Abstract This article undertakes a comparison of legal restrictions on religious gatherings in the USA during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied on proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 and other nations in 2020 models a better way. Instead of using proportionality or equality, these state officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, lower case counts, and greater trust during the pandemic and offers a useful precedent for current US lawmakers managing the religious freedom concerns of COVID-19.
{"title":"Contagions, Congregations, and Constitutional Law: Reciprocity and Religious Freedom in the 1918 and 2020 Pandemics","authors":"Brady Earley","doi":"10.1093/ojlr/rwac004","DOIUrl":"https://doi.org/10.1093/ojlr/rwac004","url":null,"abstract":"Abstract This article undertakes a comparison of legal restrictions on religious gatherings in the USA during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied on proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 and other nations in 2020 models a better way. Instead of using proportionality or equality, these state officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, lower case counts, and greater trust during the pandemic and offers a useful precedent for current US lawmakers managing the religious freedom concerns of COVID-19.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"10 1","pages":"359 - 393"},"PeriodicalIF":0.6,"publicationDate":"2021-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388601","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":"Christianity and International Law: An Introduction. By P Slotte and John D Haskell","authors":"M. Evans","doi":"10.1093/ojlr/rwab011","DOIUrl":"https://doi.org/10.1093/ojlr/rwab011","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-09-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49107300","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 phenomenon of ‘legal pluralism’ in India is conditioned and facilitated by the democratic state’s commitment to protect religious freedom and uphold sociocultural diversity. Community-based adjudicating institutions such as the Darul Qaza (also known as Sharia court) function within this constitutional framework but every citizen also has the right to approach a state court as and when they deem necessary. So far, the discourse on Islam, personal law, and the secular state has revolved around parliamentary debates, judicial activism, and legislative changes where the focus has been on the question of Uniform Civil Code (UCC) and gender justice. The discussion on personal law has rarely paid serious academic attention to the complexities of kinship conflicts embedded in affective as well as economic and legal matrix or more importantly how they are resolved. Drawing on an ethnographic study of the jurisprudential practices of Sharia courts in Uttar Pradesh, India, the paper offers a lens to understand how conflict resolution in family matters takes place in a legal plural landscape ensconced between citizenship rights and community practices. We argue that understanding this process also offers important insights on the shifting meaning of secularism1,2 in contemporary India.
{"title":"Religion-based ‘Personal’ Law, Legal Pluralism and Secularity: A Field View of Adjudication under Muslim Personal Law in India","authors":"Suchandra Ghosh, Anindita Chakrabarti","doi":"10.1093/ojlr/rwab012","DOIUrl":"https://doi.org/10.1093/ojlr/rwab012","url":null,"abstract":"The phenomenon of ‘legal pluralism’ in India is conditioned and facilitated by the democratic state’s commitment to protect religious freedom and uphold sociocultural diversity. Community-based adjudicating institutions such as the Darul Qaza (also known as Sharia court) function within this constitutional framework but every citizen also has the right to approach a state court as and when they deem necessary. So far, the discourse on Islam, personal law, and the secular state has revolved around parliamentary debates, judicial activism, and legislative changes where the focus has been on the question of Uniform Civil Code (UCC) and gender justice. The discussion on personal law has rarely paid serious academic attention to the complexities of kinship conflicts embedded in affective as well as economic and legal matrix or more importantly how they are resolved. Drawing on an ethnographic study of the jurisprudential practices of Sharia courts in Uttar Pradesh, India, the paper offers a lens to understand how conflict resolution in family matters takes place in a legal plural landscape ensconced between citizenship rights and community practices. We argue that understanding this process also offers important insights on the shifting meaning of secularism1,2 in contemporary India.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"3 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138515583","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":"What’s Wrong with Rights. By Nigel Biggar","authors":"John Witte","doi":"10.1093/ojlr/rwab010","DOIUrl":"https://doi.org/10.1093/ojlr/rwab010","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41369954","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 essay explores the relationship between moral epistemology and legal theory in Islamic thought. Reviewing selected works of Khomeini, Maududi, and Qutb, I show that Islamism, drawing upon certain currents of Muslim intellectual tradition, presupposes a rejection of moral rationalism and on that basis opposes the permanent alteration of explicit divine injunctions. Next, I argue that the unwillingness of ‘Abduh, Iqbal, and Soroush to articulate a consistent moral rationalism prevents these reformists from offering a tenable theoretical alternative to Islamist legalism. I subsequently consider the moral epistemology of classical Mu‘tazili scholar ‘Abd al-Jabbar in order to show how a robust moral rationalism justifies the prudential revision of divine law. On that basis, I suggest that moral rationalism is the necessary epistemic basis of any legal theory that stands as a clear alternative to Islamism while still remaining grounded in the most fundamental tenets of Muslim piety.
{"title":"Moral Epistemology and the Revision of Divine Law in Islam","authors":"A. Siddiqi","doi":"10.1093/ojlr/rwab006","DOIUrl":"https://doi.org/10.1093/ojlr/rwab006","url":null,"abstract":"\u0000 This essay explores the relationship between moral epistemology and legal theory in Islamic thought. Reviewing selected works of Khomeini, Maududi, and Qutb, I show that Islamism, drawing upon certain currents of Muslim intellectual tradition, presupposes a rejection of moral rationalism and on that basis opposes the permanent alteration of explicit divine injunctions. Next, I argue that the unwillingness of ‘Abduh, Iqbal, and Soroush to articulate a consistent moral rationalism prevents these reformists from offering a tenable theoretical alternative to Islamist legalism. I subsequently consider the moral epistemology of classical Mu‘tazili scholar ‘Abd al-Jabbar in order to show how a robust moral rationalism justifies the prudential revision of divine law. On that basis, I suggest that moral rationalism is the necessary epistemic basis of any legal theory that stands as a clear alternative to Islamism while still remaining grounded in the most fundamental tenets of Muslim piety.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44444814","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}
While ‘social justice’ is a recent concept, its origins lie in a 13th century theologian, who, through an Italian Jesuit, inspired a 19th century Pope. From there it has moved to the secular realm and jurisprudential reasoning, and tried to leap from national society to international society. It has become linked internationally to human rights obligations, where it has had a mixed influence. Within all these developments, the definitions of social justice have changed and been debated. There is a common idea in these definitions that in all societies there should be an aim to distribute resources to assist those less advantaged. In addition, a core element has remained: that the state has some obligations to ensure social justice. This article sets out the history of these definitions and then seeks to challenge the sole responsibility of the state in relation to social justice. It examines the activities of corporations in their effect on society and the consequences on social justice. It also considers what this means in terms of defining social justice at a transnational and international level.
{"title":"Social Justice: From God to Corporation","authors":"R. Mccorquodale","doi":"10.1093/ojlr/rwab007","DOIUrl":"https://doi.org/10.1093/ojlr/rwab007","url":null,"abstract":"\u0000 While ‘social justice’ is a recent concept, its origins lie in a 13th century theologian, who, through an Italian Jesuit, inspired a 19th century Pope. From there it has moved to the secular realm and jurisprudential reasoning, and tried to leap from national society to international society. It has become linked internationally to human rights obligations, where it has had a mixed influence. Within all these developments, the definitions of social justice have changed and been debated. There is a common idea in these definitions that in all societies there should be an aim to distribute resources to assist those less advantaged. In addition, a core element has remained: that the state has some obligations to ensure social justice. This article sets out the history of these definitions and then seeks to challenge the sole responsibility of the state in relation to social justice. It examines the activities of corporations in their effect on society and the consequences on social justice. It also considers what this means in terms of defining social justice at a transnational and international level.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42435866","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 and compares the views of two traditionally educated Muslim scholars, namely Taha Jabir al-Alwani (d 2016) and Hussein Ali Montazeri (d 2009), about the classical rulings on apostasy in Islam. The article argues that both al-Alwani, a Sunni scholar educated at al-Azhar, and Montazeri, a graduate of the Shiʿi seminary in Qom, defend freedom of religion in the sense of converting from Islam to another religion—an idea that stands in sharp opposition to the classical rulings on apostasy in Islamic sources which prescribe capital punishment for such an act. As the article demonstrates, these scholars’ views, despite certain differences in their method of argumentation, advance the development of new ideas about religious freedom in Islamic scholarship, especially among traditional circles.
本文探讨并比较了两位受过传统教育的穆斯林学者Taha Jabir al-Alwani（d 2016）和Hussein Ali Montazeri（d 2009）对伊斯兰教叛教经典裁决的看法。文章认为，在爱资哈尔接受教育的逊尼派学者al-Alwani和毕业于库姆什叶派神学院的Montazeri都在从伊斯兰教皈依另一种宗教的意义上捍卫宗教自由——这一观点与伊斯兰文献中关于叛教的经典裁决截然相反，后者规定对此类行为判处死刑。正如文章所表明的，这些学者的观点，尽管在论证方法上存在一定的差异，但在伊斯兰学术中，特别是在传统学术界，推动了宗教自由新思想的发展。
{"title":"Punishment for Apostasy: Arguments from Two Traditionally Trained Muslim Scholars in Favor of its Abolition","authors":"Ali Akbar","doi":"10.1093/ojlr/rwab005","DOIUrl":"https://doi.org/10.1093/ojlr/rwab005","url":null,"abstract":"\u0000 This article explores and compares the views of two traditionally educated Muslim scholars, namely Taha Jabir al-Alwani (d 2016) and Hussein Ali Montazeri (d 2009), about the classical rulings on apostasy in Islam. The article argues that both al-Alwani, a Sunni scholar educated at al-Azhar, and Montazeri, a graduate of the Shiʿi seminary in Qom, defend freedom of religion in the sense of converting from Islam to another religion—an idea that stands in sharp opposition to the classical rulings on apostasy in Islamic sources which prescribe capital punishment for such an act. As the article demonstrates, these scholars’ views, despite certain differences in their method of argumentation, advance the development of new ideas about religious freedom in Islamic scholarship, especially among traditional circles.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47289802","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 case of Agudas Israel Housing Assoc Ltddeals for the first time at the Supreme Court levwel with the exempotions to the Equality Act on the grounds of race in s158 and 193.
Agudas Israel Housing Assoc Ltd.的案件首次在最高法院以种族为由豁免了1958年和193年的《平等法》。
{"title":"Unorthodox in the Supreme Court; R (ota Z) v LB of Hackney & Agudas Israel Housing Assoc Ltd","authors":"J. Bowers","doi":"10.1093/OJLR/RWAB004","DOIUrl":"https://doi.org/10.1093/OJLR/RWAB004","url":null,"abstract":"\u0000 The case of Agudas Israel Housing Assoc Ltddeals for the first time at the Supreme Court levwel with the exempotions to the Equality Act on the grounds of race in s158 and 193.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43935341","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}
Gratian of Bologna, later bishop of Chiusi (died c. 1145), was a remarkably influential lawyer, who is undeservedly little known today. He was a legal expert who specialized in the rules and regulations of the Western Christian church. In around 1140, he put together a law book known as the Decretum, which became a great success, remaining foundational for medieval and modern law. The article focuses on three legal areas: tithes, marriage, and natural law. It discusses how Gratian used scholastic methods and classroom exercises to come to grips with the many contradictions that existed in the more than ten centuries of law that he strove to collect and synthesize. It highlights how Gratian’s innovations in marriage law, natural law, and procedural law still influence modern law. Gratian left Bologna before he had finished the course, and the article reflects on the differences in his later fate and that of his book.
{"title":"Gratian and His Book: How a Medieval Teacher Changed European Law and Religion","authors":"Anders Winroth","doi":"10.1093/OJLR/RWAB003","DOIUrl":"https://doi.org/10.1093/OJLR/RWAB003","url":null,"abstract":"\u0000 Gratian of Bologna, later bishop of Chiusi (died c. 1145), was a remarkably influential lawyer, who is undeservedly little known today. He was a legal expert who specialized in the rules and regulations of the Western Christian church. In around 1140, he put together a law book known as the Decretum, which became a great success, remaining foundational for medieval and modern law. The article focuses on three legal areas: tithes, marriage, and natural law. It discusses how Gratian used scholastic methods and classroom exercises to come to grips with the many contradictions that existed in the more than ten centuries of law that he strove to collect and synthesize. It highlights how Gratian’s innovations in marriage law, natural law, and procedural law still influence modern law. Gratian left Bologna before he had finished the course, and the article reflects on the differences in his later fate and that of his book.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/OJLR/RWAB003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43413457","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 focuses on a crucial segment of a discussion regarding the legitimacy of conscientious exemptions, namely the burden inquiry. The controversy around this issue involves different ways of identifying the proper object of the inquiry, and the types of evidence that should be considered in the assessment. I claim that there are three main approaches in the discussion regarding these issues: the incommensurable religious costs account, the subjective religious costs account, and the objective religious costs account. In the article, the peculiarity of each position is highlighted and the evaluation of main arguments is provided. I argue that the main justifications advanced for the incommensurable religious costs account and the subjective religious costs account do not stand up to critical scrutiny, and that the objective religious costs account is the most plausible position in this debate.
{"title":"Conscience and the Burden Inquiry—What and Why Should be Investigated in Exemption Cases?","authors":"W. Ciszewski","doi":"10.1093/ojlr/rwab002","DOIUrl":"https://doi.org/10.1093/ojlr/rwab002","url":null,"abstract":"\u0000 The article focuses on a crucial segment of a discussion regarding the legitimacy of conscientious exemptions, namely the burden inquiry. The controversy around this issue involves different ways of identifying the proper object of the inquiry, and the types of evidence that should be considered in the assessment. I claim that there are three main approaches in the discussion regarding these issues: the incommensurable religious costs account, the subjective religious costs account, and the objective religious costs account. In the article, the peculiarity of each position is highlighted and the evaluation of main arguments is provided. I argue that the main justifications advanced for the incommensurable religious costs account and the subjective religious costs account do not stand up to critical scrutiny, and that the objective religious costs account is the most plausible position in this debate.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-04-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwab002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43057993","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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