Nowhere, in recent times, has the question of the Islamic Law of Shari’ah produced such a crescendo of concern, posed such a challenge to the prevailing justice system, as in Nigeria. In "modern" societies, the criminal justice system not only produces social solidarity by reaffirming the society's bond and its adherence to certain norms, but also serves to legitimize the political authority of the state. In the postcolonial pluralistic society of Nigeria, the criminal justice system has been fundamentally influenced by the ascendancy of Western penology. During the era of European colonization of Africa, existing systems of justice were suppressed; in Nigeria's case, by the British imperial power. Predictably, the British system of justice clashed with the indigenous systems. Nowhere is this historical conflict more manifest than in the ongoing challenge Shari’a has posed to the Nigerian state. Shari’ah was an incendiary issue during the colonial period (1900-60) in Nigeria, and has continued to challenge the classical view of the modern state ever since. This challenge has reshaped Nigeria's postcolonial criminal justice system. Here religion, politics, and society intersect, shedding light on the arrival, reactions, and crises of modernity, themes that run through the Shari’ah controversy like interwoven threads.

“[T]he fulness of the earth is yours, the beasts of the field and the fowls of the air … and the herb, and the good things which come of the earth … [a]nd it pleaseth God that he hath given all these things unto man; for unto this end were they made to be used, with judgment, not to excess, neither by extortion.”

The Church of Jesus Christ of Latter-day Saints (the “Church”) is the great success story of American religion. Members of the Church (“Mormons”) now constitute more than five percent of the populations of Arizona, Hawaii, Nevada, and Wyoming, a far higher percentage of Idaho and Utah, and nearly two percent of the United States as a whole. Mormons fill five seats in the United States Senate (including the majority-leader chair) and about a dozen in the House. A Mormon recently completed a serious bid for the United States presidency. And their numbers are growing worldwide.

Editor's Note: On September 19, 1998 Professor Emeritus at Hebrew University, Ze'ev Falk died during the preparation of this manuscript. His place as a major contemporary scholar in the field of law and religion led the editors to publish here that portion of the manuscript Professor Falk had completed, plus references he intended to explore in later sections of the manuscript.

At present, the question arises, with respect to terminal patients, whether certain life can be considered worthwhile and reconcilable with human dignity. As a result of Kantian philosophy, modern people tend to assume that human beings are able, and should aspire, to make judgments regarding their life and bodies as well as their souls. In this view, a patient should be given full information about his or her situation and about the alternatives. Using this information, he or she should have the capacity to decide by him/herself what course of action is to be taken. In the modern view, even a patient in a coma should be treated according to the expression of his or her will, for example as formulated in a “Living Will.”

Biblical and rabbinical thought seem to have reflected an understanding for suicide. However, suicide belies a key issue unique to Judaism: why, in the course of Jewish suffering and Judaism's struggle to survive, suicide became unacceptable.

The Argentine Constitution contains two provisions regarding church-state relations. The first one recognizes the right of all people to the free exercise of religion. The second one provides that the state must financially support the Catholic Church. Based on this latter clause, over the years a complex regulatory scheme has been developed that differentiates that church from all the other churches and religions. Those differences are addressed in this article. The author argues that the religious establishment does not depend only on how the state defines itself (e.g., through a declaration in the constitution), but also on the way in which it treats people based on their religion. If that treatment is unequal—for example, when there are legal privileges only to a single church—then there is a kind of establishment of religion. It has been claimed that the religious establishment is not itself incompatible with religious freedom. In arguing that religious minorities can hold a different opinion, the author offers a brief account of the problems faced by non-Catholic faith communities in Argentina because of the state's unequal treatment. Finally, the author analyzes whether the reasons given to justify the legal differences between religions are acceptable. Otherwise, it could be said that there is discrimination—at least, in a broad sense—against religious minorities. While this article focuses on the Argentine case, the issues addressed are relevant to any country dealing with the unequal treatment of people based on their religion.

This article makes the counterintuitive argument that the millennia-old approach of Jewish law to regulating surveillance, protecting communications, and governing collection and use of information offers important frameworks for protecting privacy in an age of big data and pervasive surveillance. The modern approach to privacy has not succeeded. Notions of individual “rights to be let alone” and “informational self-determination” offer little defense against rampant data collection and aggregation. The substantive promise of a “fundamental human right” of privacy has largely been reduced to illusory procedural safeguards of “notice” and “consent”—manipulable protections by which individuals “agree” to privacy terms with little understanding of the bargain and little power to opt out. Judaism, on the other hand, views privacy as a societal obligation and employs categorical behavioral and architectural mandates that bind all of society's members. It limits waiver of these rules and rejects both technological capacity and the related notion of “expectations” as determinants of privacy's content. It assumes the absence of anonymity and does not depend on the confidentiality of information or behavior, whether knowledge is later used or shared, or whether the privacy subject can show concrete personal harm. When certain types of sensitive information are publicly known or cannot help but be visible, Jewish law still provides rules against their use. Jewish law offers a language that can guide policy debates. It suggests a move from individual control over information as the mechanism for shaping privacy's meaning and enforcement, to a regime of substantive obligations—personal and organizational—to protect privacy. It recognizes the interconnected nature of human interests and comprehends the totality of the harm that pervasive surveillance wreaks on individuals and social relations. It offers a conceptual basis for extending traditional privacy protections to online spaces and new data uses. And it provides a language of dignity that recognizes unequal bargaining power, rejects the aggregation and use of information to create confining personal narratives and judgments, and demands equal protection for all humans.

In Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008), cert. denied, 129 S. Ct. 2763 (2009), the Ninth Circuit seated en banc found that federal approval of a plan by a ski resort to make artificial snow with treated sewage effluent on Arizona's San Francisco Peaks, a mountain massif held sacred by the Navajo, Hopi, and four other claimant tribes, did not violate their religious liberty under the Religious Freedom Restoration Act (RFRA). The court accepted numerous factual findings about sincere religious exercise, but found federal approval of the scheme did not constitute a “substantial burden” on religion; rather, it only “decreased spiritual fulfillment” of tribal members. Despite a spirited dissent, the Ninth Circuit narrowly interpreted RFRA's language of “substantial burden” by making reference to the Supreme Court's 1988 holding in Lyng v. Northwest Cemetery Protective Association, 485 U.S. 439 (1988). This article shows how conventional wisdom about individualistic, subjective, and protean “spirituality” and in particular about “Native American spirituality” equips the court to denature highly specific and collective religious claims about the mountain by plaintiff tribes, and in turn to naturalize those claims as merely spiritual. Misrecognition of Native religions as Native spirituality then troubles the substantial burden analysis. While Navajo Nation suggests courts may never fully understand Native claims to sacred sites, the Supreme Court's 2014 holding in Burwell v. Hobby Lobby, Inc., 134 S. Ct. 2751, 2759 (2014), opens the door to revisiting the interpretive posture spelled out in Navajo Nation, and the Ninth Circuit's interpretive approach to “substantial burden” bears revisiting.

Imagine that you are watching a hearing of the U.S. Senate Judiciary Committee on television. Each member of the Committee is asking questions of, and in some cases interrogating, the president's most recent nominee to the United States Supreme Court. She is an accomplished attorney with not only a law degree from an elite institution but also a doctorate in biochemistry and specialization in private practice on issues over which science and law overlap and intersect. For several years she has served on the federal bench on the D.C. circuit and has done so admirably, showing professional competence and jurisprudential insight that has become the envy of her peers, some of whom disagree with her conservative judicial philosophy. Over the years, she has published well-received articles in numerous law reviews and peer-reviewed science publications dealing with issues as wide ranging as the Daubert standard, the reliability of DNA testing in capital murder cases, and whether the Supreme Court's holdings in its reproductive rights cases provide support for a constitutional right to clone oneself.

The contemporary turmoil in Eastern Europe and the former Soviet Union reflects acceptance by their populations that collectivism has failed them and that they have more to hope for from the property rights systems of the West. In economic terms, indeed, Western culture has depended fundamentally on these rights, and in recent years economic historians have been paying increasing attention to them. In doing so, however, they have encountered a problem which they are unable to solve within the terms of their own discipline: economics relies on the concept of agents who act only according to rational self-interest, but property rights as they can actually be found in history have often reflected forces that can only be described as altruism. Economics is now therefore having to take account of cultural factors in the formation of property rights, and the deeper these are studied the clearer the religious influence on them appears to be.

The earliest type of property must have been in the form of “exclusive communal” rights which, by establishing some form of defence against “outsiders,” prevented the latter from sharing in a resource which a tribe considered to belong to it. It is plausible that the historical shift from hunting and gathering to settled agriculture depended on the development of such rights. However, the extent to which they can lead to prosperity on their own is quite limited.

In this article, we present a short case study based on an incident that occurred in Israel several years ago. The incident did not reach the courts but was made public by the family members of the older woman at the center of it. The family argued that the actions taken by one of the parties involved should have been defined as elder abuse, but no criminal charges were ever brought. Yet the issues concern key legal and ethical questions about law, religion, and older persons. More specifically, the incident raises the issue of the moral commitment to one's past religious beliefs in reference to one's current choices and preferences once living with dementia. We contend in this article that an Aristotelean account of human dignity would have provided the most satisfactory way to resolve the tensions created by this incident.

On 30 May 1994 Pope John-Paul II declared that the discussion on ordaining women was “definitively” closed. Women could not become priests, the Vatican repeated for the “very last” time. This event stimulated an unprecedented commotion in the Flemish (Belgian) Catholic community. The laity voluntarily working in the Church even threatened to strike. The debate on feminism and human rights within the Roman Catholic Church erupted more fiercely than ever before. The laity reacted in an astonishingly radical manner. The bishops tried to hold a position in between the displeased Catholics and the Vatican. An analysis of the debates held on these issues in the Flemish newspapers shows that the human rights discourse and the Vatican doctrine were worlds apart. Nevertheless, progressive Catholics tried to create a new discourse that was able to combine both perspectives. In this article, the interrelations between the several discourses and the dynamics of the debate are discussed, using the “commonwealth model” of Boltanski and Thévenot. It is argued that their model is useful but inadequate, because of its lack of attention to power and its ahistoricism.

Anyone engaging in proselytization shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender.

By “proselytization” is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion (eterodoxos), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of the other person’s inexperience, trust, need, low intellect or naivete.

The commission of such an offence in a school or other educational establishment or philanthropic institution shall constitute a particularly aggravating circumstance.”

The “[Torah] scholar” and the “scientist” thus part ways

The Torah scholar and the Jurist both supplement each other's work

At the beginning of the 1950s (or thereabouts) Rabbi Yitzhak (Isaac) ha-Levi Herzog, Ashkenazi Rabbi of the State of Israel and a researcher of Jewish law, delivered a lecture to a group of lawyers. He opened with the following comments:

Jewish law is normally characterized by a pluralist discourse and, even when controversies are acrimonious, the merits of competitive arguments are recognized and receive some legitimacy. By contrast, Jewish family law, especially in the case of marriage annulment, is characterized quite differently, patently diverging from the pluralist hermeneutic discourse normally characterizing Jewish law. This divergence is the subject of this article.

From the work of early classic commentators to modern Jewish Lawscholars, the character of marriage annulment in Jewish law has been much debated. Questions about both the authority of the Sages to annul a marriage and the meaning of annulment have arisen. Commentators have probed famous passages in the Babylonian Talmud mentioning the concept of marriage annulment (Heb. hafka'at kiddushin), often simply with the words “the Sages annulled the betrothal.” Similarly, discussing a case where a Jewish writ of divorce (get) was formally void but validated by the Sages, the Palestinian Talmud states “their [i.e., the Sages'] words uproot the words of the Torah,” which implies that the Sages have the authority according to Jewish law to annul a marriage in certain circumstances.

Throughout history — and throughout the world — religious minorities of all faiths generally have not fared very well at the hands of religious majorities. Sadly, that has been the norm rather than the exception. And the Jews were always a religious minority in every country in which they lived. The seventeenth century French philosopher, Blaise Pascal, spoke both from knowledge and personal experience when he wrote in his Pensees: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” All peoples, of course, are products of their collective historical experience. The Jews are no exception.

I met John Noonan in the office of the late David W. Louisell in January, 1974, and remember to this day just how awestruck I was at being in the company of such great scholars. I find myself even more humbled as I pen this essay in honor of the birthday of my esteemed teacher, advisor, and friend. To be invited to join the festschrift is an extraordinary honor for a former student but it is also an immense challenge. The task of writing a coherent essay for one's professor usually ends upon graduation from law school. To write one in honor of a professor (and a favorite one at that) is an altogether new experience.

Because I write to pay tribute to a man whose manner of thinking has indelibly shaped the manner in which I teach my own students, my goal is to write an essay that builds upon the work he has done in the field of law and religion. And if, in the final analysis, it meets that standard, it will do so, in part, because of John Noonan's efforts as a teacher, scholar and role model.

It is not uncommon in this country to hear someone say something like, “America is a country based on Judeo-Christian principles.” Many of us would accede to some such claim. It has the ring of truth about it, but I suspect that the ring of truth depends on the vagueness of each crucial term in the claim, including “based on,” “Judeo-Christian principles,” and “America.” “America,” for example, might stand in here for the Constitution, popular mores, governmental institutions, or extra-Constitutional fundamental political claims, etc. I intend to make this claim precise in a number of ways, and then to ask whether the ring of truth remains. Although I address a considerably narrower claim, that claim is not without interest. If nothing else, I hope the reader will see what an immense task awaits those who wish to defend the claim in its general form.

In this paper, I seek to draw out the meanings of both law and religion and to reflect on their relationship to each other. Both law and religion belong to the humanities, and an examination of a few of the ways in which they cut across each other might conceivably contribute to a better understanding of the human predicament in general.

I shall begin by inquiring into the historical roots and development of law and religion. I shall then examine analytically some important issues involving their intersections—questions which cut across history and seem perennial. Obviously, given space limitations, much of the discussion can only suggest.

In Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988), the Supreme Court declared constitutional the Forest Service's development plan in an area of the Six Rivers National Forest (known as the High Country) that is central to the religious practice of the Yurok, Karuk, and Tolowa Nations. The Court admitted that “[i]t is undisputed that the Indian respondents’ beliefs are sincere and that the Government's proposed actions will have severe adverse effects on the practice of their religion” (447). Nevertheless, because the disputed area was on public land, the Court thought that the government should be allowed to manage its property in any way it saw fit, regardless of the severe adverse effects on the religious practice of the local Indigenous nations. In this article, I read materials from the trial that led to the Lyng decision, focusing on the Indigenous witnesses and their testimony that has been largely ignored in the Lyng decision. The U.S. legal framework of free exercise does not allow the courts to fully consider the stories told by the Indigenous witnesses in trial. A law-and-literature approach allows me, though, to tell a different story about the High Country, one that centers Indigenous knowledge and sovereignty.

This article focuses on the representations and perceptions of Muslim Palestinian women as encapsulated by early Israeli legislation. The analysis is based on a close reading of the negotiations and discussions leading up to the criminalization of bigamy by the Israeli state and, in particular, those principal discussions surrounding the legislation of the Women's Equal Rights Law of 1951. Primary materials from the Israeli State Archives are used to reconstruct the debates in the Knesset, assess the legislation's intended effects on the Muslim Palestinian family, and trace the opposition to it fielded by the Palestinian religious leadership. The legislative process is dissected to expose the implicit and explicit patriarchal and nationalized underpinnings of the image of the “ideal family” fashioned by Israeli legislators. Despite their national divide, I argue, both the Israeli Knesset and the Muslim community leadership articulated women's roles in similarly distinctive national-patriarchal hues.