This essay summarizes crucial ways that society—in particular, the United States—has treated claims by individuals to be free of generally required duties because their convictions tell them that performing the duties is deeply wrong. Among the topics I address are how the Supreme Court decisions involving constitutional rights and organizational claims relate to this treatment, but my main focus is on what I see as the critical issues and what I believe to be the wise choices for addressing such claims. Without attempting an extensive account of all that has been written on claims of exemptions, I refer to some relatively recent books that can help one to understand what is at stake and what can be said in favor of competing positions. I also provide references to recent and forthcoming work of my own that explores claims of exemptions in greater depth.

Unlike modern Western law, which is generally assumed to be the product of human deliberation about the common good, at least in democratic countries, Jewish law is a normative system in which adjudication is subject to religious commandments. The judge bears responsibility not only to the litigants standing before him but also to God, an allegiance which most modern Western judges do not, at least explicitly, recognize.

Because of the systems' assumptions that law is made by humans and thus can be understood by human judges given the appropriate information, modern Western legal systems infer that judges are under obligation to render a decision on any legal question brought before them, even in doubtful cases. Secular-civil law views the resolution of a dispute as preferable to its non-resolution, even if the judge has reservations about his decision. The judge who is hesitant to decide a case is considered to have failed to properly discharge his judicial role, the very essence of which is the regulation of human conduct in one form or other. The obligation of the judge to render a decision on every legal question both implies and requires that a judge exercise creative discretion in at least some cases where the law or its intended application are not clear to ensure the rendering of a clear and unequivocal decision on any legal question brought before him. As a consequence of this unequivocal demand that the judge decide, most judges must make peace with the possibility that their rulings may later be discovered or determined to have been mistaken.

“It is my opinion,” testified the chairman of the Hopi Indian Tribal Council in the unsuccessful effort of the Hopi (and the Navajo) to stop further development of a ski resort on U.S. Forest Service land in the San Francisco Peaks in North Central Arizona,

With such high stakes involved it is little wonder that the Hopi Indian Tribe resorted to the courts. Yet, such a step is a high risk venture. The immediate costs in terms of time, money, and emotional involvement are likely to be high. Further, every such investment involves the possibility of loss of the case and with it the additional possibility that the decisive language of the court may find its way into opinions in similar cases. Most importantly, perhaps, an attempt to defend a tribal religion in court could involve subtle longer range costs. Paradoxically, an effort to defend tribal religion may also undermine it.

We take for granted in our Western tradition a certain convergence between morals and law. Morality, in so far as it applies to our public lives, is assumed to follow legality. We believe that in normal social circumstances we can recognize the moral values of a nation in its law. We therefore reject any suggestion that there can be such things as amoral politics or unpolitical morality. We assert that the fundamental moral principle in politics ought to be the observance of our country's legal processes, since legal process ought to coincide with moral conviction. When this is not the case, we insist, when there is no assimilation into the political arena of the moral convictions behind our laws, then the laws themselves will lose respect and we shall have more Watergates and worse.

In this article I propose to look more closely at this conviction that the legal standard is the moral standard for politics and government. I make three affirmations about law as a standard for public morality: first, it is a minimum standard; second, minimum though it is, law is nonetheless a necessary standard; third, because it is both minimum and necessary, law as a standard is incomplete.

Article 36 of the Chinese Constitution tells only part of the story about religious freedom in China. The Chinese constitution establishes five restrictions on the religious freedom described in Article 36. First, the Chinese Constitution establishes state atheism as an official ideology. All Chinese citizens, whether religious believers or not, are required to be educated in Marxist ideology and under the leadership of the Chinese Communist Party. Second, religious freedom, along with other rights in the Chinese Constitution, are merely legal rights, rather than fundamental rights. The National People's Congress can therefore pass legislation limiting individuals’ religious freedom. Third, the Chinese Constitution enumerates basic obligations of citizens that limit religious freedom. Fourth, Article 36 protects only the inner freedom of religious belief, not freedom for religious practice. Finally, the second half of Article 36 places limitations on religious practices. Religious freedom in the Chinese Constitution is thus a highly limited freedom. To improve religious freedom protections in China it is necessary to amend the Constitution rather than simply promote full implementation in its current form.

Until the second half of the twentieth century, the role of religion in Africa was profoundly neglected. There were no university centers devoted to the study of religion in Africa; there was only a handful of scholars who focused primarily on religious studies and most of them were not historians; and there were relatively few serious empirical studies on Christianity, Islam, and African traditional religions. This paucity of rigorous research began to be remedied in the 1960s and by the last decade of the twentieth century, the body of literature on religion in Africa had expanded significantly. The burgeoning research and serious coverage of the role of religion in African societies has initially drawn great impetus from university centers located in the West and in various parts of Africa that were committed to demonstrating that Africa has a rich history even before European contact. Accordingly scholars associated with such university centers have since the 1960s acquired and systematically catalogued private religious manuscripts and written numerous pan-African, regional, national, and local studies on diverse topics including spirit mediumship, witchcraft, African systems of thought, African evangelists and catechists, Mahdism, Pentecostalism, slavery, conversion, African religious diasporas and their impact on host societies, and religion and politics. Although the three works under review here deal with the role of religion in an African context, they mainly contribute to addressing three major questions in the study of religion and politics: How do Islam and other religious orientations shape public support for democracy? What is the primary cause of conflict or religious violence? What strategies should be employed to resolve such conflicts and violence?

According to a widely held view, Aquinas does not have a notion of subjective natural rights, understood as moral powers inhering in individuals. This article argues that this way of reading Aquinas is wrong, or at best, seriously misleading. Aquinas does identify the right, the object of justice, with the relation established between parties to an equitable exchange or interaction, and in this sense he identifies right with an objective state of affairs. But this line of analysis does not commit him to any particular construal of what constitutes a just relation. In particular, it leaves open the possibility that in some situations, the right, understood as an objectively equitable relation, presupposes that someone's claim of a right, is duly acknowledged. Moreover, in many contexts Aquinas says that individuals can claim certain liberties and immunities on the basis of some natural right, in terms that make it clear that these claims lie within the discretion of the individual. His overall conception of natural law and natural right implies that individuals can legitimately make certain claims by right, claims that emerge within some contexts and not others. He does not have a theory of rights, but neither do the scholastic jurists of the time, and his appeals to what someone can claim by right are reminiscent of their views. If they can be said to have a notion of subjective natural rights, the same can be said of Aquinas himself.

Buddhist scholars like Kenneth Ch'en have argued that the teaching of filial piety was a special feature of Chinese Buddhism as a response to the Chinese culture. Others, among them John Strong and Gregory Schopen, have shown that filial piety was also important in Indian Buddhism, but Strong does not consider it integral to the belief system and Schopen did not find evidence of it in early writings he examined. In this article, through an analysis of early Buddhist resources, the Nikāyas and Āgamas, I demonstrate that the practice of filial piety has been the chief good karma in the Buddhist moral teaching since its inception, although it is not as foundational for Buddhist ethics as it is for Confucian ethics. The Buddha advised people to honor parents as the Brahmā, the supreme god and the creator of human beings in Hinduism, as parents have done much for their children. Hence, Buddhism teaches its followers to pay their debts to parents by supporting and respecting them, actions that are considered the first of all meritorious deeds, or good karma, in Buddhist moral teachings. Moreover, according to the Buddhist teaching of karma, matricide and patricide are considered two of the five gravest bad deeds, and the consequence is immediate rebirth in hell. Mahāyāna Buddhism developed the idea of filial piety further and formulated the four debts to four groups of people—parents, sentient beings, rulers, and Buddhism—a teaching that became very popular in Chinese Buddhism and spread to other East Asian countries.

The dynamic relation between natural law, the theory of an objective moral order (or unwritten norms for human actions), and positive law, the legislation or statutes of a political community has become more prominent again. This article will explore the theory of Aquinas on the relationship between natural and positive law, which is still of great importance in the discussion. In particular, I will show how Aquinas' distinction between derivation and determination of positive from natural law resolves some of the conflicts between positive and natural law created by later scholastic distortions.

A systematic exposition of Thomistic natural law is particularly daunting, given the current controversies in interpretation, distortions which have arisen since the Middle Ages, and the many good theological critiques of the natural law tradition. Although I do not think that Aquinas' approach contains any fundamental flaw which renders the project inherently incoherent, I want to approach the topic from the side of positive law and thereby indirectly contribute to the rehabilitation of natural law theory. As I explain the purpose and scope of positive law as Aquinas describes it, some of the lines of a correct account may emerge. Beyond the historical and exegetical scholarship, this article will propose a framework which may be applied to some contemporary issues to test the implications of the Thomistic view of law.

In 1968, a young Robert Cover wrote what he later called a “short polemic” against judicial complicity in the Vietnam War. “Polemic” is something of an understatement. Cover's short book review of an 1856 abolitionist broadside directed against judicial enforcement of the Fugitive Slave Act became the occasion for a powerful general indictment of morally blind “obedience to, let alone enforcement of, law which violates all that is worthwhile in human community”.

Drawing on the memory of the Holocaust and “the screaming silence of the German people,” Cover excoriated the federal judiciary for “re-main[ing] faithful to its long tradition as executors of immoral law,” in relation to enforcement of the draft laws in the Vietnam War era:

No judge has resigned in protest. No judge has availed himself of the opportunity presented by a draft case to instruct the public on the moral issues of the war. No judge has publicly engaged in creative judicial obstruction of the war effort.

Echoing the prophet Isaiah, Dr. King dreamed of societal harmony and common understanding. Not only would “the glory of the Lord” be revealed, but “all flesh” would see the truth together. In today's America, this vision seems increasingly distant; some would say increasingly fantastic. From abortion to homosexuality to affirmative action, Americans are deeply divided on fundamental issues of morality and public policy. Combatants in an ongoing culture war, we disagree not only about specific issues, but also about the manner in which these issues should be considered, debated, and resolved. At bottom, we are divided because we disagree about the nature of moral and political truth and about how this truth should properly be determined. Far from seeing the truth together, we see separate truths that emerge from separate ways of thinking.

Human dignity is the recognition and respect of human need, desire and expectation one individual by another. This recognition is indispensable because no human being survives alone: Human dignity creates the foundation of society and civilization. Our knowledge of history suggests that religious ideas have provided this basic foundation of civilization. Describing the first recognized civilization in history one historian says, “Religion permeated Sumerian civic life.” According to another historian, “Religion dominated, suffused, and inspired all features of Near Eastern society—law, kingship, art, and science.” Based on these observations while defining civilization Samuel Huntington asserts, “Religion is a central defining characteristic of civilizations.”

In Islam, the Qur’an declares that: “We have bestowed dignity on the progeny of Adam.” The verse then continues to remind the whole of mankind of God's special favor unto them with physical and intellectual abilities, natural resources and with superiority over most other creatures in the world. This dignity is bestowed through God's act of creating Adam and breathing into him His Own Spirit. Since all human beings originated from Adam and his spouse, every single human being possesses this dignity regardless of color, race, religion and tribe. The whole of mankind, as khalīfah (vice-resenf) is responsible for establishing peace on earth through divinely ordained values such as amānah (trust), ‘adālah (justice) and shūra (consultation).

‘ … to a very large extent power consists in the ability to make others inhabit your story of their reality.’

The accommodation afforded to religious differences within the legal systems of the common law world is as much a political as a legal concern. As such it is part of a much wider debate about the nature of democratic government within a pluralist society. The concern is that in so far as democracy is dominated by a majoritarian concept it may not be compatible with pluralism. Majoritarianism is predicated on the assumption that the will of the majority is absolute and is the final authority when defining the limits of individual rights and freedoms and how they are best respected and enforced. A pluralist conception of society, by contrast, requires that the rights of minorities must, on occasion, be allowed to take precedence over the wishes of the majority in order to encourage diversity, whether religious, racial or sexual, to flourish. The challenge for modern democracies is, therefore, to reconcile the demands imposed by majoritarianism within a pluralist framework.

In law, as elsewhere, the role of symbolism is of more than symbolic importance. Religious symbols of women help to reinforce prevailing gender ideologies about the proper place of men and women and women's appropriate roles and status in society. In American society, religious symbols of women and the feminine have functioned to shape legal views of women. These views essentialize women's role and status to that of reproductive vessels, or what I will here refer to as “fetal containers.” This view of women as fetal containers has hindered the ability of women to secure either equal rights or equitable treatment under law.

Despite the general secularization of the law over the last century, the religiously-grounded image of woman as fetal container has persisted in legal doctrine, especially in laws concerning employment discrimination, abortion, and, most recently, fetal protection policies and surrogate motherhood contracts. Because such imagery of women has become a “naturalized” part of our secular cultural symbolism, its religious derivations are not always evident. Yet, law reform efforts need to address not only the more obvious forms of sex and gender discrimination, but also the pervasive influence of such religious symbols and their influence on the status of women.

One of the most interesting features of biblical law is the extent to which it is pervaded by narrative. Many biblical laws have a quasinarrative form, while others include within themselves a narrative reference of some sort. In their present context, all biblical laws have a narrative setting. Wherever one finds law in the Bible, one is in the presence of narrative as well.

Despite its pervasiveness, this juxtaposition of law and narrative poses something of a challenge to the reader of the biblical text. Certainly, these two genres may be seen to call into play different conventions of reading. What, then, is the effect of their persistent association on how one reads the text of which both are a part?

What is the difference between the conventions underlying our reading of biblical narrative and biblical law? One difference may perhaps be illustrated by comparing the following two passages:

The LORD said to Moses, ‘Yet one more plague I will bring upon Pharaoh and upon Egypt; afterwards he will let you go hence; when he lets you go, he will drive you away completely.’ (Exodus 11:1)

The LORD said to Moses and Aaron in the land of Egypt, ‘This month shall be for you the beginning of months; it shall be the first month of the year for you.’ (Exodus 12:1-2)

Our world is in abundance of most different kinds of legal systems, but none of them is as thoroughly imbued with constitutional ideas and categories as the American law. Thus, the dedication of an article dealing with a concept of constitutional law to an American judge and scholar seems not inappropriate. The contribution focuses on a legal term of specifically continental European thinking, the concept of “Wirtschaftsverfassung” or, translated literally, of “economic constitution.” I will try to explain on which premises and under which circumstances this legal term has been developed during the first decades of our century.

Concepts often share the fate of human thoughts in general: they appear for the first time in certain contexts, they journey through time and space, they flourish in one place and sink in another; for long periods they may be missing yet they come to life again all of a sudden in a new context. The concept of the economic constitution is such a case, too. It can be found already in the Physiocrats, but no fixed place is assigned to it; every now and then it has been used by authors of the 19th century but without any chance of gaining a foothold; in our century, however, it secures the status of a central concept for legal doctrine and theory of constitution, at least among the German jurists. So, unlike many other juridical concepts, this one does not root in a common European heritage like ancient Roman law or the law of the medieval Church; and with regard to the political and juridical ideas of the Natural Law School and the Enlightenment the continuities are so sparse and faint that it is hardly possible to trace the lines back over the centuries.

In this essay I argue that religion, understood as harmony with the transcendent source of existence and meaning, is a good that practical reason grasps as an objective, distinct, and important aspect of human well-being, one that reasonably takes pride of place among the various aspects of a good human life due to its architectonic role in structuring and adding a transcendent meaning to all of the other goods that we pursue. On the basis of this view of religion, I suggest that religious belief and practice deserve special protection in law, above and beyond mere preferences and even other conscientious commitments. I develop this view through a dialectical engagement with Ronald Dworkin, Brian Barry, and Christopher Eisgruber and Lawrence Sager.

This paper argues that secular legal systems need a better defined space for freedom of conscience because this important right has been crowded out by both freedom of religion and freedom of thought. Based on the principles of the Protestant Reformation, American constitutionalism expanded the idea of freedom of conscience to the point of making it almost interchangeable with freedom of religion. On the other hand, international law, followed by European constitutional law, reduced the political force of the concept of freedom of conscience by assimilating it to freedom of thought. And yet freedom of conscience cannot be treated just the same as either religious freedom or freedom of thought. By nature, the secular legal systems of political communities are moral, but nonreligious. So morality and religion affect legal systems in different ways. For this reason, freedom of conscience and freedom of religion should be protected using different legal devices. The so-called privilege of abstaining (beneficium abstinendi) best protects freedom of conscience; freedom of religion, by contrast, is appropriately protected by what I call the religious exception (exceptio religiosa). The consequences of applying these legal tools in particular cases, and their proper scopes, depend on the constitutional model of the political community in question. But in general, an increasingly globalized, diverse, and multicultural society demands a wider application of both these legal tools.

Significant controversy surrounds individuals' reliance on religious healing approaches to the treatment of illness, particularly when such efforts focus on the provision of care for children. These approaches, rooted in organized religions and their theologies, encompass a wide range of practices, ranging from prayer, meditation, and the laying on of hands, to exorcism, speaking in tongues, Spiritism, shamanic intervention, and various rituals of Santería. Numerous faith communities espouse one or more forms of religious healing while discouraging reliance on conventional medical treatments: These communities include the Christian Science Church, the Church of the First Born, End Time Ministries, Faith Tabernacle, Followers of Christ Church, Bible Believers' Fellowship, Christ Assembly, Christ Miracle Healing Center, Church of God Chapel, Church of God of the Union Assembly, Holiness Church, Jesus Through Jon and Judy, “No Name” Fellowship, Northeast Kingdom Community Church, and The Source.

Others, such as the Assemblies of God, have moved away from an exclusive reliance on religious healing practices to a more holistic approach that combines religious-healing with at least some aspects of biomedicine. For many of these listed groups, health and illness represent the physical manifestation of moral concerns relating to salvation, which can only be addressed through religious healing.

Ever since the Enlightenment, scholars in a variety of disciplines have depicted the Western world as growing inexorably more secular. Modern, secular, and scientific modes of thought, they insist, have steadily driven religion out of the public square. Many have portrayed the secularization of the public sphere as not only inevitable but desirable—a Good Thing. In this article, a case study of the New Zealand wars of the 1860s, I question these assumptions. In Victorian New Zealand during this period, settlers and politicians ejected Christianity from the public square for dark and murky reasons. The Enlightenment grand narrative of secular light banishing religious darkness must be seen for what it is: a powerful modern myth whose historical inadequacies ought carefully to be exposed.

Some context for this case study is essential. Up until the 1860s race relations in New Zealand, Britain's southernmost colony, had been mostly peaceful. The indigenous Maori people had generally welcomed Westerners—explorers, whalers, traders, missionaries, and settlers—into New Zealand. These incoming Pakeha (that is, whites in Maori) lived in a Maori world largely on Maori terms. The Treaty of Waitangi, signed in 1840 between many Maori chiefs and the British Crown, guaranteed the tribes full, exclusive, and undisturbed possession of their lands, forests, and fisheries, and all the rights and priveleges of British subjects. In return Maori ceded sovereignty of New Zealand to the Crown. The Treaty required Maori to sell land to the Crown, not private parties.