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Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Laws Affects Human Rights and the Potential for Violence

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Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Laws Affects Human Rights and the Potential for Violence Michigan Journal of International Law Volume 19 Issue 1 1997 Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Laws Affects Human Rights and the Potential for Violence S. I. Strong Weil, Gotshal & Manges LLP, New York, NY Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Comparative and Foreign Law Commons, Constitutional Law Commons, Law and Society Commons, and the Religion Law Commons Recommended Citation S. I. Strong, Law and Religion in Israel and Iran: How the Integration of Secular and Spiritual Laws Affects Human Rights and the Potential for Violence, 19 MICH. J. INT'L L. 109 (1997). Available at: https://repository.law.umich.edu/mjil/vol19/iss1/3 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. LAW AND RELIGION IN ISRAEL AND IRAN: HOW THE INTEGRATION OF SECULAR AND SPIRITUAL LAWS AFFECTS HUMAN RIGHTS AND THE POTENTIAL FOR VIOLENCE S.f. Strong* INTRODUCTION .......................................................................................... 110 I. HISTORY AND RELIGION: DEFINING THE MODERN STATE .............. 114 A. Israel.......................................................................................... 114 1. Principles of Judaism ......................................................... 114 2. Growth of Judaism ............................................................. 118 3. Birth and Growth of the Modem Nation ........................... 119 B . Iran............................................................................................. 123 1. Principles of Islam .............................................................. 123 2. Growth of Islam .................................................................. 127 3. Birth and Growth of the Modem Nation ........................... 129 II. THE CONSTITUTIONS COMPARED .................................................... 135 A. ConstitutionalStructure ............................................................ 135 1. Israel ....................................................................................135 2 . Iran ...................................................................................... 140 B. Sovereignty and ConstitutionalInterpretation ......................... 145 1. Israel .................................................................................... 14 5 2. Iran ...................................................................................... 15 1 C. PersonalRights .......................................................................... 154 1. Israel ....................................................................................154 2 . Iran ...................................................................................... 163 D . Education ................................................................................... 171 1. Israel ................................................................................... 17 1 2 . Iran ...................................................................................... 172 III. THE EFFECTS OF INSERTING RELIGIOUS PRINCIPLES INTO CONSTITUTIONAL LAW .................................................................... 174 A. The Effect of Religio-Legal Unity on Human Rights ................ 174 1. International Human Rights Law ....................................... 176 2. Group Rights Theory .......................................................... 193 B. The Integration of Law and Religion and Its Effect on Societal Violence .................................................................. 201 CONCLU SION ............................................................................................. 212 * Associate, Weil, Gotshal & Manges LLP, New York, NY. J.D., Duke University School of Law (1994); M.P.W., University of Southern California (1990); B.A., University of California at Davis (1986). The author is qualified as a solicitor in England and Wales and is admitted in New York. Michigan Journal of InternationalLaw [Vol. 19:109 INTRODUCTION To many in the United States and elsewhere, Israel is a bastion of democracy, a stalwart outpost of liberal political ideals stranded among a number of politically and religiously volatile Arab nations whose pri- mary intent is, or at least has been, to destroy the Jewish state and, with it, the West's only secure foothold in the Middle East. Iran, on the other hand, is commonly demonized as the fundamentalist Islamic theocracy that took the United States hostage in 1979 and currently threatens not only the Middle Eastern peace process, but the security of the entire re- gion as it attempts to export revolutionary Islam to other nations. The two countries are seen not only as sworn enemies in a Middle Eastern Cold War, but also as diametrically opposed, religiously, culturally, and politically. o The truth, however, is that the two nations are not as different as they and others would like to believe. Both choose to define themselves primarily by their majority religion, and both incorporate traditional religious principles in the law of the State to a high degree. By doing so, both have come under pressure from international human rights watch groups as well as their own citizens on the question of whether the State's integration of law and religion violates the rights of citizens and/or increases the potential for violence within and between nations. While both countries have experienced religiously based violence and are the target of claims that certain groups' rights are not being re- spected, few legal studies have attempted to analyze how and whether these two events are related to each other or to the amount of religio- legal integration within the society in question. The absence of any inquiry into the relationship between violence and infringements of religious rights may be due to the international community's historical emphasis on civil and political rights over other sorts of rights.' Although religious rights can be said to exist within the right to liberty, a first-generation civil right, they have also been catego- rized as a type of natural right.! Whatever their classification, the 1. See R.J. Vincent, The Idea of Rights in International Ethics, in TRADITIONS OF INTERNATIONAL ETHICS 250, 255, 262 (Terry Nardin & David R. Mapel eds., 1992). 2. See Christine Loh, The Vienna Process and the Importance of Universal Standards in Asia, in HUMAN RIGHTS AND CHINESE VALUES: LEGAL, PHILOSOPHICAL, AND POLITICAL PERSPECTIVES 145, 152 (Michael C. Davis ed., 1995) (stating religious rights are first- generation civil rights); see also Vincent, supra note 1, at 254 (discussing natural rights); infra notes 398-472 and accompanying text (describing various types of religious rights). But cf. ANDREW CLAPHAM, HUMAN RIGHTS IN THE PRIVATE SPHERE 139 (1993) (stating freedom of religion is not a traditional natural right); Karl Marx, On the Jewish Question, in THE MARX-ENGELS READER 26, 41 (Robert C. Tucker ed., 2d ed. 1978) (expressing the view Fall 1997] Law and Religion in Israel and Iran international community has seldom focused on the problems raised by religious rights, perhaps due to the common conviction that religious conflict is a thing of the past or an assumption that matters of religion are of only domestic or regional concern. If, however, the international community abdicates its role in over- seeing the enforcement of religious rights, there is little to prevent potential abuse on the part of the State Because most States myopically see their own religio-legal regimes as being unobjectionable ,4 the likeli hood that even the most tolerant nation will perpetrate or permit infringements of various religious rights is high. Outside monitoring is especially critical in situations where States may act maliciously toward minority religions. The problem does not end with mere infringements, however; equally troubling is the possibility that violations of religious rights may lead to violence.5 As the use of international peacekeeping forces rises, outbreaks of domestic violence become less a problem of national secu- rity and more a matter of global concern. Threats to international peace and security also occur if advocates of religiously inspired violence seek to expand their activities beyond a single nation's borders. Because acts of religious violence cannot be considered a purely domestic issue, the international community needs to investigate ways to minimize violence before it occurs and should focus particularly on the link between vio- lence and the infringement of religious rights. that civil and political rights are only those that revolve around participation in the political community of the State); Yu Haocheng, On Human Rights and Their Guarantee By Law, in HUMAN RIGHTS AND CHINESE VALUES, supra, at 93, 104 (discussing Marx's views on civil and political rights). 3. See CLAPHAM, supra note 2, at 107 (arguing that certain international bodies may remind States of their duties toward individuals, but that the primary responsibility for rec- ognizing and protecting human rights falls on States). 4. See Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. CHI. L. REV. 195, 207 (1992).
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