Routledge Handbook of Law and Religion

437 Pages·2015·2.788 MB·English

by  Silvio Ferrari

Routledge Handbook of
Law and Religion
The field of law and religion studies has undergone a profound transformation over the last
30 years, looking beyond traditional relationships between State and religious communities to
include rights of religious liberty and the role of religion in the public space.
This handbook features new, specially commissioned papers by a range of eminent scholars
that offer a comprehensive overview of the field of law and religion. The book takes on an
interdisciplinary approach, drawing from anthropology, sociology, theology and political science
in order to explore how laws and court decisions concerning religion contribute to the shape
of the public space.
Key themes within the book include:
• religious symbols in the public space;
• religion and security;
• freedom of religion and cultural rights;
• defamation and hate speech; and
• gender, religion and law.
This advanced level reference work is essential reading for students, researchers and scholars of
law and religion, as well as policy makers in the field.
Silvio Ferrari is professor of Law and Religion at the University of Milan. He is Life Honorary
President of the International Consortium for Law and Religion Studies and is an Editor-in-
Chief of the Oxford Journal of Law and Religion. He received the 2012 Distinguished Service
Award from the International Center for Law and Religion Studies.
‘Few areas of contemporary legal scholarship have developed so exponentially in so short a space
of time as the interface between law and religion. This outstanding Handbook not only
synthesises and systematises that body of scholarship but firmly anchors it within those broader
interdisciplinary frameworks which are essential to its understanding. Authored by an array
of leading writers, it is a landmark contribution which authoritatively addresses a key topic of
our times’.
Malcolm D. Evans, Professor of Public International Law, University of Bristol
Routledge Handbook of
Law and Religion
Edited by Silvio Ferrari
First published 2015
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2015 Selection and editorial matter, Silvio Ferrari; individual chapters,
the contributors
The right of Silvio Ferrari to be identified as editor of this work has
been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Routledge handbook of law and religion / Edited by Silvio Ferrari.
pages cm
Includes bibliographical references and index.
ISBN 978-0-415-83642-5 (hbk : alk. paper)—ISBN 978-0-203-69426-8
(ebk : alk. paper) 1. Religion and law. 2. Religion and state.
3. Church and state. 4. Freedom of religion. 5. Religious law and
legislation. I. Ferrari, Silvio, editor. II. Title: Handbook of law and
religion.
K3280.R68 2015
342.08'52—dc23
2014037851
ISBN: 978-0-415-83642-5 (hbk)
ISBN: 978-0-203-69426-8 (ebk)
Typeset in Bembo
by RefineCatch Limited, Bungay, Suffolk
Contents
Notes on contributors viii
Introduction: The challenge of law and religion 1
Silvio Ferrari
PaRt 1
Interdisciplinary perspectives on law and religion 15
1 Law and religion in the biblical canon 17
Michael Welker
2 Law and religion in the Western legal tradition 29
John Witte, Jr.
3 Anthropological perspectives on law and religion 43
Martin Ramstedt
4 Sociology at the intersection between law and religion 59
Effie Fokas
5 The contribution of law to interdisciplinary conversations on law
and religion 75
Peter W. Edge
PaRt 2
Freedom of religion or belief as a human right:
critical reflections 89
6 The impact of definitional issues on the right of freedom of
religion and belief 91
Arif A. Jamal
v
Contents
7 International law and freedom of religion and belief: Origins,
presuppositions and structure of the protection framework 103
Pamela Slotte
8 Legal responses to religious diversity (or to cultural diversity?) 119
Prakash Shah
9 Religious freedom as equality 133
Frederick Mark Gedicks
10 Religion and human rights: Deconstructing and
navigating tensions 145
Eva Brems and Lourdes Peroni
11 Human rights within religions 161
Marco Ventura
12 Reframing the state in eradicating discrimination:
Freedom of religion or belief and non-discrimination 179
Nazila Ghanea
13 Conscientious objections: Protecting freedom of conscience
beyond prejudice 191
Javier Martínez-Torrón
14 Constitutional models and the protection of religious freedom 209
John T.S. Madeley
PaRt 3
Law, religion, state and society 227
15 Secular politico-legal regimes in religiously homogenous
and diverse societies 229
Rajeev Bhargava
16 A religious revival in family law 245
Jane Mair
17 Law, religion and the school 259
Myriam Hunter-Henin
18 Law, religion and the workplace 271
Lucy Vickers
vi
Contents
19 Law, religion and economics 285
Niels Kærgård
20 Religions, bioethics and biolaw 301
Christian Byk
PaRt 4
Controversial issues 319
21 Law, religion and gender 321
Ayelet Shachar
22 Law, religion and security 337
Nadirsyah Hosen
23 Curbs and turbans: Challenging (tur)bans 351
Hana M. A. E. van Ooijen
24 Limitations on religious freedom in Islam: Rethinking through
the Maqasid? 369
Abdullah Saeed
25 Blasphemy, defamation of religion, religious hate speech 381
Jeroen Temperman
26 Proselytism 395
Tad Stahnke
Index 415
vii
Notes on contributors
Editors
Silvio Ferrari is Professor of Law and Religion, Canon Law at the University of Milan. He is Life
Honorary President of the International Consortium for Law and Religion Studies and an
Editor-in-Chief of the Oxford Journal of Law and Religion. He received the 2012 Distinguished
Service Award from the International Center for Law and Religion Studies of the Brigham
Young University, Provo, Utah.
Rossella Bottoni is a Researcher of History and Systems of Church–State Relations, Faculty of
Political and Social Sciences, Università Cattolica del Sacro Cuore in Milan. In 2007 she was
awarded the Arturo Carlo Jemolo Award for the best doctoral dissertation in the areas related to
Canon Law, Ecclesiastical Law, History of Relations between Church and State and Comparative
Law of Religions.
The editor and the publisher would like to thank W. Cole Durham, Jr., Marie-Claire Foblets,
Hashim Kamali, and Olivier Roy for the valuable contribution they gave to the preparation of
this book as members of the Advisory Board.
Contributors
Rajeev Bhargava is the Director of the Center for the Study of Developing Societies, Delhi.
Eva Brems is Professor of Public Law at Ghent University.
Christian Byk is a judge of the Court of Appeal of Paris and the secretary general of the
International Association of Law, Ethics and Science.
Peter W. Edge is Professor of Law at the Oxford Brookes University.
Effie Fokas is a Research Fellow at the Hellenic Foundation for European and Foreign Policy
(ELIAMEP).
Frederick Mark Gedicks is a professor of law at the J. Reuben Clark Law School at Brigham
Young University, Provo, Utah.
Nazila Ghanea is University Lecturer in International Human Rights Law at the University of
Oxford and a Fellow of Kellogg College.
viii
Notes on contributors
Nadirsyah Hosen currently is a senior lecturer at the School of Law, University of
Wollongong. In July 2015 he will commence a new position at Faculty of Law, Monash
University, Australia.
Myriam Hunter-Henin is a Senior Lecturer in Private Law at University College London.
arif a. Jamal is Assistant Professor of Law at the National University of Singapore.
Niels Kærgård is Professor at the Department of Food and Resource Economics, Section of
Production, Markets and Politics, University of Copenhagen.
John t.S. Madeley is Departmental Tutor in the Department of Government at the London
School of Economics and Political Science.
Jane Mair is Senior Lecturer at the Glasgow University School of Law.
Javier Martínez-torrón is Professor of Law at Complutense University, Madrid.
Hana M. a. E. van Ooijen holds a Ph.D. from the Institute of Human Rights (Utrecht University).
She works in the Human Rights law firm Prakken d’Oliveira.
Lourdes Peroni is a PhD candidate at the Human Rights Center of Ghent University.
Martin Ramstedt is a Research Associate at the Max-Planck Institute for Social Anthropology,
Halle.
abdullah Saeed is Director of the National Centre of Excellence for Islamic Studies and Sultan
of Oman Professor of Arab and Islamic Studies at the University of Melbourne.
ayelet Shachar is Canada Research Chair in Citizenship and Multiculturalism, and Professor of
Law, Political Science, and Global Affairs at the University of Toronto.
Prakash Shah is Reader in Culture and Law at the Queen Mary University of London.
Pamela Slotte is a Senior Research Fellow at the Erik Castrén Institute of International Law
and Human Rights, University of Helsinki.
tad Stahnke is Vice President, Research and Analysis of Human Rights First.
Jeroen temperman is Associate Professor of Public International Law at the Department of
International Law of the Erasmus University Rotterdam.
Marco Ventura is a Professor at the Faculty of Canon Law of the Catholic University of Leuven.
Lucy Vickers is Professor of Law at Oxford Brookes University.
Michael Welker is Senior Professor and Managing Director of the Research Center for
International and Interdisciplinary Theology (FIIT).
ix