This article explores the transmission of textual Islamic knowledge in Norway—a context in which Muslims form a religious minority—using a pioneering method: studying the translation of texts. Many Muslims in Norway either came from another country themselves or have progenitors who did. Important texts relating to Islam have mostly been available in languages other than Norwegian. This makes it possible to use translation as a lens for understanding how Islamic knowledge is transmitted. I identify two tendencies in the transmission of Islamic knowledge through translation. Translation often cements the status of established and canonized texts and authors. But translation activities also show an adaptation to norms in Norwegian society. Texts pertaining to politically charged issues have sometimes been avoided altogether, and the wording of charged sections has in some instances been subtly changed. I label this process quiet adaptation. Many of the translated texts espouse a normativity that is more palatable to Norwegian society at large, and which Muslims living in Norway can more easily identify with. I conclude by discussing how the study of translation can be used as a way to explore social change in Muslim and other diaspora groups in Europe.
{"title":"From Transmitting Authority to Quiet Adaptation: Social Change and the Translation of Islamic Knowledge in Norway","authors":"Olav Elgvin","doi":"10.1093/ojlr/rwae024","DOIUrl":"https://doi.org/10.1093/ojlr/rwae024","url":null,"abstract":"This article explores the transmission of textual Islamic knowledge in Norway—a context in which Muslims form a religious minority—using a pioneering method: studying the translation of texts. Many Muslims in Norway either came from another country themselves or have progenitors who did. Important texts relating to Islam have mostly been available in languages other than Norwegian. This makes it possible to use translation as a lens for understanding how Islamic knowledge is transmitted. I identify two tendencies in the transmission of Islamic knowledge through translation. Translation often cements the status of established and canonized texts and authors. But translation activities also show an adaptation to norms in Norwegian society. Texts pertaining to politically charged issues have sometimes been avoided altogether, and the wording of charged sections has in some instances been subtly changed. I label this process quiet adaptation. Many of the translated texts espouse a normativity that is more palatable to Norwegian society at large, and which Muslims living in Norway can more easily identify with. I conclude by discussing how the study of translation can be used as a way to explore social change in Muslim and other diaspora groups in Europe.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"28 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141969800","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The article investigates the history of the genre of Ḥanafī legal riddles (alghāz fiqhiyya) during the Mamluk period (648/1250–923/1517). It argues that legal riddles did not constitute ‘useless’ knowledge as earlier scholarship on Islamicate learned riddles had assumed. In contrast, the article shows that the Ḥanafī texts under investigation fulfilled important functions in the transmission of canonized legal scholarship, the performance of madhhab identities, the establishment and maintenance of scholarly prestige and patronage relationships, and the legitimation of political rule. The article demonstrates that in order to fully understand processes of transmission and the canonization of legal knowledge, we must broaden our focus to encompass more than the bodies of knowledge used in qāḍī courts and taught in institutions of higher learning such as madrasas. Instead, we should be open to the possibility that Islamic legal learning and its textual tradition were also shaped by institutions and practices that catered at least as much to the curiosity and aesthetic expectations of the people involved in them as to their desire for practically useful knowledge.
{"title":"Playing with the Canon: Ḥanafī Legal Riddles of the Mamluk Period","authors":"Christian Mauder","doi":"10.1093/ojlr/rwae018","DOIUrl":"https://doi.org/10.1093/ojlr/rwae018","url":null,"abstract":"The article investigates the history of the genre of Ḥanafī legal riddles (alghāz fiqhiyya) during the Mamluk period (648/1250–923/1517). It argues that legal riddles did not constitute ‘useless’ knowledge as earlier scholarship on Islamicate learned riddles had assumed. In contrast, the article shows that the Ḥanafī texts under investigation fulfilled important functions in the transmission of canonized legal scholarship, the performance of madhhab identities, the establishment and maintenance of scholarly prestige and patronage relationships, and the legitimation of political rule. The article demonstrates that in order to fully understand processes of transmission and the canonization of legal knowledge, we must broaden our focus to encompass more than the bodies of knowledge used in qāḍī courts and taught in institutions of higher learning such as madrasas. Instead, we should be open to the possibility that Islamic legal learning and its textual tradition were also shaped by institutions and practices that catered at least as much to the curiosity and aesthetic expectations of the people involved in them as to their desire for practically useful knowledge.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"25 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141615038","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fragmentation in International Human Rights Law (IHRL) may affect the universality of human rights norms and their legitimacy. This article analyses a recent case of contradiction between the European and the Inter-American Court of Human Rights (IACHR) regarding employment contracts of religious education teachers and the scope of religious autonomy. These courts reached contradictory conclusions on key substantive issues because they used different ways of framing the issue at stake, and different legal sources and interpretative methodologies. The analysis reveals that while the European Court of Human Rights (ECHR) relied on the use of comparative law, a test of proportionality, and the margin of appreciation, the IACHR relied mainly on American domestic law and the opinions of two expert witnesses. In this case, the IACHR could learn from the approach of the ECHR to develop a more rigorous legal methodology in order to keep the coherence of the international legal system.
{"title":"Fragmentation in the European and Inter-American Human Rights Courts Regarding the Scope of Religious Autonomy: An Analysis of the Use of Sources and Methodologies","authors":"Gabriela García Escobar","doi":"10.1093/ojlr/rwae022","DOIUrl":"https://doi.org/10.1093/ojlr/rwae022","url":null,"abstract":"Fragmentation in International Human Rights Law (IHRL) may affect the universality of human rights norms and their legitimacy. This article analyses a recent case of contradiction between the European and the Inter-American Court of Human Rights (IACHR) regarding employment contracts of religious education teachers and the scope of religious autonomy. These courts reached contradictory conclusions on key substantive issues because they used different ways of framing the issue at stake, and different legal sources and interpretative methodologies. The analysis reveals that while the European Court of Human Rights (ECHR) relied on the use of comparative law, a test of proportionality, and the margin of appreciation, the IACHR relied mainly on American domestic law and the opinions of two expert witnesses. In this case, the IACHR could learn from the approach of the ECHR to develop a more rigorous legal methodology in order to keep the coherence of the international legal system.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"43 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-07-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141546989","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Over the last 40 years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and do, consistently—decide in favour of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion. In cases involving religious property, competing notions of ownership can enable, or inhibit, religious practice. New threats to Native American sacred sites often follow valuable natural resources that lie above, below, and around tribes’ ancestral lands. Even where faith communities own their sacred sites, religious liberty protections may prove limited. Courts often make judgments about religious property based on their own determinations of what counts as ‘essential’ for faith communities’ free exercise of religion. How legal institutions comprehend religion when evaluating property claims brought by faith communities will often dictate whether, and how extensively, religious liberty protects religious property. Such judicial theologizing can further threaten sacred sites.
{"title":"New Threats to Sacred Sites and Religious Property","authors":"Patrick E Reidy","doi":"10.1093/ojlr/rwae019","DOIUrl":"https://doi.org/10.1093/ojlr/rwae019","url":null,"abstract":"Over the last 40 years, Native American faith communities have struggled to protect their sacred sites using religious liberty law. Because Native American religious claimants lack an explicit ownership interest in their sacred sites, courts can—and do, consistently—decide in favour of the government as landowner, regardless of anticipated or actual burdens on Indians’ free exercise of religion. In cases involving religious property, competing notions of ownership can enable, or inhibit, religious practice. New threats to Native American sacred sites often follow valuable natural resources that lie above, below, and around tribes’ ancestral lands. Even where faith communities own their sacred sites, religious liberty protections may prove limited. Courts often make judgments about religious property based on their own determinations of what counts as ‘essential’ for faith communities’ free exercise of religion. How legal institutions comprehend religion when evaluating property claims brought by faith communities will often dictate whether, and how extensively, religious liberty protects religious property. Such judicial theologizing can further threaten sacred sites.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"90 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-06-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141508163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article provides a new account of Shāfiʿī legal history in the fourth/tenth and fifth/eleventh centuries: a tale of two ṭarīqas, or interpretive communities, one in Iraq and the other in Khurasan. I show that these two Shāfiʿī communities developed as distinct social and scholarly collectives before gradually converging in Ayyubid Damascus and eventually coalescing around one authoritative school doctrine in the Mamluk period. I reconstruct the networks of Shāfiʿī jurists in the two regions and show how and why the two groups differed in their legal reasoning and their paradigm of the madhhab (legal school). Although all of these jurists shared a transregional affiliation with the Shāfiʿī madhhab that distinguished them from jurists belonging to other legal schools, I argue that these affinities were countered by geographical boundaries and diverging local developments that led to the differentiation of the Iraqi and Khurasani Shāfiʿī communities. These insights not only complicate our understanding of what constitutes the post-formative madhhab as an institution but also demonstrate how broader intellectual and institutional developments, such as the ascendancy of Ashʿarism, the emergence of new centres of scholarship, and the introduction of the madrasa, shaped the internal workings of the madhhab.
{"title":"A Tale of Two Ṭarīqas: The Iraqi and Khurasani Shāfiʿī Communities in the Fourth/Tenth and Fifth/Eleventh Centuries","authors":"Mariam Sheibani","doi":"10.1093/ojlr/rwae021","DOIUrl":"https://doi.org/10.1093/ojlr/rwae021","url":null,"abstract":"This article provides a new account of Shāfiʿī legal history in the fourth/tenth and fifth/eleventh centuries: a tale of two ṭarīqas, or interpretive communities, one in Iraq and the other in Khurasan. I show that these two Shāfiʿī communities developed as distinct social and scholarly collectives before gradually converging in Ayyubid Damascus and eventually coalescing around one authoritative school doctrine in the Mamluk period. I reconstruct the networks of Shāfiʿī jurists in the two regions and show how and why the two groups differed in their legal reasoning and their paradigm of the madhhab (legal school). Although all of these jurists shared a transregional affiliation with the Shāfiʿī madhhab that distinguished them from jurists belonging to other legal schools, I argue that these affinities were countered by geographical boundaries and diverging local developments that led to the differentiation of the Iraqi and Khurasani Shāfiʿī communities. These insights not only complicate our understanding of what constitutes the post-formative madhhab as an institution but also demonstrate how broader intellectual and institutional developments, such as the ascendancy of Ashʿarism, the emergence of new centres of scholarship, and the introduction of the madrasa, shaped the internal workings of the madhhab.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"40 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141508164","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article presents the universal case for banning cousin marriage regardless of jurisdiction or culture. It is intended both as a resource—the relevant facts and opposing arguments will be set out plainly for reference purposes—and a legal argument which seeks to demonstrate that the weight of evidence concerning this poorly understood practice supports outright prohibition. Accordingly, the article is divided into five parts. The introduction briefly outlines the key controversies within the field of comparative consanguinity law and signposts the way forward. There follows an examination of the modern definition and distribution of cousin marriage to establish its current prevalence and key trends, before an explanation of the consequences resulting from its practice and factors contributing to consanguineous preferences. The article then takes an analytical turn to assess five common arguments against banning cousin marriage proceeding from, respectively, (i) human rights, (ii) prejudice, (iii) custom, (iv) choice, and (v) proportionality. Having factored in the relevant medical, social, historical, and geopolitical evidence throughout, it concludes by arguing the case in favour of a ban with specific proposals as to its justification and recommended scope, substance, and implementation.
{"title":"The Case for Banning Cousin Marriage","authors":"Patrick S Nash","doi":"10.1093/ojlr/rwae014","DOIUrl":"https://doi.org/10.1093/ojlr/rwae014","url":null,"abstract":"This article presents the universal case for banning cousin marriage regardless of jurisdiction or culture. It is intended both as a resource—the relevant facts and opposing arguments will be set out plainly for reference purposes—and a legal argument which seeks to demonstrate that the weight of evidence concerning this poorly understood practice supports outright prohibition. Accordingly, the article is divided into five parts. The introduction briefly outlines the key controversies within the field of comparative consanguinity law and signposts the way forward. There follows an examination of the modern definition and distribution of cousin marriage to establish its current prevalence and key trends, before an explanation of the consequences resulting from its practice and factors contributing to consanguineous preferences. The article then takes an analytical turn to assess five common arguments against banning cousin marriage proceeding from, respectively, (i) human rights, (ii) prejudice, (iii) custom, (iv) choice, and (v) proportionality. Having factored in the relevant medical, social, historical, and geopolitical evidence throughout, it concludes by arguing the case in favour of a ban with specific proposals as to its justification and recommended scope, substance, and implementation.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"92 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141197013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology. These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This article begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public–private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law. This article argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue to define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what the so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself towards new problems that afflict a very different world from the one in which it came into being.
{"title":"The Death and New Life of Law and Religion","authors":"Marc O De Girolami","doi":"10.1093/ojlr/rwae007","DOIUrl":"https://doi.org/10.1093/ojlr/rwae007","url":null,"abstract":"The year 2023 was an end and a beginning. It saw the passing or retirement of many giants in the field of law and religion—scholars who brought their formidable erudition and insight to bear on questions that transcended legal doctrine, venturing upward into the heady realms of political theory, philosophy, history, sociology, and theology. These and other recent departures from the active world of law and religion are an occasion to reflect on the state of the field. This article begins with a brief history of the field, highlighting the questions that motivated it to emerge in the 1970s and 1980s and the intellectual currents and legal developments against which it was reacting. It then argues that some of the central concerns and inquiries that occupied law and religion as a discrete field of academic study in what it calls the first wave heyday are now at an end. These include the nature of religion and the secular in the law, the division between these concepts, and the implications for law and religion as an independent academic discipline; the concept of state neutrality as to religion and the connected public–private divide as respects what is religious and what is non-religiously political; and the regime of religious exemption for everyone with a sincere objection to a law as the central feature of religious free exercise, in constitutional and statutory law. This article argues that these are now, or will soon become, dead issues. Of course, they may well continue to be important for lawyers making and opposing claims in litigation, and for judges deciding among them, since the operative textual and doctrinal categories relevant to such claims will continue to depend on clever argumentation concerning some or all of them. And scholars will, no doubt, continue to wrangle over them. But to the extent that they continue to define the field or remain its signature issues, their growing irrelevance signals its death. Intellectual enterprises that survive over generations learn to adapt, and law and religion will need to do so as well. And, in fact, different issues, based on different premises and cultural circumstances, are beginning to emerge that may come to dominate the field and give it new life: the nature of political establishments and how they change; the use of ‘religion’ as a term for a category of political or ideological identity either to re-entrench or subvert political establishment; and the limits of what the so-called religious dissenters (who are now, and in large measure thanks to the first wave, indistinguishable from political or ideological dissenters) from the political establishment may reasonably expect in the way of accommodation from it. If the field is to survive, it will need to reorient itself towards new problems that afflict a very different world from the one in which it came into being.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"44 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140579137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article scrutinizes the ongoing European debate surrounding religious attire, particularly in the context of legal restrictions and requests for accommodation. The core inquiry revolves around the ambiguous definition of ‘religious dress’, encompassing both prescribed attire and symbols with religious significance. Beyond conventional religious garments that are generally legally accepted, the article delves into the contentious classification of cultural styles, as seen recently with the ban on abayas and qamis in French public schools, and the exemptions for ‘religious dress’ claimed by adherents to mock religions such as Pastafarianism. Acknowledging the contested nature of defining religion, the article examines the potential necessity for legal definitions, emphasizing their role in determining both recognition and limitations. The study navigates the European legal framework, drawing insights from supranational sources and the case law of the European Court of Human Rights to unravel the intricacies, challenges, and implications of regulating religion and religious dress in Europe.
{"title":"On Turbans, Abayas, and Colanders: The Scope of Religious Dress in a Pluralistic Society","authors":"Naoual El Yattouti","doi":"10.1093/ojlr/rwae008","DOIUrl":"https://doi.org/10.1093/ojlr/rwae008","url":null,"abstract":"This article scrutinizes the ongoing European debate surrounding religious attire, particularly in the context of legal restrictions and requests for accommodation. The core inquiry revolves around the ambiguous definition of ‘religious dress’, encompassing both prescribed attire and symbols with religious significance. Beyond conventional religious garments that are generally legally accepted, the article delves into the contentious classification of cultural styles, as seen recently with the ban on abayas and qamis in French public schools, and the exemptions for ‘religious dress’ claimed by adherents to mock religions such as Pastafarianism. Acknowledging the contested nature of defining religion, the article examines the potential necessity for legal definitions, emphasizing their role in determining both recognition and limitations. The study navigates the European legal framework, drawing insights from supranational sources and the case law of the European Court of Human Rights to unravel the intricacies, challenges, and implications of regulating religion and religious dress in Europe.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"105 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-04-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140579525","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The continental tradition of modern positive law, with its attempt to formulate clear legal rules, tends to be suspicious of ambiguity and struggles with the productive power of the untranslatable. Opaque kernels that inevitably remain in laws seem risky and call for disambiguation—through legislation, the courts, or administration. Yet despite this struggle against ambiguity, laws, as texts made of language, not only remain essentially ambiguous, but often require ambiguity when regulating for plural groups. In global legal orders, such as Roman Catholic canon law, we can observe that ambiguity is used strategically to allow for the inclusion of plural legal cultures. Adding to this, canon law fosters its opaqueness by meandering between secular and religious language games, thus playing with the semantic surplus of religion for the sake of cultivating ambiguity. This ambiguity management is itself ambiguous. It is inclusive, allowing plural communities to exist under the roof of Catholicism, but it is also open to the authorities’ arbitrary decisions undermining legal certainty as a core value of modern law.
{"title":"The Language Games of Canon Law: Strategic Ambiguity Between Law and Religion","authors":"Judith Hahn","doi":"10.1093/ojlr/rwae004","DOIUrl":"https://doi.org/10.1093/ojlr/rwae004","url":null,"abstract":"The continental tradition of modern positive law, with its attempt to formulate clear legal rules, tends to be suspicious of ambiguity and struggles with the productive power of the untranslatable. Opaque kernels that inevitably remain in laws seem risky and call for disambiguation—through legislation, the courts, or administration. Yet despite this struggle against ambiguity, laws, as texts made of language, not only remain essentially ambiguous, but often require ambiguity when regulating for plural groups. In global legal orders, such as Roman Catholic canon law, we can observe that ambiguity is used strategically to allow for the inclusion of plural legal cultures. Adding to this, canon law fosters its opaqueness by meandering between secular and religious language games, thus playing with the semantic surplus of religion for the sake of cultivating ambiguity. This ambiguity management is itself ambiguous. It is inclusive, allowing plural communities to exist under the roof of Catholicism, but it is also open to the authorities’ arbitrary decisions undermining legal certainty as a core value of modern law.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"163 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-03-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140202118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Both sociology of religion and statistical bodies within the Catholic Church approach the question of church membership in similar ways: they take participation in religious ritual as a benchmark of affiliation to a religious community. What seems to be a straightforward criterion for measuring membership actually speaks to a complex interplay in the constitution of political and cosmological order: the constitution of social order through practices such as religious rituals is, irreducibly, also a definition of the ‘extraordinary’. Thus, starting from the assumption that the formation of community is a political–theological practice of boundary-drawing that cannot but refer to a beyond, this article offers a theological critique of ritual participation as a criterion of ecclesial affiliation. Taking the performance ‘Verantwort: ich’ (Synodaler Weg, 2023) as a case, it shows that it rests on a theological concept of transcendence that is used as a hegemonic instrument to confirm the established order of belonging in the church. Arguing that the definition of ecclesial boundaries is an irreducibly powerful, even violent theo-political practice, it asks which theological notion of transcendence can best reckon with, and consequently offer tools for managing, rather than concealing, the normative violence that is at the heart of the question of who belongs to the church.
{"title":"The Theo-Politics of Ritual: Defining and Contesting the Sacred Order of the Church","authors":"Judith Gruber","doi":"10.1093/ojlr/rwae002","DOIUrl":"https://doi.org/10.1093/ojlr/rwae002","url":null,"abstract":"Both sociology of religion and statistical bodies within the Catholic Church approach the question of church membership in similar ways: they take participation in religious ritual as a benchmark of affiliation to a religious community. What seems to be a straightforward criterion for measuring membership actually speaks to a complex interplay in the constitution of political and cosmological order: the constitution of social order through practices such as religious rituals is, irreducibly, also a definition of the ‘extraordinary’. Thus, starting from the assumption that the formation of community is a political–theological practice of boundary-drawing that cannot but refer to a beyond, this article offers a theological critique of ritual participation as a criterion of ecclesial affiliation. Taking the performance ‘Verantwort: ich’ (Synodaler Weg, 2023) as a case, it shows that it rests on a theological concept of transcendence that is used as a hegemonic instrument to confirm the established order of belonging in the church. Arguing that the definition of ecclesial boundaries is an irreducibly powerful, even violent theo-political practice, it asks which theological notion of transcendence can best reckon with, and consequently offer tools for managing, rather than concealing, the normative violence that is at the heart of the question of who belongs to the church.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"9 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139957033","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
京公网安备 11010802042870号
京ICP备2023020795号-1
扫码关注我们
求助内容：
应助结果提醒方式：