Since the giving of the law on Mount Sinai more than three thousand years ago, a distinct legal system has governed the Jewish people. One of the areas included in Jewish law is domestic relations. As a result, when an American Jewish couple marries in a Jewish ceremony two distinct legal systems recognize the marriage: American civil law and Jewish law. If the marital relationship breaks down and one or both parties want a divorce American law requires that the moving party brings an action in a court of law. Assuming proper grounds exist, the court will order a divorce and American law will consider the marriage terminated. Jewish law, however, will consider the parties still married until such time as distinct Jewish legal procedures are performed. Jewish law requires that the husband give his wife a bill of divorcement, known as a get. If the husband refuses to give his wife a get, she cannot remarry in accordance with Jewish law. Such a woman, in Jewish terminology, is an Agunah, a chained woman.

With the increase of divorces in American Jewish society has come an increased number of Agunot. A further result has been legal activity, in courts and at least one legislature, to encourage or even force a recalcitrant husband to give his wife a get.

In the history of the religion-state relationship in China, a model of subordination of religion to the state has been dominant for centuries. In recent years, some Chinese Protestant churches have advocated the model of separation of church and state. Through a historical and theological analysis, this study argues that in order to relieve the tensions between Chinese Protestantism and the contemporary Chinese government, a better conceptual alternative is to reconsider the issue in terms of autonomy rather than separation or subordination, and to argue for legally allowing the coexistence of both official and nonofficial churches and grant different degrees of autonomy to each.

This article explores the unity of law and theology in the 1983 Code of Canon Law [hereinafter CIC-1983]. The unity has remained critical since canon law emerged in the ancient Church. From the origins of the primitive Christian communities through the patristic era, the Church manifested a tension between charism and office, spirit and law. The medieval canonists achieved a great synthesis of the reason of law and faith of theology. The unified theory helped to form the basis of the Western legal tradition. The Reformation focus on sola fide (faith alone) tended to sever the unity. With the Enlightenment, reason was declared independent from the unproven dogma of faith. Modern Western legal theory developed in accord with Enlightenment thought. As a result of canon law's function in the life of the Church, the continuing issue of the unity has produced two interrelated principles. Theology without law leaves the ecclesiastical community bereft of an ordered life. Law without theological meaning surrenders its moral persuasiveness and deteriorates into rigid legalism.

Vatican II required a new universal law for the Church that avoided the pitfalls of both antinomianism and legalism. The Preparatory Commission for the CIC-1983 described canon law as a “sacred symbol.” When he promulgated the new Code, His Holiness John Paul II termed the legislation “the final document of Vatican II.” Affirming the unity of law and theology, the Supreme Legislator has drawn attention to the concept of “theological anthropology.” The phrase signifies the endeavor to uncover the fundamental elements of what it means to be human. In exploring the unity of law and theology, this article focuses on the relationship between canon law and theological anthropology. While obviously not intended as a repudiation of mainstream legal theory, the article also suggests that the unity may offer comparative insight to the secularity of the modern project.

In 2006, the Turkish Grand National Assembly (TGNA) made a notable departure from historical precedent when it replaced the Population Register Law of 1972. The 1972 law, in Article 43, required that the national registry records on all households in Turkey contain the religion of all family members unless, under Article 46, an individual or family went to court to make a revision in these records. This was the legal basis of the inclusion of religious information on Turkish identity cards, issued in accordance with the information in family registers. Article 35 of The Population Services Law of 2006 now provides: “Requests about the religious information in household registers shall be approved, modified, left blank or deleted, in accordance with the written application of the concerned person.”

We shall argue, in this paper that Article 35 of the Population Services Law of 2006 is unconstitutional just like Article 43 of the Population Register Law of 1972 was, and that information about individuals' religions should be deleted from both the national register and individuals' identity (ID) cards. The inclusion of religious information in the identity cards of citizens or resident aliens, who apply for Turkish citizenship, violates the religious liberty in Turkey, particularly under a “neutrality” conception of that right. We shall review the jurisprudence of the Turkish Constitutional Court concerning ID cards in the light of the negative and positive aspects of religious liberty, focus on the different meanings of neutrality such as “formal neutrality,” “substantive neutrality,” “aim neutrality,” “justification neutrality” and “consequences neutrality.” Before we evaluate this practice under neutrality theory, however, it would be appropriate to begin with a historical narrative about the origin of religious notations on Turkish identity cards, and explain the content and the meaning of the new law.

Unlike nonreligious legal systems, Jewish law (halakha) assumes the existence of an omnipotent, omniscient and benevolent Creator whose purposes cannot always be fathomed. Jewish law also assumes a network of relationships between and among the Creator and all human beings. As a result of these assumptions, there is purpose in every instant of life, for the individual and for the community, even though the purpose is not always readily apparent. Two overarching principles that provide great guidance are G-d's commandments that Jews, individually and collectively, live by his commandments and be holy. This article explores how these assumptions and principles, along with other applicable Jewish law concepts, apply to physician-assisted dying.

On April 17, 1990, in Employment Division v Smith, the Supreme Court decided that neutral laws of general applicability may be applied to restrict or forbid religious exercise, and that such applications raise no issue under the free exercise clause. The opinion removes many of the issues discussed in this journal from the scope of positive constitutional law.

The Court noted some exceptions. Whether anything remains of free exercise depends on future cases interpreting those exceptions and interpreting the Court's requirement that laws regulating religion be neutral. The Court recognized constitutional protection for religious speech and religious instruction of children, and if interpreted generously, those exceptions could protect a large proportion of religious conduct. If the exceptions and the neutrality requirement are interpreted narrowly, the free exercise clause has little independent content.

By the time the correspondence between Felix Frankfurter (1882-1965) and Reinhold Niebuhr (1892-1971) was underway, both men were well established in their respective careers. Frankfurter, coming from a prestigious post at the Harvard Law School, took the oath of office as Associate Justice of the Supreme Court on January 30, 1939. Niebuhr, occupying the Chair of Christian Ethics at Union Theological Seminary in New York, had recently returned from Edinburgh where he had delivered the highly regarded Gifford Lectures soon to be published in two significant volumes, The Nature and Destiny of Man (1941-1943).

During the period of their correspondence Frankfurter emerged as a major voice in American jurisprudence and came to fulfill the prognostication of Harold Ickes who once told Franklin Roosevelt; “If you appoint Frankfurter, his ability and learning are such that he will dominate the Supreme Court for fifteen or twenty years to come.” Niebuhr, meanwhile, experienced a meteoric rise to prominence in both theological and political circles and stood as one of the towering figures in American life. His contributions to American intellectual history were vast and varied, making him both the most important theologian in the American tradition since Jonathan Edwards, and, in the words of Hans Morgenthau, “the greatest living political philosopher of America, perhaps the only creative political philosopher since Calhoun.”

This essay was presented as the 2015 McDonald Distinguished Scholar Lecture at the Center for the Study of Law and Religion, Emory University.

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise clause because they had taken the drug as part of a religious ceremony of their church.

To the surprise of many, the Supreme Court rejected both the Native Americans' claim (by a vote of six to three) and the general proposition that the free exercise clause gives persons a right to religion-based exemptions (by five to four). Writing for the Court, Justice Scalia said, “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Moreover, in order to preclude such a holding in the future, the Court discarded the “strict scrutiny” test, adopted in its 1963 Sherbert v. Verner decision according to which any burden on any religious practice imposed by any law, even one that is religion-neutral and generally applicable, is unconstitutional unless it can be justified by a “compelling” government interest and is the least restrictive means of protecting that interest.

Perhaps in part because Jews did not enjoy sovereignty for most of their history and thus rarely organized, much less directed, military institutions, the Jewish textual tradition says relatively little about the exercise of corporal punishment during warfare. This dearth of classical sources, however, does not mean that Judaism has nothing to offer contemporary deliberation about the ethics of torture. On the contrary, modern Jews plumb the textual tradition in search of prooftexts that ground their passionately held positions vis-à-vis torture. And this is precisely one of the methodological conundrums torture poses. In their search for corroborating principles, verses and halakhah (law) for their positions, Jewish scholars often gloss over countervailing values, texts and laws. Some trot out such broad principles as betzelem elohim (the notion that every human is made in the divine image), al tonu (do not oppress the stranger), or lagoyim (a light unto the nations), kavod habriot (respect creatures), chillul hashem (desecrating God's name), or lo ta ’amod al dam re ’echa (do not stand on your neighbor's blood) so as to condemn or condone torture without considering countervailing principles. Others point to certain laws, such as those pertaining to the rodef (stopping a pursuer who has lethal intent against another) or hora’at sha’ah (emergency exigency) to justify their positions on torture—without entertaining other relevant legal precedents. And a few others blandly state Judaism's position vis-à-vis torture without providing much or any evidence supporting those claims.

Notoriously, natural law means many things to many people. Natural law is discussed quite differently in the fields of ethics, law, and theology; it is employed quite differently in the spheres of political rhetoric, churches, and academia; it has been used quite differently in the eras of ancient Rome, medieval Europe, the Enlightenment, and the postmodern West; and something akin to natural law appears, with quite different associations, in the religious traditions of Christianity, Judaism, Islam, and Hinduism. In some contexts natural law refers to God's moral law. In other contexts natural law consists of norms that can be discerned solely through human reason. In still other contexts natural law describes rules that are naturally embedded in the physical world.

The perspectives of Jewish law and Anglo-American law are compared with regard to good Samaritan responses to difficulty in three areas: a) return of lost property, b) rendering aid, and c) coming to the rescue of someone in danger. With regard to good Samaritan expectations for return of lost property, the two systems seem similar. However, a comparison of Jewish and American law with respect to rendering aid and coming to the rescue of someone in danger demonstrates that Jewish law encourages a duty to help in a manner unusual under Anglo-American common law. Exceptions in case law and statutory developments are discussed.

The last generation of Lockean scholarship has witnessed a radical reappraisal of the traditional interpretation of Locke as a secular political thinker, a defender of individualism, and a champion of the natural right of private property. The new picture of Locke which has emerged through these more recent studies is the result of an attempt to interpret his various writings in their historical context. The appearance of John Dunn's The Political Thought of John Locke in 1969 marked a critical turning-point in the evolution of the historical approach to Lockean studies. Building upon the work of Von Leyden, Laslett, and Abrams, Dunn sought to interpret Locke in terms of the latter's own intentions and self-understanding. The single most important key to a recovery of Locke's own intentionality, Dunn argued, was a recognition of the “centrality” of his underlying religious commitments to his thought as a whole.

Since the appearance of Dunn's essay, the fundamental significance of Locke's religious beliefs for his moral and political thought has been generally acknowledged. Assuming the validity of this hypothesis, Locke's rationalism must now be seen within the framework of his religious convictions. Locke attempted to resolve the tension between the two in terms of the law of nature; but, for him, moral obligation remained ultimately dependent upon religious faith in God as Creator and upon an understanding of humanity as God's workmanship.

This article analyzes the historical sources and forms of human rights in Western legal and Christian traditions, and it identifies key questions about the intersections of Christianity and human rights in modern contexts. The authors identify nine distinctions between different conceptions of rights correlating with at least four types of jural relationships, and they argue that leading historical accounts of human rights attribute “subjective” rights too narrowly to Enlightenment and post-Enlightenment legal thought. Earlier forms of classical Roman law and medieval canon law, and legal norms developed by Protestant reformers of the sixteenth and seventeenth centuries shaped Western human rights regimes in historically important ways, anticipating most of the rights formulation of modern liberals. In response to contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, the authors argue that rights should remain a part of Christian moral, legal, and political discourse, and that Christians should remain a part of pluralistic public debates about the appropriate scope and substance of human rights protections.

In this essay I offer a nuanced account of my critique of “rights” language. I argue that my primary concern is not to discount the usefulness of rights language in contemporary expressions of legal and moral duties. Rather my concern is with the overreliance on rights language such that it guards a society from acknowledging prior claims to a common good. Rights language has become too powerful when appeals to rights threatens to replace first-order moral descriptions in a manner that makes us less able to make the moral discriminations that we depend upon to be morally wise. Finally, I turn to Simone Weil and Rowan Williams, who both turn to the body to suggest a more constructive way for thinking about rights as attending to the body, which forces us to attend to contingency. Human contingency can help us resist abstractions that fail to properly account for and address bodily needs.

The practice of obeah, a term used to refer to a variety of African derived spiritual practices, remains proscribed in at least fourteen countries or territories in the Anglophone Caribbean today. This article examines the historical development of these laws and the significance of the continued prohibition of obeah. Although obeah laws were initially modeled on British statutes banning vagrancy and witchcraft, and were passed during a period when it was common for nations in the Western Hemisphere to prohibit the practice of African diaspora faiths, these statutes stand in stark contrast to the religious freedoms guaranteed in other parts of the Atlantic world in the twenty-first century. Obeah laws proscribe the mere performance of certain spiritual rituals, while other countries modified their policies in the mid-twentieth century to require evidence of intentional fraud and financial gain to convict occult practitioners. This article links the continued proscription of obeah to nineteenth century assertions that African peoples were animists and fetishists, as well as to long-standing hierarchies in the Western world placing theistic religions above those centered on spirit conjuring, divination, and the manipulation of supernatural forces.

“[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.

Somewhere near the heart of much recent liberal political theory is the claim that if the state restricts an agent's liberty, its restrictions should have some rationale that is defensible to each of those whose liberty is constrained. Liberals are committed to “the requirement that all aspects of the social should either be made acceptable or be capable of being made acceptable to every last individual.” In a pluralistic culture, there are many claims which are particularly controversial, many about which we expect “reasonable disagreement.” If we are to enjoy consensus regarding state restrictions, citizens should not support coercive policies on such controversial grounds. If, for example, some coercive policy is passed by popular referendum, and if its supporters have no reason to vote for the policy other than their religious convictions, then, given that reasonable, informed people reject religious belief, the policy in question lacks public justification. Given the liberal view that coercive policies should be defensible to all those affected by them, conscientious citizens should restrain themselves from supporting (or rejecting) policies on the basis of excessively controversial grounds. Principles of restraint specify both the types of grounds on the basis of which citizens may appropriately support a given policy and the types of grounds on which citizens may not properly rely.