Religion Law Commons^™

Zakat: Drawing Insights For Legal Theory And Economic Policy From Islamic Jurisprudence, Russell Powell

Faculty Articles

The rapid development of complex income taxation and welfare systems in the 20th century may give the impression that progressive wealth redistribution systems are uniquely modern. However, religious systems provided similar mechanisms for addressing economic injustice and poverty alleviation centuries earlier. Zakat is the obligation of almsgiving and is the third pillar of Islam - a requirement for all believers. In the early development of the Islamic community, zakat was collected as a tax by the state and the funds were distributed to a defined set of needy groups. As a theoretical matter, there are three insights that make zakat …

The Study Of Secularism And Religion In The Constitution And Contemporary Politics Of Turkey: The Rise Of Interdisciplinarity And The Decline Of Methodology?, Russell Powell

Faculty Articles

Using the experience of Islamist parties in Turkey as a comparative example, this article explores whether political parties with deeply held religious ideologies can integrate themselves into liberal democracies, paying particular attention to the nature and role of legal secularism (the mechanism states use to insulate themselves from religious influence). This is an extension of the query whether the rise of illiberal political groups eventually leads to the end of liberal society. These queries engage the assumption that illiberal religious ideology is incapable of tolerating dissent or pluralism. This article examines Turkish constitutional secularism as well as the “Islamist” Justice …

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.

The Hidden Influence Of Jewish Law On The Common Law Tradition: One Lost Example, Michael J. Broyde

Faculty Articles

Professor Berman is undoubtedly correct that the surviving literature shows little such influence of Jewish jurisprudence. Over the course of numerous conversations I had with Professor Berman at Emory, we discussed another possibility, namely that the Jewish tradition indeed had a distinct influence on the common law; however, due to the general lack of enthusiasm for the Jewish legal tradition throughout the medieval Christian world, even when Jewish sources were consulted, they were not cited. I wish to show what I think is one such example --the enigmatic origins of the common law rule that the holder of lost property …

Prophets, Priests, And Kings: John Milton And The Reformation Of Rights And Liberties In England, John Witte Jr.

Faculty Articles

In this Article, I focus on the development of rights talk in the pre-Enlightenment Protestant tradition. More particularly, I show how early modem Calvinists-those Protestants inspired by the teachings of Genevan reformer John Calvin (1509-1564)-developed a theory of fundamental rights as part and product of a broader constitutional theory of resistance and military revolt against tyranny. With unlimited space, I would document how various Calvinist groups from 1550 to 1700 helped to define and defend each and every one of the rights that would later appear in the American Bill of Rights and how these Calvinists condoned armed revolution to …

A Jewish Law View Of World Law, Michael J. Broyde

Faculty Articles

This paper will explore two basic Jewish law questions which reflect on the technical issues related to Professor Berman's world law proposal. The first question asks how Jewish law views public international law and whether public international law can be incorporated into the corpus of Jewish law. The second question asks how Jewish law generally incorporates domestic (municipal) law into Jewish law and if this classical paradigm of integration assists in formulating a Jewish law view of world law. To the best of my knowledge, the first matter is a question of nearly first impression in the Jewish law literature.

The Morality Of Human Rights: A Nonreligious Ground?, Michael J. Perry

Faculty Articles

In the midst of the countless, grotesque inhumanities of the twentieth century, however, there is a heartening story, amply recounted elsewhere: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of morality in international law, in the period since the end of World War II, is a profoundly important development.

The twentieth century, therefore, was not only the dark and bloody time; the second half of the twentieth century was also the time in which a growing …

Toward Reconciliation In The Middle East: A Framework For Christian-Muslim Dialogue Using Natural Law Tradition, Russell Powell

Faculty Articles

In this paper, Professor Powell argues that the thinking of Bernard Lonergan in light of the natural law insights of St. Thomas Aquinas, Ali Ezzati and Abdullahi Ahmed An-Na'im provides a framework for Christian-Muslim dialogue. Lonergan's transcendental method moves from the individual subject to universal insights rather than presuming to deduce universals a priori, without regard for history, culture and individual experience. Professor Powell asserts that the most fruitful starting place for meaningful dialogue is to address questions of human rights and social justice using natural law theory, rather than focusing on theological concerns. If Muslims and Christians mutually acknowledge …

Regulation Of Religious Proselytism In The United States, Howard O. Hunter, Polly J. Price

Faculty Articles

This article will consider various aspects of the U.S. legal system that affect proselytism. Although the United States has had a longstanding constitutional guarantee of the “free exercise” of religion, there are nonetheless significant constraints upon free exercise directly relating to proselytism. Some legal commentators, including Douglas Laycock, have argued that our decentralized system of government leads to insufficient protection of religious liberty, especially for religious minorities.Most case law on the subject in the United States, as well as most attempts to regulate behavior by ordinance or statute, have developed in response to groups or individuals that are outside the …

Practicing Criminal Law: A Jewish Law Analysis Of Being A Prosecutor Or Defense Attorney, Michael J. Broyde

Faculty Articles

Our secular society cycles as to whether it glorifies defense attor­neys or prosecutors. Sometimes, we adore defense attorneys­ -- they are the lawyers who ensure that innocents are not punished, "L.A. Law" is the show to watch, and the attorneys to imitate. Other times, we revere prosecutors -- they are the lawyers who punish evil­doers, "Law and Order" is the show to watch, and the attorneys to imitate. Jewish tradition recognizes the inherent ethical difficulties with the conduct of both types of attorneys.

Jewish law recognizes that the societal imposition of the criminal justice system on citizens, who otherwise function …

Cloning People: A Jewish Law Analysis Of The Issues, Michael J. Broyde

Faculty Articles

This Article is an attempt to create a preliminary and tentative analysis of the technology of cloning from a Jewish law perspective. Like all preliminary analyses, it is designed not to advance a rule that represents itself as definitive normative Jewish law, but rather an attempt to outline some of the issues in the hope that others will focus on the problems and analysis found in this Article and will sharpen or correct that analysis. Such is the way that Jewish law seeks truth.

In the case of cloning-as with all advances in reproductive technology- the Jewish tradition is betwixt …

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Faculty Articles

Because law and religion are by themselves complex cultural and historical issues, any study of the interaction between the two will be at least as complicated. If one is to understand both a State's current re­ligio-legal regime and what reform measures are most likely to succeed there, it is necessary to understand at least a little of the nation's history and majority religion. Therefore, Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this dis­cussion and an overview of the history of both Israel and Iran. It explains why …

Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon

Faculty Articles

Juridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as "ownership" and "authorship." Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind's eye two figures-Emmanuel Levinas, the philosopher, and …

The Return Of Lost Property According To Jewish & Common Law: A Comparison, Michael J. Broyde, Michael Hecht

Faculty Articles

This article compares the legal rules and jurisprudence of the American common law and Jewish law in the area of finding and returning lost or abandoned property, illustrating the interplay between the purely legal and ethical components of the respective legal systems. Surprisingly enough, the differences between the two systems are not usually significant; they follow the same basic legal principles, and typically lead to the same results. There are, however, two major exceptions: Jewish law imposes a duty to rescue the lost property of one's neighbor, while the common law does not require that one initiate the process by …

Freedom Of Religion & Religious Minorities In Pakistan: A Study Of Judicial Practice, Tayyab Mahmud

Faculty Articles

This article explores the practice of the superior judiciary of Pakistan as it relates to freedom of religion and rights of religious minorities. Pakistan's successive constitutions, which guarantee fundamental rights and provide for separation of powers and judicial review, contemplate judicial protection against unlawful executive and legislative actions. The record of Pakistan's judiciary about protection of the rights of religious minorities is uneven and has gone through three phases. The first phase is remarkable for unequivocal protection of freedom of religion and religious minorities. The second phase contracted this protection through undue deference to the legislature. In the last phase …

The Three Uses Of The Law: A Protestant Source Of The Purposes Of Criminal Punishment, John Witte Jr., Thomas C. Arthur

Faculty Articles

In this article, we focus on the interaction of Anglo-American criminal law and Protestant theological doctrine. We argue (1) that the sixteenth-century Protestant theological doctrine of the uses of moral law provided a critical analogue, if not antecedent to the classic Anglo-American doctrine of the purposes of criminal law and punishment; and (2) that this theological doctrine provides important signposts to the development of a more integrated moral theory of criminal law and punishment in late twentieth century America.

Part One of this Article sets out the theological doctrine of the "civil," "theological," and "educational" uses of the moral law, …

How To Govern A City On A Hill: The Early Puritan Contribution To American Constitutionalism, John Witte Jr.

Faculty Articles

This Article explores briefly the constitutional ideas and institutions of seventeenth-century Puritan New England. It analyzes the constitutional ideas that the Puritans derived from their theological doctrines of covenant, church and state, and sin, and it examines the forms and functions of political and ecclesiastical government they devised in implementation of these ideas.

Holistic Medicine And Freedom Of Religion, F. Stephen Knippenberg

Faculty Articles

No abstract provided.