Emory International Law Review

Volume 25Issue 2
Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States
Religious and Legal Pluralism in Comparative Theoretical Perspective

Religious Norms and Family Law: Is It Legal or Normative Pluralism?

Abdullahi Ahmed An-Na'im | 25 Emory Int'l L. Rev. 785 (2011)

The premise of this introductory Essay is that it is not possible to have a religiously valid (or customary) outcome from any coercive adjudication by the courts of the state. In other words, whatever the state and its courts and other institutions do is inherently secular, and cannot be religious. If that is the case, then believers who are keen to live by their religious norms should avoid state enforcement, rather than seek it. To make this argument, Part I of this Essay outlines the premise and core idea of an approach to the mediation of such competing demands. Part II attempts to frame the issues in terms of normative, not legal, pluralism and explain why that characterization could be helpful for mediation of disputes.

Read More »

Family Law, Pluralism, and Human Rights

Ann Laquer Estin | 25 Emory Int'l L. Rev. 811 (2011)

Until recent years, authorities in the United States gave little serious consideration to the marriage and family traditions of other religious groups. Courts today accommodate cultural and religious diversity more generously, but always within a larger framework of law requiring nondiscrimination, freedom of conscience, gender equality, and protections for dependent or vulnerable family members. In this context, although the unofficial family law of customary and religious authorities has important consequences for individuals and families, those authorities have not been able to enlist the coercive machinery of the state to enforce their orders. This type of pluralism, characteristic of the United States and Canada, poses significantly different questions than the pluralism of nations in which customary or religious law is backed by the authority of the state.

Read More »

Group Rights and Legal Pluralism

Natan Lerner | 25 Emory Int'l L. Rev. 829 (2011)

This Essay deals with a controversial issue in the area of group relations in democratic states, namely the place of group rights in democratic societies and the role of legal pluralism theories. Group rights are presently recognized as entitled to, if not a treatment equal to that of individual rights, at least the recognition of some form of legitimacy that justifies respect, consideration, and protection. Underlying such legitimacy is a view that looks to ensuring harmony between, and constructive coexistence of, the different components of democratic societies. This was not always the case with classic international law, which was not interested in the status and rights of groups, whatever their nature. The new approach tended to favor minorities that were more or less distinct from the majority of the respective populations, namely ethnic, religious, cultural, or linguistic groups.

Read More »

Regulating Religious Freedom in Africa

Rosalind I.J. Hackett | 25 Emory Int'l L. Rev. 853 (2011)

n this Essay, using a wide-ranging set of examples, I wish to provide some background on the emergent discussion on limitations on religious freedom in Africa, especially how these relate to the current debates on family law that are the subject of this Symposium. My general objectives are (1) to consider the legitimate and illegitimate ways in which African state and non-state actors seek to regulate religious practice; (2) to examine how particular religious groups may be disproportionately affected by these measures; (3) to demonstrate how interference with manifestations of religion often leads to abuses of related rights and freedoms (e.g. women’s and ethnic minorities’ rights, and rights of political participation, expression, and association); (4) to broaden and update the concept of religious practice; and (5) to consider how the African examples of restrictions on and regulation of religious practice challenge Western assumptions about the nature of religion as an essentially private and internal affair.

Read More »