The Supreme Court of India formulated the doctrine of essential religious practices as a legal framework to protect the right to religious practice while enabling the State to implement social reforms, as provided under Article 25 of the Constitution. This article contends that although this doctrine was created to reconcile competing legal frameworks, its inconsistent and incoherent application cannot meaningfully resolve religious disputes – leaving many normative gaps. Consequently, this doctrine needs to be re-evaluated to balance religious freedom with other fundamental rights. Thus, this article assesses the doctrine of essential religious practices, its nature, scope, concerns, and criticism from gender equality perspectives.
{"title":"Balancing Faith and Equality: Examining the Adequacy of the Doctrine of Essential Religious Practices from Gender Perspectives in India","authors":"Sumit Sonkar","doi":"10.1093/ojlr/rwad020","DOIUrl":"https://doi.org/10.1093/ojlr/rwad020","url":null,"abstract":"The Supreme Court of India formulated the doctrine of essential religious practices as a legal framework to protect the right to religious practice while enabling the State to implement social reforms, as provided under Article 25 of the Constitution. This article contends that although this doctrine was created to reconcile competing legal frameworks, its inconsistent and incoherent application cannot meaningfully resolve religious disputes – leaving many normative gaps. Consequently, this doctrine needs to be re-evaluated to balance religious freedom with other fundamental rights. Thus, this article assesses the doctrine of essential religious practices, its nature, scope, concerns, and criticism from gender equality perspectives.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"13 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139762310","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}
Religion and government, following the influence of Locke and Madison are often considered two different institutions. As such, they function under different sets of rules. We argue that the ‘two institutions’ image and institutional reality are increasingly untenable. Rather, religion and government are intertwined in many democratic countries, including, growingly, in the US, that it would be more accurate to speak of the new norm of governmental–religious hybridity. Advances in data collected regarding religion–state relations, and the accumulation of court decisions in the US bring to the fore a new norm of religious–governmental hybridity. Such hybrid institutions are typically functionally religious associations; however, their funding is sourced in the government to create ‘public private religious partnerships’. If such a re-classification is justified, then norms of public law should apply to such religious associations. This bears substantial implications vis-a-vis central concepts used in political and legal circles regarding religious freedom; furthermore, this reclassification also bears upon an ongoing intellectual debate between scholars such as Chiara Cordelli—advocating democratization of religion, and Michael W. McConnell who advocated an opposing view: a strong version of church autonomy. So, this reclassification bears important implications for both scholarly debates and political issues.
在洛克和麦迪逊的影响下，宗教和政府通常被视为两个不同的机构。因此，它们在不同的规则下运作。我们认为，"两个机构 "的形象和制度现实越来越站不住脚。相反，在许多民主国家，包括越来越多的美国，宗教与政府相互交织在一起，因此更准确的说法是政府与宗教混合的新规范。有关宗教与国家关系的数据收集的进展，以及美国法院判决的积累，使宗教与政府混合的新规范凸显出来。这种混合机构在功能上通常是宗教协会，但其资金来源是政府，以建立 "公私宗教伙伴关系"。如果这种重新分类是合理的，那么公法准则就应适用于这类宗教协会。这对政治和法律界使用的有关宗教自由的核心概念具有重大影响；此外，这一重新分类也与基娅拉-科尔德利（Chiara Cordell）--主张宗教民主化--和迈克尔-麦康奈尔（Michael W. McConnell）--主张强烈的教会自治--等学者之间正在进行的思想辩论有关。因此，这次重新分类对学术辩论和政治问题都有重要影响。
{"title":"The Rise of Public–Private Religious Partnerships: Arguing Church Autonomy in the Era of Public Funding of Religion","authors":"Nahshon Perez","doi":"10.1093/ojlr/rwad022","DOIUrl":"https://doi.org/10.1093/ojlr/rwad022","url":null,"abstract":"Religion and government, following the influence of Locke and Madison are often considered two different institutions. As such, they function under different sets of rules. We argue that the ‘two institutions’ image and institutional reality are increasingly untenable. Rather, religion and government are intertwined in many democratic countries, including, growingly, in the US, that it would be more accurate to speak of the new norm of governmental–religious hybridity. Advances in data collected regarding religion–state relations, and the accumulation of court decisions in the US bring to the fore a new norm of religious–governmental hybridity. Such hybrid institutions are typically functionally religious associations; however, their funding is sourced in the government to create ‘public private religious partnerships’. If such a re-classification is justified, then norms of public law should apply to such religious associations. This bears substantial implications vis-a-vis central concepts used in political and legal circles regarding religious freedom; furthermore, this reclassification also bears upon an ongoing intellectual debate between scholars such as Chiara Cordelli—advocating democratization of religion, and Michael W. McConnell who advocated an opposing view: a strong version of church autonomy. So, this reclassification bears important implications for both scholarly debates and political issues.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139677409","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 addresses the exclusivism–inclusivism debate about religious reasons in law within a justificatory liberal framework. The question of whether religious reasons have justificatory capacity for attaining public justification has increasingly been seen as a matter of how public justification is understood between two rival models: the consensus model being aligned with exclusivism, the convergence model with inclusivism. More recently, however, that alignment has been challenged with attempts to show that consensus can reach an equivalent degree of inclusivism as convergence. Against this, I contend that the purported equivalence is misplaced. First, I identify a crucial ambiguity about public justification and two corresponding domains. Upon demonstrating these to be mutually independent and severable, I conclude that the moves to equalize the models are confined within the more narrow domain while, in the more fundamental domain, the choice of model continues to prove determinative as to the exclusivist or inclusivist valence of justificatory liberalism.
{"title":"Religious Reasons and Liberal Legitimacy","authors":"Kim Leontiev","doi":"10.1093/ojlr/rwad021","DOIUrl":"https://doi.org/10.1093/ojlr/rwad021","url":null,"abstract":"This article addresses the exclusivism–inclusivism debate about religious reasons in law within a justificatory liberal framework. The question of whether religious reasons have justificatory capacity for attaining public justification has increasingly been seen as a matter of how public justification is understood between two rival models: the consensus model being aligned with exclusivism, the convergence model with inclusivism. More recently, however, that alignment has been challenged with attempts to show that consensus can reach an equivalent degree of inclusivism as convergence. Against this, I contend that the purported equivalence is misplaced. First, I identify a crucial ambiguity about public justification and two corresponding domains. Upon demonstrating these to be mutually independent and severable, I conclude that the moves to equalize the models are confined within the more narrow domain while, in the more fundamental domain, the choice of model continues to prove determinative as to the exclusivist or inclusivist valence of justificatory liberalism.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"22 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2024-01-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139515746","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 examines John Calvin’s theology on its own terms with the aim of appreciating the normative basis and implications of his political theory. Although the claim that Calvin’s account of civil government falls within the category of political ‘theology’ is less controversial, the normative implications of his theological ontology for political actors are more commonly contested. Calvin seminally wrote ‘on Civil Government’ in Book IV, Chapter xx of the Institutes of the Christian Religion. In contrast, his accounts of conscience and natural law are far less systemized.1 This article contends that this reticence is not due to lack of importance but rather, due to its foundational nature. Indeed, the opening statement of the Institutes is indicative of the coherence of the Reformer’s thoughts wherein any emerging polity is composed of what this article refers to as the ‘spheres-of-influence’ scheme—a normative system originating inward from the vertical relationship every human agent has with the divine, and then extending horizontally outwards to bind the collective in a common system of values. Such an ontology is predicated on the concepts of conscience and the divine image, which renders all persons, who possess this natural repository of moral knowledge, accountable to transcendent standards of virtue. It follows that when we overlay this ‘continuum’2 onto a constitutional framework, we place the priority, not on the individual rights of the citizen, but on the responsibilities of all political actors whereby others precede the self and the common good prevails over self-interest.
{"title":"Conscience and the continuum of constitutionalism: John Calvin on civil government","authors":"Constance Lee","doi":"10.1093/ojlr/rwad018","DOIUrl":"https://doi.org/10.1093/ojlr/rwad018","url":null,"abstract":"This article examines John Calvin’s theology on its own terms with the aim of appreciating the normative basis and implications of his political theory. Although the claim that Calvin’s account of civil government falls within the category of political ‘theology’ is less controversial, the normative implications of his theological ontology for political actors are more commonly contested. Calvin seminally wrote ‘on Civil Government’ in Book IV, Chapter xx of the Institutes of the Christian Religion. In contrast, his accounts of conscience and natural law are far less systemized.1 This article contends that this reticence is not due to lack of importance but rather, due to its foundational nature. Indeed, the opening statement of the Institutes is indicative of the coherence of the Reformer’s thoughts wherein any emerging polity is composed of what this article refers to as the ‘spheres-of-influence’ scheme—a normative system originating inward from the vertical relationship every human agent has with the divine, and then extending horizontally outwards to bind the collective in a common system of values. Such an ontology is predicated on the concepts of conscience and the divine image, which renders all persons, who possess this natural repository of moral knowledge, accountable to transcendent standards of virtue. It follows that when we overlay this ‘continuum’2 onto a constitutional framework, we place the priority, not on the individual rights of the citizen, but on the responsibilities of all political actors whereby others precede the self and the common good prevails over self-interest.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"184 ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519157","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}
Abstract The 1995 Constitution of Uganda contains important human rights guarantees, including the freedoms of religion, expression, and association. At the same time, there continues to exist a law, first enacted during the colonial period, which criminalizes—as ‘witchcraft’—certain aspects of African traditional religion. This article considers the extent to which this law is consistent with the liberties promised and protected under the Constitution. Ultimately, it contends that the imperatives of both constitutional governance and the redress of historical injustice mandate a repeal of Uganda’s Witchcraft Act and all related legal enactments.
{"title":"Criminalizing Indigenous Belief: The Constitutional Deficits of Uganda’s Witchcraft Act","authors":"Busingye Kabumba","doi":"10.1093/ojlr/rwad014","DOIUrl":"https://doi.org/10.1093/ojlr/rwad014","url":null,"abstract":"Abstract The 1995 Constitution of Uganda contains important human rights guarantees, including the freedoms of religion, expression, and association. At the same time, there continues to exist a law, first enacted during the colonial period, which criminalizes—as ‘witchcraft’—certain aspects of African traditional religion. This article considers the extent to which this law is consistent with the liberties promised and protected under the Constitution. Ultimately, it contends that the imperatives of both constitutional governance and the redress of historical injustice mandate a repeal of Uganda’s Witchcraft Act and all related legal enactments.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"34 11‐12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135430310","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}
Abstract Against the backdrop of the fast-progressing legal reconfigurations happening in European countries and the Muslim world, this article brings to light two internationally noteworthy yet overlooked scenarios. The first regards the plasticity of the Italian provisions fostering the privatization of family matters via extra-judicial matrimonial dissolution formulae, which potentially accommodate Islamically inspired normativities either by granting legal validity to ex-spouses’ sharīʿah-compliant agreements, or by incorporating potential concessions for the Islamic legal waiting period. The second scenario concerns access to justice for Muslim Moroccan wives, who may strategically seek divorce before Italian tribunals through the implementation of Moroccan family law to benefit from more advantageous interpretations and judicial discretion. In-depth examinations of unpublished legal proceedings reveal an evolving legal vocabulary while documenting strengthened confidence in applying the Mudawwanah on European soil. While this can impede the validation of European (extra-)judicial divorces in Muslim-majority countries and lead to divergent implementations of the same norms in Italy and Morocco, the dynamics nonetheless foster forum shopping and women’s empowerment. Paying careful attention to the "gendered readings" of legal provisions introduced by disputing partners before the judiciary, the narrative depicting victimized Muslim women in migratory contexts is therefore challenged.
{"title":"Divorcing abroad, sharīʿah style: Legal reforms and Moroccan women","authors":"Federica Sona","doi":"10.1093/ojlr/rwad017","DOIUrl":"https://doi.org/10.1093/ojlr/rwad017","url":null,"abstract":"Abstract Against the backdrop of the fast-progressing legal reconfigurations happening in European countries and the Muslim world, this article brings to light two internationally noteworthy yet overlooked scenarios. The first regards the plasticity of the Italian provisions fostering the privatization of family matters via extra-judicial matrimonial dissolution formulae, which potentially accommodate Islamically inspired normativities either by granting legal validity to ex-spouses’ sharīʿah-compliant agreements, or by incorporating potential concessions for the Islamic legal waiting period. The second scenario concerns access to justice for Muslim Moroccan wives, who may strategically seek divorce before Italian tribunals through the implementation of Moroccan family law to benefit from more advantageous interpretations and judicial discretion. In-depth examinations of unpublished legal proceedings reveal an evolving legal vocabulary while documenting strengthened confidence in applying the Mudawwanah on European soil. While this can impede the validation of European (extra-)judicial divorces in Muslim-majority countries and lead to divergent implementations of the same norms in Italy and Morocco, the dynamics nonetheless foster forum shopping and women’s empowerment. Paying careful attention to the \"gendered readings\" of legal provisions introduced by disputing partners before the judiciary, the narrative depicting victimized Muslim women in migratory contexts is therefore challenged.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"28 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135430052","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}
Abstract In Indonesia, Islamic norms have been codified into State family law and divorce petitions are handled by State ‘Religious Courts’ (Pengadilan Agama). Formal, court-annexed mediation at the Religious Courts exists alongside customary (adat) mediation at the community level. In cases involving domestic and family violence, victims are socially expected to mediate at the community level before proceeding to the Religious Courts for formal determination of divorce petitions. At the Religious Courts, mediation is currently compulsory for all divorce petitions, even where there is proof or allegations of domestic and family violence. We argue that mediation should not be compulsory for victims of domestic and family violence who seek divorce via State family law avenues. In practice, victims bringing divorce petitions to the courts have generally already participated in mediation at the community level and therefore, further mediation has little—if any—utility. Further, there are well-documented risks for victims of domestic and family violence in mediation contexts. We draw on the comparative models of family violence screening from Australia and Canada to argue that similar screening processes should be introduced into Indonesia’s Religious Courts in order to exempt such cases of violence from compulsory mediation.
{"title":"Inside Indonesia’s Religious Courts: An Argument for Domestic and Family Violence Screening and Exemption from Compulsory Mediation","authors":"Balawyn Jones, Amira Aftab","doi":"10.1093/ojlr/rwad015","DOIUrl":"https://doi.org/10.1093/ojlr/rwad015","url":null,"abstract":"Abstract In Indonesia, Islamic norms have been codified into State family law and divorce petitions are handled by State ‘Religious Courts’ (Pengadilan Agama). Formal, court-annexed mediation at the Religious Courts exists alongside customary (adat) mediation at the community level. In cases involving domestic and family violence, victims are socially expected to mediate at the community level before proceeding to the Religious Courts for formal determination of divorce petitions. At the Religious Courts, mediation is currently compulsory for all divorce petitions, even where there is proof or allegations of domestic and family violence. We argue that mediation should not be compulsory for victims of domestic and family violence who seek divorce via State family law avenues. In practice, victims bringing divorce petitions to the courts have generally already participated in mediation at the community level and therefore, further mediation has little—if any—utility. Further, there are well-documented risks for victims of domestic and family violence in mediation contexts. We draw on the comparative models of family violence screening from Australia and Canada to argue that similar screening processes should be introduced into Indonesia’s Religious Courts in order to exempt such cases of violence from compulsory mediation.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135875266","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}
Abstract Family law in England and Wales draws a fundamental and categoric distinction between female genital mutilation (FGM) and male circumcision (circumcision). The former is a criminal abuse of human rights which, for the purposes of section 31 of the Children Act 1989, can never fall within the ambit of reasonable parenting. The latter is, in principle, reasonable and is therefore not in itself a basis upon which the state can seek to intervene in family life.1 It will be argued that the reasons given for this distinction in the authorities to date (reasons based on precedent, culture/religion and health/medical issues) are problematic and are not ultimately capable of explaining the distinction satisfactorily. Nevertheless, it will be further argued that a distinction can be properly justified but only when we consider some core underlying features of family law in our contemporary democratic society and that it is only with those features in mind that the different treatment can be explained and viewed as acceptable.
{"title":"Why Family Law Treats Female Genital Mutilation and Circumcision Differently: An Explanation","authors":"Nick Brown","doi":"10.1093/ojlr/rwad012","DOIUrl":"https://doi.org/10.1093/ojlr/rwad012","url":null,"abstract":"Abstract Family law in England and Wales draws a fundamental and categoric distinction between female genital mutilation (FGM) and male circumcision (circumcision). The former is a criminal abuse of human rights which, for the purposes of section 31 of the Children Act 1989, can never fall within the ambit of reasonable parenting. The latter is, in principle, reasonable and is therefore not in itself a basis upon which the state can seek to intervene in family life.1 It will be argued that the reasons given for this distinction in the authorities to date (reasons based on precedent, culture/religion and health/medical issues) are problematic and are not ultimately capable of explaining the distinction satisfactorily. Nevertheless, it will be further argued that a distinction can be properly justified but only when we consider some core underlying features of family law in our contemporary democratic society and that it is only with those features in mind that the different treatment can be explained and viewed as acceptable.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135854407","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 explores the underlying causes and motivations surrounding non-legally binding Islamic marriages or nikah-only marriages, and their impact on dispute resolution and the process of obtaining a religious divorce, with a special focus on women experiencing domestic abuse. It draws on empirical data from a study of Islamic divorce in the UK. Inspired by phenomenological approaches, the research involved in-depth interviews with British-Muslim women to gain a well-grounded understanding of the problems associated with Muslim marriage, domestic abuse, and divorce from their lived experiences. Furthermore, the study involved interviews with experts associated with providing informal mediation and religious arbitration ranging from imams to Sharia council judges, as well as professionals such as solicitors and counsellors. Sharia council hearings were also observed and their procedural documents were analysed. The data collected were analysed using a thematic approach, and the emergent themes from the rich data provide a detailed insight into the research problem, firmly embedded in the lived experience of British Muslims.
{"title":"Muslim Women, Nikah Marriages, Domestic Abuse and Religious Arbitration in England","authors":"I. Uddin","doi":"10.1093/ojlr/rwad011","DOIUrl":"https://doi.org/10.1093/ojlr/rwad011","url":null,"abstract":"\u0000 This article explores the underlying causes and motivations surrounding non-legally binding Islamic marriages or nikah-only marriages, and their impact on dispute resolution and the process of obtaining a religious divorce, with a special focus on women experiencing domestic abuse. It draws on empirical data from a study of Islamic divorce in the UK. Inspired by phenomenological approaches, the research involved in-depth interviews with British-Muslim women to gain a well-grounded understanding of the problems associated with Muslim marriage, domestic abuse, and divorce from their lived experiences. Furthermore, the study involved interviews with experts associated with providing informal mediation and religious arbitration ranging from imams to Sharia council judges, as well as professionals such as solicitors and counsellors. Sharia council hearings were also observed and their procedural documents were analysed. The data collected were analysed using a thematic approach, and the emergent themes from the rich data provide a detailed insight into the research problem, firmly embedded in the lived experience of British Muslims.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-08-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47484666","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}
In addition to ijtihād (independent legal reasoning), tarjīḥ (weighing up and preference) serves as a fundamental instrument of traditional Islamic law's operational work and was used on different levels. In modern times, tarjīḥ is still applied not only by individual scholars but also by collective fiqh institutions. However, the conception of tarjīḥ is undergoing a transformation in its current application. In the scope of this article, the first purpose is to provide a comprehensive overview of the conception and the diverse practical forms of the tarjīḥ in traditional Islamic law. The focus then lies on setting out how to apply tarjīḥ in modern Islamic jurisprudence. This article also aims to illustrate the conceptual and operational changes of tarjīḥ, paying special attention to the relation between tarjīḥ and ijtihād. Overall, this article intends, on the one hand, to contribute to the study of present Islamic law's developments; on the other hand, it examines the continuity and change of tarjīḥ from traditional Islamic law to contemporary fiqh institutions. It is argued that tarjīḥ in the modern age is not only used as a method of weighing and choosing a legal view that among the diverse views of pre-modern law most closely adapts to the current social circumstances, but that it is also integrated in the process of development of new legal doctrines.
{"title":"Continuity and Change of Traditional Islamic Law in Modern Times: tarjīḥ as a Method of Adaptation and Development of Legal Doctrines","authors":"Ahmed Gad Makhlouf","doi":"10.1093/ojlr/rwad010","DOIUrl":"https://doi.org/10.1093/ojlr/rwad010","url":null,"abstract":"\u0000 In addition to ijtihād (independent legal reasoning), tarjīḥ (weighing up and preference) serves as a fundamental instrument of traditional Islamic law's operational work and was used on different levels. In modern times, tarjīḥ is still applied not only by individual scholars but also by collective fiqh institutions. However, the conception of tarjīḥ is undergoing a transformation in its current application. In the scope of this article, the first purpose is to provide a comprehensive overview of the conception and the diverse practical forms of the tarjīḥ in traditional Islamic law. The focus then lies on setting out how to apply tarjīḥ in modern Islamic jurisprudence. This article also aims to illustrate the conceptual and operational changes of tarjīḥ, paying special attention to the relation between tarjīḥ and ijtihād. Overall, this article intends, on the one hand, to contribute to the study of present Islamic law's developments; on the other hand, it examines the continuity and change of tarjīḥ from traditional Islamic law to contemporary fiqh institutions. It is argued that tarjīḥ in the modern age is not only used as a method of weighing and choosing a legal view that among the diverse views of pre-modern law most closely adapts to the current social circumstances, but that it is also integrated in the process of development of new legal doctrines.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45824288","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}
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