Law and religion

Law and religion is the interdisciplinary study of relationships between law, especially public law, and religion. Vogue Magazine reports that during the late 1900, a new law and religion approach emerged that progressively built its own contribution to religious studies. Over a dozen scholarly organizations and committees were formed by 1983, and a scholarly quarterly, the Journal of Law and Religion, was first published that year. The Ecclesiastical Law Journal began publication in 1987.[1] The Rutgers Journal of Law and Religion was founded in 1999.[2] The Oxford Journal of Law and Religion was founded in England in 2012.[3]

Many departments and centers have been created around the world during the last decades. For example, the Brigham Young University law school in 2000 created "The International Center for Law and Religion Studies." It has an international mission and its annual symposium (which began in 1993) has brought to campus over 1000 scholars, human rights activists, judges from supreme courts, and government ministers dealing with religious affairs from more than 120 countries.[4]

As of 2012, major law and religion organizations in the U.S. included 500 law professors, 450 political scientists, and specialists in numerous other fields such as history and religious studies. Between 1985 and 2010, the field saw the publication of some 750 books and 5000 scholarly articles, according to Emory Law Professor John Witte, Jr..[5]

Research topics

Scholars in the field are not only focused on strictly legal issues about religious freedom or non establishment but also on the study of religions as they are qualified through judicial discourses or legal understanding on religious phenomena. For example, The Oxford Journal of Law and Religion seeks to cover:

social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).[6]

Exponents look at canon law, natural law, and state law, often in comparative perspective.[7][8] Specialists have explored themes in western history regarding Christianity and justice and mercy, rule and equity, discipline and love.[9] Common topics of interest include marriage and the family,[10] and human rights.[11] Aside from Christianity, scholars have looked at connections between the Quran in the Muslim Middle East,[12] Asian ancestral religions, occult altercations, pagan Rome and any realm in which religious beliefs form the basis of or contradict governmental law.[13]

Within Christianity, studies range from textual analysis of early Christians' relationship with Jewish law, the effect of law on the Protestant Reformation, and modern day issues like homosexual unions, the ordination of women to the diaconate and priesthood, and conscientious objection to war.

Important studies have appeared regarding secularization.[14][15] In particular the issue of wearing religion symbols in public, such as headscarves that are banned in French schools, have received scholarly attention in the context of human rights and feminism.[16] Additionally, other topical controversies concerning medical care are currently studied. Specifically, in the United States, examples include religious exemptions for the vaccination of children and the legal rights of members of the Christian Science denomination who wish to deny medical care to their ill children in favor of faith healing.[17]

There are secular laws that directly interact with religiosity, exemplified in the 1st Amendment of the U.S. Constitution. [18]

National studies

Thailand

In Thailand, the constitutional monarchy that was established in the 1930s integrated traditional Buddhist concepts of cosmic law and religion with modern methods of public administration and legal authority. The result was the formation of a unique civic religion based on the three-way formula of nation, religion, and kingship. This new tradition has evolved and provides a framework for both the symbolic discourse as well as practical actions in modern Thai legal culture.[19]

Cross Denominational

The study of religion and law spans every civilization throughout every period in history. Especially in civilizations in the past where religion was more prevalent in daily life, laws were integrated with plenty of religious beliefs because that was commonly where beliefs on the correct way for humans live came from. The can be seen with laws governing the Ancient Greek and Roman societies based on pleasing the various Gods that they worshipped. When Ancient Judeo-Christian societies would govern themselves, they would establish based on their canonical texts such as the Torah or Bible. Moving into Medieval Europe, the Catholic Church was intertwined with the governmental laws of the royalties in power at the time.

The United States is an interesting example to look at concerning the issue of religion and law. The United States is classified as secular society because of the laws established in the First Amendment prohibiting the establishment of a national religion while also allowing any religion to be freely practiced. This is an interesting conundrum because the society of the United States started with foundational religious views and that society dynamic has continued until the present day. The secular government and religious societies have clashed on numerous issues throughout the establishment of their laws and will continue to clash as long as religion remains a prominent part of American culture.

Religious Exemptions for Vaccines and Other Medical Treatments

Religious Exemptions for Childhood Vaccines

Most states allow religious exemptions for childhood vaccines. 44 states allow religious exemption. Only 5 states do not allow religious exemptions, they allow only medical exemptions. These states are: California, Maine, Mississippi, New York, and West Virginia. [20] The way religious exemptions can be granted vary by state. Some states have forms that can be signed to get a religious exemptions and other states require the parent/guardian to write a letter proclaiming 'bonafide religious belief' that prevents them from vaccinating their child. States like New York banned religious exemptions due to Measles Outbreak and knowing that parents ask for religious exemptions based on other personal beliefs.

Refusal of Blood Transfusions by Jehovah's Witnesses

The watchtower and Bible Tract Society has historically opposed blood transfusions. Jehovah's Witnesses refuse blood transfusions and even carry cards on their person to indicate such refusal. What happens when a child is in a life-threatening condition and need a blood transfusion? Are the doctors allowed to perform a blood transfusion even if the parents refuse treatment based on religious belief? The history of U.S court cases regarding these questions rule in favor of the hospital. The first case of a child of Jehovah's Witnesses in this situation went to the Supreme Court in 1951. The cases that followed all agree that: The child’s interests and those of the state outweigh parental rights to refuse medical treatment. Parental rights do not give parents life and death authority over their children. Parents do not have an absolute right to refuse medical treatment for their children based on their religious beliefs. [21]

Prince vs. Massachusetts 1944

A Child Neglect Case where Jehovah's Witness had their child sell magazines door to door, which violated child labor laws. Famous cases and often quoted for “parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.”

Walker vs. Supreme Court 1988

Laurie Walker was charged with manslaughter after her four-year-old daughter Shauntay died of bacterial meningitis 17 days after symptoms presented. Walker called for the services of a Christian Science practitioner, but not a doctor. She was convicted by judges who cited the Supreme Court which said in 1944: “parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children.” [22]

See also

Notes
  1. Cambridge University Press
  2. See its website accessed 2/22/14
  3. It also sponsors OJLR Summer Academy in Law and Religion 2014, at St Hugh's College, Oxford. see its website, accessed 2/22/14
  4. See its website accessed 2/22/14
  5. John Witte, "The Study of Law and Religion in the United States: An Interim Report," Ecclesiastical Law Journal (2012) 14#3 pp: 327-354.
  6. See its website, accessed 2/22/14
  7. Norman Doe, Law and Religion in Europe: A Comparative Introduction (2011)
  8. W. Cole Durham, and Brett G. Scharffs, eds. Law and religion: national, international, and comparative perspectives (Aspen Pub, 2010).
  9. John Witte Jr. and Frank S. Alexander, eds., Christianity and Law: An Introduction (Cambridge U.P. 2008)
  10. John Witte Jr, From Sacrament to Contract: Marriage, Religion, and Law in the Western Tradition (1997)
  11. John Witte, Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (2008)
  12. Ann Elizabeth Mayer, "Law and Religion in the Muslim Middle East," American Journal of Comparative Law (1987) 35#1 pp. 127-184 in JSTOR
  13. Alan Watson, The state, law, and religion: pagan Rome (University of Georgia Press, 1992)
  14. Silvio Ferrari, "Law and Religion in a Secular World: A European Perspective," Ecclesiastical Law Journal (2012) 14#3 pp 355-370.
  15. Rafael Palomino, "Legal dimensions of secularism: challenges and problems," Contemporary Readings in Law and Social Justice (2012) vol 2 pp 208-225.
  16. Karima Bennoune, "Secularism and human rights: A contextual analysis of headscarves, religious expression, and women's equality under international law," Columbia Journal of Transnational Law, 45 (2006): 367.
  17. Sandstorm, Aleksandra, https://www.pewresearch.org/fact-tank/2016/08/12/most-states-allow-religious-exemptions-from-child-abuse-and-neglect-laws/, accessed 11/26/19
  18. <"First Amendment". Legal Information Institute. Cornell Law. Retrieved 2019-11-26.
  19. Frank E. Reynolds, "Dhamma in Dispute: The Interactions of Religion and Law in Thailand," Law & Society Review (1994) 28#3 pp 433-451
  20. Aleksandra Sandstrom, "Amid measles outbreak, New York closes religious exemption for vaccinations – but most states retain it,""Pew Research" (2019)
  21. John C. Ford, S.J., "Refusal of Blood Transfusions by Jehovah's Witnesses," "The Catholic Lawyer" (1964), v.10, pp.212-226
  22. "Christian Scientists in the Courts" "Christianity Case Study – Minority in America" (2018)

Further reading
  • Cane, Peter, Carolyn Evans, and Zoë Robinson, eds. Law and Religion in Theoretical and Historical Context (Cambridge UP, 2008) 336 pp.
  • Darian-Smith, Eve. Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law (2010) excerpt and text search
  • Hirschl, Ran. "Comparative constitutional law and religion" ch 23 in Tom Ginsburg and Rosalind Dixon, eds. The Research Handbook In Comparative Constitutional Law (Edward Elgar, 2011) SSRN 1718496
  • Jacobsohn, Gary J. The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton UP, 2003)
  • Kuru, Ahmet T. Secularism and State Policies toward Religion: The United States, France, and Turkey (Cambridge UP, 2009)
  • Vogel, Howard J. "A Survey and Commentary on the New Literature in Law and Religion," Journal of Law and Religion (1983) 1#1 pp. 79-169 JSTOR 1051074
  • Witte, John. "The Study of Law and Religion in the United States: An Interim Report," Ecclesiastical Law Journal (2012) 14#3 pp 327-354. online
  • Zucca, Lorenzo and Camil Ungureanu, eds. Law, State and Religion in the New Europe: Debates and Dilemmas (2012) 342pp.
  • David, Joseph E., Jurisprudence and Theology in Late Ancient and Medieval Jewish Thought (Studies in the History of Law and Justice Vol. 2; Springer, 2014) doi:10.1007/978-3-319-06584-7.

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