Journal Article

Religious law as foreign law in constitutional interpretation

Adam Shinar and Anna Su

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 11, issue 1, pages 74-100
Published in print January 2013 | ISSN: 1474-2640
Published online January 2013 | e-ISSN: 1474-2659 | DOI: http://dx.doi.org/10.1093/icon/mos048
Religious law as foreign law in constitutional interpretation

More Like This

Show all results sharing these subjects:

  • Constitutional and Administrative Law
  • UK Politics

GO

Show Summary Details

Preview

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in US state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. This article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The ultimate import of our claim is not that religious law should be used by courts, but that recognizing its potential as a source in constitutional interpretation should result in a deeper and more careful engagement with the possibilities it generates.

Journal Article.  14317 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

Full text: subscription required

How to subscribe Recommend to my Librarian

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content.