The Article 9 religious freedom jurisprudence of the European Court of Human Rights most basically concerns the question of religious pluralism. The “principle of pluralism seems to be the main—the core—principle” guiding the Court's religious freedom jurisprudence, argues one of the Court's judges. Assessing the Court's work in the area of religious freedom therefore requires considering its treatment of pluralism, which is the concept most often employed to interpret Article 9 of the European Convention on Human Rights. The Court's approach to religious pluralism is still heavily indebted to the decision in Kokkinakis v. Greece, a 1993 case involving a Jehovah's Witness who had been repeatedly arrested and jailed for violating Greece's prohibition on proselytism. In the majority opinion finding that Mr. Kokkinakis's Article 9 rights had been violated, the Court writes the following:

This topic is more complicated than one might suspect from reading typical annotations and bible dictionary articles. There are some hundred or so relevant biblical texts, but they do not present an entirely coherent picture. To take these texts seriously requires leaving open a number of questions. Too often commentators and annotators have attempted to resolve such questions by making assertions grounded upon highly problematic evidence. This article does not consider texts pertaining exclusively to the “inheritance” of the land of promise by the various tribes of Israel such as Joshua 11:23; 13:1—19:51; and Ezekiel 47:13—48:29. Concern with preserving tribal inheritances is in the background of some texts that are considered; but here attention is limited to laws and traditions concerning transfer of property from persons in one generation to those of another, or, in a few instances, to other persons within the same generation in accordance with what, in modern legal terms, would be called the laws of intestate succession and bequest.

In accordance with Thai conceptions of Buddhist kingship, Thai rulers have felt obliged to devote considerable energies towards the promotion and protection of Buddhism. Over the past century (and more), state laws have been instituted and bureaucratic agencies established to regulate and implement such promotional and protective activities. This article outlines some broad trends and patterns in the bureaucratization of Buddhism in Thailand, and discusses their implications for religious freedom. It argues that although Buddhism has been extensively bureaucratized, the implications for religious freedom have been less severe than one might perhaps expect, owing not least to the fact that Buddhism is a monastic religion. However, recent developments—taking place in the wake of the 2014 military coup and the 2016 royal succession—suggest that the legal environment is changing in ways that may have negative implications for religious freedom in Thailand.

During the past five years, issues concerning the freedom of religion, and its relationship with the freedom of expression have received an ever higher profile in both the media and in political debate. The purpose of this article is to reflect on the approach taken by the European Court of Human Rights to some of the most significant of these issues. In a short article of this nature it is not possible to examine each of the issues in a comprehensive fashion, but by juxtaposing relatively brief overviews of these cases, some general insights regarding the current mood of the Court and the capacity of the Convention system to engage with ever more pressing issues will emerge. The main challenge appears to be the need to reconcile the Court's emphasis upon neutrality and impartiality, found in its more recent case law concerning state relations with religious associations, with the core value of respect, which has long dominated its approach in other areas. Its failure to address this challenge in an appropriate manner threatens the Court's ability to engage with emerging problems in a satisfactory fashion.

As a religious law, adage, and recipe for generational reciprocity, the “honor commandment” looms large as a societal construct, especially with 76 million baby boomers in the United States approaching old age. This article explores how the honor commandment persists as a normative ethic in the lived practice of elder care and the ways that it is supported by, or at odds with, secular legal imperatives of elder care.

Much in the way that the biblical story of Ruth provides a broad interpretation of how to live the honor commandment, this interdisciplinary exploration is informed by contemporary experiences of elder care culled from ethnographic interviews as well as by theological, demographic, and legal source material. We argue that the honor commandment continues to support practical adherence to largely unknown legal obligations. Caring for aging and ill parents can impose burdens on the caretakers that secular laws often fail to alleviate, particularly because of changes in the structure of twenty-first-century families. We suggest potential reforms that could better facilitate honoring seriously ill elders and the grown children who care for them.

The term “customary law” has been variously defined by the judiciary, legislatures and by academic lawyers who have attributed to it equally varying characteristics. In the former Eastern Region of Nigeria, the term has been defined to mean a rule or body of rules regulating rights and imposing correlative duties, which obtains and is fortified by established usage. The Evidence Laws of Nigeria similarly define custom to mean “a rule which, in [a] particular district, has from long usage obtained the force of law.” Allott, the pioneering scholar of African customary law, also defined it to refer to “the rules which trace back to the habits, customs and practices of the people which engender and support the norms expressly formulated from time to time for the decision of disputes.”

“African Law” has come to be identified as a term that describes the customary laws of the various peoples and communities who have come under a colonial power.

The study of customary law was initially undertaken by curious anthropologists who went far and wide throughout the colonial possessions of their mother country to discover and describe the lives of the natives for the consumption of their academic colleagues. In their endeavor to understand their subjects better, colonial administrators often commissioned or otherwise sponsored such studies and ultimately put these discoveries to good use in the service of the imperial power. The anthropologists were followed—or, some would argue, were preceded—by legal and administrative officers in the service of the colonial office. While they were writing their memoirs or otherwise commenting on their experiences in the service, they occasionally described how the received English law fared in its transplanted soil but they hardly took any interest in analyzing its interaction with and impact on the native laws with which it co-existed in the colonial territories.

The historic relationship between Christianity and human rights is an ambiguous one. For hundreds of years the Christian Church actively promoted religious intolerance and persecuted those who failed to accept its moral values and customs. Many of these values and practices are today rejected as contrary to a human rights culture and moral decency. Max Stackhouse argues that while “[t]he deep roots of human rights ideals are rooted nowhere else than in the biblical tradition,” these values “remained a minority tradition (within the Church) for centuries.” James Woods, in turn, argues that “religion and freedom have not been natural allies.”

The affirmation of human rights emerged painfully and belatedly in the Christian Church. The “deep biblical roots of human rights ideals” have, however, periodically been acknowledged and retrieved throughout the history of the church in an attempt to correct wrongs, repudiate theological support for abuses, and to pursue a more humane society. The history of the emergence of human rights within the Western Christian tradition, recognises that religions develop in interaction with other social and cultural forces in society. I argue in what follows that the relationship between Christianity and the human rights tradition can only enrich society to the extent that the relationship is sustained by mutual critique and correction.

Near the beginning of The Idea of Human Rights, Michael Perry states that “One of my principal goals … is to clarify and address the unusually murky subject of ‘moral relativism’—and to do so from the perspective of what can properly be called ‘natural law.”” This he defines, following D.J. O'Connor, as a view according to which “basic principles of morals and legislation are, in some sense or other, objective, accessible to reason and based on human nature.” Subsequently, he explains that the relation between belief in natural law and in human rights is one of presupposition; that is to say, a doctrine of natural rights presupposes the moral realism which in his view is the central core of natural law theories.

As his discussion makes clear, Perry's claim that human rights presuppose a natural law should be understood as a theoretical claim. At the same time, it raises interesting historical issues. That is, when we examine classical accounts of the natural law, are these explicitly linked with doctrines of natural or human rights, or something recognizably similar? (Throughout this paper, I treat the terms “human” and “natural” rights as synonyms.) And more generally, what can we learn from the ways in which our forbears drew connections, or failed to do so, between a natural law and human rights?

This article investigates the “pre-history” of the colonial and postcolonial personal (status) laws of India, which tie religious identity with legal status, particularly in matters of family law. It examines the concept of law and legal jurisdictions in Mughal India (1526-early eighteenth century; officially 1857): a unique political formation in which an Islamic state ruled over a populace which was predominantly non-Muslim. Using Mughal official orders, Persian-language legal documents produced between the sixteenth and eighteenth centuries, and Persian-language legal formularies, the article proposes that despite frequent local delegation, the Mughals, their officials, and their subjects did not conceive of law as divided up into several religion-based jurisdictions. Instead, an inclusive operationalization of shariʿa1 (Islamic moral code, in a more specific sense Islamic law) appears to have popularized Islamic legal concepts and forms, and a host of pragmatic concerns attracted many who were not Muslims to the courts of the imperially appointed qazis (Islamic judges). Based on this evidence, this article proposes that Mughal India represents an instance of widespread “permissive inclusion” into shariʿa, whereby in non-criminal matters the qazis' courts allowed and attracted, but did not require, all Mughal subjects to avail of their civil jurisdiction. This proposition is examined further in connection with the acrid debates between late Mughal administrators (particularly, Muhammad Reza Khan of Bengal) and their British overlords. It is thus suggested that while instituting colonial rule in the late eighteenth century, British imperialists also introduced a new concept of religion-based distribution of legal authority to India.

The role of Islam in the politics of Muslim-majority countries has attracted a plethora of scholarly research over the past two decades that generally refers to this phenomenon as political Islam. Much of the focus of this body of literature is concerned with the reconciliation of Islam and democracy. In recent years, the leading scholarship in this field has attempted to anticipate the future of political Islam and the prospect of post-Islamism. Asef Bayet's work on post-Islamists examines various social movements in the Middle East, arguing that Muslims have made Islam democratic by how they have defined Islam in respect to their particular socio-political contexts. However, others have expressed pessimism about the extent to which domestic conditions in Muslim-majority countries and external geopolitical factors will allow the development of an Islamic democracy. Abdelwahab El-Affendi, for instance, sees four main options for Islamists: full revolutionary takeover of their respective countries; completely withdrawing from political office to become Islamic interest or pressure groups; building broader coalitions while maintaining their ideology; or radically restructuring in order to emulate the model of Turkey's Justice and Development Party (AKP). What is missing in this discussion is attention to the capacity of Islamic political parties to draw on Islamic tradition and evolve in response to modernity through a focus on Islam's higher objectives or a maqasid approach.

This essay revisits the debates and legal contests that grew in Cameroon at the turn of the millennium but failed to bring justice for members of the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community. Several members of sexual minorities were tried in Cameroon courts and sentenced to serve jail time. In order to reflect on the state of legal limbo for LGBTQ people in Cameroon, I also revisit the South African case Minister of Home Affairs and the Director General of Home Affairs versus Marie Adrianna Fourie and Cecelia Johanna Bonthuys, which led to legalization of same-sex relationships and marriage in South Africa. In the first and longer part of the essay, I discuss the situation in Cameroon and South Africa. In the second part, I briefly discuss the different legal outcomes in the two countries. I conclude with a brief discussion of signs of hope in the critical dialogue on justice in the debate on same-sex relations in Africa. My goal in this essay is not to offer expert opinion on the legal entanglements on the question of same-sex relations, but to demonstrate that legal and constitutional protections offer the best chance for gaining the rights of LGBTQ people in Africa.

Constitutionally, Indonesia is a state “based on Almighty God,” but the Constitution does not specify any religions or belief systems. This is left to statute, which establishes six official religions that the state supports and helps administer: Islam, Protestantism, Catholicism, Hinduism, Buddhism, and Confucianism. But Indonesia is home to a rich kaleidoscope of other beliefs (kepercayaan), ranging from indigenous practices predating the arrival of many of the official religions to new age spiritual movements. The constitutional status of these beliefs is contentious, and their followers have long complained of government discrimination, primarily in matters of civil registration services, education, and employment. This reinforces the view, propounded by some adherents to official religions, that beliefs are inferior to official religions. This view, in turn, perpetuates the socioeconomic and cultural marginalization of belief-holders. In 2017, Indonesia's Constitutional Court was asked to examine the constitutional status of these beliefs. Its decision appears to constitutionally recognize these beliefs; accordingly, it has been heralded as an advance for religious freedom in Indonesia. Indeed, it has spurred limited administrative reforms to remove discrimination in several parts of Indonesia. But the Court's decision is muddled and inconsistent. It does not clearly establish that beliefs enjoy the same level of constitutional protection as do religions—if they are, in fact, constitutionally protected at all. The likely result is continuing faith-based discrimination and marginalization in Indonesia.

This article argues for a different reading of the history of law and religion in independent Sri Lanka, one that does not associate the persistence of religious tension with the failure of law, but, somewhat counterintuitively, with the legalization of religion in the first instance. I argue that it is not law's failure that adds to the intensity of religious tensions on the island, but its pyrrhic success. Sri Lanka's success in drafting, ratifying, and deploying legal regimes of religious rights has led to the further ossification of the very conflicts they were intended to arbitrate. Through a condensed overview of the history of debating, drafting, and adjudicating constitutional religious rights in Sri Lanka, this article demonstrates how, in turning to law to resolve religious disputes, Sri Lankans have deepened and hardened the very lines of conflict that those laws were meant to resolve.

Increasingly, the historical significance of the South African Truth and Reconciliation Commission (TRC) is becoming globally apparent. Within South Africa, debate about this imperfect but undeniably productive, transformative institution continues, long after the TRC formally shut its doors. The design of the many truth-seeking, reconciliatory mechanisms to emerge in Africa and elsewhere in recent years has been informed by comparative discussion in which the South African experience features prominently.

The TRC has been viewed as a groundbreaking confrontation with the challenges facing any transitional society: to discover the truth about the past, to account for it in ways that promote justice, and to develop reconciliation strategies that enable previously divided people to look forward, together. It represents an historic moment in which humane ways of dealing with an atrocious past have been cultivated.

The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.

This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship and moving it to a university setting where students were trained as legal scholars. Underlying the Langdellian moment is the assumption that law is comprised of analytic concepts which can be apolitically applied through a series of deductions made from the core legal principal.

The heart of Michael Perry's argument lies in his claim that “every human being is sacred” and, that being the case, it follows that there are “some things that ought never (for example, under any circumstances or conditions) to be done to any human being or some things that ought always (under all conditions) to be done for every human being?” The “foundational” claim is that every human being, because sacred, is owed a certain regard and that this regard, in our time, has taken shape as, and congealed around, the idea of human rights. The dignity of the person, in other words, is a necessary prior assumption from which rights derive. The ontological claim, or to put it in a similar if not identical way, certain anthropological presuppositions, necessarily ground any sustainable human rights argument. It is possible, certainly, to make human rights claims on purely conventional grounds or, in more “Rortyesque” language, as just the way we do things around here. But that claim is not sustainable over time, argues Perry. It follows that “there is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.”

John Noonan was my teacher some twenty-five and more years ago. I was then a graduate student at the University of California, trying to discover enough about the history of the law of the Church to write something sensible about it. He took me under his wing. He suggested a subject, and he taught me—at least he showed me—the possibility of seeing larger themes in the details of legal and historical research. Attention to the details was essential, but no less important was thinking about their background and their implications. It was a lesson I might have learned in law school. Apparently I had not. This lesson came back to me forcefully when, in more recent days, research on the development of ecclesiastical jurisdiction in England raised the subject of the place of excommunication in the subject's early history. Excommunication, dealing as it does with the complex interrelationships between legal doctrine and human behavior, is a subject about which Judge Noonan might have written a wonderful book.

The sparse scholarship on the political role of Coptic Christians in modern Egypt almost always takes the Coptic Orthodox Church as a point of departure, assuming that the head of the church, the Coptic patriarch, is not only the spiritual leader of the community but its political leader as well. This article argues that the disproportionate attention afforded to the Coptic Orthodox Church in this scholarship has obscured intra-communal dynamics of the Copts that are essential to an understanding of their political role. Through an analysis of historical struggles between the Coptic clergy and the Coptic laity for influence in Egyptian politics, as well as a particular focus on how these struggles have played out in the arena of personal status law, the article demonstrates that Egyptian politics and Coptic communal dynamics are deeply intertwined, to a degree often disregarded both by Copts and by Egypt analysts.