John Noonan was my teacher some twenty-five and more years ago. I was then a graduate student at the University of California, trying to discover enough about the history of the law of the Church to write something sensible about it. He took me under his wing. He suggested a subject, and he taught me—at least he showed me—the possibility of seeing larger themes in the details of legal and historical research. Attention to the details was essential, but no less important was thinking about their background and their implications. It was a lesson I might have learned in law school. Apparently I had not. This lesson came back to me forcefully when, in more recent days, research on the development of ecclesiastical jurisdiction in England raised the subject of the place of excommunication in the subject's early history. Excommunication, dealing as it does with the complex interrelationships between legal doctrine and human behavior, is a subject about which Judge Noonan might have written a wonderful book.

Natural law has made a comeback in legal philosophy. The revival of natural law thinking in the legal academy began about thirty years ago and has managed to gain a seat at the table in current jurisprudential discussions. Defining natural law, Brian Bix declares that it “claims that there are fundamental and evaluative connections between the universe, human nature, and morality.” These connections need not have a Christian or even a theistic foundation. A belief in moral realism, that is, the propositions that “(1) there is an objective reality, (2) human beings can know something about it, and (3) there are some things that everyone can, and some things that everyone ought to, do in response to what they know,” ties together theistic and non-theistic versions of natural law. Yet many prominent contemporary natural law theorists—J. Budziszewski, John Finnis, Robert George, and Russell Hittinger —are Roman Catholic. Despite the fact that Finnis and George develop their natural law arguments without reference to any metaphysical states of affairs or transcendent truth claims, natural law continues to be associated with Thomas Aquinas and the subsequent scholastic tradition. Thus, even standards that Finnis and George derive from the internal rationality of law strike some as disguised theology.

I have received your letter and the accompanying photograph, which you identified as that of a section of the frieze in the Supreme Courtroom, located in the capital, Washington, D.C. The frieze (tunf) portrays images of eighteen of the greatest leaders in human history who played a role in either establishing or enforcing laws or Shara'i. One of these images purports to represent the Prophet Muhammad (SAAS). The artist placed the Qur'an in one hand of this image, thus symbolically recognizing it as the source of Islamic legislation. In his other hand, the figure holds a sword symbolizing the power of the state. This second symbol is in recognition of the fact that the Prophet was also a leader of his community.

This article presents a comparative anthropological approach to studying the bureaucratization of Islam in contemporary Southeast Asia. In line with this approach, the article understands the bureaucratization of Islam not simply as a formalization, expansion, and diversification of Islamic institutions and legal frameworks; rather, bureaucratization is investigated as a social phenomenon that transcends its organizational boundaries and informs dynamics of socio-legal change alongside transformations of the meaning(s) of Islam in state and society. The article centers the state's “classificatory power” and its societal coproduction and contestation, and it takes both functional and hermeneutic modes of analysis into consideration. While the bureaucratization of Islam is always embedded in and shaped by power-political constellations, it simultaneously produces social and doctrinal meanings that are unique to its locally specific discursive arenas. Therefore, more conventional functional perspectives on bureaucratic Islam can be beneficially enriched by a more hermeneutically oriented anthropological analysis, as the article illustrates, based on ethnographic data gathered in Brunei and Singapore.

The article first introduces the anthropology of bureaucracy and elaborates on the absence of such studies on state-Islam relations in Southeast Asia, as well as the potential of bringing these streams of scholarship into a fruitful dialogue. Second, it presents the Bruneian case study, focusing on postcolonial Islamization policies, the bureaucratization of a national ideology, legal reforms, and their workings on the microlevel. Third, it moves on to a regional comparison, by illustrating how Islamic knowledge and meaning-production inherent to the bureaucratization of Islam unfolds quite differently in Singapore, despite partly overlapping functional patterns. While anchored in Brunei and Singapore, the article offers a conceptual framework and analytic vocabulary for a wider study across and potentially beyond the region.

Much that is intriguing about medieval modes of proof lies in the tension that existed within them. In the practices of the ordeals, compurgation or wager of law and judicial duel, faith mingled with superstition, justice with mercy, divine providence with human manipulation. When history was conceived as “wholly a uniform drift towards better things,” these practices were proclaimed as undoubtedly barbaric, irrational, and “the most extravagant and preposterous.” Later historians offered functionalist interpretations; they showed how medieval institutions of proof reflected the living conditions of the time or served legitimate socio-political functions. Suitable as their creed is the charitable dictum of Baron Bramwell that “because the world gets wiser as it gets older, … it was [not therefore] foolish before.” A related body of scholarship evaluates the methods of proof as means of fact-finding, and supports the conclusion that they were not as ineffective as they may seem. Their epistemic function, as we will see, has been defended along different naturalistic lines.

The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.

Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Nature's God.”

This article analyzes how concepts of gender, gender equality, and secularism have been addressed by the higher judiciary in India in cases dealing with matters of religion. The discussion focuses on three landmark decisions of the Indian Supreme Court on gender equality. The cases involve challenges to discriminatory religious practices that target women in the Muslim-minority and Hindu-majority communities. In each case, gender equality is taken up in relation to religion in ways that produce several outcomes for women that are problematic rather than ones that are unequivocally progressive or transformative. The judicial reasoning in each case resonates with the Hindu Right's approach to gender, gender equality, and secularism. Each concept is used to advance the Hindu Right's majoritarian and ideological agenda, which seeks to establish India as a virile “Hindu” nation. Ironically, interventions by progressive groups, including feminist and human rights advocates opposed to the Hindu Right's makeover of the Indian nation, have not proved to be disruptive of gender norms; nor have they pushed back the tides of Hindu (male) majoritarianism that are increasingly determining the terms of engagement on issues of gender and faith in law.

Article 36 of the Chinese Constitution tells only part of the story about religious freedom in China. The Chinese constitution establishes five restrictions on the religious freedom described in Article 36. First, the Chinese Constitution establishes state atheism as an official ideology. All Chinese citizens, whether religious believers or not, are required to be educated in Marxist ideology and under the leadership of the Chinese Communist Party. Second, religious freedom, along with other rights in the Chinese Constitution, are merely legal rights, rather than fundamental rights. The National People's Congress can therefore pass legislation limiting individuals’ religious freedom. Third, the Chinese Constitution enumerates basic obligations of citizens that limit religious freedom. Fourth, Article 36 protects only the inner freedom of religious belief, not freedom for religious practice. Finally, the second half of Article 36 places limitations on religious practices. Religious freedom in the Chinese Constitution is thus a highly limited freedom. To improve religious freedom protections in China it is necessary to amend the Constitution rather than simply promote full implementation in its current form.

This article examines the cases of children born out of wedlock and adopted children with the aim of depicting the mechanisms through which the concepts of biological fatherhood, derived from the human-rights framework, and adoption, derived from the customary law framework, have been adopted into Indonesian Islamic family law. We argue that the introduction of external concepts into family law pertaining to Muslims requires an adaptation process in which the relation between these external concepts and core Islamic family law concepts is determined. In the case of children born out of wedlock, this adaptation to core Islamic norms means that biological fatherhood does not lead to a full legal father-child relationship, despite a 2012 Constitutional Court ruling establishing that children born out of wedlock have a civil relationship with their biological father. In the case of adoption, it means that there is no full adoption, despite recognition of customary adoptions under Indonesian law. We argue that in a context of strong support for a religion-based family law, reforms tend to take the form of conditions or exceptions to core religious concepts, as replacing these concepts altogether would be perceived as jeopardizing the religious character of the law. While attempts to replace core Islamic family law concepts will inevitably meet strong resistance, there is much more tolerance for introducing family law reforms that aim at changing the way that Islamic concepts are applied in practice.

The Holocaust remains imprinted on western consciousness as the epitome of a crime “which no human justice can eradicate.” Primo Levi, an Italian Jewish survivor of Auschwitz, knew this well. The tragedy of the Holocaust is that the cry “never again,” which came in its wake, has failed to control human evil. Stories of the former Yugoslavia, Rwanda, Burundi, apartheid South Africa and elsewhere remind us of the capacity of humankind to commit the kind of heinous crimes that no amount of human justice nor reparation can assuage. This tragic reality motivates Carlos Nino in Radical Evil on Trial to pose the all-important question: “How shall we live with evil? How shall we respond to massive human rights violations committed either by State actors or by others with the consent and tolerance of their governments?”

The language and ideas of “international human rights” have become seemingly ubiquitous in modern times. Indeed, within the United States, even many prominent evangelical Christian churches and leaders have sparingly started to use the language of human rights despite earlier misgivings. While there has been important academic discussion concerning the foundational role of Christian theology for the modern human rights regime, and literature discussing the acceptance of human rights within Catholic, mainline Protestant, and even Orthodox Christian circles, gaps remain in the literature concerning the relationship between general human rights norms, language, and culture and evangelical Christian theology.

This Article suggests that evangelical Christians have a greater connection to human rights than is often acknowledged (and greater than they often acknowledge themselves). But, it ultimately appears doubtful whether modern evangelical theology is amenable to a robust and deep understanding of human rights. Nonetheless, the recent rise in the number of evangelical non-governmental organizations and the attendant rise in awareness of human rights within evangelical discourse potentially serve as signposts that the uncomfortable dance of evangelicals and the human rights movement may become slightly less awkward over the coming years.

The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.

The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts?

On September 11, 2001, did American Muslims become America's newest race? This essay offers preliminary observations regarding that question.

Using the word “race” in America is like waving a red flag before a bull. You are likely to get a spirited response. In the context of a national calamity like the September 11, 2001 tragedy, discussing race becomes an even more delicate venture. Accordingly, to reduce prospects of confusion later, this essay begins by briefly addressing some initial concerns about even using the term “race.” The essay acknowledges that race is a complex, multilayered phenomenon. In these circumstances, do not expect these comments to provide definitive insights into the nature of “race.” Rather, because racial worldviews are so pervasive, the essay limits itself to merely attempting to give a sense of how the term “race” is used here.

After briefly dealing with some concerns about race, the essay outlines evidence that, based on what at best can be called racial stereotypes, American Muslims have been singled out for particularly egregious treatment following the September 11 tragedy. For illustrative purposes, the essay draws comparisons between the response of public officials to the September 11 and Oklahoma City bombing catastrophes. The essay then puts these matters in a slightly broader historical perspective by considering several cases which the United States Supreme Court decided in the 1930s and 1940s before and after another calamitous day in American history: December 7, 1941, when the Japanese Empire attacked Pearl Harbor. To round out the historical outline, two contrasting cases involving the jurisdiction of military commissions to try American civilians are briefly evaluated.

Harakat al-Shabaab al-Mujahideen, usually referred to as al-Shabaab (the youth), is known primarily as a Somali terrorist group. But since the end of 2008, it has functioned as a state power in large parts of Southern and Central Somalia. In this article, I analyze the main legal body of the group: the qāḍī court. In order to establish law and order in their territories, al-Shabaab has applied their own version of sharī'a. The article reveals that al-Shabaab's application of criminal law follows the inherent logic of classical Islamic legal doctrines on several points. However, the al-Shabaab courts tend to overlook many of the strict requirements regarding evidence and procedure that were outlined by the medieval Muslim scholars in order to humanize Islamic law. Therefore, the legal reality of al-Shabaab's regime is far more brutal than that of most other Islamic-inspired regimes in the contemporary Muslim world. Al-Shabaab's practice of Islamic criminal law may be seen not only as a means to exercise control through fear but also as an effective way of filling the vacuum of insecurity and instability that has followed twenty years of violence and the absence of state institutions in its territories. I argue that, in order to understand al-Shabaab's current practice of criminal law, one has to take into consideration the group's jihadi-Salafi affiliation. According to Salafi notions, sharī'a is not only a means to an end, but an end in itself. As such, sharī'a (i.e., God's divine law) is the visual symbol of an Islamic state. Consequently, the application of Islamic criminal law, and especially of the ḥudūd punishments, provides al-Shabaab with political-religious legitimacy.

In this essay I argue that religion, understood as harmony with the transcendent source of existence and meaning, is a good that practical reason grasps as an objective, distinct, and important aspect of human well-being, one that reasonably takes pride of place among the various aspects of a good human life due to its architectonic role in structuring and adding a transcendent meaning to all of the other goods that we pursue. On the basis of this view of religion, I suggest that religious belief and practice deserve special protection in law, above and beyond mere preferences and even other conscientious commitments. I develop this view through a dialectical engagement with Ronald Dworkin, Brian Barry, and Christopher Eisgruber and Lawrence Sager.

In this essay, Archbishop Tutu explains how Christianity understands the inherent freedom, dignity, and human rights of each person to be a consequence of being created in the image of God. This idea contains radical liberative potential to challenge oppression and create structures for human flourishing. While Christianity has not always lived up to the liberative potential of its teachings, and too often has contributed to hatred, oppression, and violence, Archbishop Tutu argues, the power of religious voices remains essential in the struggle against oppression and for the protection of human dignity.

Recent writings have uncovered a robust interaction between the spheres and sciences of law and religion. Law and religion are conceptually related. They embrace closely analogous concepts of sin and crime, covenant and contract, righteousness and justice. Law and religion are formally related. They both have patterns of liturgy and ritual, concepts of tradition and precedent, sources of authority and power. Law and religion are methodologically related. They maintain analogous hermeneutical methods of interpreting texts, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing their doctrines. Law and religion are professionally related. They both have officials charged with the formulation, implementation, and demonstration of the norms and habits of their respective fields. Law and religion are institutionally related, through the multiple relations between political and ecclesiastical officials and institutions.

This paper shows that the laws of ancient Israel found in the Old Testament significantly restricted economic transactions and limited the possibility of economic growth. The paper begins by examining the production function in light of Hebraic teaching, demonstrating that theological principles can be translated into economic regulations. The paper then describes the various laws regarding land, labor, capital, and technology and analyzes the probable economic effects of such laws during approximately the fourth century B.C.

Ironically, certain contemporary international human rights norms appear to place governments in an adversary relationship to certain peoples, such as Hasidic and Orthodox Jews, whose attempted destruction provided the impetus for modern human rights law. This raises the paradoxical spectre of human rights law being used as a tool of cultural genocide.

This conflict is, of course, not confined to Hasidic and Orthodox Jews; indeed, it appears that the majority of people on the earth are identified with a people-group whose cultural/religious practices violate certain international human rights norms. While it is common to use Islam as an example, this paper initially concentrates on traditional Judaism because of the special place of the Holocaust as a catalyst for the modern international human rights movement.