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In: Arab Law Quarterly
Established at the School for Oriental and African Studies in London in 1990, the Centre for Islamic and Middle Eastern Law (CIMEL) promotes the study and understanding of Islamic law and modern Middle East legal systems. Over the years, the Centre has developed a vast network of practitioners and scholars who participate in seminars and conferences on highly topical legal issues in the Middle East. By engaging this network, CIMEL has created an important forum for discussion on these issues. The CIMEL Book Series reflects these unique discussions-on such topics as on the legal aspects of the peace process or the role of the courts in the preservation of human rights-and also includes monographs on related topics by leading experts in the field.

Abstract

Religious communities and churches have traditionally been significant sources of employment. Many European countries have found ways to integrate into their legal systems particularities of religious employment that are alien to other areas of labor law. Until recently, constitutional courts have been reluctant to question the right of churches to define the occupational requirements of their secular employees, but the recognition of church autonomy in religious employment has not been straightforward in the European Court of Human Rights and the Court of Justice of the European Union.

This paper provides some reflections on where Europe may be headed in this field, and whether well-tested principles, such as denominational neutrality, may offer some insight on how to address the still unresolved conflict between important human rights: freedom of religion and the right to autonomy of religious employers, and the individual fundamental freedoms of their employees.

In: Journal of Law, Religion and State
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In: Journal of Law, Religion and State
In: Journal of Law, Religion and State

Universities that are incorporated under a secular charter face a number of challenges in claiming religious exemptions or religious character. These secularly chartered but religiously motivated universities (SCbRMU) often are attempting to get the best of both worlds, by maintaining entitlement to government funding that is exclusive to secular entities while also claiming religious protections. In this paper, Yeshiva University (yu) is used as a case study of the difficulties faced by these institutions. yu has been sued by a group of students and alumni for refusing to authorize an official lgbt club, and yu has argued that it is entitled to a religious exemption from New York City anti-discrimination laws. This paper discusses the history of yu and its relationship with lgbt rights, as well as relevant case law concerning religious education, discrimination on the basis of sexual orientation, and religious exemptions. The paper concludes with a discussion of the legal options a SCbRMU has when faced with these issues, including shedding part of its identity (either the religious or the secular), maintaining the status quo, and defiance. Ultimately, none of the options are ideal for such an institution, and the nature of the conflict for yu, when discrimination against funding religious institutions leads to the financial need for a secular charter, and the school’s secular status then leads to difficulty receiving a religious exemption from anti-discrimination laws, show that society is not tolerant of ambiguity in this scenario, and institutions are better served if they avoid these contradictions.

In: Journal of Law, Religion and State

Abstract

The question of the relation between wrongful discrimination and the freedom of conscience and religion has been the subject of many debates over the past decade and has occupied both courts and the public. The most well-known legal case in that regard is likely Masterpiece Cakeshop, in which a Colorado bakery owner refused to bake a wedding cake for a homosexual couple and was sued for violating the State’s Anti-Discrimination law. Recently, the Supreme Court of the U.S has agreed to hear yet another Colorado case, 303 Creative llc v. Elenis, in which a website designer wanted to post a message saying she will not design websites for same-sex weddings.

The purpose of our article is to point to a significant distinction between a refusal to serve clients on the basis of their race, gender, sexual orientation, etc., and a refusal to serve them because such service requires the providers to engage in activities or projects to which they deeply oppose. We think the latter case, sometimes, might not at all be discrimination. Importantly, we distinguish between a deep objection to the content of the service or product requested and a rejection of the client because of her characteristics.

How can a supplier prove that his or her refusal to serve a client belonging to a “protected class” is based on the content of the product or service requested and not on the client’s characteristics? We formulate a two-prong test that courts in the US and UK have implicitly adopted. We ask, first, whether the supplier would refuse the same service to a client not belonging to the protected class, and second, whether the supplier would serve the same client (belonging to a protected class) with other products and services. If the answer to both questions is positive, then the supplier’s refusal is not wrongful discrimination because it shows an objection to the product or service requested and not a rejection of the client. In practice, this test is not always easy to apply. We therefore developed an epistemological model to substantiate the conditions that may help providers persuade the courts that their refusal to serve a client stems from the content of the request, not from the client’s identity.

In: Journal of Law, Religion and State

Abstract

The prohibition of fermented beverages in Muslim societies was the result of an interpretative process that developed over time. The Qurʾān serves as a witness to the prohibition of wine (khamr), but is silent about other types of beverages. Documentary sources show that Egyptian authorities in the first century ah stimulated the production and drinking of fermented beverages by requisitioning wine for Arab-Muslim troops, who especially appreciated ṭilāʾ, the Arabic name for a cooked wine known in Greek as hepsēma. Under the influence of jurists (mainly from the Hijaz) who condemned the drinking of fermented beverages, the caliph ʿUmar ii b. ʿAbd al-ʿAzīz decreed, at the turn of the second century, the prohibition of ṭilāʾ and related drinks. Early debates over the lawfulness of fermented beverages discuss pitched and glazed jars whose impermeability permits fermentation. Based on a comparison between pre-canonical hadith collections and archaeological evidence, we identify the main Egyptian amphorae that were controversial. Whereas in the second/eighth century, legal debates focused primarily on pitched and glazed jars, the extension of the prohibition to all fermented beverages in the third/ninth century led to the rejection of all amphorae.

In: Islamic Law and Society

Abstract

This article deals with legal opinions (fatwās) for Muslims living in Israel as a minority under non-Muslim rule. A well-developed legal doctrine known as fiqh al-aqalliyyāt al-muslima (jurisprudence concerning Muslim minorities) applies to Muslim minorities living in the West. The innovators of fiqh al-aqalliyyāt, Yūsuf al-Qaraḍāwī and Ṭaha Jābir al-ʿAlwānī, did not issue legal opinions for the Muslim minority living in Israel, which, because of the Israeli-Palestinian conflict, is classified as The Abode of War (dār al-ḥarb). In this article, I examine developments in Islamic jurisprudence for the Muslim minority living in Israel, with a focus on the legal opinions of Sheikh Rāʾid Badīr, the senior religious authority of the southern branch of the Islamic Movement in Israel and the pioneer in issuing fatwās for the Muslim minority in Israel.

In: Islamic Law and Society