Two thousand years ago a Jewish lawyer demanded a definition of the term “neighbor.” … Whether the tale of the Samaritan answered his perplexities we cannot say. But he would surely have been astonished had he been informed that there were two answers to his question, one if he was asking as a lawyer, another if he was asking as a layman. To him, neighbor was neighbor and duty, duty. Perhaps this ancient lawyer's tale has a moral for law and lawyers today.

Through a number of profound studies the Honorable John T. Noonan Jr. (on Scholastic Analysis of Usury, on Contraception. A History of Its Treatment by the Catholic Theologians and the Canonists, on Abortion and marriage tribunals) has made visible how relevant the study of the historical context is for any scientific approach to burning issues of “natural law.” What was said by Christian churches on ethical questions makes sense for us only if we give full attention to the historical context. This is also a principle for the study of ethical questions in the Bible. While the biblical scholars concentrate mainly on what a teaching meant in illo tempore hermeneutics turns its main attention to the present contest of reflexions.

The role of sharing experience and reflexion so central in natural law questions, as Noonan sees it, is also central for the worldwide ecumenical learning community of all Christian churches. And this is for the Christian churches an absolute condition for their dialogue with all people of our time; for Christians a prerequisite for their becoming light for the world, salt for the earth.

“In … recent times, … constitutional jurisprudence has tended, in the view of many, to move toward the de facto semi-establishment of a wholly secular understanding of the origin, nature and destiny of humankind and of the American nation. During this period, the exclusion of teaching about the role of religion in society, based partly upon a misunderstanding of First Amendment decisions, has ironically resulted in giving a dominant status to such wholly secular understandings in many national institutions.”

— The Williamsburg Charter

The Williamsburg Charter rightly focuses attention on the American contribution to religious liberty, which is a part of our Constitutional heritage. It has the virtue of trying to achieve consensus around issues of deep disagreement in various religious, education and political communities. For this reason, it makes a significant beginning in our thinking about religious pluralism.

It is not, of course, a perfect document and therefore needs critical evaluation. The original Constitution itself, although hailed in the opening paragraphs of the Charter as “the most wonderful work,” is not without its flaws. For example, the original Constitution tolerated human slavery and indentured service, and it limited the franchise to white, property-owning males.

My first reflex in the face of a good debate within a discipline other than my own is to try to find a way through the melee. One would like to stand so to speak outside the fray in order to adjudicate or mediate. In this case I cannot do that. The two players, Marshall and Pepper, seem to a layman to be playing on the same field, with some of the same landmarks on the skyline, but they seem to be playing by different rules, each team having brought along its own ball and its own referee. I see no way, and I am not sure there is a need, to stand between or above the two positions to adjudicate their difference.

I therefore must attempt to come at the conversation from two other perspectives, grateful to have been educated just a little by watching the expert jousting laid before us. I shall attempt, once as amateur historian of American culture, and once as simple “religious” citizen, to describe what seems to me to be at stake, giving attention especially to the gaps where the two papers — in what they agree about more than in their debate — leave this reader dangling.

The religion of our father Abraham was the religion of a single believer. He was, as described by Thomas Jefferson, a sect of one person calling for recognition by the overwhelming majority. But even his descendants remained a tiny majority among the population of the area; they were aware of being a small people (Deut 7:7) in danger of being absorbed by the Canaanite culture in the neighborhood.

The danger of acculturation was felt not only from the majority, but equally felt from other minority cults and religions (Num. 33:55; Jos 23:13), whose religious practices set a negative example for Israel and its religion. The rule prohibiting any participation in foreign cults and marginalizing religious minorities in Israel's society (for example, Exod 34:11-17) presents itself as a conditio-sine-qua-non in the covenant with the God of Israel.

The moral force and capacity for inspiration of both religion and politics alike arise in part from the sense that they authentically map the world as we find it, yielding claims about how it should be. This paper asks what role we might imagine for law in this “hyper-real” world of religion and politics, arguing that law can display distinctive virtues linked to its capacity for strategic agnosticism about the real. Applying Sunstein's idea of “incompletely theorized agreements” to the politics of religious freedom, the paper examines the role of law as a tool of adhesion in two very different constitutional settings—Canada and Israel—and argues for modesty as a functional virtue in law and legal process. Viewed in this way, law draws its worth from its tolerance for ambiguity, its sub-theoretical nature, and its pragmatic proceduralism, seeking to sustain political community in the presence of normative diversity, rather than speaking truth to difference.

Filiation among Muslims in India is governed by Muslim personal law, a largely uncodified corpus of key Islamic legal treatises that has subsequently been interpreted and applied through the Common Law frame of British colonial courts and the post-Independence Indian judicial system by virtue of the Muslim Personal Law (Shariat) Application Act 1937. Muslim personal law recognizes only legitimate filiation resulting from a valid or irregular marriage, barring illegitimate children from maintenance and intestate succession and prohibiting adoption. However, a number of legislative enactments have modified key aspects of the law of filiation among Muslims: shifting the presumption of legitimacy arising from a valid marriage to the time of the wedding, rather than the time of conception; invalidating the doctrine of dormant fetus; and lifting certain disabilities incurred from illegitimacy. Further, although adoption based on customary law is somewhat common in India and has been recognized by courts, its effect among Muslims has tended only to lift the bar to paternal succession and seldom creates filiation with the adoptive family. Notwithstanding, following the enactment of the Juvenile Justice (Care and Protection of Children) Act 2000 and its subsequent amendments, an optional secular legal framework for adoption is now available to Muslim prospective parents. The procedure set forth by the Act is nonetheless unwieldly and implementation faces the very practical difficulties of the state in managing and protecting the vast number of destitute and abandoned children in India, for the most part with an unknown filiation.

When Ronald Dworkin was to deliver his 1988 Tanner Lecture on Human Values at Stanford University, he was introduced by the university's president, Donald Kennedy. Kennedy offered an appreciative account of Dworkin's background and achievements, noted the title of the upcoming talk, then gathered up his notes and turned the podium over to the speaker. Dworkin proceeded to give a two-hour oration on the foundations of liberal equality, breathtaking in its detail and logical rigor and flowing eloquently without a hitch or hesitation. Just as he was concluding, Kennedy rushed up to the dais and exclaimed to the audience: “Please forgive me, I just realized that when I picked up my notes, I also inadvertently picked up Professor Dworkin's manuscript.” Without missing a beat, Dworkin had delivered his entire lecture from memory.

The idea of happiness and its pursuit have been taken up by thinkers in many times and places. This article examines the role of happiness as a concept and goal in medieval Islamic thought and, especially, in the work of Abū Ḥāmid Muḥammad al-Ghazālī and Abū Naṣr al-Fārābī. In examining Ghazālī's and Fārābī's perspectives on happiness, the article looks at the influence of Plato and Aristotle on these medieval Islamic thinkers and puts Islamic thought on happiness in conversation with the views of the American founders.

The question of the sources of legal normativity continues to haunt legal theorists to this day. While it is largely uncontroversial that modern legal systems claim to produce normative propositions, whether or not there are independent reasons to obey the law remains a contested issue. Those views, as varied as they may be, appear to largely agree that the law is a social phenomenon of definite ontological presence. In this article, I argue, through an analysis of the theories of three prominent ninth- to eleventh-century Muslim jurists, that early Muslim theories of lawmaking did not incorporate any ontologically coherent concept of law. Rather, lawmaking was understood as the case-by-case formulation of legal opinions by individual jurists who were presumed to be driven by the same moral drive, and therefore occupy the same moral order, as all subjects of law. In spite of this ad hoc epistemological view, Islamic jurisprudence conceived of legal pronouncements as fully normative. The normativity of those unstructured ad hoc individual pronouncements, I maintain, is the result of the centrality of moral purpose to early Muslim theories of law. It was the presumption of a common moral drive that gave the legal system structural coherence and allowed the advancement of those pronouncements as normative claims. Whereas recent historical and anthropological work shows that moral motivation was central to the manner in which sharīʿa operated as a system of social regulation, this article argues, along the same lines, that the pietistic drive was both conceptually and structurally indispensable for the normative coherence of early Islamic jurisprudence.

In 2021, the debate about the spaces in which Europe’s Muslim citizens should be permitted to wear religious veils was reanimated by the introduction of new prohibitions introduced in Switzerland and France, and the decision of the Court of Justice of the European Union in joined cases C-804/18 and C-341/19. This article examines the jurisprudence of the European Court of Human Rights concerning veiling. We argue that veil bans reduce the ability of Muslim women to actualize themselves as citizens by limiting their capacity to develop their identity through autonomous action. As such, we argue, the right ultimately at stake—which should protect rights in respect of veiling—is the right to a private life under Article 8 of the European Convention on Human Rights, and judicial and popular conceptions of veiling should be reoriented to accommodate this view. Doing so, we argue, highlights the full range of functions that veiling implicates—including religious but also secular identarian concerns and exposes how a usually expansive right has been curtailed in cases involving veiling.

The article comparatively maps state involvement in the establishment of filiation and the placement of destitute children into new families. It first reports findings from an expert survey that investigates four key areas of state involvement—the legal framework, the role of courts and ministries, guardianship regulations, and financial support and services for destitute children—across fourteen jurisdictions, twelve Muslim-majority countries, and two Muslim-minority countries. Overall, the placement of children into new families remains a sensitive issue because it is linked to different communities “claiming” the child. In principle, the states surveyed do not allow the creation of new families across religious lines. Using Jordan as a case study, the article then focuses on the implications of one particular survey finding: non-Muslims in Muslim-majority countries sometimes cannot have children placed into their homes. This finding is based on qualitative data collected in Jordan on adoption (tabannī) in the Greek Catholic community. The article argues that in settings of legal pluralism, state involvement affects different religious communities in different ways. In Jordan, due to structural factors, the state shapes Islamic family law differently than the family laws applied by Christian communities. This leads to the unequal development of different bodies of religious law and thereby to the unequal treatment of Muslim and Christian citizens.

Since the end of World War II and the beginning of the human rights era, a common narrative has dominated international discussions of law and religion, especially in Europe, that emphasizes the alleged idiosyncrasy and uniqueness of U.S. Constitutional law regarding freedom of religion. What I call the “standard story” notes that unlike human rights instruments, and the constitutions of most European States, the U.S. Constitution contains an “Establishment Clause” prohibiting an establishment of religion, while European countries do not have prohibitions on state establishments, and indeed the relationships between religion and the state fall along a continuum running from cooperation, favored religions, to actual state establishments of religion. According to the standard story, the Free Exercise Clause of the U.S. First Amendment is a precursor of and has analogues in the human rights instruments’ provisions protecting freedom of thought, conscience, and religion, but the Establishment Clause is characterized as being sui generis, a thing unto itself. The U.S. experience with the antiestablishment principle, symbolized by Jefferson's wall of separation, the standard story notes, is so unique and so different that the lessons gleaned there have very little to offer Europe, or indeed perhaps the rest of the world. In this article I argue, as my title suggests, that the American experience is not as unique as some (especially Europeans) sometimes think it is.

Lithuania formally distinguishes between what it terms “traditional,” “state-recognized,” “registered,” and “unregistered” religions. Though constitutionally Lithuania is a secular state and all religions are declared equal vis-à-vis the state, religious communities recognized as “traditional” have, nonetheless, been favored by the state. They have been granted preferential treatment both in the legislation and extralegal handling by various state actors and institutions. At the same time, traditional religious communities are formally equal among themselves and vis-à-vis the state. However, the size of their membership puts them into two distinct camps. While the Catholic community constitutes 77 percent of the country's population, the remaining eight traditional religious communities together hardly make up 6 percent, of which 4 percent are Orthodox, with Lutherans, Calvinists, Greek Catholics, Old Believers, Judaists, Karaites, and Sunni Muslims making up the remaining numbers. This article focuses on one of the smaller traditional religious communities, Sunni Muslims, and through this example seeks to show looming complications arising from the current legal system for the governance of religion in Lithuania, which, as a country, starts inter alia being affected by the appearance of revivalist and other “nontraditional” forms of Islam on its territory. The article argues that with the changing makeup of the Lithuanian religious landscape—not related only to Islam—the current system of the governance of religion is not only outdated but also unsustainable and needs to be thoroughly overhauled to come more in line with the developing social reality.

Like many others, I believe that the information revolution is a constitutive moment in human history, and not only because of the development of technologies that change our habits and improve the quality of our lives. More than anything else, it is because the information revolution profoundly and dramatically changes our self-concept. That revolution is changing our understanding of the place we occupy in the universe (the erosion of anthropocentrism), forcing us to rethink our uniqueness as human beings and our human essence. I believe that the preconditions of our existence are changing dramatically nowadays, and consequently, our notions of belonging and identity require revision.

In October 1846, the men and women of the African Methodist Episcopal Church in St. Louis (African Church) met to consider whether they would remain with the Methodist Episcopal Church (MEC) or align with the recently-formed Methodist Episcopal Church, South (MECS). Two years earlier, in 1844, amid growing conflict over the question of slavery within the national Methodist Church, its General Conference had adopted a Plan of Separation that provided for the withdrawal of the southern Methodists and the creation of their own ecclesiastical government. The Plan provided that each Border State congregation would have the right to determine for itself by a vote of the majority with which of the two churches it would affiliate.

After the southern conferences had organized the new MECS in May 1845, the trustees of the all-white Fourth Street Methodist Church (Fourth Street Church), whose quarterly conference exercised nominal authority over the African Church, informed the black congregants that they could retain their house of worship only if they voted to join the southern Methodists. Throwing caution to the wind, and putting at risk a decade-and-a-half of patient efforts to achieve formal congregational independence within the Methodist Church, the black congregants voted decisively, by a 110 to 7 margin, to remain affiliated with the Northern Conference.