N° 2  July 2010
 
Human Dignity in Islam Books & Journals
Let me start with a note on  the meaning of dignity and its implications on basic rights and duties,  the two major components of justice in the Islamic tradition that  evidently serve to provide a more substantive basis of commitment to human  dignity. To discriminate against a person in terms of race and religion,  before the law and before the courts of justice naturally compromises  the human dignity of its victim. Dignity would similarly have little meaning  when a person is subjected to acts of oppression and injustice without cause or when deprived of due process of justice.
     Dignity  is a composite concept that can embrace a variety of objective values and those which may be relative and subjective  in the context of particular  legal and cultural traditions. The values that dignity subsumes are also liable to change with new developments in science and technology  as well as the mobility and interaction of peoples and cultures.  Broadly speaking, from a legal perspective, human dignity connotes inviolability of the human  person,  recognition of a set of  rights and obligations and guarantee of safe conduct by others, including the society and state. It has also implications on a global scale as to whether the world communities and cultures  accord dignity and inviolability to the Other.  The Qur’an extends an open and unqualified recognition of dignity  to all human beings regardless of color and creed. Outside perceptions of   this recognition are often unknown, ambiguous, or misrepresented, due to some extent perhaps to a certain level of internal disagreement in the Islamic juristic thought itself. The negative trends in the Muslim-non-Muslim relations have in recent years been exacerbated by persistent violence, militarism and  disillusionments over  the Israeli-Palestine conflict, Iraq and Afghanistan, Abu Ghraib and Bagram  etc., that continue to  pain human conscience and are affronts to human dignity in the guise of democracy and the so-called “war on terror.” 
     If one were to broadly characterize the Islamic and Western cultures, the Arab culture, one might say Islam generally, accentuates human dignity whereas Western culture tends to emphasize liberty. It is a question obviously of relative emphasis as Western culture also puts a high premium on dignity.  Bedouin culture in the history of the Arabs had a highly developed  sense of  personal honour and customary methodology  that revolved around the  preservation of  dignity. Manliness and nobility of character (muru’ah), hospitality and honoring one’s guest and also a greater stress on one’s obligation to others than  on one’s own rights characterized  Arab culture and to a large extent also the  teachings of Islam.  These concepts of dignity also penetrated  other Muslim communities and cultures outside the Arabian peninsula and had enormous consequences on the gender question and issues of war and peace. In cases where Muslims were in rebellion against the status quo, a substantial cultural reason for the rebellion has been a perceived collective dignity. Ali Mazrui has rightly alluded, in a 2002 interview, to the relevance of this factor in the rebellion of Muslims in Chechnya, Palestine, Macedonia, Kashmir, Kosovo and even Nigeria.
     Without wishing to embrace Huntington’s articulation of ‘clash of civilizations’, nor to condone the draconian methods of the Taliban, a certain clash of cultures did occur perhaps when the  tone of communication was reduced to an ultimatum: thus  when addressing the Taliban in 2001, who then ruled Afghanistan,  the former US President Bush told them : “ just hand over Usama bin Laden and his thugs. There is nothing to talk about.” He did not give the Taliban a line of dignified retreat, and the rest is a chronology of  escalating violence, civilian killings and unending tragedies of defenseless villagers, women and children of Afghanistan we are witnessing to this day.
The Muslim public is also anxious to know whether the West accepts the dignity and inviolability of the different other. The aftermath of the  9/11 tragic events and divergent voices emerging in the United States and Europe has not helped  provide the  needed assurance. What seems certain, however, is that neither side can give that assurance unilaterally. Yet a sense of realism over the configuration of   economic and military  power would suggest that  the initiative and the burden of rectifying the deficit in understanding fall more heavily on the US and its allies in these unjustified military adventures. There is a need for wider recognition of the best values of each civilization to provide a  fresh impetus to the prospects of a more peaceful world, and for the Muslims to give reality to the Qur’anic address (49:13) where diversity and pluralism of peoples and nations should be used as bases of  better understanding and recognition among themselves and the wider reaches of human fraternity.  

Mohammad Hashim Kamali
Professor of law at the International Islamic University of Malaysia.
Law and Religion: National, International, and Comparative Perspectives
Book
Orthodoxy and the Cold War. Religion and Political Power in Romania, 1947-65
Book
Shari‘a As Discourse. Legal Traditions and the Encounter with Europe
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Journal of Religion in Europe (JRE)
journal
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News   Review
 
Second ICLARS conference. Religion and Constitution (Santiago, 8-10 September 2011)

Which role for religions in contemporary society? How much States are prepared to accept the growing relevance of religions in their legal systems? Do constitutions provide adequate instruments to govern the role of religions in the public square? These problems will be discussed at the second ICLARS congress \"Constitution and Religion\" that will take place in Santiago (Chile) on September 8-10, 2011 under the direction of Ana Maria Celis, professor of Canon Law at the Catholic University of Santiago. The congress will be divided into  five sessions. The first is devoted to short interventions by young scholars (keep an eye on it: small grants to cover part of the expenses will be available). The following sessions will discuss the protection of religious freedom, religion and human rights, religious discrimination. A few case-studies, devoted to religion and constitution in Afghanistan, India and the United Kingdom , will also be examined. A call for paper and a provisional program will be published in the ICLARS website (www.iclars.org) in July. For more information please refer to info@iclars.org.
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ICLARS Who\'s who

Do you need to get in touch with the Church-State expert in Ecuador? Do you want to know who wrote about religion and education law? Are you interested in reading the bibliography of some of the most important law and religion scholars?
The ICLARS Who\'s who can answer these needs. It provides data and information about almost 100 scholars and experts of law and religion, pertaining to 34 different countries, and covers their fields of interest, publications, institutional affiliations and CVs.
The Ww can be easily accessed through the ICLARS website (click on the icon Who\'s who that appears in the website first page). If you want to be included in it, write to info@iclars.org citing Ww in the reference.
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ICLARS Encyclopedia of Law and Religion

Do you need some information about Church and State in Romania? Do you want data regarding the teaching of religion in Russian schools? The Encyclopedia of Law and Religion is the perfect tool to answer your needs. Today it provides a description of the law-religion systems in force in more than 30 European countries. But we are working to enlarge the scope of the Encyclopedia to other regions of the world. For more details, please write to info@iclars.org
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  Law and Religion: National, International, and Comparative Perspectives, W. Cole Durham, Jr. and Brett G. Scharffs.  Walters Kluwer Pub., 2010. 619 pp.

Law and Religion, as the book’s subtitle suggests, is a course book that takes a comparative law approach to the study of law and religion – or church and state as the discipline is commonly termed in the United States.  The book contains a representative variety of materials: case excerpts; statutes; treaties and conventions; excerpts of scholarly articles; historical documents; and commentary and questions.  These materials are generally balanced between the United States and other nations, although the international materials are weighted toward the European experience.  The book is divided into fourteen chapters, and the length and overall organization is well-suited for a law school seminar format.   The primary audience for Law and Religion is law schools in the United States, though the contents are sufficiently broad to allow use in other English-speaking programs.

Mechanics aside, Law and Religion is an important addition to the course literature in the study of law and religion, church and state.  The book fills a void in the available materials for the study of law and religion, and it satisfies a niche that has long needed, and deserved, its own course book.   Over the past decade or so, a handful of course books on law and religion have been published in the United States.  The overarching, if not exclusive, focus of these books has been on the American experience, approaching the issues from a First Amendment jurisprudential perspective.  These course books, although good in what they cover, have generally stayed away from including materials that compare the legal and policy approaches taken in the United States with those of other nations.

This insular approach to the study of law and religion in American law schools is no longer sustainable, particularly when schools have otherwise increased their course offerings to include transnational legal issues such as international business and human rights.  A majority of American law schools offer summer and exchange programs with foreign law schools, and student enrollment in international and comparative law courses has skyrocketed.  (For example, my law school, Willamette University in Salem, Oregon, has cooperative programs with law schools in China, Germany and Ecuador, offers an LLM in Transnational Law, and has recently added courses in international environmental law, international children’s rights, and European Union law.)  For the last several years, the authors of Law and Religion, W. Cole Durham, Jr. and Brett G. Scharffs of the International Center of Law and Religious Studies at Brigham Young University law school, along with John Witte, Jr. of the Center for the Study of Law and Religion at Emory University Law School, have been encouraging (gently nudging) teachers of American church and state to expand their coverage of law and religion issues to include comparative and international law materials.  I personally have noticed an increased interest in international religion and law issues among students in my church-state classes at the undergraduate and law school levels.  Now finally, with the publication of Law and Religion, we have an accessible and comprehensive course book for exploring the important subject of law and religion from an international perspective.

The foregoing would be sufficient reason to celebrate the publication of Law and Religion.   But the book deserves much greater praise.  As stated, Durham and Scharffs have written a commendable book offering an international and comparative approach to the study of law and religion that is highly accessible, succinct but comprehensive in content.  The materials explore issues that are both timeless and timely: e.g., competing church-state models – disestablishment versus state religions; the challenges of religious pluralism; the role of secularism and fundamentalism in democratic society; the headscarf controversy in European schools.  The book contains the most salient primary materials (e.g., cases, statutes, treaties) regarding law and religion.  Although, as stated, the chief comparative models are between the United States and Europe, the book contains a fair representation of materials from other nations, including China, India, Japan, South Africa, and Turkey.  The authors also give special attention to those emergent issues that have arisen from the more recent diaspora of Moslems throughout Europe, and they include materials discussing the legal and policy approaches of Islamic countries.  The perspectives contained are diverse and ideologically balanced (although Durham and Scharffs reveal their leanings in favor of religious pluralism and the value of religious institutions within democratic culture).   The comments and questions invite students to consider the implications and other applications of the information presented in the book.  Readers are left intrigued and challenged but not exhausted by the book’s coverage.

The remainder of this review provides a more detailed description of the organization and contents of Law and Religion.

Law and Religion is divided into three thematic sections, each of approximate equal length.  The first section the authors term “Frameworks,” which provides chapters on: (1) historical background to church-state conflicts, with a brief introduction to the different approaches by the United States Supreme Court and the European Court of Human Rights; (2) theoretical issues, such as how to define “religion” and the justifications for protecting religiously motivated conduct; (3) the development of international agreements and institutions covering religious human rights; and (4) a comparison of various relational regimes that exist among nations.  The third and fourth of these chapters are particularly helpful for those readers who are undertaking the study of international/comparative law for the first time, as they describe the various and overlapping legal regimes that govern foreign law but are generally alien to American jurisprudence.  Even though each of the chapters/subjects in the Framework section is distinct, they interconnect by providing a theoretical and structural background for the reader to explore the substantive issues presented in the subsequent two sections.

The remainder of the book is divided into two conceptual sections: Part II considering the relationship between the individual and the state (i.e., the state regulation of religiously motivated expression and conduct); and Part III considering the relationship between religious institutions and the state.  Part II explores, from a comparative perspective, a host of fascinating (and timely) issues: state limitations on (and accommodations of) religiously-motivated conduct, including within the context of prisons and the military; the boundaries of religious expression, including the ability to proselytize and offend another person’s religious sensibilities (e.g., the Danish Islamic cartoon controversy); state responses to religious extremism; and the ability of a state to enforce nondiscrimination norms that may conflict with religious sensibilities (e.g., gay rights laws).  Some of these issues have greater saliency for one national regime over another.  For example, American First Amendment jurisprudence takes a more individualistic (absolutist?) stance on offensive speech, refusing to recognize “hate speech” regulations, whereas Europe and Canada take a human rights approach to ethnic and religious dispersions.  While the U.S. Supreme Court is unlikely to abandon its approach any time soon, some American scholars are sympathetic to the human rights model.  The tension between individual expressive rights and human rights, particularly within the areas of religious offensiveness or defamation, is a conflict all students should understand.  Similarly, all nations are struggling with the competing individual and human rights issues presented by government attempts to ensure greater gender and sexual orientation equality in ways that impact religious communities.  While these controversies frequently manifest themselves differently in the United States and elsewhere, they raise common issues that transcend any particular nation-state.  Part II provides an excellent overview of these issues and invites American law students to consider alternative approaches to analyzing such conflicts.  (Part II also contains a chapter that considers in part the conflict between religious institutions and land use laws which, organizationally for students, may fit better with the materials in the subsequent section).

Part III considers relationships between the state and religious institutions, which contains some of the more familiar, but no less compelling, church-state conflicts: state respect for the autonomy of religious institutions and deference to religious adjudicatories; the ability of religious communities to gain legal recognition; state financial assistance for religious institutions, including schools and faith-based organizations; religious instruction and expression in state-run schools; religious influences in political matters; and religious symbols in the public sphere.  Here, the book considers the timely controversies over public school teachers and students wearing religious garb, including head-scarves, and religious symbols (crucifixes) on classroom walls.  Another emerging issue in Europe, Canada, and the Untied States is the extent to which secular legal systems should recognize adjudications by religious bodies, normally over matters concerning domestic relations, in the same way they allow other forms of alternative dispute resolution.  Law and Religion again invites students to consider the competing human rights and religious liberty issues in this area.  While other topics could possibly come to mind, Law and Religion covers the more important, compelling, and dare I say interesting issues that currently arise in the zone of overlap between law and religion. (Additional materials and resources are conveniently available on a web site supplement, which the book directs the reader at appropriate places.)  

All in all, Durham and Schaffs have written an excellent course book that introduces students to the study of law and religion from a comparative perspective but, at the same time, leaves them with much more than a cursory overview of this complex and interesting area of law and policy.  With this valuable addition to the literature, there is little excuse for American teachers of church and state to resist expanding their course offerings or coverage to include international and comparative materials.

Steven K. Green, J.D., Ph.D.
Center for Religion, Law and Democracy
Willamette University, Salem, Oregon, USA

 


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