Religion in Contemporary Legal Systems*

By Mahmood, Tahir | Brigham Young University Law Review, May 1, 2011 | Go to article overview

Religion in Contemporary Legal Systems*


Mahmood, Tahir, Brigham Young University Law Review


I am beholden to the U.S. authorities for selecting me for this year's Distinguished Service Award - especially since, as I understand it, I am the first non-American to receive it. It is indeed a great honor for me and for my country.

The place of religion in contemporary legal systems across the globe has long been one of my major areas of interest. America's deep interest in promoting religious freedom worldwide is praiseworthy. I too have been playing my own humble role in this noble mission, which I know my friends here appreciate. This is the third time I have participated in BYU's annual symposium on the subject. The first time I came, I spoke at one of the concurrent regional sessions, the next year at a plenary, and now at the inaugural session. Thanking the organizers for this gradual upgrade of my job, I will share a few thoughts with my coparticipants of this conference.

Religion and law have been two intertwined social-control mechanisms in all phases of human history and remain so across the globe, even in the present third millennium. Antireligious ideologies that have periodically emerged in certain parts of the world have miserably failed, and religiosity continues to be the order of the day in some form or another in all parts of the world. The paradigms of interrelation between religion, law, and state have, of course, constantly changed. Centuries have intervened between the old times when religion fully controlled the law and the present new age, where the two social-control mechanisms have exchanged their positions. Religion now has to operate everywhere in the world within the parameters set by international human rights documents, national constitutions, domestic laws, and judicial interpretations of these various legal sources.

The place of religion in contemporary legal systems differs from region to region and country to country, ranging from the French doctrine of laïcité, to the U.S. Constitution's Establishment Clause, to die proclamation of a particular religion as the state or otherwise privileged religion in numerous countries of Asia and Africa. A study of the wide varieties of the relations between and interaction of religion and law is indeed no less fascinating than it is complicated.

International human rights instruments, which have poured down since 1948, mention religious freedom as an essential ingrethent of the code of human rights. The Universal Declaration of Human Rights and its two attending International Covenants of 1966 outlaw religious discrimination of all sorts in the enjoyment of human rights. Religious nondiscrimination clauses are also found in the special U.N. Conventions of women and children's rights proclaimed in the decade between 1979 and 1989. The 1981 U.N. Declaration against Religious Discrimination and Intolerance and the 1992 Declaration on the Rights of Minorities specifically enjoin nations of the world to protect and facilitate the religious freedom of their respective citizens.

The responses of nation- states to the calls of international human rights instruments have been varied. The two so-called superpower nations of recent years provide good examples. In years past, the Soviet Union adopted a unique concept of secularism, banishing religion from all walks of public life. On the other hand, die U.S. Constitution, along with its Establishment Clause, ensured state neutrality to religion and noninterference in people's religious affairs and rights. I am reminded here of how my late father used to denounce the Soviet Union for the irreligion demonstrated by its cosmonauts, who proclaimed they did not find God. He then praised the United States for its space travelers stepping onto the moon and thanking God for their achievement. His reaction was representative of the proreligious attitude of billions of the earth's inhabitants. Expectedly, human history soon watched die wiping out of the antireligious political ideology and revival of religious freedom in the erstwhile communist regimes. …

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