Missing Tradition

Meu novo paper, ainda preparando, foi aceito para ser apresentado em Cardiff.

LARSN Speakers and abstracts

Amel Alghrani

Manchester University

amin.al-astewani@postgrad.manchester.ac.uk

The Essence of Islām: A response to the Shariah debate in the West.

The debate on Shariah law within a Western Context has developed rapidly since its inception

in the late 1900’s. It was particularly reinvigorated by the Archbishop of Canterbury’s lecture at

the Royal Courts of Justice in 2008, and is now a highly contentious topic in the public forum. The

contentiousness of the debate is related to the similarly rapid development of Shariah courts in the

West, established and administered by Western Muslim minority communities. This conference

paper is a response to the contribution of Western legal scholarship to this debate. It argues

that Western legal Scholars have approached the Shariah with a secular lens, bypassing the

religious framework within which the Shariah functions. This approach has led to inaccurate and

misconceived conclusions in the Shariah debate. This paper will present an exposition of the Islamic

religious framework from which the Shariah originates based on classical Islamic sources, in the

hope of resolving this issue.

Sylvie Bacquet

Westminster University

S.Bacquet01@westminster.ac.uk

An enquiry into the role of religious symbols in the making of religious identities

This paper presents the findings from an empirical study on the relationship between, the state, individuals and religious symbols. It is submitted that given the important part that religious symbols play in the life of individuals, they contribute to the making of individuals and groups identities. As such, any attempt by states to interfere with religious symbols must be balanced against individuals’ freedoms. In this context, the research sought to elucidate the nature of the relationship between individuals and their religious symbols. While the empirical study was carried out in England, the findings form the basis of a criticism of the states’ approaches in both England and France. The qualitative analysis focused on the meaning and significance of religious symbols and their place in the lives of individuals. The study entailed questioning the role and significance of religion in the making of individual and collective identity. Five main findings emerged from the data, namely that the way symbols are perceived is based on individuals’ personal experience with religion and culture; that religiosity is ascribed by birth through ancestors’ history but  evolves and crystallises via family upbringing,  education and spiritual journey of an individual;  that the reasons why people wear religious symbols are therefore highly intimate; that one’s relationship with symbols is ultimately dependent on one’s relationship with religion and that given the special nature of one’s relationship with symbols, State interference with any religious symbol (either through Parliament or the courts) should be kept to the minimum necessary to protect other citizens. The study recommended that States should acknowledge that symbols play a major role in the making of religious identities by further engaging religious minorities in the drafting of laws and policies that directly affect them.

James Barry

Dalhousie University

jpbarry@dal.ca

Liberty, Equality, and Sorority: Balancing Freedom of Religion and Gender Equality in Comparative Context

Legal positivists suggest that proportionality as a tool of constitutional rights adjudication represents a main vector driving a convergence of common law and civil law into a globalized jus commune. As a hybrid formula of inductive binding case law and deductive general principles, they advise, proportionality is converging substantive rules of national laws into uniform global standards.

In my view, such claims are overstated. I suggest that in spite of an ongoing harmonization of adjudicative methods across jurisdictions, rights normativity continues to play a decisive role in determining justifiable sub-constitutional (i.e. statutory or common law) limits on constitutional rights. By “normativity,” I refer to the sociological, contextual pre-notions that implicitly inform the way rights are interpreted and dealt with in a given jurisdiction. A right’s normative dimension is thus historically and culturally contingent, and not a matter of positive law.

I propose to give an historicist account of how rights normativity affects the application of proportionality to freedom of religion in Canada and the French Republic. My specific focus will be on judicial review of statutory restrictions on religious liberty putatively aimed at advancing gender equality, a value recognized in both jurisdictions as a constitutional imperative.

While the right to religious freedom in Canada is a negative right to be left unmolested by the state, in France it is embedded in a formative, emancipatory project of egalitarian citizenship. By scrutinizing the right in both jurisdictions with reference to the historical and philosophical context out of which it emerged, I will shed light on the extent to which the justifiability of limits on freedom of religion continues to turn on the underlying constitutional theory from which the right derives its legitimizing force, rather than on any aspect of the proportionality standard.

Dr. Dawid Bunikowski

University of Eastern Finland

dawid.bunikowski@uef.fi

State, law, politics, and religion in Finland

The paper explains the State-Church relationship in Finland from legal, social, political, and historical perspective. The paper aim is to explore all the important contemporary legal-political and social-political issues with the historical background in the field. The most important thesis is that the current state of things between the State and the Church is based on an idea of a “friendly relationship”. By the “Church”, I mean the Evangelical Lutheran Church of Finland (ELCF) and the Orthodox Church of Finland (OCF). To understand this way of thinking, I analyse the phenomenon of Finnish Cultural Protestantism (FCP) at many levels: of the law, of the society, of the history, politics. The methodology used is also sophisticated and comprehensive (i.e. analysis of legal acts and doctrine; research on public opinion; studying of history and politics; interviews; observation).

Pedro Erik Carneiro

cefas.erik@gmail.com

Missing Tradition: the Holy See and Christian Persecution

This paper analyses the statements of the Holy See at the United Nations regarding Christian persecution. Christians face persecution because of their faith since the beginning. The Catholic Church has a long tradition regarding conflicts. The just war tradition has influenced many debates on war since St. Augustine, the founder of the Christian just war tradition. Nowadays, we have been living, in “the greatest era of persecution in Christian history”. The Holy See and the State of Vatican City are two different international entities, each with international legal personality. The Pope, as the supreme head of Roman Catholic Church and also head of state of the Vatican City, is the connection between them. The Holy See is the voice of Christians at the United Nations. The Holy See was granted status of non-member state permanent observer in 1964. The UN Resolution 58/314 establishes that the Holy See can participate in the general debate of the General Assembly, it has the right to make interventions, it has the right to have its communications issued and circulated directly, it has the right to co-sponsor draft resolutions. The Holy See regularly argues that it enjoys by its own choice the status of Permanent Observer at the United Nations, rather than of a full Member.  What, how and when the Holy See has argued on Christian persecution? Has the Holy See consider the just war tradition in its statements? How the Holy See thinks that Christian has to react to persecution? This reaction is in accordance with just war tradition? This paper tries to answer these questions. I am still working on them but I already can answer that the Holy See forgets St. Augustine’s point of view when talking about war. It seems that the whole just war tradition is dismissed.

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