1,720,965 research outputs found
Recommended from our members
Religious courts in secular jurisdictions ;:and, the case for American Muslim arbitration /
No full textOppression in American, Islamic, and Jewish Private Law
No full textAmerican, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues for such protections based on the halachic duties of caret hat everyone is obligated to uphold toward their fellow humans.
While each system seeks to protect vulnerable parties from oppression and exploitation, they all have weaknesses. This Article, for the first time, puts these legal traditions into conversation with each other to identify how the strengths of each system can create more robust protections within the other legal traditions. Specifically, this Article identifies the development of economic duress in American law, the subjective standard of Islamic law, and the societal duties of Jewish law as providing rich elements of how legal systems can develop to ensure private law is not used as a means of oppression. The Article concludes by applying each doctrine to demonstrate the way in which the juristic chemistry of comparative legal application can lead to a more just society for all
Recommended from our members
The case for American Muslim arbitration
Full text linkThis Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law.
To be sure, a new arbitral system would not be a perfect solution. Like other forms of religious arbitration, and like commercial arbitration, the new system would provide benefits, but also create potential drawbacks. The benefits would include promoting freedom of contract and subject matter specialization and reducing the burden on civil courts. The potential drawbacks include imbalances of power between contracting parties, adhesion contracts, and disenfranchisement of vulnerable populations. Taking these benefits and concerns into consideration, American Muslim arbitration needs to be structured with various internal safeguards to protect vulnerable populations and ensure the decision to arbitrate is voluntary, especially in family law cases.
The Article makes one further claim: Muslim arbitration in the United States would provide a positive influence on the development of Islamic law. At a minimum, the creation of these tribunals should not be dismissed based on preconceived, Islamophobic notions of how Islamic law might be enforced in the United States, which are likely founded on misperceptions. But what is more, by moderating precedents developed in other, more unequal cultural settings, the new tribunals could aid the development of 21st century Islamic law.Middle Eastern Studie
Agreeing to Disagree: Abortion Jurisprudence in Jewish and Islamic Law
Full text linkThis Article challenges the prevailing perception that religious people and religious legal traditions are anti-abortion. While this may be true within certain conservative Christian perspectives, this perception is an inaccurate representation of Jewish and Muslim Americans and their respective legal traditions. Both the Jewish and Islamic legal traditions offer a range of nuanced positions on abortion. Furthermore, diverse opinions of Jewish and Islamic abortion jurisprudence inform a variety of topics salient to the current legal debate in the United States. This range of opinions includes strict limitations on abortion, circumstantial legality, and general permissibility. Scholars from both traditions engaged in lengthy debates (spanning millennia) on the topic, developing rich legal frameworks regarding abortion. While they disagreed on the specific circumstances and timing for permissible abortions, they acknowledged the validity of differing viewpoints.
Unlike the current American legal framework wherein the legality of abortion is dependent on geographic location, Jewish and Islamic scholars created legal frameworks that allowed for individuals to choose among a range of authoritative opinions. Namely, because Jewish and Muslim scholars did not reach any unanimity of opinion on the legality of abortion, they acknowledged that on questions related to the protection of potential life no single opinion controls. Based on this approach, Jewish and Islamic law provide for a wide range of opinion, all held to be legitimate and authoritative, allowing for choice among the range of recognized legal positions. It is noteworthy that Jewish and Islamic jurisprudence have distinct perspectives on personhood and life as compared to the U.S. Supreme Court’s opinion in Dobbs v. Jackson Women\u27s Health Organization. For instance, within the first forty days after conception Jewish law refers to the embryo as “mere water,” and Islamic law refers to it as a “mixed drop,” both designations indicating that the embryo falls short of legal human life. This Article is the first to put Jewish and Islamic abortion jurisprudence into conversation, highlighting their remarkable similarities in the permissibility of pregnancy termination and requirements for legal human life. The Article also aims to provide guidance for Jewish and Muslim Americans bringing First Amendment abortion claims. More generally, to the extent that abortion rights discourse is deeply influenced by religion in the United States, accounting for Jewish and Islamic traditions begins to provide a more inclusive accounting beyond the hegemony of conservative Christianity
Religious Courts in Secular Jurisdictions: How Jewish and Islamic Courts Adapt to Societal and Legal Norms
Full text linkAt first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article identifies four factors that influence the willingness of religious courts to adapt to their environment: (1) the historical valuing of religious legal pluralism in the host country, combined with the post-Enlightenment narrowing of religious courts’ jurisdiction; (2) the political power, or lack thereof, of religious courts and legislative threats to their existence; (3) the reliance of religious courts on civil courts to enforce their decisions; and (4) litigants’ expectations that religious courts uphold their secular, civil rights. These factors highlight the difference between religious courts that serve majority populations and religious courts that serve minority populations in their willingness to adapt their application of religious law to the secular environment in which they exist. This article develops and theorizes an account of accommodation: religious courts representing minority religions tend to adapt to the social and legal norms of the dominant society, whereas religious courts representing majority religions tend to resist external pressures to change
Oppression in American, Islamic, and Jewish Private Law
Full text linkAmerican, Islamic, and Jewish law all limit the enforcement of private law agreements incases of oppression and exploitation. But each system uses a different justification. The common thread among the three legal systems is the opposition from jurists to enforce contracts with a fundamental aspect of oppression. The reasoning for preventing oppression within the law is distinct to each legal system. The American legal system roots the justification in preserving free will and ensuring actual consent to contract. Islamic l provides justifications based on the divine vision for an equitable and just society articulated in the Quran. Jewish law argues for such protections based on the halachic duties of caret hat everyone is obligated to uphold toward their fellow humans.
While each system seeks to protect vulnerable parties from oppression and exploitation, they all have weaknesses. This Article, for the first time, puts these legal traditions into conversation with each other to identify how the strengths of each system can create more robust protections within the other legal traditions. Specifically, this Article identifies the development of economic duress in American law, the subjective standard of Islamic law, and the societal duties of Jewish law as providing rich elements of how legal systems can develop to ensure private law is not used as a means of oppression. The Article concludes by applying each doctrine to demonstrate the way in which the juristic chemistry of comparative legal application can lead to a more just society for all
Religious Freedom & the Fertilized Egg
No full textAnti-abortion activism and litigation have challenged established caselaw on the legality of in vitro fertilization (IVF) and the legal treatment of IVF fertilized eggs. These challenges rely on conservative Christian ideologies that full personhood occurs at fertilization. Litigation has primarily arisen out of wrongful death suits and divorce proceedings, wherein a party either has destroyed or seeks to dispose of frozen blastocysts. Some legislatures now seek to regulate the treatment of IVF fertilized eggs vis-á-vis legislation, as politicians increasingly seek to ban any destruction of human fertilized eggs by legally defining human life as beginning at fertilization. However, the question of when legal life begins is fundamentally an ethical and theological question of belief.
These shifts in the legal treatment of fertilized eggs coincide with recent Supreme Court cases that establish greater religious freedom claims. Notably, these cases have exclusively addressed Christian petitioners’ claims. It remains to be seen whether similar claims brought by adherents of other faiths will receive the same protections. While Jews and Muslims have challenged anti-abortion laws on religious freedom grounds, similar litigation has yet to be brought within the IVF context. This Article argues that Muslims and Jews are well positioned to bring litigation challenging limitations on the disposal of IVF blastocysts.
The media has focused on the potential for IVF restrictions in states like Alabama and Texas. However, little attention has been given to the state of Louisiana, where such restrictions are a reality. This Article concludes by looking at the State of Louisiana as a case study for IVF restrictions, both in terms of the type of legislation anti-abortion activists will likely try to pass in other states, and to describe the religious freedom challenges Jews and Muslims might bring.
Furthermore, the Article argues that fetal personhood legislation that applies to IVF fertilized eggs substantially burdens the religious freedom of peoples with differing beliefs as to when potential and full human life begin. This Article is the first to make a religious freedom argument regarding IVF regulation. It is also the first to bring the jurisprudence of other religions, namely Judaism and Islam, into the legal conversation on IVF, in which conservative Christian perspectives typically dominate
Recommended from our members
The Case for American Muslim Arbitration
No full textThis Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law.
To be sure, a new arbitral system would not be a perfect solution. Like other forms of religious arbitration, and like commercial arbitration, the new system would provide benefits, but also create potential drawbacks. The benefits would include promoting freedom of contract and subject matter specialization and reducing the burden on civil courts. The potential drawbacks include imbalances of power between contracting parties, adhesion contracts, and disenfranchisement of vulnerable populations. Taking these benefits and concerns into consideration, American Muslim arbitration needs to be structured with various internal safeguards to protect vulnerable populations and ensure the decision to arbitrate is voluntary, especially in family law cases.
The Article makes one further claim: Muslim arbitration in the United States would provide a positive influence on the development of Islamic law. At a minimum, the creation of these tribunals should not be dismissed based on preconceived, Islamophobic notions of how Islamic law might be enforced in the United States, which are likely founded on misperceptions. But what is more, by moderating precedents developed in other, more unequal cultural settings, the new tribunals could aid the development of 21st century Islamic law
The Case for American Muslim Arbitration
Full text linkThis Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law.
To be sure, a new arbitral system would not be a perfect solution. Like other forms of religious arbitration, and like commercial arbitration, the new system would provide benefits, but also create potential drawbacks. The benefits would include promoting freedom of contract and subject matter specialization and reducing the burden on civil courts. The potential drawbacks include imbalances of power between contracting parties, adhesion contracts, and disenfranchisement of vulnerable populations. Taking these benefits and concerns into consideration, American Muslim arbitration needs to be structured with various internal safeguards to protect vulnerable populations and ensure the decision to arbitrate is voluntary, especially in family law cases.
The Article makes one further claim: Muslim arbitration in the United States would provide a positive influence on the development of Islamic law. At a minimum, the creation of these tribunals should not be dismissed based on preconceived, Islamophobic notions of how Islamic law might be enforced in the United States, which are likely founded on misperceptions. But what is more, by moderating precedents developed in other, more unequal cultural settings, the new tribunals could aid the development of 21st century Islamic law
- …
