Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law
By Marylin Johnson Raisch
Marylin Johnson Raisch is the Librarian for International and Foreign Law at the John Wolff International and Comparative Law Library of the Georgetown Law Center. She received her J.D. from Tulane University School of Law (1980) with work both in civil and common law courses as well as international law and Roman law. She holds degrees in English literature from Smith College (B.A. magna cum laude, 1973) and St. Hugh's College, Oxford (M.Litt., 1978). She received her M.L.S. degree from Columbia University School of Library Service in 1988 and has worked as a law librarian for fifteen years, the past ten of which were at Columbia University School of Law as International and Foreign Law Librarian. Marylin has served as moderator or panelist in several continuing education programs at the annual meetings of the American Association of Law Libraries on such topics as effective quick reference in international and foreign law, foreign law in English, and Russian law, and a 2005 workshop on European Union law. She has also presented talks on web access to foreign and international materials for the International Association of Law Libraries, has co-directed one of a series of special four-day institutes on "Training the Next Generation" of international and foreign law librarians, and has edited (with Roberta I. Shaffer) the resulting volume of proceedings, Transnational Legal Transactions (Oceana, 1995). Marylin is the author of several articles, reviews, and web guides on international and foreign legal research, such as “The European Union: A Selective Research Guide,” 1 Columbia Journal of European Law 149 (1994/95), and hyperlinked web guides published from 2001 through 2003 on research in treaties and public international law, European Union law, and human rights law.
Acknowledgments and sources: Reynolds, Thomas H. and Arturo A. Flores. Foreign law guide: current sources of codes and basic legislation in jurisdictions of the world. Berkeley, Calif.: University of California, 2000-[electronic format]; The World Factbook 2005. Washington, D.C.: Central Intelligence Agency, 2005 [electronic web version]. Nicholas Erickson, J.D. cand., Georgetown Law Center, assisted with research.
Published February 2006
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Table of Contents
[Note: transliterations used are those found in the cited texts and are not consistent since even modern religious law relies frequently on ancient texts using older forms of language or modes of transliteration now common in scholarly references. The western Christian calendar is used for all dates with the awareness that each of these systems uses its own calendar; dates before the birth of Christ are designated B.C. and dates after that event bear no designation, since the Christian era neither denotes a commonly accepted divinity nor a common era].
Introduction
Religious legal systems
Religious law emanates from the sacred texts of religious traditions and in most cases purports to cover all aspects of life as a seamless part of devotional obligations to a transcendent, imminent, or deep philosophical reality, either personal or cosmological. Religion for law must be defined broadly but its truth value need not and ought not be addressed. Most religious law gradually came to apply in its most institutional form to its own organizations and to familial or contractual matters. Application to ritual is a gray area but generally excluded from discussion and classification.
Religious law in this guide is seen as a branch of comparative law and legal study. Further, it is argued here that comparative law itself may most usefully be seen as part of the tradition of legal philosophy. Far from being wholly academic, however, comparative law is a practical approach in the service of 1) legal education 2) the appreciation of treaty implementation and 3) choice of law in the new world of public/private international law known as transnational law. At the conclusion of this guide to sources is a brief discussion of this approach to comparative law.
After the events of September 11, 2001, academic interest in Islamic law and countries governed by its principles as implemented along with secular positive law grew in an attempt both to understand the legal culture of middle eastern conflicts and to explore ways to address issues arising in multicultural jurisdictions with greater understanding. It is clear that in areas of private law such as family law, inheritance, and in come commercial transactions, several religious systems influence secular law or are incorporated as a regime which may or must be applied in those areas or to members of certain religious communities. As sources for legal research in these areas are inter-disciplinary and often less known in the world of legal research, an overview of the major world systems, and where and how they are implemented, is offered.
General sources
- Religion and Law Research Consortium
- Included as a taxonomic concept, London Business School (UK) site
- Internet Sacred Text Archive
Constitutions, sources of texts: essential for determining if religious law applies in certain legal systems and in what areas of law
- Constitutions of the Countries of the World, OceanaOnline (paid subscription database)
- Constitution Finder, University of Richmond
- World Legal Information Institute
- International Constitutional Law
- CIA World Factbook; updates on world constitutions
· World Legal Systems, University of Ottawa, excellent maps; overview of all traditions in jurisdictions of the world however in this area exercise caution: information for the legal system of Israel indicates the application of Talmudic law. This is not actually the case; Israel is a secular state applying many kinds of religious law in certain areas for certain communities, only one of which is Jewish. Islamic and other religious law also may be an option for religious communities in Israel.
· Berkley Center for Religion and World Affairs at Georgetown University, Religious Perspectives Database,http://berkleycenter.georgetown.edu/7315.html From the web site: “The Religious Perspectives Database allows users to compare and contrast key scriptural passages across five traditions [Buddhism, Christianity, Hinduism, Islam and Judaism] and five themes [inside/outside, justice/injustice, health/illness, wealth/poverty, and peace/violence]. The column and row headers point to introductory essays by Georgetown professors. Behind the individual cells of the grid you will find short essays on how each tradition approaches each theme, and links to key scriptural passages.”
· Traditions- legal anthropology, semiotics (semiotics and legal traditions re Asia)
· Church and State- AcademicInfo, Law and Legal Research: Law and Religion - U.S.-based site for links relating to church/state issue, Native American religious issues, and U.S. Supreme Court cases.
· General humanities guide to research on world religions (print and electronic, such as CD ROM encyclopedias of Judaism and Islam, free and paid databases and text archives)
· General comparative religion - U.K. site for resources on world religions
· British Academy Portal – follow the ‘Theology and Religious Studies’ link from the home page
Comparative law treatises with treatment of religious law:
- David, Rene and John E.C. Brierley. Major legal systems in the world today: an introduction to the comparative study of law. 3rd ed. London: Stevens, 1996, 1985.
- Glenn, Patrick H. Legal traditions of the world: sustainable diversity in law. 2nd ed. Oxford; New York: Oxford University Press, 2004.
- International Association of Legal Science. International encyclopedia of comparative law. Tübingen: J.C.B. Mohr (Paul Siebeck); New York: Oceana, 1973- .
- Redden, Kenneth R.; Brock, William Emerson. Modern Legal Systems Cyclopedia Buffalo, N.Y., U.S.A.: W.S. Hein, 1984- (loose-leaf; 10 vols.)
- Zweigert, Konrad, and Hein Kötz. Introduction to comparative law. 3rd rev. ed. Oxford: Clarendon Press; New York: Oxford University Press, 1998.
Classification
Aaron Kuperman, cataloger in the Library of Congress Social Science Cataloging Division, Law Team, has observed that “’Religious law’ is a square peg that doesn’t fit well in the round hole of American law.” Ritual traditions and modern legal anthropology create most of the blurred distinctions between legal and non-legal classification decisions in particular collections. Mr. Kuperman, along with Jolande Goldberg, Senior Cataloging Policy Specialist in the Cataloging Policy & Support Office at the Library of Congress, as well as Lesley Wilkins and the Islamic Legal Studies program at Harvard Law School, have worked on the development of the LC classification schedules for religious legal systems:
- KB - comparative religious law
- KBP - Islamic Law
- KBM- Jewish law
- KBR- for Canon Law.
- KBS - the Catholic Church and Modern Canon Law
- KNS- Hindu Law
For LC Subject Heading access, the above descriptors, adding only Buddhist law, work well either as actual broader term headings (which will require a limit with a term, say “women,” especially for Islamic law) or as keyword searches.
For Confucian “law” it is necessary to use e.g., Philosophy, Confucian—[country name] or Confucian as a keyword with “ethics” or “law.”
Religious legal systems: Outline. Each religious system will be presented in two sections:
- Essential facts
- Basic sources and their descriptions: internet/electronic, books, articles
Subject headings: Books and Articles
Please note that for this guide, very few monographs are listed. This is a selection intended to suggest further searches under the subject headings discussed above under “classification.” Articles are drawn mainly from legal periodical indexing for two reasons, 1) to demonstrate the existence of this narrower subject area in that literature, and 2) to exclude the wider and very numerous publications in legal anthropology, a closely-related discipline which should be researched in a thorough scholarly exposition of the entire field. It is, however, beyond the scope of this guide.
Islamic Law
Essential Facts
According to the excellent outline provided by Irshad Abdal-Haqq in Islamic Law: An Overview of Its Origin and Elements, 7 J. Islamic L. & Culture 27 (2002) ( Reprinted with author's permission in the same journal from its first appearance in 1996), Islamic law might refer to all the law and jurisprudence of Islam and includes
(1) the primary sources of law (Shari'ah)
Shari’ah has two main sources:
· the Qur'an and
· the Sunnah (traditions of Muhammad ibn Abdullah, the last prophet of Islam), which means
o the things he said, i.e. hadith,
o the way he lived his life, his conduct
and
(2) the subordinate sources of law and the methods used to discover and apply the law (Islamic jurisprudence or fiqh), described by Mr. Abdal-Haqq as follows:
“While the principles and injunctions of the Shari'ah are infallible and not subject to amendment, fiqh-based standards may change according to the circumstances…
Four methods, often called sources of law by Muslim writers, for deducing and establishing fiqh-based law are universally recognized by Islamic jurists.
• the extraction of Qur'anic injunctions and principles based on interpretations of it;
• the application of the principles reflected through the Hadith of Prophet Muhammad;
• the consensus of opinion from among the companions of Muhammad or the learned scholars (ijma);
• analogical deduction (qiyas). …
Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries of Islam. By the fall of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events) the number of major madhhabs had dwindled to five (four sunni and one shia). At present, the four major schools of fiqh among the sunni Muslims are: (1) Hanafi, (2) Maliki, (3) Shafi'i, and (4) Hanbali. Among the shia, the Jafari school predominates.”
Abdal-Haqq, Islamic Law supra at 36
Judges also use individual judgment and reasoning, known as ijtihad (can include reasoning from analogy), but greatly varying over time. His excellent article goes on to distinguish each school or madhab by the relative importance each attaches to the authority of sources of law in on pages 67-75.
Finally, author Abdal-Haqq observes at pages 68-69
“Currently, Saudi Arabia, Sudan, and Iran stand alone as those countries that fully recognize the Shari'ah as the official law of the land. Qatar, the two Yemens, Kuwait and Bahrain also acknowledge Shari'ah principles but to a lesser degree. All other legal systems in the Muslim world are hybrids of Islamic and European law.”
On the same subject of the lack of “pure” Islamic law today, note the article below by Professor Lama Abu-Odeh, The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, 52 Am. J. Comp. L. 789 (2004) and see below in this guide under Implementation of religious law in several jurisdictions.
Basic Sources and their descriptions:
Internet
- Finding the Law: Islamic Law (Shari’a), 2002, Andrew Grossman, LLRX
- Islamic Family Law, linked from Law and Religion program, Emory University School of Law
- Center of Islamic and Middle Eastern Law, SOAS, U of London, with reading list for study of Islamic law
- Harvard Islamic Legal Studies Program - publications; projects in Afghan legal history and Islamic finance
- British Academy Portal and links for religion
- USC-MSA Compendium of Muslim Texts
- Medieval Sourcebook, Islamic law re its medieval legal history, via Fordham University
- Qur’an at Internet Sacred Text Archive, and Hadith (older translations)
- SAIS John Hopkins, course syllabus, Comparative Law: The Islamic Legal System
- List of Islamic countries on World Legal Information Institute pages
- Muslim and mixed jurisdictions, World Legal systems, University of Ottawa
Books
- Dien, Mawil Izzi. Islamic law: from historical foundations to contemporary practice. Edinburgh : Edinburgh University Press, 2004.
- Hallaq, Wael B. The origins and evolution of Islamic law. Cambridge ; New York : Cambridge University Press, 2005.
- Yilmaz, Ihsan. Muslim laws, politics, and society in modern nation states : dynamic legal pluralisms in England, Turkey, and Pakistan. Aldershot, Hants, England; Burlington, VT: Ashgate Pub., 2005.
Articles
Islamic Law in general
- Abdal-Haqq, Irshad. Islamic Law: An Overview Of Its Origin And Elements, 1 J. Islamic L. 1 (1996) (Reprinted In 7 J. Islamic L. & Culture 27 (2002)).
- Lombardi, Clark Benner, Islamic Law As A Source Of Constitutional Law In Egypt: The Constitutionalization Of The Sharia In A Modern Arab State, 37 Colum. J. Transnat'l L. 81 (1998).
- An-Na'im, Abdullahi Ahmed, The Foundations Of Law: Globalization And Jurisprudence: An Islamic Law Perspective, 54 Emory L.J. 25 (2005).
- El Fadl, Khaled Abou, Islam And The Challenge Of Democratic Commitment, 27 Fordham Int'l L.J. 4 (2003).
- Emon, Anver M., On Democracy As A Shar'i Moral Presumption: Response To Khaled Abou El Fadl, 27 Fordham Int'l L.J. 72 (2003).
- Jensen, Erik G. Confronting Misconceptions And Acknowledging Imperfections: A Response To Khaled Abou El Fadl's "Islam And Democracy," 27 Fordham Int'l L.J. 81 (2003).
- Stahnke, Tad and Blitt, Robert C., The Religion-State Relationship and the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Predominantly Muslim Countries. 36 Georgetown J. Int’l L. 947 (2005).
- Saifee, Seema, Penumbras, Privacy, And The Death Of Morals-Based Legislation: Comparing U.S. Constitutional Law With The Inherent Right Of Privacy In Islamic Jurisprudence, 27 Fordham Int'l L.J. 370 (2003).
- Stilt, Kristen A., Islamic Law And The Making And Remaking Of The Iraqi Legal System, 36 Geo. Wash. Int'l L. Rev. 695 (2004).
- Bose, Amitabha, Do All Roads Lead To Islamic Radicalism? A Comparison Of Islamic Laws In India And Nigeria, 32 Ga. J. Int'l & Comp. L. 779 (2004).
- Ahmad, Ali, The Role Of Islamic Law In The Contemporary World Order, 6 J. Islamic L. & Culture 157 (2001)
- Melchert, Christopher, Islamic Law, 23 Okla. City U.L. Rev. 901 (1998).
- Bassiouni, M. Cherif & Gamal M. Badr, The Shari'ah: Sources, Interpretation, And Rule-Making, 1 UCLA J. Islamic & Near E.L. 135 (2002).
Topical
Family Law
- Chaudhry, Zainab, The Myth Of Misogyny: A Reanalysis Of Women's Inheritance In Islamic Law, 61 Alb. L. Rev. 511, 555 (1997).
- Khaliq, Urfan, Beyond The Veil?: An Analysis Of The Provisions Of The Women's Convention In The Law As Stipulated In Shari'ah, 2 Buff. J. Int'l L. 1 (1995).
- Berger, Maurits S. Conflicts Law And Public Policy In Egyptian Family Law: Islamic Law Through The Backdoor, 50 Am. J. Comp. L. 555 (2002).
- Radford, Mary F., The Inheritance Rights Of Women Under Jewish And Islamic Law, 23 B.C. Int'l & Comp. L. Rev. 135 (2000).
- Saiman, Chaim, Legal Theology: The Turn to Conceptualism in Nineteenth Century Jewish Law, 21 J. L. & Religion 39 (2005-2006).
- Coggins, William A., Succession in Traditional Islamic Law, 60 J. Mo. B. 180 (2004).
- Abu-Odeh, Lama, Modernizing Muslim Family Law: The Case Of Egypt, 37 Vand. J. Transnat'l L. 1043 (2004)
- Wing, Adrien Katherine, Custom, Religion, And Rights: The Future Legal Status Of Palestinian Women, 35 Harv. Int'l L.J. 149 (1994).
- Cherry, Kristen, Marriage And Divorce Law In Pakistan And Iran: The Problem Of Recognition, 9 Tulsa J. Comp. & Int'l L. 319 (2001).
Commercial Law
- Moghul, Umar F., & Arshad A. Ahmed, Contractual Forms In Islamic Finance Law And Islamic Inv. Co. Of The Gulf (Bahamas) Ltd. V. Symphony Gems N.V. & Ors.: A First Impression Of Islamic Finance, 27 Fordham Int'l L.J. 150 (2003).
- El-Gamal, Mahmoud A., "Interest" And The Paradox Of Contemporary Islamic Law And Finance, 27 Fordham Int'l L.J. 108 (2003).
- Twibell, T. S., Implementation Of The United Nations Convention On Contracts For The International Sale Of Goods (Cisg) Under Shari'a (Islamic Law): Will Article 78 Of The Cisg Be Enforced When The Forum Is In An Islamic State?, 9 Int'l Legal Persp. 25 (1997).
- Akaddaf, Fatima, Application Of The United Nations Convention On Contracts For The International Sale Of Goods (Cisg) To Arab Islamic Countries: Is the CISG Compatible With Islamic Law Principles?, 13 Pace Int'l L. Rev. 1 (2001).
- Mcmillen, Michael J.T., Islamic Shari'ah-Compliant Project Finance: Collateral Security And Financing Structure Case Studies, 24 Fordham Int'l L.J. 1184 (2001).
- Taylor, J. Michael, Islamic Banking - The Feasibility Of Establishing An Islamic Bank In The United States, 40 Am. Bus. L.J. 385 (2003).
- Mallat, Chibli, Commercial Law In The Middle East: Between Classical Transactions And Modern Business, 48 Am. J. Comp. L. 81 (2000).
- Carroll, John, Intellectual Property Rights In The Middle East: A Cultural Perspective, 11 Fordham Intell. Prop. Media & Ent. L.J. 555 (2001).
- Sharawy, Hesham M., Note: Understanding The Islamic Prohibition Of Interest: A Guide To Aid Economic Cooperation Between The Islamic And Western Worlds, 29 Ga. J. Int'l & Comp. L. 153 (2000).
- Abdal-Haqq, Irshad, A Model Of Islamic Banking And Finance In The West: Islamiq, 6 J. Islamic L. & Culture 101 (2001).
Comparative Law
- Abu-Odeh, Lama, The Politics Of (Mis)Recognition: Islamic Law Pedagogy In American Academia, 52 Am. J. Comp. L. 789 (2004).
- Special Issue 2002 Australian Journal of Asian Law (Leichhardt, NSW : Federation Press) devoted to “Islamic Law in South-east Asia.”
Jewish Law
Essential facts
“Jewish law is the legal system of the Jewish people as it has developed from Biblical times to the present.” This definition by Phyllis Weisbrod in Basic books and periodicals on Jewish law: a guide for law librarians, 82 Law Libr. J. 519 (1990) summarizes a complex written, oral, and oral-as-written textual history of sources for Jewish law. Torah is the term used for the divine source of wisdom relating to all of creation, so to work towards a definition that relates to the narrower scope of its application as law, or halakhah, begins with the Torah in a more literal sense, namely, the first five books of what the Christian western tradition calls the Pentateuch or first five books of what came to be the Bible. While the status in Biblical and form-based criticism of the ancient compilers of this narrative is beyond the scope of this guide, an oral history of commentary on the Torah arose and became written down as the Mishnah in approximately the year 200. Talmud and Torah also contain non-legal teachings bound up with legend, myth and philosophy, referred to as aggadah.
Learned opinions based on this addition to the divine tradition were recorded as a commentary on the Mishnah and became known as the Talmud or “study.” The Jerusalem Talmud (or Gemarah in Aramaic) dates from the fifth century after Christ and approximately 100 years later there appeared the Babylonian Talmud, a more authoritative text. Other sources of the “oral” law include the Tosefta and the Midrashe Halakhah. After the fall of the Second Temple in 70 and the ending of the assembly of elders known as the Sanhedrin, interpretation fell to the institution of a bet din or rabbinical court of three rabbis. Such a court continued through the diaspora wherever there was a Jewish population. There is no appeal or stare decisis; one can ask the court to correct an erroneous judgment or re-open a criminal case. The tradition is much closer to that of the European civil law in that regard.
Codes of restatement also appeared over time; the codes of Moses Maimonides in the 12th century and of Joseph Karo in the 16th century are considered authoritative. As those rabbis learned in the law applied it in opinions, these became written down as answers and advice known as response, and these constitute a living law.
Archaeological research and scroll discoveries have also added to the wealth of study and potential sources for Jewish law. See Baumgarten, J. "The Laws of the Damascus Document in Current Research," The Damascus Document Reconsidered (ed. M. Brosh). Jerusalem, 1992. In 1896, noted Talmud scholar and educator Solomon Schechter discovered evidence of sectarian Jewish documents which later were found to be medieval versions of the Damascus Document fifty years before the Qumran discoveries.
On the difficulties of separating legal and non-legal treatments of Jewish daily ritual life as well as commercial and family law areas to which it also applies, and the impact on law cataloging, see Kuperman, Aaron, Technical Services Law Librarian, Volume 25, No. 1 (September 1999)
Jewish law is now applied in personal law (such as marriage and family) in Israel and Morocco and others which recognize such applications to religious communities; see below in this guide under Implementation of religious law in several jurisdictions.
Basic sources and their descriptions: internet, books, articles
Internet
- The Soncino Talmud [CD ROM electronic resource]. Chicago : Institute for Computers in Jewish Life; Davka Corp.; Judaica Press, 1991-1995.
- Jewish Law from Aleph Institute, Project Genesis, and the Orthodox Institute - Electronic Jewish law case summaries, statutes and journals, with bibliographic citations to print formats. Briefs in US cases involving First Amendment issues, education, dietary laws, etc. and some regarding US regulatory conflicts with aspects of Jewish law. Halachic forms for living wills, permissible interest charges in sales, and prenuptial agreements.
- Jewish Virtual Library - Contains some texts, bibliography and an article on euthanasia from a Halachic perspective, (Neeman, Yaakov, and Eliot Sacks, Euthanasia: The Approach of the Courts in Israel and the Application of Jewish Law Principles, 2005).
- Jewish Encyclopedia entry
- Medieval sourcebook and Project Genesis via Fordham University, Jewish law
- Dafyomi site, the Talmud: Easily accessible English summary of the Talmud, for basic orientation through daily study, from The Ministry of Religion and Culture of the State of Israel, Estate Distribution Fund of the State of Israel, Dr. Lindsay and Rivki Rosenwald, Memorial Foundation for Jewish Culture: http://dafyomi.co.il/today.htm
- University of Miami Law Library, Jewish Law Research Guide. Excellent practical guide with research strategies for understanding the terms used in the Talmud and the Responsa and with regard to specific translations and sets.
- Professor E. Segal’s Web Site, University of Calgary http://www.acs.ucalgary.ca/~elsegal Professor Segal’s “Image Maps and Interactive pages” is the best feature of this set of links to articles and commentary. Credit to David Hollander in his article cited below in Law Library Journal for pointing out this valuable site.
Books (includes some primary texts)
- Talmud Bavli = [Talmud Bavli]: the Schottenstein edition: the Gemara: the classic Vilna edition, with an annotated, interpretive elucidation, as an aid to Talmud study. Hersh Goldwurm; Nosson Scherman, eds. Brooklyn, N.Y.: Mesorah Publications, 1990- .
- The Babylonian Talmud, translated into English with notes, glossary, and indices under the editorship of Rabbi Dr I. Epstein. 18 vols. in 7 parts. London : Soncino Press, 1935-1952.
- Soncino Talmud. NY : Soncino Press, 2001.
- Abrams, Judith Z. The Babylonian Talmud : a topical guide. Lanham, Md.: University Press of America, 2002.
- Appel, Gersion. The Concise code of Jewish law : compiled from Kitzur Shulhan aruch and traditional sources : a new translation with introduction and halachic annotations based on contemporary response. 2 vols. New York : Ktav Pub. House, c1977- .
- Elon, Menachem. Jewish law (Mishpat Ivri) : cases and materials. New York : Matthew Bender, 1999.
- ____________. Jewish law: history, sources, principles = Ha-mishpat ha-Ivri / Menachem Elon ; translated from the Hebrew by Bernard Auerbach and Melvin J. Sykes.
A.Philip and Muriel Berman, eds. Philadelphia: Jewish Publication Society, 1994.
- Cohen, Arnold J. An introduction to Jewish civil law. Jerusalem ; New York : Feldheim Publishers, 1990.
- Ganzfried, Solomon ben Joseph, 1804-1886. Code of Jewish law = Kitzur shulhan aruh : a compilation of Jewish laws and customs / by Solomon Ganzfried ; translated by Hyman E. Goldin. Rev. ed. New York : Hebrew Pub. Co., 1961.
- Hecht, Neil S. An introduction to the history and sources of Jewish law. Oxford: Clarendon Press; New York: Oxford University Press, 1996.
- Hempel, Charlotte. The laws of the Damascus document : sources, tradition, and redaction. Leiden ; Boston : Brill, 1998.
- Steinsaltz, Adin. The Talmud: the Steinsaltz edition,translated and edited by Adin Steinsaltz. New York : Random House, [1989- ] multi-volume set.
- ------------. The essential Talmud, translated from the Hebrew by Chaya Galai. London : Weidenfeld and Nicolson, 1976.
- Wassen, Cecilia. Women in the Damascus document. (Academia Biblica., no.21) Brill Academic Pubs., 2005.
Articles
- Baruch, Chad and Karsten Lokken. Research of Jewish Law Issues: A Basic Guide And Bibliography For Students And Practitioners, 77 U. Det. Mercy L. Rev. 303 (2000).
- Broyde, Michael J. The Foundations Of Law: A Jewish Law View Of World Law, 54 Emory L.J. 79 (2005).
- Darrow-Kleinhaus, Suzanne. The Talmudic Rule Against Self-Incrimination and the American Exclusionary Rule: A Societal Prohibition Versus an Affirmative Individual Right, 21 N.Y.L. Sch. J. Int'l & Comp. L. 205 (2002).
- Friedell, Steven F. Nobody's Perfect: Proximate Cause in American and Jewish Law, Int'l 25 Hastings & Comp. L. Rev. 111 (2002).
- --------------.The "Different Voice" In Jewish Law: Some Parallels To A Feminist Jurisprudence, 67 Ind. L.J. 915 (1992).
- Galanter, Marc and Jayanth Krishnan. Personal Law and Human Rights in India and Israel, 34 Isr. L. Rev. 101 (2000).
- Hollander, David. Jewish Law for the Law Librarian, 98 Law Libr. J. 219 (2006).
- Kirschenbaum, Aaron. Modern Times, Ancient Laws - Can The Torah Be Amended? Equity As A Source Of Legal Development. 139 St. Louis L.J. 1219 (1995).
- Kuperman, Aaron Wolfe. “Problems in cataloguing Mishpat Ivri”, in Proceedings of the 33rd annual convention of the Association of Jewish Libraries. Association of Jewish Libs., 1999, p. 72-8. [Book Chapter].
- --------------. “Subject cataloging of Jewish legal materials”, in Proceedings of the 35th annual convention of the Association of Jewish Libraries. Association of Jewish Libs., 2001, p. 39-43. [Book Chapter].
- Levine, Samuel J. An Introduction to Legislation in Jewish Law, with References to the American Legal System, 29 Seton Hall L. Rev. 916 (1999).
- Levine, Samuel J. Essay: capital punishment in Jewish law and its application to the American legal system: a conceptual overview, 29 St. Mary's L. J. 1037 (1998).
- Likhovski, Assaf. The Invention of "Hebrew Law" in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998).
- Novak, David. Theology, law, and the self-governance of religious communities: Jewish Marriage and Civil Law: A Two-Way Street? 68 Geo. Wash. L. Rev. 1059 (2000).
- Rabin, Edward H. Symposium: The Evolution & Impact Of Jewish Law: Foreword, 1 U.C. Davis J. Int'l L. & Pol'y 49 (1995).
- Radford, Mary F. The Inheritance Rights of Women Under Jewish and Islamic Law, 23 B.C. Int'l & Comp. L. Rev. 135 (2000).
- Stone, Suzanne Last. The Intervention of American Law in Jewish Divorce: A Pluralist Analysis, 34 Isr. L. Rev. 170 (2000).
- --------------. Symposium: Rethinking Robert Cover's Nomos and Narrative: Rabbinic Legal Magic: A New Look at Honi's Circle as the Construction of Law's Space,
- 17 Yale J.L. & Human. 97 (2005).
- Weisbard, Phyllis Holman. Basic books and periodicals on Jewish law: a guide for law librarians. 82 Law Libr. J. 519 (1990).
Christian Canon Law (Roman Catholic Church)
Essential facts
The canon law of the Roman Catholic Church began to develop alongside Roman law and indigenous law in Europe after the end of the Roman Empire and the retreat of ancient Roman law. Gradually canon law and its Roman law elements would develop into a body of law that could challenge emerging monarchies to develop a coherent national law or the civil law code tradition of secular law in most of Europe today.
From the Catholic Encyclopedia online via New Advent (see link) we have the following definitions and description:
Canon law is the body of laws and regulations made by or adopted by ecclesiastical authority, for the government of the Christian organization and its members…. but the expression "canon law" (jus canonicum) becomes current only about the beginning of the twelfth century, being used in contrast with the "civil law" (jus civile), and later we have the "Corpus juris canonici", as we have the "Corpus juris Civilis". Canon law is also called "ecclesiastical law" (jus ecclesiasticum); however, strictly speaking, there is a slight difference of meaning between the two expressions: canon law denotes in particular the law of the "Corpus Juris", including the regulations borrowed from Roman law; whereas ecclesiastical law refers to all laws made by the ecclesiastical authorities as such, including those made after the compiling of the "Corpus Juris".
By the twelfth century the mass of laws or canons were systematized and rationalized by canonist Gratian in the “decretals” or Concordance of Discordant Canons near the same time as the revived study of ancient Roman law began at the university at Bologna, but further work was done to create the decretals of Pope Gregory IX in 1234 and so by the end of the 13th century, the Corpus Iurus Canonici consisted of the following texts:
(1) the "Decretals" of Gregory IX;
(2) those of Boniface VIII (Sixth Book of the Decretals);
(3) those of Clement V (Clementinæ) i. e. the collections which at that time, with the "Decree" of Gratian, were taught and explained at the universities. (Catholic Encyclopedia online)
Ecumenical councils of the church, the Pope and Apostolic Letters such as bulls or briefs, decrees of the Roman Curia or Acts of the Holy See also form part of canon law.
The Roman Curia or departments of the Holy See consist of Roman Congregations, the tribunals, and the offices of Curia.
The Tribunals consist of the Sacred Penitentiaria, the Sacred Roman Rota, and the Apostolic Signatura. The Sacred Roman Rota consists of auditors who hear contentious cases and are doctors of canon law and theology. They take appeals from the episcopal tribunals of first instance or may be of the first instance for some matters. Cases may be criminal or regarding ordination or matrimony, involving a defender of the bond (of marriage). Advisory opinions may be requested as well. Conclusions of the court must be accompanied by reasons.
A common type of case in canon law relates to requests to grant an annulment of marriage after a civil divorce, since the doctrine of the Roman Catholic Church does not recognize divorce. It is a matter of controversy as to whether there have been in fact ecclesiastical “divorces” for influential persons or under experimental canons used in the United States before the latest Code of Canon Law, promulgated in 1983 (and as amended by Pope John Paul II in Ad tuendam fidem, apostolic letter motu proprio) but no Catholic theologian or canon lawyer would ever admit to such. The annulment concept came into secular law to void forced marriages and in several other instances, and in both religious and secular arenas, the court declares that no marriage ever existed and so it cannot be dissolved.
Basic sources and their descriptions: internet, books, articles
Internet
- Code of Canon Law, Intratext through 2003, and at the Vatican site
- Pope John Paul II, Ad tuendam fidem (“In order to safeguard the faith”) (introduced into the Church a new category of teaching, called "definitive", which cannot be contradicted by teaching theologians without penalty.)
- Canon Law Society of America, with a section on “Researching Canonical Topics.”
- Catholic Encyclopedia, from New Advent web site
- Catholic Pages directory information on canon law (links to documents and articles on canon law)
- Medieval Sourcebook of Fordham University, older canon law sources
- Roman Curia (Rota and tribunals)
Books
- Code of Canon Law (1999) (reprinting the Latin text of the original 1983 Codex Iuris Canonici with some later official corrections and additions).
- Biel, John P. et al., New Commentary on the Code of Canon Law (2000).
- Brundage, James A. Medieval Canon Law. London/New York: Longman, 1995.
- Gaudemet, Jean. Église et cité: Histoire du droit canonique. Paris: Cerf, 1994.
- Helmholz, R.H. The Spirit of the Classical Canon Law. Athens, Georgia: University of Georgia Press, 1996.
- Noonan, John T. et al. Canons and Canonists in Context. Goldbach: Keip, 1997.
- Witte, John Jr. From Sacrament to Contract: Marriage, Religion and Law in the Western Tradition, Louisville: Westminster John Knox Press, 1997.
Articles
- Alesandro, Msgr. John A. A Study Of Canon Law: Dismissal From The Clerical State in Cases of Sexual Misconduct, 36 Catholic Law. 257 (1996).
- Araujo, Robert John S.J. International Tribunals and Rules of Evidence: The Case for Respecting and Preserving the "Priest-Penitent" Privilege Under International Law, 15 Am. U. Int'l L. Rev. 639 (2000).
- Landau, Peter. "Aequitas' in the "Corpus Iuris Canonici', 20 Syracuse J. Int'l L. & Com. 95(1994).
- Nuzzo, James L.J. The Rule of Saint Benedict: The Debates Over The Interpretation of an Ancient Legal and Spiritual Document, 20 Harv. J.L. & Pub. Pol'y 867 (1997).
- Orsy, Ladislas S.J. Propter Honoris Respectum: Stability and Development in Canon Law And The Case Of "Definitive" Teaching, 76 Notre Dame L. Rev. 865 (2001).
- Review Essay: In the Steps of Gratian: Writing the History of Canon Law in the 1990’s, 48 Emory L.J. 647 (1999).
- Sanders, Shaakirrah R. The Cyclical Nature of Divorce in the Western Legal Tradition, 50 Loy. L. Rev. 407 (2004).
- Walsh, Walter J. The priest-penitent privilege: an Hibernocentric essay in post colonial jurisprudence. 80 Ind. L.J. 1037-1089 (2005).
- Witte, John Jr. A Conference on the Work of Harold J. Berman: Essay: A New Concordance of Discordant Canons: Harold J. Berman on Law and Religion, 42 Emory L.J. 523 (1993).
Hindu Law
Essential facts
From an ancient time, 2000-1500 B.C., the Vedic literature existed, and while they inform a tradition of gods they point to the concept of the One as interpreted by the Brahmans, these teachers also used the sutras or memorized books (like textbooks) of law or dharma (in one of its meanings; closer to “way of life”).
The Laws of Manu, a mythical author, of circa 200 B.C. shows the beginnings of the legal tradition of great variety although he focus was family, property, and succession law. This early Sanskrit literature was replaced gradually in the colonial period when the British substituted their own translations and understanding in place of what came before; Anglo-Indian law preserved family law areas (five elements of family law - marriage, child marriage, polygamy, divorce, and maintenance) as Hindu personal law and replaced the rest with colonial British law. It was a judge made law. The Hindu Code of independence became one among other personal codes and preserved much of the British innovation. Custom and local tradition could prevail over sacred texts even in the time of classical Indian law. According to the Laws of Manu, there are four sources of dharma: 1) the Vedas, 2) tradition, especially as set forth in treatises like Dharmasastras, 3) customary laws created by local or regional communities, and 4) personal preference.
The important post-colonial acts of Parliament for the Hindu Code include: the Hindu Marriage Act No. XXV of 1955, Hindu Code (1955); the Hindu Adoptions and Maintenance Act 78 of 1956, Hindu Code (1956); the Hindu Minority and Guardianship Act No. 32 of 1956, Hindu Code (1956); the Hindu Succession Act No. XXX of 1956, Hindu Code (1956); and the Hindu Succession (Amendment) Act No. XXXIX of 2005.
Basic sources and their descriptions: internet, books, articles
Internet
Internet Sacred Text Archive for the Vedas and Laws of Manu (older translations only).
Books
- Desai, Satyajeet A. Mulla’s Principles of Hindu Law (18th ed., 2001)
- Menski, Werner F. Hindu Law: Beyond Tradition and Modernity. New Delhi: Oxford University Press, 2003.
- Nanda, Ved P. and Sinha, S. Prakash. Hindu law and legal theory. New York : New York University Press, 1996
- Pal, Radhabinod. The history of Hindu law in the Vedic age and in post-Vedic times down to the Institutes of Manu. Calcutta: University of Calcutta, 1958.
- Ranganath Misra, Mayne's Treatise on Hindu Law and Usage (12th ed., 2003).
- Venkataramen, Raghavachariar’s Hindu Law 1987.
Note: Titles in this area abound from Indian publishers over many decades and the list is selective based on citation frequency observed (not analyzed) in scholarly legal writing.
Articles
- Garg, Sampak P. Law and Religion: the Divorce Systems of India, 6 Tulsa J. Comp. & Int'l L. 1 (1998).
- Leubsdorf, John. Symposium: Gandhi's Legal Ethics, 51 Rutgers L. Rev. 923 (1999).
- Seshagiri Rao, K.L. Symposium: The Relevance of Religion to a Lawyer's Work: An Interfaith Conference: The Theological Perspective: Practitioners of Hindu Law: Ancient and Modern, 66 Fordham L. Rev. 1185 (1998).
Buddhist Law and Legal Theory
Essential Facts
Tibet 1940-1959 is the most illustrative jurisdiction for an examination of what followers of the Buddha in an authentic Buddhist culture regard as the source of laws and rules that govern a monastically inclined community as well as householders’ obligations.
According to Rebecca French,
“There are five major sources for Tibetan legal concepts: (1) religious source material such as the Vinaya which is a canonical text outlining the rules for the monks to follow as Buddha spoke them case by case; (2) Extant official documents which include administrative law books, edicts, decision documents, treatises, government contracts, estate record books, tax records and deeds to land; (3) documents issued by non-governmental institutions such as monastic constitutions, private leases and private contract documents; (4) law codes; and (5) written and oral statements describing the legal system.” The Case of the Missing Discipline: Finding Buddhist Legal Studies 52 Buffalo L. Rev. 679, 682-684, fn 4
Dhammasattha is the Pali term for the genre of legal literature which may be examined in relationship to householders and communities or sanghas used by such communities in Laos, Myanmar (Burma) and Thailand and this literature probably dates from the first millennium. Courts of law in colonial times used “Acts of Truth” in Sri Lanka’s Sinhala Buddhist community for proof in judicial proceedings. These were oaths taken upon consequences to be observed as between truth-tellers and others. In Thailand, legal proceedings that replace informal “injury narratives” in tort cases (or events which may or may not result in a case) appear less effective in resolution of claims than the traditional methods under Buddhist obligations (see Engel article cited below). These exercises in legal history and anthropology bear on modern developments in criminal law and restorative justice as well.
Basic sources and their descriptions: internet, books, articles
Internet
- Internet Sacred Text Archive, Buddhist literature and sutras
Books
- French, Rebecca. The Golden Yoke. The Legal Cosmology of Buddhist Tibet. Ithaca and London: Cornell University Press, 1995.
- Huxley, Andrew, ed. Thai Law: Buddhist Law (Bangkok, 2000) (Thai legal history before 1880).
- ------------. ed. Thai Law, Buddhist Law: Essays on the Legal History of Thailand Laos and Burma. Bangkok: White Orchid Press, 1996.
Articles
- Engel, David M. Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand, 30 Law & Soc. Inquiry 469 (2005).
- French, Rebecca R. Essay: The Case of the Missing Discipline: Finding Buddhist Legal Studies, 52 Buffalo L. Rev. 679 (2004).
- ------------. Tenth Anniversary Symposium: New Direction: Lamas, Oracles, Channels, and the Law: Reconsidering Religion and Social Theory, 10 Yale J.L. & Human. 505 (1998).
- ------------. Symposium: Law, Religion, And Identity: A Conversation with Tibetans? Reconsidering the Relationship between Religious Beliefs and Secular Legal Discourse, 26 Law & Soc. Inquiry 95 (2001).
- Huxley, Andrew. Symposium: Law, Religion, And Identity: Positivists and Buddhists: The Rise and Fall of Anglo-Burmese Ecclesiastical Law, 2001, 26 Law & Soc. Inquiry 113 (2001).
- McGeachy, Hilary. The Invention of Burmese Buddhist Law: A Case Study in Legal Orientalism, 4 Australian J. Asian L. 30 (2002).
- Samaraweera, Vijaya. An "Act of Truth" in A Sinhala Court of Law: On Truth, Lies and Judicial Proof Among the Sinhala Buddhists, 5 Cardozo J. Int'l & Comp. L. 133 (1997).
- Van Loon, Louis H. Buddhism in South Africa: Its Past History, Present Status, and Likely Future, 2000, 14 Emory Int'l L. Rev. 1285 (2000).
- Wijeyeratne, Roshan De Silva., Law & The Sacred: The Silent Echo of the Law Phenomenology and the Cosmology of Buddhism, 5 Law/Text/Culture 319 (2000).
- Zan, Myint. A Comparison of the First and Fiftieth Year of Independent Burma's Law Reports, 35 Victoria U. Wellington L. Rev. 385 (2004).
- ------------. Of Consummation, Matrimonial Promises, Fault, and Parallel Wives: the Role of Original Texts, Interpretation, Ideology and Policy in Pre-and Post-1962 Burmese Case Law, 14 Colum. J. Asian L. 153 (2000).
Confucian Law and Legal Theory
Essential Facts
The teachings of K’ung-tzu (older form Kong fou-tseu) known in the west as Confucius bear on the informal legal tradition of the Chinese jurisdictions where the rite and custom of persuasive example or li has been an alternative even within that culture to legalistic codes or more positive law (fa). Penal and administrative law has been more prominent than any private law and so the influence as of other religious systems on family law or obligations is not seen in the positive law. Confucianism is often seen as a philosophy and not a religion, but it is included here as a basis for law as a means of social control and reinforcing roles, similar in some ways to ancient Roman law.
Research for western legal scholars is dependent upon scholarship in a difficult language transliterated differently over the years using Wade-Giles or pinyin systems. As a guide, these textual problems are described as quoted below from an article by Janet E. Ainsworth, Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse in China, 43 Hastings L.J. 273 (1992):
“The Confucian Classics are a collection of writings said to date from the late Chou Dynasty (1122 - 221 B.C.). In accord with the Chinese cultural penchant for enumeration, they are referred to as either the Five Classics or the Six Classics… Some years later, certain scholars claimed to have discovered surviving copies of the Classics which had ostensibly escaped the Ch'in burning decree -- texts written using the ancient style characters of the Chou Dynasty. For a brief time, the two rival sets of texts, the "New Texts" (chin wen) in contemporary Han Dynasty script and the "Old Texts" (ku wen) in ancient script, vied for dominance among Confucian scholars. By the closing years of the Han Dynasty, however, the Old Text versions of the Classics prevailed over the New Texts. Nevertheless, the episode of the book-burning shaped the Confucian attitude towards the Classics, fueling a perpetual insecurity that the canon which survived was in some way defective or incomplete. That fear was to provide the justification for revising and reconstructing the canon throughout Chinese history….
Classical scholars over the centuries felt free to propose additions or deletions to the Confucian canon. The Book of Rites, for example, was originally supposed to have contained 204 chapters. Later scholars whittled it down to eighty-five, then to forty-nine chapters. Confucius himself provided a precedent for such wholesale revision of the classical texts, in that he traditionally was credited with excising major portions of the Book of Poetry, and perhaps the Book of Documents as well. …
The contestability of the classical Confucian texts was to have dramatic political consequences in late imperial China. During the late Ming Dynasty (1368 - 1644), a …Using sophisticated philological techniques, these scholars exposed a number of these classical texts as forgeries. They therefore advocated going back to the so-called New Text versions of the Classics, which Han Dynasty scholars had reconstructed from memory.” pp. 286-290
Basic sources and their descriptions: internet, books, articles
Internet
- Internet Sacred Text Archive, Confucian “classics” in older translations, of the “Canon”, Analects, and many other documents
- FU JIZONG, ON THE RELATIONSHIP BETWEEN MORALS AND LAW: The Moral Character of Confucian Legal Thought (Council for Research in Values and Philosophy, online publications on Cultural Heritage and Contemporary Change) (site updated through 2005/6)
- Internet Chinese Legal Research Center, Wei Luo - Concentrates on modern and positive law for three jurisdictions of China, Hong Kong, and Taiwan but contains many links to courses in North America on Chinese law with some introductory material to syllabi indicating extent of history or integration of Confucianism by individual instructors.
Books
- Liu, Y., Origins of Chinese Law: Penal and Administrative Law in its Early Development. Hong Kong: Oxford: New York: Oxford University Press, 1998.
- MacCormack G. The Spirit of Traditional Chinese Law. Athens, Ga.: University of Georgia Press, 1996.
- McAleavy, H., “Chinese Law” in J. Derrett, An Introduction to Legal Systems. London: Sweet & Maxwell, 1968 at 65.
- Ren, X., Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China. Westport CT: Greenwood Press, 1997.
Articles
- Ainsworth, Janet E. Interpreting Sacred Texts: Preliminary Reflections On Constitutional Discourse in China, 43 Hastings L.J. 273 (1992)
- Waha, Carolyn R. The Teachings of Confucius: A Basis and Justification for Alternative Non-Military Civilian Service, 2 Rutgers J. Law & Relig. 3 (2000/2001)
- Wong, Bobby K.Y. Traditional Chinese Philosophy and Dispute Resolution, 2000, 30 Hong Kong L.J. 304
- Winfield, Betty H. Takeya Mizuno and Christopher E. Beaudoin. Confucianism, Collectivism and Constitutions: Press Systems in China and Japan, 5 Comm. L. & Pol'y 323 (2000).
- Hahm, Chaihark. Law, Culture, and the Politics of Confucianism, 16 Colum. J. Asian L. 253 (2003).
- Quinn, Michael Sean. The Analects for Lawyers: Variations upon Confucian Wisdom, 34 Tex. Tech L. Rev. 933 (2003).
- Head, John W. Codes, Cultures, Chaos, and Champions: Common Features of Legal Codification Experiences in China, Europe, and North America, 13 Duke J. Comp. & Int'l . 1(2003).
- Johnson, Wallace. Symposium on Ancient Law, Economics & Society, Part II: Ancient Rights and Wrongs: Status and Liability for Punishment in the T'ang Code, 71 Chi.-Kent. L. Rev. 217 (1995).
Implementation of religious law in several jurisdictions
(Const.=constitution)
Country | Religious System | Areas of Law Affected | Relevant Legal Texts or Institutions |
Afghanistan | Islamic state; Shari’a (Hanafi school) for Sunnis; Shia for that community | Personal relations, inheritance, criminal law, some aspects of land tenure | |
Albania | Mainly Islamic population in secular state; some Christian groups w. local control; some customary law | Local matters | |
Algeria | Islamic law, Maliki school (custom of Medina prevails over Hadith); history of French code influence | Personal law, criminal law and procedure | |
Andorra | Canon law when custom silent | Family law, domestic relationships | |
Bahrain | Shari’a, w. British common law as applied in India; Sunni schools apply to Shi’ite unless both parties of that sect | Personal relationships, non-commercial | Const. 2002, Commercial code 1987 allows interest; preferred over Shari’a in that area |
Bangladesh | Islamic & common law structures; some Hindu | Personal to a given community | |
Brunei | Separate system of Shari’a courts | Personal* | Const.: about its provisions and Religious Council (no English text available); see also Ann Black, Survival or Extinction? Animistic Dispute Resolution in the Sultanate of Brunei, 13 Willamette Jour. Int'l Law & Dispute Resolution 1-25 (2005). |
Burkina Faso | Customary and Islamic law, Maliki school in French context | Based on status | Const through 2002, (in French), reforms re modern civil law |
Chad | Customary and Islamic law, Maliki school: north; Christian and animist south | Based on status | Const. - Unified court system with civil and customary law |
Egypt | Shari’a, Hanafi school emerging within French civil and commercial law | Personal status | Const. 1980 - Shari’a is source of legislation and religion of the state |
Ethiopia | Shari’a and Ethiopian Orthodox practice | Family law | |
Ghana | Shari’a for Muslims | Matrimonial law | |
Holy See (Vatican State) | Canon law and some civil status laws | Codex iuris canonici of 1983 (Code of Canon law) | |
India | Carry-over of laws for Hindu and Muslim communities from British colonial codes and acts | personal, succession, contract and land laws | Muslim personal law application act 26 of 1937. the Hindu Marriage Act No. XXV of 1955, Hindu Code (1955), the Hindu Adoptions and Maintenance Act 78 of 1956, Hindu Code (1956), the Hindu Minority and Guardianship Act No. 32 of 1956, Hindu Code (1956), and the Hindu Succession Act No. XXX of 1956, Hindu Code (1956). Full current texts; |
Indonesia | Islam as practiced by Muslims and Hindu-influenced Java | Matrimonial law, inheritance and religious foundations (waqf) | Const. text comparison 1945 and 2002; 1992 compilation of Islamic laws |
Iran | Islamic Republic under Shiite Shari’a law | civil, penal, financial, administrative, military and other public laws must conform to Islam | Islamic law superior to the constitution if they conflict |
Iraq | Shia are majority; Sunni apply many schools | Const.Article (2): 1st - Islam is the official religion of the state and is a basic source of legislation: (a) No law can be passed that contradicts the undisputed rules of Islam. | |
Israel | Jewish law , Islamic law, Canon law for each community | personal status and family law | Religious courts for each community or sect, such as Druze, and in many areas applies if both parties are of same religious group, mixed with secular law; |
Jordan | Islamic law | Mixed laws | Const. 1952, Two Court systems for Muslim and non-Muslim |
Kenya | Islamic and Hindu | Private, non-commercial law (family, inheritance, property) | |
Korea, Republic of (south) | Confucian philosophy mixed with civil law and US influences | Social norms | |
Kuwait | Islamic law | Hanafi with Maliki school followed in personal status | |
Lebanon | Islam and European models | Personal status, family law other than property | Const. through 1990 - Recognition of Catholic sects, Jewish community and three Islamic sects with laws and tribunals especially for domestic relations and inheritance |
Libya | Secular Islamic state | Personal law is Islamic | Const. through 1992 - Religious and secular courts; Islamic courts deal with the personal status as to marriage and inheritance |
Malaysia | Islamic, Chinese classical and vestiges of Hindu law | Family law both Islamic and secular in a common law context | Federal law and state laws try to codify and make uniform the mixed family law - |
Mali | Muslim population | Shari’a of Maliki school applied in general courts | New codes embody both religious and secular law,Const & codes (in French) |
Mauritania | Sunni Islam | Islamic law applies in personal law and form commercial law model | Const.1991; Mainly Islamic court system |
Morocco | Islamic civil code universal | Personal, criminal law | Const 1996 - Maliki school applies codes in all but commercial areas; Jewish rabbinical courts; French contract and property law |
Myanmar | Buddhist law after repression, Theravada school | marriage, personal status, succession | |
Nigeria | Islamic shari’a courts, northern region | Muslim personal law, Maliki school; penal law | Const.1999 - Shari’a court of appeal in each state; final unless federal constitutional questions arise; problem of separate Shari’a penal codes 12 states in north such as Zamfara, enforced by separate courts; Oba,A.A., The Shari’a Court of Appeal in Northern Nigeria, 52 Am. .J. Comp. L. 859 (2004) |
Oman | Islamic Shari’a, Sunni Ibadi school | Covers private and commercial law, latter Hanbali or Maliki | Const. 1996, and there is Shari’a court of appeal |
Pakistan | Islamic republic | Covers private, penal and economic areas | |
Philippines | Islamic law in Mindinao; older canon law code influences | Where recognized, Islamic personal law for Muslims | Const.; Shari’a courts established for Muslims,family law |
Qatar | Shari’a, Hanbali school | Family and personal law but not commercial | Const 2003., legislation mixed with non-Islamic commercial sources |
Saudi Arabia | Shari’a applied to entire legal system, Hanbali school | Personal, penal and commercial as supplemented by decrees conforming to superior Shari’a | Qu’ran, royal decrees, and Shari’a opinions of judges; a 1992 set of basic laws forms the constitutional framework |
Senegal | Islamic law family area | Family code departs from other codes that are on French model | |
Serbia & Montenegro* (Cultural, not legal arrangements) | Orthodox Christian and Muslim conflicts | Informal and non-Constitutional traditions | |
Somalia | Islam Sunni Muslim | All areas | Shari’a courts still operate with own enforcement |
Sri Lanka | Islamic, customary and religious laws recognized; Buddhist Sinhalese | Family law | Const. through 2000, Special courts for Islamic law as applied to that community; Ministry of Buddhist Affairs |
Sudan | Shari’a; factions and some instability; Sunni | Applied where legislation silent | Const. 1998; Shari’a section of the High Court and lower Islamic courts |
Surinam | Laws for Islamic, Hindu and Asian groups | Matrimonial and property laws | Const. through 1992; Separate laws re marriage and property Const |
Syria | Shari’a of Hanafi school main source of law | Family law, codified | Const. 1973; Personal status laws; religious courts for sects of Druze, Syrian Christians, Jews re personal status, inheritance, family law |
Taiwan | Confucian and legalist traditions | All laws incorporate traditional Chinese norms | |
Tanzania | Islamic law in Tanganyika and Zanzibar | Applied to Muslim states, groups | |
Thailand | From Hindu to Buddhist norms | Buddhist customary community and practices | Informal dispute resolution for religious practitioners; Const. |
Tunisia | Islam; Sunni Shari’a of Maliki and Hanafi schools | Personal status, property and obligations on Islamic basis | |
Turkey | Islamic heritage only; Muslim population | Private and commercial law uses European models or adoptions | Const through 2002; European Union accession discussions notably drive away from explicit Shari’a but fundamentalism growing politically |
United Arab Emirates | Shari’a Hanafi school | Personal,penal but not commercial | Const summarized; Shari’a principal source but not applied in economic and business areas (interest allowed); Islamic jurisprudence |
General Law and Religion: Selective Bibliography
Books
- Jacobsohn, Gary Jeffrey. The Wheel of Law: India's Secularism in Comparative Constitutional Context. Princeton: Princeton University Press, 2005.
- Richardson, James T., ed. Regulating religion: case studies from around the globe. New York : Kluwer Academic/Plenum Publishers, 2004.
- Vöneky, Silja and Rüdiger Wolfrum, eds. Human dignity and human cloning. Leiden : Nijhoff ; Leiden : Brill, 2004 (Buddhist, Islamic and Jewish perspectives and perspectives related to biology, philosophy, theology and law).
Articles
- Baradaran-Robison, Shima, Brett G. Scharffs and Elizabeth A. Sewell. Religious Monopolies and the Commodification of Religion, 32 Pepperdine Law Rev. 885 (2005).
- Greenhaw, Leigh Hunt and Michael H. Koby. Constitutional Conversations and New Religious Movements: A Comparative Case Study, 38 Vanderbilt Jour. Transnat'l Law 615 (2005).
- Hjerrild, Bodil. Studies in Zoroastrian Family law. Copenhagen : Carsten International Law and Religion Symposium. Articles by Judge J. Clifford Wallace, Blandine Chelini-Pont, Elom Dovlo, Rosalind I.J. Hackett, Hiroaki Kobayashi and Eugenia Relano Pastor. BYU L. Rev. 597 (2005).
- Law, Religion and Secularism. Articles by Lama Abu-Odeh, Christina Jones-Pauly, Neamat Nojumi, Abdulmumini Adebayo Oba and Seval Yildirim. 52 Am. J. Comp. L. 789-918 (2004).
- Lee, Orlan. Legal and moral systems in Asian customary law: the legacy of the Buddhist social ethic and Buddhist law. San Francisco : Chinese Materials Center, 1978.
- Natan Lerner, How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance, 13 Willamette Jour. Int'l Law & Dispute Resolution 65-85 (2005).
- Niebuhr Institute of Ancient Near East Studies, University of Copenhagen: Museum Tusculanum Press, 2003.
- Seifert, Achim. Respectful Religious Pluralism In the Workplace. (Reviewing Douglas A. Hicks, Religion and the Workplace: Pluralism, Spirituality, Leadership.) 25 Comparative Labor Law & Pol'y J. 463-475 (2004).
- Symposium on Comparative Custody Law. Introduction by D. Marianne Blair and Merle H. Weiner; articles by N.V. Lowe, Hugues Fulchiron, Nina Dethloff, Theofano Papazissi, Geoffrey Shannon, Olga A. Khazova, Eva Ryrstedt, Bolaji Owasanoye, Sandra Burman, Asha Bajpai, S.N. Ebrahimi, Xi Yinlan, Satoshi Mimanikata, Patrick Parkinson, Patricia Begne, Cecilia P. Grosman, Ida Ariana Scherman and Rodrigo da Cunha Pereira. 39 Fam. L.Q. 247-571 (2005).
- Von Struensee, Vanessa, Stoning, Shari'a, and Human Rights Law in Nigeria, 11 William & Mary Jour. of Women & Law 405-425 (2005).
- Wagner, Anne and Sophie Cacciaguidi-Fahy, guest editors. Special Issue: Law as Signs of Cultural Diversity. articles by Carl S. Bjerre, Tracey Summerfield, Jean Baptiste Dubrulle, Joanna Jemielniak and William Pencak. 18 Int'l J. for Semiotics L. 95-215 (2005).
- White, Brent T. Reexamining separation: the construction of separation of religion and state in post-war Japan. 22 UCLA Pac. Basin L.J. 29-88 (2004).
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