Class notes 1/30/23

RELIGIOUS LAW IN MODERN, MULTICULTURAL LEGAL SYSTEMS TODAY

1. Legal pluralism:
a. Types of defs
i. two/more legal systems coexisting in the same social field
ii. Diff legal systems for diff groups and/or for diff types of law
iii. Contrast to legal centrism
b. Ideal types
i. Participatory: sacred, written texts that can be known
ii. Preservationist: preserves social relation, environment, etc
c. In todays context
i. Legal pluralism: Religious legal systems “nested within” or parallel to
other legal systems.
ii. Human rights and globalization: Promotion and protection of religious
minorities and marginalized groups, including women and girls.
d. informal
i. A private and personal choice under a legally centrist state
e. formal
i. Legally recognized by the state and sanctioned for specific legal purposes
ii. Decisions have the power of state court decisions
2. Approach to Religious Law
a. Be aware of:
i. Legal Ethnocentrism: Assuming superiority of our own legal culture over
others.
ii. Comparative Law as Purposive: Done to highlight similarity or different,
often to bring people together or to divide. (schlesigner)
b. Understanding Religiosity
i. Importance in daily life: Belief, Practice & Participation
Community/Family ties
ii. Interpretations done in good faith: Based on faith-informed understandings
of scripture
1. Not instrumental cherry picking.
3. Pluralist legal system
a. Marriage and divorce and israel
i. Both religious and secular family law court
1. Only religious court can officiate marriage or divorce
a. No civil marriage
b. No interfaith marriage
 2. For custody, division of property, alimony after separation, can
initiate in either religious or secular family law courts (first come,
first serve)
ii. Each religion has its own court for personal law (marriage and divorce)
1. Jewish, muslim, druze, christian
a. Dates back to ottoman empire
b. Problems with the divorce law
i. Divorce requires husband to issue a get (written of divorce)
1. Court can’t issue a divorce without the husband agreeing to it
2. Women will not get their ketubah (dowry) back, remarry, or have
“legitimate” children without having received a get
3. Men can exploit women, extracting money, child custody, etc in
order to issue a get
4. There’s no civil court/no option outside of the religious court to get
married or divorced in Israel
ii. Possible solution to this issue:
1. Create an alt state (civil) family court than can issue non-religious
marriages and divorces
2. Eliminate religious courts
iii. Israel’s solution: religious courts “work around the edges”
1. Sanctions law (1995): new power given to jewish family law
courts to compel husband to issue divorce
a. Continuing problems
b. Empowering
4. Muslim family law in india

Section notes 2/2/23

REVIEW OF CONCEPTS

*review the lectures and pay more attention to them; do your best to keep up with the readings

1. Are we in an era of globalism, where we look for similarities across cultures or an area of
nationalism, where we look for differences?
a. Globalism:
b. Nationalism: a focus on one own’s country; idea of the nation and the world is
constructed of these; each country is like a state
c. I say we are in an area of nationalism. This is because a lot of issues in our
country are centered around a strong ideology/values that takes root in many of
the
 2. What are the dangers of comparative law?
a. MY ANSWER: Splitting up the legal system in various definitions fundamentally
changes the way in which law is conceptualized and thus how it takes place. This
can bring up issues when it comes to global relations, where the dominant culture
(western society) has the power to impose their own legal system over other
cultures. The overall lack of consensus of what defines law can bring rise to
issues.
i. Think: legal orientalism: accepting that there are other societies that do
things a certain way but they lack a western notion of civilization and
cannot be though of as civilized
1.
ii. Think: legal ethnocentrism: something is at the center and everything else
revolves around it
1. Their law
iii. These terms are very important
b. Class notes
i. Comparative law can be biased. There are baseline assumptions. It can
develop into a motivated thing
1. This can be used for interference in others religion, culture,
economics
3. Consider indigenous law. What is the difference between the ideal of indigenous and how
it exists today?
a. The thing is that there is no consensus of what defines indigenous, let alone
indigenous law. To say that there is an ideal is a fallacy, because the reality is that
this does not exist. The way that indigenous law exists now has been influenced
by western law in terms of pulling that closer to western ideals (maybe to level
out something? Or maybe just because of /……bad answer!!!! Let’s restart
b. The ideal indigenous law would be full autonomy of indigenous tribes to practice
law in accordance with their culture. The reality is that this is not the case as there
has been western ideal of law placed upon indigenous laws
c. Class answers
4. Historically, what has self-determination referred to in international law?

Lecture notes 2/1/23

RELIGIOUS LAW AND HUMAN RIGHTS

1. The range within the UN about religion

a. Religion (and legal pluralism) as a barrier to human rights
 i.
b. Religion as the moral justification of human rights
2. Perspectives
a. threat/barrier
b. Malleable
c. Instrumental
d. Human right
3. Legal pluralism