Edited by
Gad Barzilai
University of Washington, USA
Honarvar argues. Thus, in marriage, divorce and inheritance, Muslim law clearly tends to favour men. Men are entitled to polygamy, whereas women are forbidden to have more than one husband, for example. Motherhood is highly esteemed in Islam, but once the marriage is dissolved the woman loses most of her custodial rights over her children. Honarvar argues that Islam has severely discriminated against women in education and economics as well. Although Islam has now improved women’s legal status in inheritance, making them legal heirs of their husbands, women are still severely discriminated against in their inheritance rights compared with men.
Hence the challenge remains as to whether international and national politics in Muslim societies, especially in Muslim political regimes, will signifcantly reform crucial facets in Muslim religious traditions of law. Women’s status in non-liberal communities may be reformed through globalization. In Chapter 16 Sally E. Merry examines Hawaiian women’s struggles against violence. Her essay is a story of religion as a sociolegal force that mitigates abuse of females’ rights. Merry tests three paradigms that are intended to rejuvenate the self in her struggles against violence – the rights, the community and the religious paradigms as approaches that are exercised by women in the context of globalization. Religion is practised as an alternative to a feminist rights-based approach. Through the Church the main values that are discussed among women are spirituality, communication, anger and forgiveness. Yet, and critically observed, religious healing is based on submission of women to men and male responsibility to hamper the dissolution of marriage. The underlying logic is trust in God, the sanctity of marriage and forgiveness. Religion approaches battered women in between the shadows of the law, since it assisted in saving battered women without criminalizing the actions of their husbands. However, the religious approach has marginalized feminist arguments against patriarchy and has therefore strengthened the male-dominated community. As we see, religion in its multiplicity of forms and multidimensional facets may come into direct – even expressive – conflict with human rights. Nonetheless, religion itself embodies a space of human rights through which it may constitute a normative setting to raise dissent against the state. Thus, the principle of ‘freedom of religion’ may support even conscientious objection to military service, based on a broad abstraction of religion as conscience. In fact, ‘religion’ has broadly been constructed for exemption purposes from state law in such matters as military conscription, education and the labour market (Sturm, 1983).
Time and again, however, religious hermeneutics may be repressed by state legal ideology and state agents. As Robert Cover expounds in Chapter 17, state law has been violent towards non-ruling religious hermeneutics because it has eliminated these hermeneutics as viable sources of meaning, law-making and policy-making. The ruling elite – judges and justices included – have conceived those alternative religious meanings as sources of destabilizing the state. This does not mean that the state – as defned through its elite and institutions – is secular. The state itself conveys its own religious preferences, while it simultaneously acts coercively towards its non-ruling religious communities (cf. also Barzilai, 2003; Shachar, 2001). Cover has highlighted collisions between the nomos (that is, basic world-views and normative aspirations) of non-ruling religious communities that have challenged the state and the state’s interest in subduing these nomos in order to maintain a ‘unifed’ national narrative. Amid myths of a unitary state law, Cover proposes a pluralistic interplay of all religious ontological conceptions of the ‘good’ as part of law-making and legal interpretations, whilst being aware of the state’s inability to activate an impartial justice. Challenging state law through the nomos of communities constitutes an alternative way of countering state violence. Cover has perceptively conceptualized religion as a constitutive force of normative order, civil obedience and also as a source of oppression. Hence, in cases of serious conflicts between egalitarian principles, like equality, and the insularity of a religious community, Cover emphasizes the redemptive principle of egalitarianism that justifes limited state interference in the insularity of the community. However, he expects, as do other authors in this volume, a public policy of multiculturalism that respects the conflicts of hermeneutics, meanings and practices among and between the state and opposing religious communities. The essays so far discussed in Part III show that possible severe encounters between human rights and acts of religious violence may exist. Certainly, a perspective that attributes a great deal of importance to religion in politics and law should neither justify violence in religious communities nor pretext it through underscoring secular violence as well. We have to ensure the human right of exit and the redemptive principle submitted by Robert Cover. The frst principle claims that a potential victim deserves to leave her community and that she deserves a state’s protection against violence (Barzilai, 2003). The second principle asserts that if a state’s interference in a specifc sphere of communal life is necessary to abolish discrimination, the interest in social redemption should overcome the principle of communal singularity and religious autonomy. Cover explains, however, that the internal religious order of non-ruling community should not be dissolved.
The last two essays explore why religious communities are not necessarily sources of conflict but, rather, sources of autonomy, liberty and international law. In Chapter 18 Austin Sarat and Roger Berkowitz are concerned with the legal claim for ‘order’ that has disabled any aspirations for multiculturalism. In order to show that law enables multiculturalism as long as its imagined order is not endangered, they compare two court rulings of the US Supreme Court, Reynolds5 and Yoder6 in which religious communities demanded recognition of their fundamentalist traditions and autonomy. In Reynolds the Mormons’ request to recognize polygamy was dismissed, since polygamous marriage was considered by the Court as a savage habit that reflects and incites a ‘disordered’ society. In Yoder, on the contrary, the justices did not consider state law as being under threat since the Amish were considered as a small and peripheral community. Hence, a multiplicity of religious, even fundamentalist, practices was considered as reconcilable with political order.
Sarat and Berkowitz claim that Yoder has not been an unexpected legal result. Rather, it has articulated the liberal precept that state law is the superior regulating order, while communal religious practices may be considered as legally valid only when they do not endanger the state’s perceived and self-generating order. Hence, modern law may be oblivious of the virtues of religious multiculturalism. But does perpetuation of religious nomos allows construction of universal human rights? The last essay in the volume explains why respect for religious communities may be conducive to the growth of universalism. In Chapter 19 Shashi Tharoor criticizes the trendy articulation of human rights as exclusively relying on a Western concept of individualism and overtly or surreptitiously defying the important essence of non-Western communities. The essay suggests shifting the emphasis from intolerance towards religions to intolerance towards coercion. Thus, religious collectivities should be respected and defended, yet violent religious habits such as female mutilation and child marriages should be eradicated on account of their coercive nature. Tharoor’s approach constructs universalism of human rights as a diversity of preserved traditions mutually reciprocating each other and jointly resisting coercion.
Religion is not a static phenomenon. It has become a source of dissent when, and to the extent that, it has been marginalized and discriminated against. In countries that have aimed to suppress religion, like Poland and Lithuania in Europe and Turkey in the Middle East, religion has incited some collective resistance to the state. Further, the Catholic Church in communist regimes, has used its power to oppose these regimes as was the case with the Catholic Church in East Germany. Similarly, Islamic movements in India and Israel have reacted to discrimination against, and marginalization of, their Muslim populations with rigorous collective and institutionalized dissent against the ruling elites – Hindu and Jewish, respectively. Sometimes, the religious dissent democratizes political settings as was the case in Poland and East Germany in the 1980s and 1990s.
Yet, religious dissent may become very violent either at the level of small groups or large social movements. In Israel, nationalistic Jewish fundamentalists have tended to severely criticize the state, which they perceived as too secular and too pro Palestinian, especially since the conclusion of the Oslo Accords (1993–99). This led to the assassination of Prime Minister Yitzhak Rabin on 4 November 1995. Likewise, violent religious dissent to state law conveyed by citizens against their political regimes has repeated itself, inter alia, in Egypt, Iraq, Jordan, Lebanon, Russia, Sudan and the West Bank and the Gaza Strip, where Muslim groups and social movements have become major localities of dissent and violence against political regimes and their ruling elites. Violent religious dissent is not accidental. Religious texts, either written or unwritten, have offered structured and sacred guidelines for an alternative order in all spheres of life. Our volume offers and invites a diversity of avenues to deconstruct religious texts as violent texts. Nevertheless, the global–local nexus may lead religious texts to be interpreted as being either violent or peaceful – much depends on the context.