{"title":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwab016","DOIUrl":"https://doi.org/10.1093/ojlr/rwab016","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61387920","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":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwab001","DOIUrl":"https://doi.org/10.1093/ojlr/rwab001","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"71 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61387511","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":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwab013","DOIUrl":"https://doi.org/10.1093/ojlr/rwab013","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388162","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":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwab019","DOIUrl":"https://doi.org/10.1093/ojlr/rwab019","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388100","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":"OUP accepted manuscript","authors":"","doi":"10.1093/ojlr/rwab020","DOIUrl":"https://doi.org/10.1093/ojlr/rwab020","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61388497","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":"The Rohingya People and the International Court of Justice: Religion-Related Legal Analysis","authors":"Juan-Pablo Perez-Leon-Acevedo","doi":"10.1093/ojlr/rwaa029","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa029","url":null,"abstract":"","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa029","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44853418","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 concept of the State is expressed more frequently and in more ways in the Irish (1937) constitution than in most European constitutions. The previous 1922 constitution had hardly mentioned the concept at all. Using the tools of conceptual history this article shows how a combination of Catholicism and nationalism led to the inflation of the State in 1937. The article also considers what this inflation of the State tells us about the controversy over the religious origins of the constitution. Rejecting the possibility that it was ‘contaminated’ by the values of the 1930s, the language of statehood is seen rather as an example of how a constitution could harmonize religious with secular values without ‘contaminating’ the secular meaning of the State.
{"title":"Catholicism and the Concept of ‘the State’ in the Irish (1937) Constitution","authors":"B. Kissane","doi":"10.1093/ojlr/rwaa028","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa028","url":null,"abstract":"\u0000 The concept of the State is expressed more frequently and in more ways in the Irish (1937) constitution than in most European constitutions. The previous 1922 constitution had hardly mentioned the concept at all. Using the tools of conceptual history this article shows how a combination of Catholicism and nationalism led to the inflation of the State in 1937. The article also considers what this inflation of the State tells us about the controversy over the religious origins of the constitution. Rejecting the possibility that it was ‘contaminated’ by the values of the 1930s, the language of statehood is seen rather as an example of how a constitution could harmonize religious with secular values without ‘contaminating’ the secular meaning of the State.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42733822","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 disputes of La Franja and Sigena oppose various ecclesiastical entities as well as several Spanish regional authorities, span several centuries, and concern ecclesiastical goods of enormous cultural value. The dispute has led to numerous rulings by ecclesiastical courts and Spanish courts, including civil courts, administrative courts, and the Constitutional Court. The different proceedings are a good example of the interaction between canon law norms and state law norms, as well as of the relevance of ecclesiastical court rulings within a state legal system. The dispute also shows the sensitivity with which cultural property disputes must be dealt with for religious as well as for political reasons and why it is not wise to let internal disputes within a religious group be handled by secular authorities.
La Franja和Sigena的争端反对各种教会实体以及几个西班牙地区当局，跨越了几个世纪，涉及具有巨大文化价值的教会产品。这场争端导致了教会法院和西班牙法院的多项裁决，包括民事法院、行政法院和宪法法院。不同的诉讼程序很好地说明了教会法律规范和州法律规范之间的相互作用，以及教会法院裁决在州法律体系中的相关性。这场争端还表明，出于宗教和政治原因，必须以敏感的态度处理文化财产争端，以及为什么让世俗当局处理宗教团体内部的争端是不明智的。
{"title":"La Franja d’Aragó and Sigena: Ecclesiastical Property Disputes in Spain","authors":"N. Zambrana-Tévar","doi":"10.1093/ojlr/rwaa031","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa031","url":null,"abstract":"\u0000 The disputes of La Franja and Sigena oppose various ecclesiastical entities as well as several Spanish regional authorities, span several centuries, and concern ecclesiastical goods of enormous cultural value. The dispute has led to numerous rulings by ecclesiastical courts and Spanish courts, including civil courts, administrative courts, and the Constitutional Court. The different proceedings are a good example of the interaction between canon law norms and state law norms, as well as of the relevance of ecclesiastical court rulings within a state legal system. The dispute also shows the sensitivity with which cultural property disputes must be dealt with for religious as well as for political reasons and why it is not wise to let internal disputes within a religious group be handled by secular authorities.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa031","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47423599","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 right to freedom of religion or belief is one of the most controversial fundamental human rights, and an increasing number of cases on religious freedom highlight the need for normative clarity about its limits. Courts across jurisdictions adopt different approaches to justifying limitations to religious claims in order to resolve conflicts. This article identifies current key approaches to justifying limits to religious practices before proposing a perfectionist version of the harm principle as an alternative. Section 1 sets out the complexities of determining the limitations to religious freedom. Section 2 identifies the shortcomings of four dominant approaches to limitations, and these include the following categories: (i) practices deemed to be against the liberal democratic order; (ii) practices that breach the duty of neutrality; (iii) practices that do not constitute a core religious belief; and (iv) the choice of alternatives. Section 3 proposes a typology of harms to the autonomy of others as a model for limitations to religious freedom. Section 4 concludes by emphasizing the need for consistency in deciding limitations.
{"title":"Limitations to the Right to Religious Freedom: Rethinking Key Approaches","authors":"Farrah Raza","doi":"10.1093/ojlr/rwaa025","DOIUrl":"https://doi.org/10.1093/ojlr/rwaa025","url":null,"abstract":"\u0000 The right to freedom of religion or belief is one of the most controversial fundamental human rights, and an increasing number of cases on religious freedom highlight the need for normative clarity about its limits. Courts across jurisdictions adopt different approaches to justifying limitations to religious claims in order to resolve conflicts. This article identifies current key approaches to justifying limits to religious practices before proposing a perfectionist version of the harm principle as an alternative. Section 1 sets out the complexities of determining the limitations to religious freedom. Section 2 identifies the shortcomings of four dominant approaches to limitations, and these include the following categories: (i) practices deemed to be against the liberal democratic order; (ii) practices that breach the duty of neutrality; (iii) practices that do not constitute a core religious belief; and (iv) the choice of alternatives. Section 3 proposes a typology of harms to the autonomy of others as a model for limitations to religious freedom. Section 4 concludes by emphasizing the need for consistency in deciding limitations.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-12-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/ojlr/rwaa025","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44614235","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}
Carl Schmitt’s critique of political romanticism is neglected in comparison with his other interventions from the early Weimar period, yet its analysis of the metaphysical foundations of liberalism has important implications for his legal thought. This paper examines the significance of Schmitt’s account of political romanticism from a jurisprudential perspective. It sets out from the question whether – as is often asserted or intimated – Schmitt’s own thought in the Weimar period represents a decisionistic variant of political romanticism. I contend that, while partly justified, this allegation does not take one to the centre of either political romanticism or the motivations for Schmitt’s anti-liberal jurisprudence. In order to do justice to both themes, it is necessary to reflect on the reasons for Schmitt’s inability to find a heteronomous, divine or otherwise, source of legitimation for law. Section 1 outlines the central strands of Schmitt’s polemic against political romanticism. Section 2 applies this analysis to the concept of constituent power with a view to untangling the strands of political romanticism in Schmitt’s conceptualisation of sovereignty. Section 3 then considers the extent to which Schmitt’s later appeal to ‘concrete order thinking’ (konkrete Ordnungsdenken) is capable of providing a more adequate normative foundation for legitimate legal order.
{"title":"Carl Schmitt’s Political Romanticism and the Foundations of Law","authors":"George Duke","doi":"10.1093/OJLR/RWAA032","DOIUrl":"https://doi.org/10.1093/OJLR/RWAA032","url":null,"abstract":"Carl Schmitt’s critique of political romanticism is neglected in comparison with his other interventions from the early Weimar period, yet its analysis of the metaphysical foundations of liberalism has important implications for his legal thought. This paper examines the significance of Schmitt’s account of political romanticism from a jurisprudential perspective. It sets out from the question whether – as is often asserted or intimated – Schmitt’s own thought in the Weimar period represents a decisionistic variant of political romanticism. I contend that, while partly justified, this allegation does not take one to the centre of either political romanticism or the motivations for Schmitt’s anti-liberal jurisprudence. In order to do justice to both themes, it is necessary to reflect on the reasons for Schmitt’s inability to find a heteronomous, divine or otherwise, source of legitimation for law. Section 1 outlines the central strands of Schmitt’s polemic against political romanticism. Section 2 applies this analysis to the concept of constituent power with a view to untangling the strands of political romanticism in Schmitt’s conceptualisation of sovereignty. Section 3 then considers the extent to which Schmitt’s later appeal to ‘concrete order thinking’ (konkrete Ordnungsdenken) is capable of providing a more adequate normative foundation for legitimate legal order.","PeriodicalId":44058,"journal":{"name":"Oxford Journal of Law and Religion","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2020-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/OJLR/RWAA032","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44858745","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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