The Courts and the Code 2 DRAFT - Jerusalem 6.6.2017

SUMMARY: 1. The value of religious law in modern (and secular) states-2. Religious rules and individual choices in Europe-3. Religious law and the fields in which it can operate effectively-4. The rules of religious courts in civil legal systems-4.1 ..The direct referral to religious laws-4.2. The pronounces of religious courts and its importance for faithful-5. The development of Religious Arbitration Courts in Italy-6. Does religious jurisdiction another side of religious freedom? This draft was presented in occasion of the Conference “Law as Religion, Religion as Law”, held in Jerusalem, June 5th-7th, 2017, in the Hebrew University of Jerusalem, and organized by The Matz Institute for Research in Jewish Law, and The Aharon Barak Center for Interdisciplinary Legal Research.

2018

This book explores different theories of law, religion and tradition, from both a secular and a religious perspective. It reflects on how tradition and change can affect religious and secular legal reasoning, identifying the patterns of legal evolution within religious and secular traditions. It is often taken for granted that, even in law, change corresponds and correlates to progress - that things ought to be changed and they will necessarily get better. There is no doubt that legal changes over the centuries have made it possible to enhance the protection of individual rights and to somewhat contain the possibility of tyranny and despotism. But progress is not everything in law: stability and certainty lie at the core of the rule of law. Similarly, religious and religious laws could not survive without traditions; and yet, they still evolve, and their evolution is often intermingled with secular law. The book asks (and in some ways answers) the questions: what is the role of trad...

Brooklyn law review, 2019

RFKY] (discussing controversial Senate comments about whether now-Judge Amy Barrett would be able to separate her judging from her Catholic faith). RELIGIOUS COURTS IN SECULAR JURISDICTIONS 747 What emerges from this analysis is that, contrary to the concerns of the public discourse and past scholarship, religious courts that serve religious minorities tend to adapt to their secular surrounding, rather than the other way around. They accommodate, by necessity, both the desires of litigants who, living in democratic societies, have come to expect RJBs to preserve their secular civil rights, and the pressures of the secular courts on which they rely to enforce their decisions. Although the general public and politics often treat RJBs as alien to their secular environments, 8 this article demonstrates that RJBs serving minority populations respond to pressures from the legal environment in which they operate. 9 RJBs may strive to apply religious law by relying purely on original texts and traditional legal scholarship, but in practice, RJBs often accommodate both substantive and procedural secular norms. At the theoretical level, religious judicial accommodation bears some resemblance to two other strands of thought in public law and administration. From one standpoint, RJBs are engaged in a sort of dialogue with popular culture that echoes the thinking of popular constitutionalism. 10 Some scholars writing in this vein have argued that Supreme Court decisions "on a politically sensitive issue" are properly viewed "as generating a dialogue with the political branches of government and the people." 11 Likewise, controversial RJB decisions, especially decisions that affect women's rights, may generate a dialogue with the religious laity that the RJBs serve and the civil courts that enforce their decisions. The adaptations of RJBs also resonate with literature that depicts institutions in survival mode. Indeed, religious courts vary from traditional Article III courts in one important way: religious courts have a plausible fear of losing business. To be sure, government-run courts may fear backlash that can 8 See, e.g., Lorraine E. Weinrib, Ontario's Sharia Law Debate: Law and Politics under the Charter, in LAW AND RELIGIOUS PLURALISM IN CANADA 239, 250 (Richard Moon ed., 2008) (quoting the premier of Ontario, Dalton McGuinty, saying: "[t]here will be no sharia law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians."). 9 See discussion infra Section II.D.

Fakta: Forum Aktual Ahwal Al-Syakhsiyah, 2024

A Brief Comparison of Religious Legal Systems. Religion and law have a close relationship, where religious law provides a moral basis for social order. Religious legal systems have normative characteristics and function as a guideline for their adherents. However, in the increasingly secular modern world, the existence of religious law faces various challenges. Although some religious legal systems still survive, their implementation has different characteristics and often faces challenges of interpretation and adaptation. This study aims to analyze the comparison of religious legal systems in various parts of the world. By examining various sources of religious law, this study will identify similarities and differences in basic principles, the application of law in everyday life, and the challenges faced by each religious legal system in the modern context.

Max Planck Encyclopedia of Comparative Constitutional Law , 2020

Religious courts or religious tribunals are state or non-state dispute settlement fora that base their decisions on religion-based material and procedural laws and whose judges are typically members of the particular religious community whose laws the courts apply. While sharia courts might be the first of such fora that come to mind when hearing the term ‘religious courts’, there also exist Christian, Jewish, and Buddhist courts in both the Global North and the Global South. Religious courts may be established and run by the state or by private religious entities that operate outside of the realm of the state. Their jurisdiction ranges from covering religious education or the internal organization of religious communities, to family and inheritance law and, in some countries, criminal law. This entry in the Max Planck Encyclopedia of Comparative Constitutional Law engages with religious courts in various countries in Africa, Asia, Europe, the Middle East, and North America. It begins by briefly outlining historical examples of religious courts. It then deals with the differences between state and non-state religious courts, with questions of judicial review and with the subject matter jurisdiction of religious courts. Finally, it asks how far the operation of religious courts might violate fundamental rights.

Christian concept of the common good, he argues, offers a more compelling framework for addressing issues of conscience. Jacqueline Laing traces the natural law tradition through the classical and medieval periods and defends it against Bentham's charge that the natural law and therefore also natural rights are "nonsense upon stilts". She argues that it is the idea of the natural law that undergirds human rights with its concern for universal and timeless values. Laing contends that if we want to hold on to the idea that certain activities and actions are timelessly unjust, whether genocide, child abuse, rape, or slavery, then we have to jettison our view that both morality and law in its fullest sense, i.e. that which binds the human conscience, are mere human constructs or social conventions. Charlotte Smith highlights one of the most ancient and venerable interfaces between religion and law, namely the question of establishment. Reflecting on the English example, she defines establishment or, rather, points out how fluid that definition is, and then outlines the various justifications for its English form. Some of these, she recognises, are no longer tenable but others, in particular the argument that establishment signals that there is a place for religious faith, in all its forms, in public life (increasingly needed in the face of aggressive secularism), remain persuasive-at least for now. Julian Rivers asks whether English law is Christian and answers with a careful 'yes and no' , depending on how one reads the question. If being Christian means directly defending Christianity or promoting the church, the answer, he shows, is no, and has effectively been no for over a century. If, however, it means being consistent with a Christian view of the proper purpose and content of secular law, then it is broadly Christian-although, as Rivers concludes, we cannot assume it will always remain so. Finally, David McIlroy systematically dismantles the idea that law is amoral , without foundation in the ethical universe that we all inhabit. We need, instead, he argues, to see it clearly for what it is, a 'branch' or 'sub-category' of morality. This does not mean we should equate law with morality. But because law is a reflection of our substantive, shared moral commitments, we should be more willing to debate, seriously and in a sustained way, what those moral commitments are, and how far they are shared. 10 Kesh (uncut hair), the kangha (a wooden comb), the kara (a metal bracelet), the kachera (cotton undershorts tied with a drawstring) and the kirpan.

SSRN Electronic Journal, 2013

How can we account for the differing popular images of attorney in various countries? One way of doing so may be to bring a paradigm developed in religious studies to examine the most publically accessible and prototypical venue for attorneys, the courtroom. Specifically, applying the model of critical spatial studies developed by Lefebvre and Soja in order to examine religious ritual space to bear on a different kind of ritual space, the courtroom, its structure, organization, and use may illuminate both societal understandings of how the law relates to the citizen, but also inform the differing perception and status of lawyers in the United States, Britain, and China. When we use the expression "religion and law", we tend to speak about a few related but distinct concerns: jurisprudence about religion, specific controversies involving conflict between religious practices and law, and the internal law of given religion. In this paper, I set out another way to address "religion and law", via using heuristics and paradigms derived from the field of religious studies to address and compare the similarities, and differences, of various legal systems, with a view towards how this might impact differing levels of esteem for, and perceptions about the degree of civility and quality of legal ethics in these various systems. In effect, then, setting out a way of examining law as religion 1. Law as Religion? The notion of addressing law as religion may seem counter-intuitive to many, at first, given our long established tradition of separation of church and state. Yet, to people from non-Christian traditions, both here in the U.S. and abroad, such a notion is not the least troublesome. Consider, for example, that for our Muslim community, Shari'a law is an important part of their religion, directing how and when they perform their daily devotions, the way they dress, the foods they can, and cannot, consume and, via Shari'a courts, instituted here in the U.S. in the mode of arbitration boards, a means to resolve disputes within their community. Similarly, those who practice Judaism are sometimes called "The People of the Law", and the provisions of Halakah, and the institution of the Beth Din-Rabbinical Courts-provide a very similar level of strictures and guides for living in accordance with their relgion, as well as tools for dispute resolution. To a lesser extent, any Roman Catholic who has ever sought out an annulment from a Canon Law Court, in order to enter a new marriage within the bounds of the church, can relate to the idea of law as an expression, and outgrowth, of religion. Even historically, we find law having its origination from religion. The stele of the Code