God has made man with the instinctive love of justice in him,

which gradually gets developed in the world …. I do not pretend

to understand the moral universe; the arc is a long one, my eye

reaches but little ways; I cannot calculate the curve and complete

the figure by the experience of sight; I can divine it by conscience.

And from what I see I am sure it bends towards justice.

Theodore Parker (1853)

A strange mystery it is that Nature, omnipotent but blind, in the

revolutions of her … hurryings through the abysses of space, has

brought forth at last a child, subject still to her power, but gifted

with sight, with knowledge of good and evil, with the capacity of

judging all the works of his unthinking mother. [Gradually, as

morality grows bolder, the claim of the ideal world begins to be

felt, [giving rise to the claim] that, in some hidden manner, the

world of fact is really harmonious with the world of ideals. Thus

man creates God, all-powerful and all-good, the mystic unity of

what is and what should be.

The articles assembled in this symposium share their roots in a workshop we organized at the International Institute for the Sociology of Law (IISJ) in Onati, Spain, in June 2011. The workshop, titled “Legal Pluralism and Democracy. When Does Legal Pluralism Enhance, When Does It Erode Legitimacy of and Trust in Democratic Institutions?” examined the consequences of legal pluralism for various facets of democracy, from human rights and political equality to issues of stateness, legitimacy, and self-determination. Half of the papers discussed the application of customary law in pluri-legal systems, particularly in Africa and South America, while the other half dealt with the application of religious law, especially in Muslim-majority countries as well as Israel and India.

Other papers presented at the workshop have been published in the IISJ's “Oñati Socio-Legal Series” on the Social Science Research Network and are available for download at http://papers.ssrn.com/so13/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1605943.

The three articles featured in this symposium address how the law may take account of diversity in the face of the democratic promise of universal rights standards: they probe the question of how to accommodate cultural particularity while also delivering upon the promise of universal and equal citizenship. Both are crucial sources of legitimacy of and trust in democratic political systems, even while they are also often mutually exclusive standards.

The Balkans, a region where Christianity and Islam have come into close contact since before World War Ii, is an interesting study in legal pluralism. The millet system, under which distinct ethnic-religious communities including Muslims were granted partial institutional autonomy, was at that time a convenient legal paradigm to accommodate minorities within the new national states being created. However, the communist regimes that succeeded the War in the Balkans eradicated legal pluralism in favor of a uniform legal order. As a consequence, the authority to employ shari'a in Muslim communities in this region was abolished under communism.

The political changes occurring in the Balkans after communism was dismantled in the 1990s did not bring back the shari'a courts in most of the Balkans. However, Greece, having escaped these radical political shifts, retained a continuous legal regime that included some legal autonomy granted to the Greek Muslim population that survived a population exchange with Turkey at the end of the Greek-Turkish war of 1919-1922. As a result of the Lausanne treaty, the Muslim population of (Western) Thrace in Greece was granted a special minority protection regime that applied shari'a law to Muslim Greek citizens residing in that region of Thrace. However, shari'a is only applied to certain disputes of family and inheritance law by the local Mufti in Western Thrace who has special jurisdiction over these matters.

In the summer of 2011, Dutch teacher Duran Renkema was dismissed from the orthodox Reformed school in Oegstgeest because he had left his wife and family, and decided to openly live together with his boyfriend. In the court case that followed, the judge ruled that the publicly funded denominational school did not have the right to dismiss a teacher who otherwise functioned well, merely because of his sexual identity. In collecting funds so it could take the case to the Equal Treatment Commission, the Dutch gay rights organization Coc emphasized that this was the first time that a teacher at a religious school publicly dared to contest his dismissal.

Although the teacher himself also initially threatened to put the issue before the Equal Treatment Commission (ETC), he later withdrew the case, stating, “my family, partner and I need rest to come to terms with what happened.” He indicated that he hoped that “the discussion and dialogue in the Reformed churches will not come to a halt here, but that they will take this opportunity to show the gay community in the Netherlands that the message in the Bible is one of love.

Something unexpected has been happening in Africa—and not just Northern Africa, the locus of democratic revolutions since January 2011, when a winter's discontent produced an early Arab Spring. Over the last several years, several sub-Saharan African nations have held democratic elections, produced new constitutions, and even partitioned themselves in relative peace, despite the often dire predictions of foreign governments, media, and election-monitoring organizations.

In many cases, the constitution and reconstitution of these states has been accomplished by means of the referendum vote—sometimes viewed as the anti-democratic purview of special interests in the developed West, but having greater respect and utility as a tool of democracy in the developing South. Kenya produced a new constitution in 2010 by a referendum that has been lauded by international observers for its peaceful process and outcome. The Kenyan referendum followed general elections in 2007, whose results were marred by violence in early 2008. The nearby countries of Zambia and Tanzania are currently in the process of constitutional reform, drawing lessons from Kenya's unexpectedly harmonious proceedings. In all three countries, the constitutional review processes have raised, among other issues, questions of legal pluralism, religious freedom, and relations between the Christian majority and Muslim minority.

The contemporary treatment of rape in the penal codes of Muslim nations has come under increasing scrutiny over the last two decades, as several high-profile cases have arisen in which women have claimed sexual assault but been unable to bring sufficient proof of non-consent. In some cases, claimants have subsequently been punished for fornication (zinā) because their accusations were seen as constituting confession to consensual illicit sex, while in other cases, a resulting pregnancy has been taken as evidence of the same. These cases have illustrated the particular problems that stem from defining rape as a coercive variant of fornication, or zinā.

These cases have largely arisen in the context of national efforts to Islamize the legal code by bringing laws into line with perceived sharī'a guidelines. This slew of cases has prompted journalists, human rights groups and Muslim reformers to ask whether contemporary “Islamic” rape laws are really continuous with the classical Islamic juristic tradition, or whether they may in fact represent distortions of that tradition. A central point of debate has been over whether Islamic juristic discourse truly placed rape—that is, a man's unlawful sexual intercourse with a woman against her will—under the category of zinā, or not.

The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference for Shari'a among Turkish voters. The typical question asks whether respondents favor the establishment of a Shari'a state. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of a Shari'a state,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed to Shari'a within Turkey, both among voters and among intellectuals, as a framework forfuture empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.

The role of Islam in the politics of Muslim-majority countries has attracted a plethora of scholarly research over the past two decades that generally refers to this phenomenon as political Islam. Much of the focus of this body of literature is concerned with the reconciliation of Islam and democracy. In recent years, the leading scholarship in this field has attempted to anticipate the future of political Islam and the prospect of post-Islamism. Asef Bayet's work on post-Islamists examines various social movements in the Middle East, arguing that Muslims have made Islam democratic by how they have defined Islam in respect to their particular socio-political contexts. However, others have expressed pessimism about the extent to which domestic conditions in Muslim-majority countries and external geopolitical factors will allow the development of an Islamic democracy. Abdelwahab El-Affendi, for instance, sees four main options for Islamists: full revolutionary takeover of their respective countries; completely withdrawing from political office to become Islamic interest or pressure groups; building broader coalitions while maintaining their ideology; or radically restructuring in order to emulate the model of Turkey's Justice and Development Party (AKP). What is missing in this discussion is attention to the capacity of Islamic political parties to draw on Islamic tradition and evolve in response to modernity through a focus on Islam's higher objectives or a maqasid approach.