Online Scholarship

Online Scholarship

Sacred Space and the City

Introduction*

Our cities exude a cacophony of sounds. Every day, city dwellers must brave the drone of traffic, the wail of sirens, and the clamor of construction, not to mention pub closing time banter, stadium noise, and the occasional fireworks display. For the most part, noise arising from emergency vehicles, building sites, or social events are considered part and parcel of the urban environment. By contrast, noise from church bells, the call to prayer from a mosque, or other religious buildings may be drowned out in decibel terms by the surrounding hubbub. However, judging by the furor over the recent decision by a mosque in Oxford, England, to obtain permission from the local council to amplify its call to prayer (azan), it appears that noise emanating from religious buildings may be viewed quite differently. The prospect of a muezzin’s call overlaying the peal of church bells in the so-called ‘city of dreaming spires’ sparked national controversy. It echoed an earlier debate that emerged over an ultimately successful application by Birmingham Central Mosque to broadcast the call to prayer in the 1980s.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Online Scholarship

Between Religious Freedom and Equality

Introduction*

The tension between religious freedom and non-discrimination principles is becoming increasingly acute. International human rights treaties usually affirm the importance of both equality and of religious freedom, often with little guidance as to how the two are to be reconciled in the many contexts in which they come into conflict. Questions about the appropriate way to balance the two rights arise with particular regularity around discrimination on the basis of sex, sexuality and religious discrimination. Should patriarchal religions be forced to admit women clergy – or at

least lose their tax exemptions if they do not? Should religious employers be able to give preference to co-religionists or to dismiss those who do not uphold the teachings of the employer religion? Should religious schools that receive state funding be required to admit all students regardless of their religion, sex or sexual orientation? These questions have become more urgent with the increasing reliance on religious groups to provide services such as education, health, assistance with employment, welfare, adoption and a myriad of other schemes, often as part of government policies that rely on private provision of government services.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Online Scholarship

Religious Liberty in British Courts

Introduction*

For centuries, religious liberty in Britain existed as a broad-ranging but principally negative freedom at common law. Individuals were permitted to do as they pleased in matters of faith, unless the law stated otherwise. Religious liberty, thus conceived, was more passive toleration of religion than any active promotion of religious freedom as a fundamental right. All that changed on October 2, 2000 when the Human Rights Act 1998 (“HRA”) – the United Kingdom’s de facto Bill of Rights – came into full force and brought with it Article 9 of the European Convention of Human Rights (“ECHR”).

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Student Features

The Old Isolationism and the New Law of the Sea

A conservative president, generally hostile to United States participation in international institutions and foreign entanglements, nevertheless expressly requests the Senate to give its advice and consent to a treaty with broad implications for the development of international law. A variety of national business and commercial interests, as well as domestic organizations devoted to global peace and development, also support the ratification of the convention. Scores of former government officials, military leaders, and their cohorts from civil society endorse the treaty. But, in reaction to the claims made by an “elite” foreign policy establishment, Wall Street, and the White House, concerns in the heartland are raised about the U.S. abandoning its sovereignty if it were to join the new international regime. Rhetoric escalates, and even begins to impact the early stages of the next presidential election. Fears of compromising American exceptionalism and surrendering to foreign or international authority pervade the public discourse. What first appeared to be a piece of foreign policy housekeeping – ratification of a treaty fully consistent with the national interest – becomes, instead, a debate for the heart and soul of American foreign policy and a reflection on our place in the world.

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Student Commentaries

The Unappreciated Margin

I. Introduction*

On November 21, 2007, the Grand Chamber of the European Court of Human Rights will hear the case of Yumak and Sadak v. Turkey. The question for the Council of Europe’s highest court will be whether Turkey’s 10% electoral threshold amounts to a denial of free expression of the opinion of the people in the choice of the legislature, thereby constituting a violation of Article 3 of Protocol 1 of the European Convention of Human Rights. The Grand Chamber has never before considered a case on electoral systems, preferring to leave this controversial area to the discretion of the member states by granting to them a wide ‘margin of appreciation.’ At a time when the Court remains unsure of its own boundaries, and with judicial institutions being regarded with increasing skepticism by those who fear a “government of judges,” the ruling will have crucial implications for the development of democracy within the Council of Europe’s Member States.

The impact of the Court’s ruling could even go beyond re-shaping the electoral laws within the European Union (“EU”) and have an impact on Turkey’s ambitions for European accession. With integration at the top of the EU agenda, the prospect of Turkish membership will be increasingly remote if Turkey is seen as a country whose values will disrupt the process of deepening integration. Two of the most problematic issues facing Turkey in this context are the prolonged armed conflict with the Kurdish secessionist movement, the Kurdistan Workers’ Party (“PKK”), and the significant influence of the military in Turkish politics. The European community sees these issues as both costly for the Turkish economy, hence a potential drain from the EU budget, and undemocratic in the non-recognition of minority rights and
pluralism. The present case touches on both areas. The 10% threshold was initially imposed by the military during the 1980 intervention, and its effect has been to exclude minorities, especially the Kurdish minority, from the National Assembly. A ruling against Turkey would therefore not only establish an important judicial precedent within the European community; it would also test Turkey’s resolve to join the EU. This article looks at the issues that will be facing the Grand Chamber and the context within international law.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Student Features

Four Myths of Judicial Review

Introduction*

Richard Posner recently reviewed Aharon Barak’s book, The Judge in a Democracy in The New Republic. Posner criticizes Barak for both his theoretical arguments and for what Posner portrays as Barak’s legacy as the president of Israel’s Supreme Court. Posner accuses Barak of acting as “a legal buccaneer,” and describes his approach as “usurpative.” In the title of his review, Posner fashions Barak as no less than an “Enlightened Despot.” In this response, I claim that Posner’s critique lacks a proper understanding of the legal situation in Israel, misrepresents Barak’s activities as a judge, and fails to contend properly with Barak’s judicial philosophy.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

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