Religious Liberty in Western and Islamic Law Kalanges-FM.indd i 12/27/2011 10:53:49 AM This page intentionally left blank Religious Liberty in Western and Islamic Law Toward a World Legal Tradition Kristine Kalanges 1 Kalanges-FM.indd iii 12/27/2011 10:53:49 AM 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offi ces in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Th ailand Turkey Ukraine Vietnam Copyright © 2012 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or trans- mitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. _____________________________________________________ ___________ Library of Congress Cataloging-in-Publication Data Kalanges, Kristine. Religious liberty in Western and Islamic law : toward a world legal tradition / Kristine Kalanges. p. cm. Includes bibliographical references and index. ISBN 978-0-19-985946-7 ((hardback) : alk. paper) 1. Freedom of religion—United States 2. Freedom of religion (Islamic law) 3. Freedom of religion (International law) 4. Religion and law. I. Title. K3258.K35 2012 342.08'52—dc23 2011041067 _____________________________________________________ ___________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers Th is publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be cur- rent as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research tech- niques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com Kalanges-FM.indd iv 12/27/2011 10:53:49 AM For my parents, Kris and Denise Kalanges, in whose home I fi rst learned to love God and my neighbor. And for my grandparents, Jay and Marjorie Guthrie, for their unfailing support. Kalanges-FM.indd v 12/27/2011 10:53:49 AM This page intentionally left blank CONTENTS A u t h o r B i o g r a p h y xi P r e f a c e xiii 1. Introduction 1 I. Religious Liberty in Western and Islamic Law: Two Questions 6 II. Th e Th eoretical Challenge 8 A . Th e New Haven School 10 B. Legal Rules and International Society 12 C. World Legal Tradition: Berman’s Comparative Integrative Jurisprudence 14 D . C l a r i f y i n g t h e A r g u m e n t 22 2. Th eological and Philosophical Origins of Religious Liberty in the U.S. Constitution 26 I. Th e Protestant Reformation and the Early Modern Origins of Freedom of Religion 27 A. Martin Luther and the Two Kingdoms 28 B. John Calvin and Freedom of Conscience 32 C . F r o m Th eological Doctrine to Democratic Form 35 II. Th e Genesis of the American Constitutional Experiment in Religious Liberty 38 A . Th e “Soul Liberty” of Roger Williams 42 B. John Locke’s Separation Principle 44 C. James Madison and Religious Freedom as an “Inalienable Right” 46 III. Religious Freedom in the First Amendment of the U.S. Constitution 47 A . Th e Establishment Clause 49 B . Th e Free Exercise Clause 51 Kalanges-FM.indd vii 12/27/2011 10:53:49 AM 3. Religious Liberty in International Human Rights Law 55 I. Freedom of Religion in International Human Rights Law 56 A. Universal Declaration of Human Rights 59 B. International Covenant on Civil and Political Rights 62 C. U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 64 D. Spotlight on the Issues–Religious Minorities and Proselytism 68 II. International Religious Rights: Monitoring and Enforcement Regimes 71 A . Th e U.S. Commission on International Religious Freedom 71 B . Th e European Court of Human Rights 73 III. Dignitatis Humanae : Th e Catholic Church and the Moral Case for Religious Freedom 76 4. Religious Liberty and Shari‘a 82 I. Principles of Islamic Law–A Brief Overview 84 II. Freedom of Religion in Islamic Law 90 A . Th e Rights of Religious Minorities 91 B. Apostasy and Islam 93 III. Religious Liberty and Islamic Reformation 96 5. Between Religion and Law: Politics as an Intervening Variable 102 I. Middle East Meets West: Political Contestation and Islamic Identity 104 A. Arab Nationalism and Islamism 106 B. (Re)Constructing Middle Eastern Identity in Response to the West 111 II. Religious Liberty in the Constitutions of Muslim States 114 A. Freedom of Religion in Muslim States–A Brief Overview 115 B . Th e Islamic Republic of Iran 116 C . Th e Republic of Turkey 123 D . Th e Arab Republic of Egypt 128 E . Th e Islamic Republic of Pakistan 134 [ viii ] Contents Kalanges-FM.indd viii 12/27/2011 10:53:49 AM 6. Religious Liberty in Islamic International Law 140 I. Islam and Human Rights–Origins of the Debate 141 II. Religious Freedom in Islamic Human Rights Declarations 147 III. Interpreting the Emergence of Contemporary Islamic International Law 151 IV. Some Regional and Strategic Implications of the International Debate 156 7. Conclusion: Toward a World Legal Tradition 168 Index 183 Contents [ ix ] Kalanges-FM.indd ix 12/27/2011 10:53:49 AM This page intentionally left blank AUTHOR BIOGRAPHY Kristine Kalanges is Assistant Professor of Justice, Law and Society in the School of Public Aff airs at American University. She holds a JD from Yale Law School, where she was a John M. Olin Fellow in Law, Economics, and Public Policy, and a PhD from Georgetown University, where she was a Graduate Fellow in International Relations. Previously, she practiced law in the New York offi ce of Cleary Gottlieb Steen & Hamilton LLP and served in Washington, D.C. as a law clerk for the U.S. Department of Justice. Kalanges-FM.indd xi 12/27/2011 10:53:49 AM This page intentionally left blank PREFACE Th is book argues that diff erences between Western and Islamic legal for- mulations of religious freedom are attributable, in substantial part, to vari- ations in their respective religious-intellectual histories. Further, it suggests that while divergence between the two bodies of law challenges the charac- terization of religious liberty as a uniform, universal human right, the dilemma of religious freedom – the diffi cult choice between the universal- ity of religious liberty rights and peaceful co-existence of diverse legal cul- tures – may yet be transformed through the cultivation of a world legal tradition. Th is argument is advanced through comparative analysis of human rights instruments from the Western and Muslim worlds, with attention to the legal-political processes by which religious and philosophi- cal ideas have been institutionalized. Th e fi rst part of the book charts the evolution of religious liberty as a human right in the West, beginning with the infl uence of Reformation the- ology (e.g., Luther’s separation of church and state and Calvin’s theology of limited sovereignty and natural law). Protestant ideas were elaborated and modifi ed in early America, where the religious and philosophical arguments of Roger Williams, John Locke, and James Madison centrally informed the Establishment and Free Exercise Clauses of the First Amendment to the U.S. Constitution. Th is historic experiment in religious liberty contributed, in turn, to the Western formulation of religious freedom as a human right, as refl ected (albeit incompletely) in the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, and the 1981 U.N. Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Against the backdrop of these international treaty debates, a comprehensive rationale for religious freedom and human rights was off ered in the teachings and diplomacy of the Catholic Church – a rationale rooted in both reason and Christian revelation. Kalanges-FM.indd xiii 12/27/2011 10:53:50 AM During roughly the same historical period (i.e., the latter half of the twentieth century), Islamic international law ( as-siyar ) began to emerge as an alternative/oppositional human rights paradigm. Its formulations of religious freedom were, and remain, facially incompatible with global human rights norms. Th e second part of the book explores the reasons for, and the implications of, this confl ict. From the outset of the tradition, Islam maintained that there should be no compulsion in religion.