Law and religion is the interdisciplinary study of relationships between law, especially public law, and religion. Over a dozen scholarly organizations and committees focussing on law and religion were in place by 1983, and a scholarly quarterly, the Journal of Law and Religion, was first published that year. The Ecclesiastical Law Journal began publication in 1987.[1]The Rutgers Journal of Law and Religion was founded in 1999.[2]The Oxford Journal of Law and Religion was founded in England in 2012.[3]
Many departments and centers for the subject have been created around the world during the last decades. For example, in 1982, Emory University established the Center for the Study of Law and Religion as part of the School of Law.[4] The Center for the Study of Law and Religion offers a JD concentration and joint programs with the Candler School of Theology and the Laney Graduate Program. Emory's Center for the Study of Law and Religion edits three international book series (with Cambridge, Eerdmans and Brill) and edits the Journal of Law and Religion. In 2000, the Brigham Young University law school created the International Center for Law and Religion Studies, which also features an international mission. Brigham Young's annual symposium, which began in 1993, has brought to campus over 1000 scholars, human rights activists, judges from supreme courts, and government ministers dealing with religious affairs from more than 120 countries.[5]
As of 2012, major law and religion organizations in the U.S. included 500 law professors, 450 political scientists, and specialists in numerous other fields such as history and religious studies. Between 1985 and 2010, the field saw the publication of some 750 books and 5000 scholarly articles, according to Emory Law Professor John Witte Jr.[6]
Research topics
Scholars in the field are not only focused on strictly legal issues about religious freedom or non-establishment but also on the study of religions as they are qualified through judicial discourses or legal understanding on religious phenomena. For example, The Oxford Journal of Law and Religion seeks to cover
social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).[7]
Researchers study canon law, natural law, and state law, often in comparative perspective.[8][9] They have explored themes in western history regarding Christianity and justice and mercy, rule and equity, discipline and love.[10] Topics include marriage and the family,[11] and human rights.[12] Aside from Christianity, scholars have looked at connections between the Quran in the Muslim Middle East,[13] Asian ancestral religions, occult altercations, pagan Rome, and any realm in which religious beliefs form the basis of or contradict governmental law.[14] A recent literature has also begun examining how certain religious groups (Muslim, Jewish, and Catholic) engage with the American legal system as amicus curiae to advance their interests.[15][16][17]
Within Christianity, studies range from textual analysis of early Christians' relationship with Jewish law, the effect of law on the Protestant Reformation, and contemporary issues like homosexual unions, the ordination of women to the diaconate and priesthood, and conscientious objection to war.
Studies have been published on secularization, in particular the issue of wearing religion symbols in public, such as headscarves that are banned in French schools, have received scholarly attention in the context of human rights and feminism.[18][19][20] Other controversies about medical care which have been studied include, in the United States, religious exemptions for the vaccination of children and the legal rights of members of the Christian Science denomination who wish to deny medical care to their ill children in favor of faith healing.[21]
There are secular laws that directly interact with religiosity, exemplified in the 1st Amendment of the U.S. Constitution.[22]
National studies
Thailand
In Thailand, the constitutional monarchy that was established in the 1930s integrated traditional Buddhist concepts of cosmic law and religion with modern methods of public administration and legal authority. The result was the formation of a unique civic religion based on the three-way formula of nation, religion, and kingship. This new tradition has evolved and provides a framework for both symbolic discourse as well as practical actions in modern Thai legal culture.[23]
Cross-denominational
The study of religion and law spans every civilization throughout every period in history. In the past, when religion was more prevalent in daily life, laws were often based explicitly on religion in places where religion was held to be the primary or sole source of morality. This can be seen with laws that governed the Ancient Greek and Roman societies based on pleasing the various gods they worshipped. Ancient Judeo-Christian societies established laws based on their canonical texts such as the Torah or Bible. In Medieval Europe, the Catholic Church was heavily intertwined with the government.
The United States is classified as a secular society because of the laws established in the First Amendment prohibiting the establishment of a national religion while also allowing any religion to be freely practiced.
Religious exemptions for medical treatments
Childhood vaccines
44 U.S. states allow religious exemptions for childhood vaccines. 5 states (California, Maine, Mississippi, New York, and West Virginia) allow medical exemptions only.[24] The way religious exemptions can be granted varies by state. Some states have forms that can be signed whereas others require the parent/guardian to write a letter proclaiming 'bonafide religious belief' that prevents them from vaccinating their child. Some states, such as New York, have banned religious exemptions in response to outbreaks of diseases previously well-controlled by vaccination.
Refusal of blood transfusions by Jehovah's Witnesses
The Watch Tower Bible and Tract Society has historically opposed blood transfusions. Jehovah's Witnesses refuse blood transfusions and carry cards on their person to indicate such refusal. Historically, U.S. courts have generally ruled that Jehovah's Witnesses who refuse blood transfusions for themselves may not do so on behalf of their children. The first such case went to the Supreme Court in 1951. The Court ruled that:
The child’s interests and those of the state outweigh parental rights to refuse medical treatment.
Parental rights do not give parents life and death authority over their children.
Parents do not have an absolute right to refuse medical treatment for their children based on their religious beliefs.[25]
Other relevant court cases
Walker v. Supreme Court 1988
Laurie Walker was charged with manslaughter after her four-year-old daughter Shauntay died of bacterial meningitis 17 days after symptoms presented. Walker called for the services of a Christian Science practitioner, but not a doctor. She was convicted by judges who cited a 1944 Supreme Court ruling that “parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.”[26]
Secularism
Secularism is the concept of separating state institutions from religious organizations.[27]
Canada
In Canada, secularism aims to protect individuals' rights to freedom of speech and freedom of religion. Therefore, any religion or belief they choose may be practiced without interference.[27]
R. v. Big M Drug Mart Ltd.
The Big M Drug Mart case, R. v. Big M Drug Mart Ltd., is a notable example that sheds light on secularism in Canada.
In 1906, the Lord's Day Act was passed to establish a Sunday Sabbath marked by religious observance and business closure.[28] In 1982, the Big M Drug Mart was charged with violating the Act by selling items on Sundays.[28] During the litigation, constitutional questions were raised regarding the Act's compatibility with freedom of religion and conscience. The case also raised questions concerning its appropriateness under section 1 of the Canadian Charter of Rights and Freedoms.[29] Regarding its consistency with the Parliament's criminal jurisdiction, it also raised concerns. The Lord's Day Act was declared unconstitutional by the Supreme Court because it breached section 2 of the Charter.[28] The Act was unconstitutional because it had no real secular goal and was designed to encourage religious devotion. The Court's ruling represented the first time Charter law was completely overturned.[28] It also assisted in the development of the "Oakes test," which stipulates that any restriction on Charter rights must be reasonable and backed up by evidence.[30]
The Big M Drug Mart case is a potent illustration of Canadian secularism. This is because it exemplifies efforts to maintain religious freedom and the separation of Church and state.[31] The case made clear the Lord's Day Act's conflicting religious and secular intentions. The Court gave individual rights and freedoms the highest priority over religious commandments by invalidating the Act.[28]
↑ Silvio Ferrari, "Law and Religion in a Secular World: A European Perspective," Ecclesiastical Law Journal (2012) 14#3 pp 355-370.
↑ Rafael Palomino, "Legal dimensions of secularism: challenges and problems," Contemporary Readings in Law and Social Justice (2012) vol 2 pp 208-225.
↑ Karima Bennoune, "Secularism and human rights: A contextual analysis of headscarves, religious expression, and women's equality under international law," Columbia Journal of Transnational Law, 45 (2006): 367.
↑ "First Amendment". Legal Information Institute. Cornell Law. Retrieved 2019-11-26.
↑ Frank E. Reynolds, "Dhamma in Dispute: The Interactions of Religion and Law in Thailand," Law & Society Review (1994) 28#3 pp 433-451
↑ Aleksandra Sandstrom, "Amid measles outbreak, New York closes religious exemption for vaccinations – but most states retain it,""Pew Research" (2019)
↑ John C. Ford, S.J., "Refusal of Blood Transfusions by Jehovah's Witnesses," "The Catholic Lawyer" (1964), v.10, pp.212-226
↑ "Christian Scientists in the Courts" "Christianity Case Study – Minority in America" (2018)
1 2 Belshaw, John Douglas (May 17, 2016). "10.5 Secular Canada". Canadian History: Post-Confederation. ISBN978-1-989623-13-8.
Cane, Peter, Carolyn Evans, and Zoë Robinson, eds. Law and Religion in Theoretical and Historical Context (Cambridge UP, 2008) 336 pp.
Darian-Smith, Eve. Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (2010) excerpt and text search
Hirschl, Ran. "Comparative constitutional law and religion" ch 23 in Tom Ginsburg and Rosalind Dixon, eds. The Research Handbook In Comparative Constitutional Law (Edward Elgar, 2011) SSRN1718496
Jacobsohn, Gary J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton UP, 2003)
Kuru, Ahmet T. Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge UP, 2009)
Vogel, Howard J. "A Survey and Commentary on the New Literature in Law and Religion," Journal of Law and Religion (1983) 1#1 pp.79–169 JSTOR1051074
Witte, John. "The Study of Law and Religion in the United States: An Interim Report," Ecclesiastical Law Journal (2012) 14#3 pp 327–354. online
Zucca, Lorenzo and Camil Ungureanu, eds. Law, State and Religion in the New Europe: Debates and Dilemmas (2012) 342pp.
David, Joseph E., Jurisprudence and Theology in Late Ancient and Medieval Jewish Thought (Studies in the History of Law and Justice Vol. 2; Springer, 2014) doi:10.1007/978-3-319-06584-7.
Buddhism and Law: An Introduction. Edited by Rebecca Redwood French and Mark A. Nathan. Cambridge: Cambridge University Press, 2014. Pp.407.- Volume 31. Issue 1.
Ulanov, M.S., Badmaev, V.N., Holland, E.C. Buddhism and Kalmyk Secular Law in the Seventeenth to Nineteenth Centuries. Inner Asia, 2017, no.19, pp.297–314.
Secularism is the principle of seeking to conduct human affairs based on naturalistic considerations, uninvolved with religion. It is most commonly thought of as the separation of religion from civil affairs and the state and may be broadened to a similar position seeking to remove or to minimize the role of religion in any public sphere. Secularism may encapsulate anti-clericalism, atheism, naturalism, non-sectarianism, neutrality on topics of religion, or antireligion. As a philosophy, secularism seeks to interpret life based on principles derived solely from the material world, without recourse to religion. It shifts the focus from religion towards "temporal" and material concerns.
R v Big M Drug Mart Ltd(Her Majesty The Queen in Right of Canada v Big M Drug Mart Ltd) is a landmark decision by Supreme Court of Canada where the Court struck down the federal Lord's Day Act for violating section 2 of the Canadian Charter of Rights and Freedoms. This case had many firsts in constitutional law including being the first to interpret section two.
A secular state is an idea pertaining to secularity, whereby a state is or purports to be officially neutral in matters of religion, supporting neither religion nor irreligion. A secular state claims to treat all its citizens equally regardless of religion, and claims to avoid preferential treatment for a citizen based on their religious beliefs, affiliation or lack of either over those with other profiles.
Section 2 of the Canadian Charter of Rights and Freedoms ("Charter") is the section of the Constitution of Canada that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or corporation. These freedoms can be held against actions of all levels of government and are enforceable by the courts. The fundamental freedoms are freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.
Freedom of religion in the Philippines is guaranteed by the Constitution of the Philippines.
India since its independence in 1947 has been a secular country. The secular values were enshrined in the constitution of India. India's first prime minister Jawaharlal Nehru is credited with the formation of the secular republic in the modern history of the country. With the Forty-second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. However, the Supreme Court of India in the 1994 case S. R. Bommai v. Union of India established the fact that India was secular since the formation of the republic. The judgement established that there is separation of state and religion. It stated "In matters of State, religion has no place. Any State government which pursues nonsecular on policies or nonsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356". Furthermore, constitutionally, state-owned educational institutions are prohibited from imparting religious instructions, and Article 27 of the constitution prohibits using tax-payers money for the promotion of any religion.
Abdullahi Ahmed An-Na'im is a Sudanese-born Islamic scholar who lives in the United States and teaches at Emory University. He is the Charles Howard Candler Professor of Law at Emory University School of Law, associated professor in the Emory College of Arts and Sciences, and Senior Fellow of the Center for the Study of Law and Religion of Emory University.
Freedom of religion in Canada is a constitutionally protected right, allowing believers the freedom to assemble and worship without limitation or interference.
Turkey is a secular state in accordance with Article 24 of its constitution. Secularism in Turkey derives from Mustafa Kemal Atatürk's Six Arrows: republicanism, populism, laïcité, reformism, nationalism and statism. The Turkish government imposes some restrictions on Muslims and other religious groups, as well as Muslim religious expression in government offices and state-run institutions, including universities.
John Witte Jr. is a Canadian-American academic. He is a Robert W. Woodruff University Professor and a McDonald Distinguished Professor at Emory University School of Law in Atlanta, Georgia, and is director of the Center for the Study of Law and Religion there.
Article 15 of the Constitution of the Republic of Singapore guarantees freedom of religion in Singapore. Specifically, Article 15(1) states: "Every person has the right to profess and practise his religion and to propagate it."
Secularism in Israel shows how matters of religion and how matters of state are related within Israel. Secularism is defined as an indifference to, rejection, or exclusion of religion and religious consideration. In Israel, this applies to the entirely secular community that identifies with no religion and the secular community within the Jewish community. When Israel was established as a new state in 1948, a new and different Jewish identity formed for the newly created Israeli population. This population was defined by the Israeli culture and Hebrew language, their experience with the Holocaust, and the need to band together against conflict with hostile neighbors in the Middle East.
Iain Tyrrell Benson is a legal philosopher and practising legal consultant. The main focus of his work in relation to law and society has been to examine some of the various meanings that underlie terms of common but confused usage. His work towards an understanding of secular and secularism has been cited by the Supreme Court of Canada and the Constitutional Court of South Africa. He has also given critical study to the terms pluralism, faith, believer, unbeliever, liberalism and accommodation and examined the implications for various legal and non-legal usages.
Michael J. Perry is an American legal scholar, specializing in constitutional law, human rights, and law and religion.
South Africa is a secular state, with freedom of religion enshrined in the Constitution.
Secularism in Bangladesh is known as "neutrality of religion" under Bangladeshi law. In the Constitution of Bangladesh, secularism is mentioned in the preamble as one of the fundamental principles of Bangladeshi law. Article 8 enshrines secularism as one of the fundamental principles of state policy. And yet, after the assassination of Sheikh Mujibur Rahman in 1975, Bangladesh went to military rule, and in 1979 removed the term secular from their constitution. Article 12 elaborates further on secularism and freedom of religion.
Sharia means Islamic law based on Islamic concepts based from Quran and Hadith. Since the early Islamic states of the eighth and ninth centuries, Sharia always existed alongside other normative systems.
A religious exemption is a legal privilege that exempts members of a certain religion from a law, regulation, or requirement. Religious exemptions are often justified as a protection of religious freedom, and proponents of religious exemptions argue that complying with a law against one's faith is a greater harm than complying against a law that one otherwise disagrees with due to a fear of divine judgment. Opponents of religious exemptions argue that they mandate unequal treatment and undermine the rule of law.
Secularism in Nigeria is a legal and constitutional principle that states that the government of Nigeria and its states shall not adopt any religion as a state religion, and that every person shall have the right to freedom of thought, conscience and religion. Secularism in Nigeria is derived from the Constitution of Nigeria, which is the supreme law of the country. Secularism in Nigeria aims to ensure and protect the religious diversity and freedom of all citizens, regardless of their faith or belief.
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