by Gad Barzilai (ed). Aldershot, England: Ashgate Publishing Ltd, 2007. 556pp. $275.00 /£140.00. ISBN: 9780754624943.
Reviewed by Martin Edelman, Department of History, Philosophy, and Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.
The relationship between religion and law is famously complex. Religious values constitute central elements of societal values that shape the rules, principles and institutions governing society. Institutional policies affect those underlying societal values by reinforcing and entrenching societal beliefs or seeking to change them. The essays collected in this volume by Gad Barzilai, each in its own way, seek to unwrap and demystify the complexities involved. It is a volume frankly designed for the professional reader.
That orientation undoubtedly accounts for the absence of any article attempting to present an overview. Scholars recognize that the multiple interactions between religion and law are so embedded in particular cultures that broad generalizations have limited utility. For example, Jessica A. Platt’s article, “Female Circumcision: Religious Practice v. Human Rights Violation,” amply demonstrates how different Muslim cultures have interpreted that religious ritual in a variety of ways. There are at least four forms of female circumcision; there are a variety of Islamic reasons for the ritual; and in the era of globalization, there is an even greater variation in the adherence to the practice. The point here is that this collection recognizes the importance of exploring, in depth, the complex inter-relationships between religion and law, in each particular culture.
That, in turn, means that the essays in this collection, precisely because they present “thick” descriptions, can only be fruitful starting points for further research. As the series editor, Austin Sarat notes, “they provide access to . . . existing scholarship on a wide variety of subjects integral to the understanding of how legal institutions work in and through social arrangements” (Preface). For example, the pieces by Luke T. Lee and Whalen W. Lai (“The Chinese Conceptions of Law: Confucian, Legalist and Buddhist”) and Ludo Rocher (“Hindu Conceptions of Law”) show how those religions seek to shape all aspects of personal and societal relations. Despite their totalistic objectives, the impact of religious norms has varied considerably with time and place as well as subject matter, politics, and economics.
This is cogently demonstrated by John R. Bowen in “Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society 1960-1994.” Drawing on the archives from two Indonesian town courts, he analyzes how religious court judges reached decisions on inheritance claims in the face of conflicting customary and religious legal norms. Bowen shows that the judges “employed creative legal devices to bridge differences between Islam [the State authorized legal norms] and [local social norms.]” The changes in judicial decisions were “due to the combination [*650] of political centralization, increased legitimacy of the Islamic court, and the judges’ perceptions of a more individualized society” (p.269).
Similarly, the essays that deal with the impact of religious ideas (as opposed to behavioral norms) on societal legal traditions are sensitive to the myriad conditions involved. Harold J. Berman’s “Religious Foundations of Law in the West: An Historical Perspective” explores the differential effect of Catholicism, Lutheranism, and Calvinism on Western nations over time. But he also amply demonstrates that “[c]ontemporary legal systems derive nourishment from the secular religions – the ‘values’ – of their respective societies” (p.143). Robert M. Cover’s “Nomos and Narrative” shows how discrete religious traditions contribute to evolving legal traditions. He explores the constitutional interpretations of the Free Exercise Clause offered by the Mormons (REYNOLDS v. UNITED STATES ), the Amish (WISCONSIN v. YODER ), and Christian fundamentalists (BOB JONES UNIVERSITY v. UNITED STATES ). Despite his formidable terminology, Cover clearly demonstrates that the alternate ‘narratives’ created by such groups from their own particular religious tradition provided the Supreme Court with the opportunity to re-interpret American constitutional law.
Professor Barzilai has assembled a diverse, intelligent and instructive collection. As with any such anthology, the very diversity of the contributions defies a systematic review. The comments above focused on those pieces that aided this reviewer’s current interests. Other entries will undoubtedly provide fruitful insights to scholars with different concerns. The volume itself plainly merits inclusion in any scholarly library and is a welcome addition to The International Library of Essays in Law and Society series.
BOB JONES UNIVERSITY v. UNITED STATES, 461 U.S. 574 (1983).
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879).
WISCONSIN v. YODER, 406 U.S. 205 (1972).
© Copyright 2007 by the author, Martin Edelman.