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Book: Religious Liberty in Western and Islamic Law

In this book, Kristine Kalanges argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories.

In Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition, Kristine Kalanges argues that differences between Western and Islamic legal formulations of religious freedom are attributable, in substantial part, to variations in their respective religious and intellectual histories. Kalanges suggests that while divergence between the two bodies of law challenges the characterization of religious liberty as a universal human right, the “dilemma of religious freedom” – the difficult choice between the universality of religious liberty rights and peaceful co-existence of diverse legal cultures – may yet be transformed through the cultivation of a world legal tradition. This argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophical ideas have been institutionalized.

Table of Contents
1.    Introduction
I. Religious Liberty in Western and Islamic Law: Two Questions
II. The Theoretical Challenge
This introductory chapter discusses first, the relationship between religious liberty and human rights; and second, the global resurgence of religion and its significance for contemporary international law and politics. Religious liberty rights merit special attention in part because they are closely correlated with the observance of other human rights. This connection assumes even greater significance in view of the second point, namely, that the world is experiencing a religious resurgence with profound implications for contemporary international relations. To be more precise, it is not so much that greater numbers of people are religious but rather that their religiosity has acquired new theoretical and empirical salience for international law and politics.
2.    Theoligical and Philosophical Origins of Religious Liberty in the U.S. Constitution
I. The Protestant Reformation and the Early Modern Origins of Freedom of Religion
II. The Genesis of the American Constitutional Experiment in Religious Liberty
III. Religious Freedom in the First Amendment of the U.S. Constitution
This chapter discusses the early modern origins of freedom of religion in the Protestant Reformation (including the contributions of Martin Luther and John Calvin), the genesis of the “American constitutional experiment in religious liberty” (noting, especially, the influence of Roger Williams, John Locke, and James Madison), and the formulation of religious freedom in and subsequent jurisprudence of the First Amendment (e.g., the Establishment and Free Exercise Clauses).
3.Religious Liberty in International Human Rights Law
I. Freedom of the Religion in International Human Rights Law
II. International Religious Rights: Monitoring and Enforcement Regimes
III. Dignities Humane: The Catholic Church and the Moral Case for Religious Freedom
Freedom of religion did not become a legal reality until the modern era (e.g., through the First Amendment), and even as late as the Second World War, one global study declared a total absence of “a generally accepted postulate of international law that every State is under legal obligation to accord religious liberty within its jurisdiction.” However, in the relatively brief historical period since, freedom of religion or belief has become just such an accepted postulate of international law. This chapter explores key elements of that development, beginning with an examination of religious liberty provisions in international human rights law—the major documents and treaties, as well as issues of special concern. Next, it briefly considers two additional sources of international rights monitoring and enforcement: the U.S. Commission on International Religious Freedom and the European Court of Human Rights. Finally, it discusses the twentieth-century contributions of religious institutions to religious liberty, focusing on the role of the Catholic Church in elaborating a moral foundation for religious freedom and championing it as a pathway to peace.
4.Religious Liberty and Shari’a
I. Principle of Islamic Law- A Brief Overview
II. Freedom of Religion in Islamic Law
III. Religious Liberty and Islamic Reformation
Understanding the law and politics of religious freedom in the Muslim world first requires knowledge of the teachings and traditions of Islam, as well as their significance for Muslim followers. This chapter begins with a brief overview of the principles of Islamic law. It then discusses freedom of religion in Islamic law, covering the rights of religious minorities and apostasy and Islam. This is followed by a discussion of religious liberty and Islamic reformation.
5.Between Religious and Law: Politics as an Intervening Variable
I. Middle East Meets West: Political Contestation and Islamic Identity
II. Religious Liberty in the Constitution of Muslim States
Recognizing that the construction and institutionalization of religious liberty rights is at once a political and a legal project, this chapter proceeds in two main sections. The first focuses on the political and socio-cultural processes in Muslim states that have interacted over time to institutionalize Islamic law and identity at national and transnational levels. This history is essential, not least because the modern constitutions of many relevant states were adopted during the 1970s and 1980s amidst struggles marked by Arab nationalism, Islamism, and Islamic identity formation. Hence, in the second section, the constitutional consequences of these historical-political processes are explored via specific examination of religious liberty in the laws and practices of four influential countries—Iran, Turkey, Egypt, and Pakistan.
6.Religious Liberty in Islamic International Law
I. Islam and Human Rights-Origin of the Debate
II. Religious Freedom in the Islamic Humman Rights Declaration
III. Interpreting the Emergence of Contemporary Islamic International Law
IV. Some Religious and Strategic Implications of the International Debate
The rise of political Islam in the 1970s and 1980s in reaction to secular Western imperial power had consequences at both the domestic and international levels. Islamists sought to institutionalize their religious authority and political power in state constitutions, which in turn had tangible and often grave effects on the practical and legal status of religious freedom in those countries. Concurrently, the growing power of Islamism, coupled with the rise of national and transnational Islamic identity, inspired efforts to develop Islamic alternatives to Western international law. The resulting agreements—such as the Universal Islamic Declaration of Human Rights and the Cairo Declaration on Human Rights in Islam—have raised pressing questions about the compatibility of Islam and human rights; the status of women, non-Muslims, and religious freedom in Islamic declarations; the nature of contemporary Islamic international law; and the implications of differences between Western and Islamic formulations for the universality of human rights. These questions are the subject of this chapter.
7.Conclusion:Toward a World Legal Tradition
This chapter presents some concluding thoughts about Islamic law and religious freedom. Religious freedom, a crucial aspect of human dignity, is inherently worthy of protection. Moreover, its interdependence with other human rights arguably makes it the linchpin of international human rights law. Muslim reformers are working to infuse their legal, cultural, and political traditions with robust and resonant defenses of religious liberty. It is necessary for Western intellectuals, working in part from within Jewish and Christian traditions, to do the same. If religious liberty is to be secured, if sustainable pluralism of diverse peoples is to be achieved, a theological jurisprudence rooted in love of God and love of neighbor and informed by reason will be required. This is the calling of a world legal tradition.

Kristine Kalanges is Assistant Professor of Justice, Law & Society in the School of Public Affairs at American University. She holds a JD from Yale Law School, where she was a John M. Olin Fellow in Law, Economics and Public Policy, and a PhD from Georgetown University, where she was a Graduate Fellow in International Relations. Previously, she practiced law in the New York office of Cleary Gottlieb Steen & Hamilton LLP and served in Washington, DC as a law clerk for the U.S. Department of Justice.

Bibliographic Information

Title: Religious Liberty in Western and Islamic Law: Toward a World Legal Tradition

Author: Kristine Kalanges

Publisher: Oxford University Press; 1 edition (March 12, 2012)

Language: English

Length: 208 pages

ISBN: 978-0199859467

Pub. Date: March 12, 2012

 

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