State of the Field Essays

The nine essays in this section take up a range of topics, some of which are perennial concerns for law and religion, and others that represent new directions for these areas or entirely new areas of scholarly attention. The essays discuss the new literature addressing these topics, but they also stand as independent expositions, reflecting the author's own scholarly engagement with these areas of the interaction of law and religion.

Khaled Beydoun, in his review essay on America, Islam, and constitutionalism, takes up an important set of questions regarding the status and security of American Muslims today. Muslims have been present in North America since even before the country's founding, but American Muslims have drawn new attention in the global war on terrorism and revolutions embroiling much of the Islamic world. New questions have been raised about the status, rights, and identity of American Muslims. Beydoun provides an intersectional analysis of religion, race, and ethnicity in the long-standing, but also fast-growing, community of American Muslims. In so doing, he shows how the recent focus on antiterrorism measures and countering violent extremism programs in law and governance, both in the United States and in other countries around the world has disproportionately affected poor Muslims of color.

In her essay on sexual violence and social justice in Islam, Shannon Dunn examines recent books on Islamic law and topics in the areas of marriage, family, gender, and sexual and domestic violence. In recent years, there has been much attention to the situation of women in the Muslim world—sometimes in ways that emphasize Muslim women's victimization over their agency in an Orientalist manner that is redolent of the colonial chauvinisms of earlier eras. Instances of sexual violence and misogyny persist in the Muslim world—but not only in the Muslim world. In an interesting twist, Dunn relates the subject matter of these books to a debate engendered by the attempt by Kecia Ali, the author of one of the books under review, to engage and address these issues in her capacity as a public scholar quoted in a widely read New York Times article on the plight of sexual slaves of ISIS. In light of the ensuing criticism and public debate over her remarks, Ali penned an essay in response for the Huffington Post. Dunn's account of this debate, accompanied by interviews with the authors of the books she discusses, puts Islamic juristic understandings of sexual violence in contact with the gendered violence that attends some forms of public debate and social media interaction today.

Turning to a distinctly American topic within the area of religion, state, and constitutional law in the United States, Kent Greenawalt examines, through recent books, the rise of new constitutional claims of conscience in the public sphere. Recent cases involving the claims of individuals, and even corporations, as “persons” voicing conscientious objections against the contraceptive mandate of the Affordable Care Act and the legalization of same-sex marriage in the Obergefell v. Hodges decision have prompted new questions about the extent and limits of exemptions from generally applicable law, employment policies, public duties, and the like, on the basis of religion and conscience. The idea that religious organizations and private corporations—which are legal rather than natural “persons”—may have a “conscience” to be protected seems particularly novel. But religious rights of conscience have long been claimed and contested in American constitutional law. Early cases involved conscientious objection to taxation and military service; more recent claims have been filed by medical professionals who object to participating in abortion, euthanasia, or provision of contraception. Greenawalt's essay interprets some of these recent developments.

Mark Hill's essay on law, religion, and secularism in Europe, takes up an equally vexing set of issues for Britons and Europeans related to questions of integration and assimilation of Muslims, especially in light of the recent influx of refugees from Syria. Written as his British homeland was voting to sever ties with the European Union, Hill's essay discusses Europe's long-standing legal and cultural heritage of religious freedom—a concept with roots in the British Magna Carta but currently under stress as Britain and Europe grapple with the legal and political implications of religious pluralism and cultural integration. This pan-European struggle affects Europe's various minority, refugee, and immigrant populations in distinctive ways and has resuscitated popular resentments and misgivings toward decades of evolving European norms, rights, and institutions in a way that seems to reflect wider issues of religious and cultural identity and conditions of state that are largely secular and sometimes begrudgingly multicultural. As recent elections in Britain, the United States, and Europe have demonstrated, the resolution of these issues—whether through the retrieval of histories of freedom, human rights, and democracy, or descent into racial and ethnic nationalisms or economic populism—remains very much in question.

Linda Fishbayn Joffe's review of recent literature on polygamy and family diversity takes stock of important new developments in the law and literature of marriage and family. Marriage and family law has long been an area of intense interaction between law and religion. New developments in the United States and elsewhere are reimagining and reconstructing the very foundations of marriage and family in the West. In particular, the United States Supreme Court's decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide, raises questions about what other changes in marriage and family structure might be coming. Polygamy, a perennial mention in references to “slippery slope” arguments after same-sex marriage, is one of these issues. But polygamy is also a family structure that is legitimate in many religions and practiced in many regions around the world from which people have then emigrated to jurisdictions where it is illegal. Joffe's essay addresses the range of questions that these developments present in a context of increasing legal, religious, and sociological pluralism of family forms.

In his essay on religion and human rights, David Little takes up an increasingly volatile set of arguments about the relationship between religion and human rights, religious contributions to human rights discourse and institutions, and religious liberty, as such. Some leading scholars have recently announced the “twilight” or “end” of human rights as an organizing principle of legal or moral thought. What should we make of these arguments, given religion's contribution to and stake in human rights? Little also takes on the arguments of several new human rights critics and skeptics, including those who would dismiss human rights ideals and institutions as a hegemonic tool of European Christians. Little seeks to uncover what is truly universal and worthwhile in human rights, particularly in light of the rise of authoritarian movements around the world. The result is a valuable and necessary analysis of human rights discourses and a defense of the enduring value of human rights for religious and secular freedoms, alike.

Vincent Lloyd's essay on new directions in natural law offers fresh perspective on an ancient mode of moral and legal thought. Natural law is a concept with a pedigree going back to the Greco-Roman Stoics that is receiving new attention at the intersection of law and religion today. Lloyd provides a tour of historical and cutting-edge movements in the field of natural law. In part, this is a story of how natural law, a particular staple of Catholic moral theology and virtue ethics, is being newly appropriated and shaped by Protestants especially, but also by the critical and constructive work of Jewish, Christian, and Islamic theorists of natural law. Lloyd's analysis builds up to his own constructive engagement with the theories and praxes of “black natural law,” an essential but overlooked aspect of African American philosophical and theological traditions.

In their essay, Daniel Philpott and Timothy Samuel Shah respond to the highly influential arguments posed by new critics of religious freedom. Much as the ideals and institutions of human rights have faced strong critiques in recent years, the origins, limits, and uses of “religious liberty” as a legal norm have faced withering criticism from contemporary scholars of law and religion. Philpott and Shah examine the most forceful of these critiques and offer a rebuttal to those who view religious liberty as conceptually impossible or practically impolitic in today's world. Philpott and Shah focus largely on writings of contributors to the various blogs, anthologies, and recent eponymous volume of essays from the Politics of Religious Freedom project led by scholars Winnifred Fallers Sullivan, Elizabeth Shakman Hurd, Saba Mahmood, and Peter Danchin, whose work in law and religion is grounded in multiple disciplines: religious studies, political science, anthropology, and law. Indeed, the Journal of Law and Religion has been pleased to share the considerable fruit of that project with our readers in a symposium of articles in Volume 29(3)—articles that continue to draw the attention of many readers and drive debates in lecture halls and academic conferences on law and religion. Philpott and Shah subject these arguments to a thorough review and take a notably different view of the continuing relevance and importance of religious freedom both at home and abroad. These debates over the status and meaning of religious freedom are ongoing in the fields of law and religion and seem destined to shape the field for the foreseeable future.

Shaping the Field Essays

The book reviews in this section exemplify increasing depth and diversity, and particularly the widening geographical range, of law and religion inquiry. They include reviews of recent books on gender and nation in Indian personal law (Jean-Philippe Dequen); global theories of religious difference and secularism (Sarah Eltantawi); religious pluralism and Hindu nationalist India (Ratna Kapur); religion and human rights in the African nation of Ghana (Karen Lauterbach); the first-ever volume on feminism, law, and religion (Stephanie May); religion and law in China (Ping Xiong); and constitutionalism and religion in Africa (Johan van der Vyver). The JLR editorial staff believe these books showcase the increasingly interdisciplinary, interreligious, and international scope of the law and religion field, on important topics that seem likely to shape the field in various ways in coming years.

A Concluding Caveat

While other publications have attempted exhaustive rankings of new titles in their areas of scholarship, we find this a near-impossible task at the Journal of Law and Religion. Our field is simply too diverse and the issues at stake simply too important to admit of easy rank and order. But the topics and analysis contained in the books reviewed in this issue do, we think, represent books that are among the best in the field, in its profound and prolific diversity. We look forward to seeing what the next four years will hold as we track potential titles for the next quadrennial book review issue in 2020. As always, the JLR and book review section staff welcome your comments, recommendations, and news of forthcoming publications. In that way, you help us in tracking the state and shape of the law and religion field.