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Jeroen Temperman

Article 20(2) of the un’s International Covenant on Civil and Political Rights (iccpr) is an odd human rights clause. It provides that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Accordingly, this provision does not appear to codify a fundamental right but rather a sui generis state obligation. The present article aims at providing a legal taxonomy of this international incitement clause, ultimately also answering the question as to whether, despite its unique formulation as speech prohibition, it contains a justiciable right to protection from incitement.

Arif A. Jamal and Jaclyn L. Neo

This essay introduces the Special Issue of the Journal. It discusses how changing religious demographics and heightened religious plurality are challenging existing thinking about, and patterns of, state-religion relations and the nature of the ‘secular state’. The essay briefly surveys each of the papers in the Special Issue and highlights that one of the key lessons that emerges from the papers is the importance of context. As the contexts evolve, fresh thinking and new arrangements would be needed.

Rossella Bottoni

This article aims to examine the tensions between religion and the rule of law, focusing on the defense of the Catholic notion of the family in Italy, under Ruini’s and Bagnasco’s chairmanships of the Episcopal Conference of Italy (ECI). The first part offers some remarks on the institution of the conference of bishops and the development of its role in Italy, as well as on the Catholic notion of family and the challenges it has faced in the course of the Italian process of secularization. The second part examines the responses of the ECI to three state measures: Law no. 40/2004 on medically assisted reproduction; the legislation proposed in 2007 and never enacted on the rights and duties of cohabiting couples; and Law no. 76/2016 on civil unions between homosexual persons and on the legal recognition of cohabitation.

Nathan B. Oman

The rule of law and religion can act as commercial substitutes. Both can create the trust required for material prosperity. The rule of law simplifies social interactions, turning people into formal legal agents and generating a map of society that the state can observe and control, thus credibly committing to the enforcement of the legal rights demanded by impersonal markets. Religion, in contrast, embraces complex social identities. Within these communities, economic actors can monitor and sanction misbehavior. Both approaches have benefits and problems. The rule of law allows for trade among strangers, fostering peaceful pluralism. However, law breeds what Montesquieu called “a certain feeling for exact justice” that crowds out deeper forms of relation. Religious commerce fosters precisely such communities. Religious commerce, however, does not create bridges between strangers as effectively as the formal rule of law. Furthermore, the state tends to be suspicious of tight religious communities, particularly when they are commercially successful.

Leveraging Legal Indeterminacy

A Judeo-Islamic View of the Indeterminacy Problem and the Rule of Law

Shlomo C. Pill

This article offers one response, rooted in traditional Jewish and Islamic perspectives of what it means to have a rule of law, to the problem of indeterminacy in Western jurisprudence. Some Jewish and Muslim scholars have conceptualized the rule of law not as a system of objective, democratic, prospective, stable, and equally applied substantive norms, but as the commitment of the legal community to be broadly and deeply engaged with studying, interpreting, and applying the materials and methods of their legal tradition as the principal source of normative conduct. This way of thinking about law, which I call “law-as-engagement,” has been deployed by Jewish and Muslim scholars to leverage the incidence of indeterminacy, disagreement, and judicial subjectivity in law for the purpose of reinforcing rather than undermining the rule of law.

Nicholas Aroney

The rule of law requires political office holders to exercise their powers in accordance with the law. Most societies, however, rely not only on the moral obligation to obey the law but also require office holders to take a religious oath or solemn affirmation. The divine witness to the oath of office stands in as a guarantor of the political order but also looms above it. As such, the oath represents a paradox. It guarantees the performance of official duties while also subjecting them to external judgement. The oath thus encompasses the large question of the relationship between religious conviction, personal fidelity, moral principle, and political power. It suggests that law and religion are as much intertwined as separated in today’s politics. By tracing the oath of office as a sacrament of power, much light can be shed on the relationship between law and religion in today’s liberal-democratic politics.

Frederick Mark Gedicks

A reason is “constructed” if it does not appeal to a natural or normative authority that stands apart from human action, but is instead created by contingent social forces. The idea of constructed reason coexists uneasily with the rule of law. A bedrock rule-of-law principle requires that government action be nonarbitrary or reasoned, “reason unaffected by desire,” as Aristotle said. Yet, if the reasons judges invoke to justify judicial decisions are part of variable social and historical contexts in which the judges themselves are embedded, how can judicial decisions uphold the rule-of-law requirement of reasoned decision making untainted by the decision maker’s desires?

This essay gives a philosophical account of the social construction of legal reasons, relying on Kant, Heidegger, and Gadamer as the decisive figures. It applies this account to current U.S. controversies over same-sex marriage, and suggests how constructed reasons might coexist with still-powerful rule-of-law myths.

Maurits S. Berger

The main challenge of understanding Sharia in the West is its undefined nature. This contradicts the ease with which the term is used in public and political discourse, but also in the legal domain, which prides itself on its precision in terminology. This article addresses the question: What is the Sharia that Muslims in the West practice? To this end, a model is presented that provides tools to describe the complex interaction between Sharia, as practiced by Western Muslims, and their Western environment, and elucidates the ongoing dialectic of this interaction. The model further shows how Western Muslims adopt and adapt Sharia by manoeuvring between their specific needs in the Western context and the conditions set by that context. From a Western perspective, the model shows that issues of Sharia are usually discussed in legal terms, while most controversies are not legal but cultural in nature.