

Law Faculty Articles and Essays

Freedom of religion is not just one right among many. It is, in the words of the Islamic scholar John Kelsay, "the mother of all rights." When a state recognizes religious liberty, it ipso facto allows people the right to worship an authority higher than the state. Congress should insist that before any reconstruction aid is approved for Afghanistan, the new government there should affirm legal protection for basic human rights, including most importantly, freedom of religion.

Religious Clubs In The Public Schools: What Happened After Mergens?, Dena S. Davis

Law Faculty Articles and Essays

The Equal Access Act, upheld by the Supreme Court in Board of Education v. Mergens, requires public secondary schools to allow access to religiously based student groups on the same basis as other student clubs. Mergens presents many challenges to civil libertarians, who may find their traditional sympathies aligned on both sides of the issue. This article seeks to throw light on some of those issues by reporting on a research project that ascertained the actual effect of the Act on public high schools in Ohio.

Cloning: A Jewish Law Perspective With A Comparative Study Of Other Abrahamic Traditions, Stephen J. Werber

Law Faculty Articles and Essays

This Article does not provide answers to the religious, ethical, and moral issues posed by advanced reproductive techniques in human cloning. Rather, the preceding analysis and discussion seeks to make a contribution, however modest, to the continuation of the societal discussion that will ultimately yield the answers. This Article presents the common concerns of the religious traditions of Judaism, Islam, and Christianity with their mutual emphasis on preserving the dignity of all beings. This and other common values must form the foundation upon which all questions related to the cloning debate must be predicated.

Spiritual Equality, The Black Codes, And The Americanization Of The Freedmen, David F. Forte

Law Faculty Articles and Essays

The notion of spiritual equality grew from the abolitionist movement - the precursor for the political ideology of the radical Republicans. The radical Republicans did not think one could achieve the acceptance of spiritual equality through forced material equality. [I]t was a religious revival that brought our country to confront the reality of slavery. It was a theological doctrine from which we derived our notion of equality in the Reconstruction Amendments. And in that era, the free-thinkers - the secularists of the age - were temporizers on the issue. They were simply of no use in the raising to liberty …

The Child's Right To An Open Future: Yoder And Beyond, Dena S. Davis

Law Faculty Articles and Essays

Every time I teach a class on church and state, I am reminded again of how much we owe to the religious minorities in our midst. If it were not for Amish, Quakers, Jews, Santerians and especially Jehovah's Witnesses, what an impoverished understanding we would have, not only of the religion clauses of the First Amendment, but also of the Free Speech Clause. The original parents in Wisconsin v. Yoder are now grandparents, and their children, with or without the benefit of a high school education, have grown to adulthood and probably have children of their own. But 25 years …

Ancient Answers To Modern Questions: Death, Dying And Organ Transplants - A Jewish Law Perspective, Stephen J. Werber

Law Faculty Articles and Essays

Core values of the Jewish heritage are life and family, not death. An interpretation of Halachah which permits a broad definition of passive euthanasia without lapsing into acceptance of active euthanasia or its more evil cousin, assisted suicide, is consistent with these values. Also consistent with these values and the Jewish tradition is a modern definition of death which recognizes advances in medical technology that were beyond the knowledge or imagination of those who created the vast body of Rabbinic law. This approach will not only ease the suffering of families, it will allow organ transplants to save the lives …

Eve Without Adam: What Genesis Can Teach America About The Natural Law, David F. Forte

Law Faculty Articles and Essays

I wish to make but three points. First, I want to discuss something of the history of the alliance between faith and reason in Western intellectual history and their estrangement. Second, by referring to some of the elements of the Book of Genesis, I would like to affirm the basic compatibility between the principles of natural law and the values of our religious heritage. Finally, I raise a caution regarding religious doctrine and liberty that any effective and principled alliance between faith and reason must deal with.

Challenges In Judging: Some Insights From The Writings Of Moses, Gordon J. Beggs

Law Faculty Articles and Essays

I would like to use the writings of Moses as a lens to examine some challenges in judging. Moses authored the first five books of the Old Testament known as the Pentateuch or books of the law--Genesis, Exodus, Leviticus, Numbers, and Deuteronomy. He is probably best known for leading the Hebrew people out of bondage in Egypt and for receiving the Ten Commandments. As our discussion today will reveal, he may also be credited with authoring some significant principles with respect to the judicial function.

Method In Jewish Bioethics: An Overview, Dena S. Davis

Law Faculty Articles and Essays

This essay introduces the reader to the processes by which Jewish ethical-legal reasoning brings old insights to bear on new problems generated by advances in science and medicine. There are at least four reasons why Jewish legal thinking in this area is important to the wider community of Western legal scholars. First, because the law often strives to consider different religious beliefs, it is important to understand these beliefs, the history of these beliefs, and how they function within their religious community.

Second, Jewish legal thinking is important because representatives of religious traditions frequently serve on policy and law-making bodies. …

Apostasy And Blasphemy In Pakistan, David F. Forte

Law Faculty Articles and Essays

This article analyzes how the law against blasphemy has become a weapon against religious minorities in Pakistan. It begins with a brief overview of the constitutional struggle between the forces for religious tolerance and that element of Pakistani society seeking a particularized Islamization of Pakistan's law and culture. The second section of the article explains the manner in which classical Islamic law (the Shari'a) treated apostasy and blasphemy, and how it permitted private acts of religious vengeance to be immune from legal liability. In the final section, I describe how the current law on blasphemy imposes a harsh regime on …

Love, Justice, And Power, David F. Forte

Law Faculty Articles and Essays

Abortion is the quintessential act of power.

New Jews, New Destruction, Michael Henry Davis

Law Faculty Articles and Essays

We see in recent developments what is, essentially, a New Diaspora composed of Jews, whether in contemporary Israel or not, who share a ghetto mentality, afraid of what others might take as a sign of weakness and perhaps thinking of their Jewishness itself simply as vulnerability instead of a source of insuperable strength. Within Israel, they sometimes call themselves the "New Jews," but their attitudes betray them. Such a mind-set has been inherited from an older generation of Jews who, in their formative years, had no strong Israel to make all thoughts of Judaism as weakness seem absurd. The New …

I Know It's Not Racism, But What Is It?, Michael H. Davis

Law Faculty Articles and Essays

The author recalls the founding of the state of Israel, and discusses the influence of patriotism and Zionism.

Islamic Law And The Crime Of Theft, David F. Forte

Law Faculty Articles and Essays

This article introduces the concept of theft in Islamic law. As such, it does not pretend to be comprehensive either in the data it puts forth or in its analysis. Rather, the Article raises a number of issues for discussion, and offers, most tentatively, suggested answers to the following points: 1) criminality; 2) what possible justifications exist for such an extreme penalty; 3) what were the requirements for conviction; and 4) some concluding observations as to why the classical jurists encumbered a prosecution for theft with so many restrictions.

Islam And Politics, David F. Forte

Law Faculty Articles and Essays

We can thus see that Islamic tradition has recognized the venerability of the Shari'a but that the same tradition has historically given the state means to workaround the limits of the Shari'a. How far it should go has always been debated in Islam. The debate and the alternative theories all stem from the fact that the Shari'a never developed a constitutional basis for itself due to its history and the notion of law as simply the refinement of divine command. The competing views of the Shari'a's proper place have jousted with one another for a thousand years. They will continue …

Islamic Law In American Courts, David F. Forte

Law Faculty Articles and Essays

Nonetheless, the common law judge remains constrained by his own system of adjudication. Not only does he apply the law, he also states it. Yet, he becomes hesitant when he is asked to apply an asserted principle of Islamic law unless he is certain that it truly represents the accepted view and is not some imaginative interpretation. Thus, in interpreting Islamic law, the American judge is more reluctant than a qadi would be in choosing between opposing casuistical arguments in the same kind of case. Ironically, the American judge is also far more restrained in a case involving Islamic law …

Egyptian Land Law: An Evaluation, David F. Forte

Law Faculty Articles and Essays

In all cases, the country adopting the Western code has attempted to infuse it with traditional values or with tenets of a particular ideology. Frequently, the inevitable dichotomy between the basic concepts of the code and the values which have been infused into it produce legal tensions. This has certainly been the case in Egypt. Traditionally, Egypt has had difficulty accommodating a growing population on a limited amount of arable land. Whether Egypt is able to remedy past maldistribution of arable land will have significant social, economic and political consequences. The success of legal reform in Egypt must be judged …

Islamic Law: The Impact Of Joseph Schacht, David F. Forte

Law Faculty Articles and Essays

It is here where Schacht's service to Islamic law becomes most salutary. He has made it possible for this great legal tradition to free itself from an unthinking bondage to issues relevant to the second Islamic century, and thus open anew the gate to ijtihad. Mujtahids need no longer fear they are revising divine law when they develop the traditional norms of Islamic law beyond the confines imposed by taqlid. The Sunna of Islam remains the way of the Prophet's devout followers, even though it may not be the way of the Messenger himself. In this fashion, respect for the …