Provocation by witchcraft, a defence to a homicidal act supposedly perpetrated under the influence of belief in witchcraft and juju, has become a plea frequently invoked by witch-killers in many African countries, particularly those formerly colonized by Britain. Over the last century, the courts in Anglophone Africa have repeatedly been invited to address the question as to whether the belief in witchcraft and juju avails to an accused person the defence of grave provocation and, if so, under what conditions. Yet, very little is known about the origins and nature of this controversial legal defence, and the boundaries of its application remain murky. Drawing on a wide range of relevant academic literature, statutes and, more importantly, case law, the present study investigates the origins of the provocation by witchcraft plea and explores the historical development of this contentious defence, highlighting the extent to which the courts’ perspective on the scope of its application has evolved since the 1930s.
{"title":"The Provocation by Witchcraft Defence in Anglophone Africa: Origins and Historical Development","authors":"E. Owusu","doi":"10.1093/ojlr/rwad007","DOIUrl":"https://doi.org/10.1093/ojlr/rwad007","url":null,"abstract":"\u0000 Provocation by witchcraft, a defence to a homicidal act supposedly perpetrated under the influence of belief in witchcraft and juju, has become a plea frequently invoked by witch-killers in many African countries, particularly those formerly colonized by Britain. Over the last century, the courts in Anglophone Africa have repeatedly been invited to address the question as to whether the belief in witchcraft and juju avails to an accused person the defence of grave provocation and, if so, under what conditions. Yet, very little is known about the origins and nature of this controversial legal defence, and the boundaries of its application remain murky. Drawing on a wide range of relevant academic literature, statutes and, more importantly, case law, the present study investigates the origins of the provocation by witchcraft plea and explores the historical development of this contentious defence, highlighting the extent to which the courts’ perspective on the scope of its application has evolved since the 1930s.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45097424","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 Campbell and Cosans v the United Kingdom (1982), the European Court of Human Rights (ECtHR) determined that a view must ‘attain a certain level of cogency, seriousness, cohesion and importance’ to be considered a religion or belief under Article 9 of the Convention. The Court has seemed hesitant to provide much guidance beyond the words quoted. This article’s first aim is to attempt a comprehensive interpretation of these requirements by examining clues as to their meaning and scope in the case law of the last 40 years. This includes well-known cases like Pretty and Gough, as well as recent cases like Vavřička and De Wilde. The second aim is to evaluate these standards in light of liberal egalitarian principles, specifically, the principle of ‘integrity’ developed by Cécile Laborde. Integrity refers to the value of living in accordance with one’s profound beliefs, which are distinguished from mere preferences and inclinations. The argument presented is that the objective versions of cogency, cohesion, and importance endorsed by the ECtHR are incompatible with the subjectivist value of integrity. Conversely, depending on which of three possible interpretations of seriousness one finds most plausible, the ECtHR’s version of seriousness may align with the integrity view.
{"title":"Cogency, Seriousness, Cohesion, and Importance: Assessing the Strasbourg Case-Law on Religion or Belief","authors":"Tim Wolff","doi":"10.1093/ojlr/rwad006","DOIUrl":"https://doi.org/10.1093/ojlr/rwad006","url":null,"abstract":"\u0000 In Campbell and Cosans v the United Kingdom (1982), the European Court of Human Rights (ECtHR) determined that a view must ‘attain a certain level of cogency, seriousness, cohesion and importance’ to be considered a religion or belief under Article 9 of the Convention. The Court has seemed hesitant to provide much guidance beyond the words quoted. This article’s first aim is to attempt a comprehensive interpretation of these requirements by examining clues as to their meaning and scope in the case law of the last 40 years. This includes well-known cases like Pretty and Gough, as well as recent cases like Vavřička and De Wilde. The second aim is to evaluate these standards in light of liberal egalitarian principles, specifically, the principle of ‘integrity’ developed by Cécile Laborde. Integrity refers to the value of living in accordance with one’s profound beliefs, which are distinguished from mere preferences and inclinations. The argument presented is that the objective versions of cogency, cohesion, and importance endorsed by the ECtHR are incompatible with the subjectivist value of integrity. Conversely, depending on which of three possible interpretations of seriousness one finds most plausible, the ECtHR’s version of seriousness may align with the integrity view.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48092329","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}
Most Islamic legal literature describes non-Muslims as ‘second-class citizens’. They do not have equal rights to Muslims, particularly under Islamic inheritance law. This article attempts to re-evaluate this general assessment by presenting cases of Islamic inheritance involving non-Muslims in post-New Order Indonesia. Using five decisions of the Indonesian Supreme Court, we argue that whilst the judges’ legal arguments are relatively progressive and inclusive by accommodating non-Muslim rights, their analogical interpretation of the waṣiat wājibah (mandatory will) is still trapped in classical fiqh (Islamic jurisprudence) norms that position religious differences and apostasy as an obstacle to inheritance. Although their analogical interpretation has in some cases resulted in equal rights, the protection of non-Muslim rights has not been fully realized. The legal arguments and principles they adopt are made acceptable to the Muslim community because they maintain traditional fiqh in the context of a multicultural Indonesian society. This study has implications for equal rights among Indonesian citizens and the realization of the state’s ideals that uphold the right to freedom of religion.
{"title":"Accommodating Non-Muslim Rights: Legal Arguments and Legal Principles in the Islamic Jurisprudence of the Indonesian Supreme Court in the Post-New Order Era","authors":"Muhammad Lutfi Hakim, Khoiruddin Nasution","doi":"10.1093/ojlr/rwad004","DOIUrl":"https://doi.org/10.1093/ojlr/rwad004","url":null,"abstract":"\u0000 Most Islamic legal literature describes non-Muslims as ‘second-class citizens’. They do not have equal rights to Muslims, particularly under Islamic inheritance law. This article attempts to re-evaluate this general assessment by presenting cases of Islamic inheritance involving non-Muslims in post-New Order Indonesia. Using five decisions of the Indonesian Supreme Court, we argue that whilst the judges’ legal arguments are relatively progressive and inclusive by accommodating non-Muslim rights, their analogical interpretation of the waṣiat wājibah (mandatory will) is still trapped in classical fiqh (Islamic jurisprudence) norms that position religious differences and apostasy as an obstacle to inheritance. Although their analogical interpretation has in some cases resulted in equal rights, the protection of non-Muslim rights has not been fully realized. The legal arguments and principles they adopt are made acceptable to the Muslim community because they maintain traditional fiqh in the context of a multicultural Indonesian society. This study has implications for equal rights among Indonesian citizens and the realization of the state’s ideals that uphold the right to freedom of religion.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-05-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41503438","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}
Violations of religious freedom resulting from how states arrange their recognition and registration policies continue to escalate around the world. States might seek to regulate the religious activities of their citizens and recognition and registration are convenient tools in this pursuit. Registration is sometimes made mandatory; groups may be barred from accessing it and what they must do to first obtain and then to maintain registered status can be onerous. Such restrictive policies serve to preserve a religious or political hegemony by filtering out religions and beliefs deemed unfavourable and unworthy of recognition. After surveying the ways recognition and registration are misused, this article contends that more definitive international standards are necessary to supersede ambiguous guidelines. Furthermore, this article deliberates over the plausibility that recognition, as a mode of state–religion relations, might still have the potential to facilitate freedom of religion or belief. This relies on whether a state uses recognition to facilitate all religions and beliefs by reducing deep-set favouritism and any administrative hurdles imposed during registration.
{"title":"Registration, recognition, and freedom of religion or belief","authors":"Brandon Reece Taylorian, Marco Ventura","doi":"10.1093/ojlr/rwad005","DOIUrl":"https://doi.org/10.1093/ojlr/rwad005","url":null,"abstract":"\u0000 Violations of religious freedom resulting from how states arrange their recognition and registration policies continue to escalate around the world. States might seek to regulate the religious activities of their citizens and recognition and registration are convenient tools in this pursuit. Registration is sometimes made mandatory; groups may be barred from accessing it and what they must do to first obtain and then to maintain registered status can be onerous. Such restrictive policies serve to preserve a religious or political hegemony by filtering out religions and beliefs deemed unfavourable and unworthy of recognition. After surveying the ways recognition and registration are misused, this article contends that more definitive international standards are necessary to supersede ambiguous guidelines. Furthermore, this article deliberates over the plausibility that recognition, as a mode of state–religion relations, might still have the potential to facilitate freedom of religion or belief. This relies on whether a state uses recognition to facilitate all religions and beliefs by reducing deep-set favouritism and any administrative hurdles imposed during registration.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49289694","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}
Many scholars accept that the principle of neutrality is to a large extent a fictional concept. They often propose different variations that would better realize its prescribed aim of equality. In this contribution, we argue that state agents in general, and judges in particular, cannot be ‘neutral’ as they are not abstract entities. They do not enter the judiciary with a clean slate but as persons subjected to a myriad of formative experiences, connected to their worldview, gender, nationality, socio-economic background, and so on. Thus, the fiction of neutrality of the State is inevitably linked with a lack of transparency: not showing religious, atheist, or agnostic as well as political convictions is not the same as not having them. An alternative model would be to emphasize transparency, but simultaneously strive for diversity of different convictions represented on the Bench. Such a system would prompt self-conscious reflection on the role of worldviews in the judging process. It would, however, create new dilemmas as it would be impossible to reach an adequate equilibrium and thus undermine the confidence in the judiciary.
{"title":"Countering the Fiction of Neutrality: Pushing for Transparency?","authors":"Cathérine Van de Graaf, Angelika Nussberger","doi":"10.1093/ojlr/rwad003","DOIUrl":"https://doi.org/10.1093/ojlr/rwad003","url":null,"abstract":"\u0000 Many scholars accept that the principle of neutrality is to a large extent a fictional concept. They often propose different variations that would better realize its prescribed aim of equality. In this contribution, we argue that state agents in general, and judges in particular, cannot be ‘neutral’ as they are not abstract entities. They do not enter the judiciary with a clean slate but as persons subjected to a myriad of formative experiences, connected to their worldview, gender, nationality, socio-economic background, and so on. Thus, the fiction of neutrality of the State is inevitably linked with a lack of transparency: not showing religious, atheist, or agnostic as well as political convictions is not the same as not having them. An alternative model would be to emphasize transparency, but simultaneously strive for diversity of different convictions represented on the Bench. Such a system would prompt self-conscious reflection on the role of worldviews in the judging process. It would, however, create new dilemmas as it would be impossible to reach an adequate equilibrium and thus undermine the confidence in the judiciary.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45439016","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}
{"title":"A Christian Approach to Corporate Religious Liberty. By Edward A. David","authors":"Michael Bradley","doi":"10.1093/ojlr/rwad001","DOIUrl":"https://doi.org/10.1093/ojlr/rwad001","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46355747","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}
{"title":"Global Law and Christianity: Discussion with the book Christianity and Global Law, By eds Rafael Domingo and John Witte, Jr","authors":"Grzegorz J. Blicharz","doi":"10.1093/ojlr/rwad002","DOIUrl":"https://doi.org/10.1093/ojlr/rwad002","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49654791","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 takes its point of departure in the recommendations by the Council of Europe, and Organization for Security and Co-operation in Europe (OSCE) that recommend that European states should offer education about religions for all school students, regardless of religious or non-religious background. Sweden is one of the countries that provides such education through a compulsory non-denominational religion education (RE) school subject. The compulsory nature of the school subject is possible as long as the teaching is both ‘objective and pluralistic’. In this article, the concept of objectivity but also neutrality is discussed, using the Swedish school subject as an example. The argument pursued is that RE in Sweden, although presented as objective and neutral, also can be understood as ‘marinated’ in Lutheran Protestantism. In the end, the protestant taste of the Swedish non-denominational and compulsory RE is used as a call for further awareness of how the religious history of a given country affects not only education but also the way people perceive the phenomena called religion. These are important perspectives not only for RE teachers who are demanded to teach in a neutral and objective manner, but perhaps also for lawyers?
{"title":"Swedish Religion Education in Public Schools—Objective and Neutral or a Marination into Lutheran Protestantism?","authors":"Jenny Berglund","doi":"10.1093/ojlr/rwac018","DOIUrl":"https://doi.org/10.1093/ojlr/rwac018","url":null,"abstract":"\u0000 This article takes its point of departure in the recommendations by the Council of Europe, and Organization for Security and Co-operation in Europe (OSCE) that recommend that European states should offer education about religions for all school students, regardless of religious or non-religious background. Sweden is one of the countries that provides such education through a compulsory non-denominational religion education (RE) school subject. The compulsory nature of the school subject is possible as long as the teaching is both ‘objective and pluralistic’. In this article, the concept of objectivity but also neutrality is discussed, using the Swedish school subject as an example. The argument pursued is that RE in Sweden, although presented as objective and neutral, also can be understood as ‘marinated’ in Lutheran Protestantism. In the end, the protestant taste of the Swedish non-denominational and compulsory RE is used as a call for further awareness of how the religious history of a given country affects not only education but also the way people perceive the phenomena called religion. These are important perspectives not only for RE teachers who are demanded to teach in a neutral and objective manner, but perhaps also for lawyers?","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2023-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44352914","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}
Fatwas play a central role in the articulation and contextualization of Islamic law. Despite its lofty status within Islam’s juristic tradition, the authoritative value and function of fatwas in contemporary Muslim societies is undergoing significant change. Whereas historical fatwas generated immense solidarity within Islam’s legal schools and traditional ulama (religious scholars), Muslims today are confronted with an unprecedented supply of fatwas from various religious actors, institutions and digital platforms vying to speak for Islam. Using Australia as a case study, this article investigates the role, demand, and relevance of fatwas in Australia. It draws on empirical fieldwork conducted between 2018 and 2019 with Muslim religious actors including imams/sheikhs, educators, academics and members of the Australian Muslim community. The findings show Australian Muslims are largely sceptical about the relevance and credibility behind fatwa-making in Australia. Among the findings, participants demand greater scholarly expertise, legal analysis, and institutional output in the production of fatwas. Participants additionally expressed desire to establish locally based fatwa councils with the ability to produce context-specific fatwas for Australian Muslims.
{"title":"Are Fatwas Dispensable? Examining the Contemporary Relevance and Authority of Fatwas in Australia","authors":"Shaheen Whyte","doi":"10.1093/ojlr/rwac015","DOIUrl":"https://doi.org/10.1093/ojlr/rwac015","url":null,"abstract":"Fatwas play a central role in the articulation and contextualization of Islamic law. Despite its lofty status within Islam’s juristic tradition, the authoritative value and function of fatwas in contemporary Muslim societies is undergoing significant change. Whereas historical fatwas generated immense solidarity within Islam’s legal schools and traditional ulama (religious scholars), Muslims today are confronted with an unprecedented supply of fatwas from various religious actors, institutions and digital platforms vying to speak for Islam. Using Australia as a case study, this article investigates the role, demand, and relevance of fatwas in Australia. It draws on empirical fieldwork conducted between 2018 and 2019 with Muslim religious actors including imams/sheikhs, educators, academics and members of the Australian Muslim community. The findings show Australian Muslims are largely sceptical about the relevance and credibility behind fatwa-making in Australia. Among the findings, participants demand greater scholarly expertise, legal analysis, and institutional output in the production of fatwas. Participants additionally expressed desire to establish locally based fatwa councils with the ability to produce context-specific fatwas for Australian Muslims.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"8 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-12-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519121","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 discusses the role of the European Court of Human Rights in regulating the symbolic establishment of religion by the Convention States in their public sphere. The analysis starts from the rather controversial Lautsi decisions and distinguishes three perspectives on such cases. The legal perspective focuses on the way the Court would usually answer a legal question underlying a controversial subject as an interpretation of the Convention and Protocols understood as the living instrument it is today. The political perspective focuses on the preferred solution of the democratic majority in the relevant the Convention State, which is sometimes diametrically opposed to the Court’s assessment. The pragmatic perspective explains how the Court deals with such clashes. In controversial cases, the Court sometimes is critical of the state for violating Convention rights, but remains, as a supranational court, critically dependent on the sufficient support of these states. This implies that the Court is sometimes forced to act pragmatically. To maintain the overall stability of the Convention system of human rights protection, the Court is sometimes required to make legally suboptimal decisions in specific controversial cases.
{"title":"Is Symbolic Religious Establishment Permitted Within the European Convention? A Legal, Political, and Pragmatic Perspective","authors":"Roland Pierik","doi":"10.1093/ojlr/rwac016","DOIUrl":"https://doi.org/10.1093/ojlr/rwac016","url":null,"abstract":"This article discusses the role of the European Court of Human Rights in regulating the symbolic establishment of religion by the Convention States in their public sphere. The analysis starts from the rather controversial Lautsi decisions and distinguishes three perspectives on such cases. The legal perspective focuses on the way the Court would usually answer a legal question underlying a controversial subject as an interpretation of the Convention and Protocols understood as the living instrument it is today. The political perspective focuses on the preferred solution of the democratic majority in the relevant the Convention State, which is sometimes diametrically opposed to the Court’s assessment. The pragmatic perspective explains how the Court deals with such clashes. In controversial cases, the Court sometimes is critical of the state for violating Convention rights, but remains, as a supranational court, critically dependent on the sufficient support of these states. This implies that the Court is sometimes forced to act pragmatically. To maintain the overall stability of the Convention system of human rights protection, the Court is sometimes required to make legally suboptimal decisions in specific controversial cases.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"151 ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-12-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138519122","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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