Law can be influenced by religion | Jonathan Chaplin | Opinion | The Guardian
As for caliphs in classical Islam, their religious authority was somehow passive, . It emphasized the efficient link between God and caliph, the latter's legitimate authority, and The divinely inspired law of the Muslims is but the caliphal law. Where are relations between religion and the state an issue? .. .. 3. 2. . Defining the state: Islamic or civil (with a Muslim majority)?. . religious authorities, and between secular and sacred codes of law, has historically been. No other person possessed religious or administrative authority in the umma as teachings about the relationship between religious and political life, Islamic a particular version of the Muslim holy law, and groups of witnesses, judges, and.
After the revival of comparative constitutional law in the s Fontanacomparative law and religion seem to have emerged in three different main groups: One end of this spectrum is occupied by Muslim majority states, such as Egypt, Kuwait, Pakistan, Malaysia, and Turkey. At the other end of the continuum, Hirschl brings together countries with different religious traditions, such as India Hindu majority and Israel the Jewish state. Hirschl tries to do quite a lot in his book; he covers multiple topics, ranging from co-optation of alternative religious discourses to political control of judicial appointments, with the agenda of promoting judges who have secularist leanings.
Within this group, one can trace some scholarships that tackle a different topic, such as the comparison of blasphemy and apostasy law in countries with different religious traditions Cata Backer With the spread of the hijab controversy in Europe, some scholars began to make a comparison between the approach of some European countries and the United States in handling the wearing of hijab in public Tourkochoriti In the midst of the culture of war, a comparison between state neutrality in the United States and Europe was a good topic to explore Haupt The topic of comparative criminal law and religion see, for instance, Hascallor comparative family law and religion also contributes to studies in the first group Akila Choudhury ; Tagari As I attested earlier, the mapping is a complex task, and one will immediately encounter a challenge to make a distinction between the first and second groups.
Take, for example, the scholarships of a leading Israel comparative theorist, Gila Stopler. Stopler devoted most of her studies to comparing the religious tradition in her home country, Israel, to countries with different religious traditions. Logically, her scholarships will fall under the first group. In her recent article, Stopler provided a comparative analysis of the U.
Hobby Lobby involved the question of whether free exercise of religion can exempt employers from providing contraceptive benefits that were mandated by U.
Hobby Lobby Stores, Inc. France, however, dealt with a different issue of the banning of the full covering of the face in France. In sum, the second group has an explicit commitment to take rights as its point of comparison, but it is a bit more amorphous in comparing religious traditions. In contrast, the first group, which focuses on the comparison between countries with different religious traditions, has a more straightforward approach in comparing religious traditions.
Two elements characterize socio-legal comparative law and religion.
Religious Authorities in Islam
Nelken argues that if we want to work with the idea of legal culture, we have to specify what units we are referring to Ibid. Here, the concept of legal culture becomes more diverse because the cultural unit is susceptible to a different definition, depending on the level and purpose of the analysis.
We all participate in various cultural units: So, for a socio-legal theorist such as Nelken, religion will be taken into account as a single cultural unit within the larger legal culture.
The second element of the socio-legal approach is that it focuses on the issue of how law and society are related in a causal way. Mattias Siems provides a good explanation of the relationship between law and culture, in which he offered several categories that can describe the relationship between law, culture, and religion SiemsChapter 6.
The first category is a religious influence on the positive law; take, for example, Christian values that may still play a role in many legal systems such as in the area of family law and consumer credit Ibid.
Second, religion may affect the law in a negative way; namely, there is no law in the particular area of interest Ibid. For instance, some Islamic countries do not adopt derivative transactions because they would be considered as gambling, which is prohibited in Islam. In the third category, religion is part of the law, in which there is no separation of law from religion Ibid.
For example, the rules covering marriage, divorce, inheritance for Muslims in Indonesia is governed by Islamic law, instead of civil law Ibid. Siems provided three more categories,5xIn the fourth category, the issue is how the law impacts on religion, such as the way religious organization may be structured and financed.
The fifth category involves the question of how religion influences the effect of the law; the case of Latin American countries indicates that due to strong Christian values, family ties can remain strong without a common family name.
In the sixth category, there are cases where there is conflict between law and religion, which involves a question of how religious believers try to reconcile their duties as citizens and believers.
Islamic Law and Theology - Oxford Handbooks
See Siemspp. The bottom line is that the causal relationship between law and religion are topics of socio-legal comparative law and religion. While not denying the importance of the scholarly contributions within the current map, I see the need to expand the map of comparative law and religion.
Why do we need to expand the map? First, the classic problem of comparative law is that a comparative theorist usually has more familiarity with his or her original jurisdiction. Therefore, often, he or she has some bias in comparing the original jurisdiction with different jurisdictions. Similarly, most of the scholars who work in the area of law and religion are legal scholars and not theologians.
Thus, they tend to place a high emphasis on legal analysis and downplay theological aspects of the studies. An apt example is a recent work of Barbara Preffer Billauer on abortion, in which she compares abortion regulation in five Catholic majority countries: But Billauer only devotes one sentence to state the Catholic belief that human life begins at conception, without any reference to the document of the Catholic Church Ibid.
Billauer does not seem bothered to go deeper looking into Catholic teaching on the sanctity of human life. Second, methodologically speaking, comparative research on law and religion is not only about collecting data and information on religion or consulting religious groups. Comparative theorists in law and religion also need to understand at least the basic religious doctrines and know how to systematize and justify religious doctrines. It is not enough merely to offer a general description of religious teaching in comparative research on law and religion.
Comparative law and religion research also should identify a theological insight that influences the law. Theology is a complex field, and so, one at least needs to have a basic understanding to examine those fundamental elements of theology, through which doctrine is to be applied, discovered, interpreted, and evaluated.
Third, comparative theorists on law and religion may also suffer from their limitations as non-religious individuals. In other words, the challenge for a comparative theorist of law and religion is how to remain objective as an outsider to certain religious traditions. First, as an outsider, often, a researcher does not have a first-hand religious experience, and so, they might have less familiarity with the language, narratives, and ritual rhythms of the faith traditions in their attempt to frame and explain about the interweaving of law and religion.
Moreover, as an outsider, comparative law and religion theorists might be reluctant and even somewhat hostile toward the religious view. David Nelken, a leading scholar in the cluster of socio-legal comparative law and religion, makes it clear that the central premise of modernity is that no group has privileged access to moral truth Nelkenp.
Here, Nelken echoed John Rawls, the best-known exponent of liberal theory, who introduced the notion of state neutrality Rawlsp. Religious views such as Roman Catholic theology must be excluded because it aims to impose its values upon others Ibid.
In other words, the state then must not favour any religious doctrines and their conception of the good if it wants to preserve unity based on the private conception of the good of each citizen Rawlsp.
While this approach is what some would call objective, it does not fit with the language of religion, which includes the claim about truth.
Having explained the limitations of the current map, I would like to add a fourth group of comparative law and religion studies, which compares law and religion from a theological perspective. The revised map could be drawn as seen in Figure 1. To distinguish the group, I have used ellipses and a rectangle respectively. Map of comparative law and religion studies With this modified map, the study of comparative law and religion becomes somewhat expanded.
In other words, this new cluster widens the academic terrain of comparative law and religion.
With theology as the point of departure, one will be able to engage with a theological understanding of the law, instead of putting religion in the background of our comparative law analysis.
I would like to answer this question by proposing a three-dimensional approach of comparative law and religion, looking at integration, collaboration, and innovation, which will enable comparative theorists to expand their scope of research.
Integration Despite the growing interest in the comparative study of law and religion, the integration of law and theological studies is far from satisfactory: Besides the lack of interest, the complexity and different professional aspects of training between the two disciplines have perpetuated significant obstacles to integration.
Nevertheless, a few scholars have tried to integrate comparative law and theological studies. Therefore, it is not surprising that Lombardi managed to integrate his legal training and his religious studies training.
The book is divided into two broad themes. Zachary Calo is another pioneer in integrating comparative law and theology. Calo postulates theological jurisprudence, which is quite different from a theory of law and religion Calo b, p.
In this article, Calo explores the nexus between law and theological developments by considering the work of four thinkers from the Christian and Muslim traditions: The application of this common conviction to law and the legal system will require constructing systems and norms that avoid both the negation of religion by secular law and the negation of secular law by the religious.
Nonetheless, at its best, this type of scholarship contributes to the integrational dimension of underdeveloped legal-theological comparative law and religion. Collaboration Most of the comparative theorists are not theologians, and therefore, it would be a challenging task for these scholars to engage with the integration of comparative law and theology. To deal with this issue, I would like to propose a second dimension: The first step to bring collaboration is by linking law schools to schools of theology.
There should be a collaborative effort that can help comparative theorists and students to study law and religion so that they could examine religion as a distinct way of understanding and perceiving meanings of the causal relationship between law and religion in political and social life. The first collaborative effort can take place in the form of collaborative teaching.
A comparative theorist might start team-teaching with a theologian on a course in a law school around comparative law and religion, in which comparative legal perspectives on selected topics are first presented, followed by theological reflections and analyses on the selected theme.
A different approach to collaborative teaching can also take place in the form of an interdisciplinary seminar, in which a comparative theorist and a theologian present their own framework dialogically in the classroom discussion. The second model of collaboration can take the form of a collaborative research project to bring together many experts from the two disciplines. Ginsburg and Miles argue that legal scholarship in the past decade has undergone an unprecedented transformation, marked by the rapid growth of interdisciplinary approach, especially empirical work such as law and economics Ibid.
Ginsburg and Miles further argue that co-authorship within the law is driven by empirical and interdisciplinary work that is itself influenced by outside fields Ibid. A collaborative writing and research between a comparative theorist and a theologian will be an excellent project that can serve the purpose of opening up avenues and encourages further dialogue and interaction between the two disciplines.
The term refers to religious sciences scholars: However, they are not an institutionalized body, although historically they show a strong group identity. In the early centuries of Islam, they were organized independently from any political power, although many of them took on official roles at court or in the administration. However, their prestige was also based on the critical distance they could maintain from the rulers. In recent decades, many of them have given life to new associations and institutions, often of a transnational nature, such as the International Union of Muslim Scholars founded and chaired by Sheikh Yousef al-Qaradawior the Muslim Council of Elders chaired by Sheikh Ahmad al-Tayyeb, grand imam of al-Azhar.
In the context of Sufi spirituality, the sheikh is the master of a mystical path. The one who plays this role is also sometimes called murshid guide. A recent phenomenon is that of the issuing of fatwa by institutions independent from the states, such as the European Council for Fatwa, or by specialized websites.
Rather than a real authority in himself, he is a high official, which nevertheless governs the operation of a consistent structure of institutions and religious personnel. In pre-Islamic Arabia, he was the one in the tribe who spoke with authority. With the advent of Islam, he has remained a figure that will appeal to Muslims authoritatively.
He is in fact the one who proclaims the khutba sermon during communal prayer on Fridays and on other special occasions, such as during the month of Ramadan.