Religious Jurisdiction Research Articles

La crisi familiare e le giurisdizioni religiose negli Stati Uniti: tensioni tra separatismo e pluralismo nel sistema delle ADR

Familiar crisis and religious jurisdictions the United States: tensions between separatism and pluralism in the ADR system ABSTRACT: In the United States, religious denominations play a central role in the out-of-court resolution of disputes. In fact, religious groups provide negotiation facilitation, mediation and arbitration services, according to models of increasing procedural complexity and binding nature. The contribution will illustrate case law guidelines about law enforcement of Jewish and Islamic judgements in familiar matters. I will focus on attempts of secular courts to mediate between opposing demands: the security of legal statuses, the maintenance of social stability and public order, the protection of rights of the individual, the deflation of civil litigation, the greater confidence of litigants towards the minister of religion acting as judge. In the conclusion, I will evaluate the impact of these trends on the intercultural paradigm that characterizes the American pluralist legal system. SOMMARIO: 1. Le ADR religiose negli Stati Uniti tra luci e ombre - 2. Pactum suprema lex esto? Il riconoscimento dei lodi arbitrali emessi dai tribunal rabbinici in sede di divorzio - 3. Il diritto familiare musulmano tra ostracismo e neutralità - 4. E pluribus unum? Il molteplice e il singolo di fronte allegiurisdizioni religiose nella società americana

Absolute and Relative Competence in Religious Jurisdiction in Indonesia

The religious judiciary has undergone significant changes following independence. The emergence of regulations has greatly promoted progress in the field of religious judiciary in civil matters. Of particular concern is the competence of the religious judiciary, which has been renewed in line with the evolving times. In this study, we will elucidate the competence of the religious judiciary in Indonesia, taking into account the results of legislation applicable in the field of religious judiciary. The methodology in this study is a literature review, based on conceptual or normative research. Primary data in this study consist of literature studies or the examination of literature (books, journals) and research results related to the research object. The analysis used is descriptive analysis, conducted in a structured and systematic manner. The research results show that the absolute authority of the religious judiciary to examine, decide, and settle cases for the Muslim community in matters of marriage, property transfer, and Sharia economics. The material legal content in the religious judiciary has undergone numerous updates through legislation, ministerial regulations, and circulars from the supreme court. Meanwhile, the relative competence of the religious judiciary is the legal jurisdiction for the orderly functioning of the judicial system.

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

The Law on Religious Courts regulates zakat for the needs of Muslims who are Muslim. However, in an area which is a special region of Aceh Province which has a special territory in implementing Islamic syariyah, the area has a qanun to regulate zakat. The deficiencies in this qanun do not specifically regulate Zakat Corruption Crime Cases. The purpose of this research is to analyze and find the absolute competency regulations of the religious courts in deciding criminal cases against the misappropriation of zakat managers through the Shari'ah Court in Aceh Province which have not been based on the value of justice; And to analyze and find weaknesses in the regulation of the absolute competence of the religious courts in deciding criminal cases against the misappropriation of zakat managers through the Sharia Court in Aceh Province at this time; This type of empirical juridical research is more suitable for social-legal studies regarding Islamic law applied in Aceh. The approach used is a qualitative approach using Field Research. Based on the results of the juridical analysis: First, the absolute competency regulation of the religious courts in Aceh, known as the Syari'ah Court, still does not have the authority to decide criminal cases against the misappropriation of zakat managers. According to the researcher, it is necessary to add letters to the articles contained in the relevant laws and qanuns regarding cases of zakat corruption, because their understanding comes from the Al-Quran, Sunnah, and the opinion of Ulama. Weaknesses in the regulation of the absolute competence of the religious courts in proposing that criminal cases against misappropriation of zakat managers can be handed over to the Sharia Court, because it can be seen from the website that there is still a lack of openness of the Baitul Mal Institution to report finances in the form of income, expenditure and these funds will be channeled to the right person , so that the Sharia Court is needed in resolving the zakat problem if there is an abuse of the distribution of zakat

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

Absolute Competence of Religious Jurisdiction in Deciding Cases of Zakat Violation through the Sharia Court in Aceh Indonesia

The Coloniality of Multicultural Entrapment: A Few Comments on Michael Karayanni's A Multicultural Entrapment

To date, scholarly debate on state and religion in Israel has been Jewish-oriented, focusing on the major tensions and clashes between the state and the Jewish religion. Palestinian Arab religious matters have been treated as peripheral and as a private matter of religious groups. This gap in the literature reflects the power structure in academic interests concerning the Jewish state and its discriminatory treatment of the Palestinian Arab minority. Michael Karayanni’s book A Multicultural Entrapment: Religion and State among the Palestinian Arabs in Israel1 is a thorough and provocative attempt to unmask the false idea of multicultural accommodation with regard to the religious jurisdiction of Palestinian Arabs. Karayanni provides a rich, comprehensive analysis of multicultural theory, its scope, historical development, limitations, and implementation in the case of the Palestinian minority in Israel. He brings to the forefront the main challenges of multicultural theory by focusing on the judicial religious jurisdiction of the Palestinian Arab minority in personal status laws. He touches upon one of the most important scholarly debates in multicultural theory and dilemmas faced by the minority within a minority group, providing us with a rich and comprehensive account of the challenges created by multicultural accommodation of minority groups, and the application of harmful patriarchal norms to marginal excluded groups (such as women and children).

Enhance Transparency Accounting Information As a Sipp Application And Case Financial Application In Presenting The Financial Statements of Case in The Environment of Religious Jurisdictions

Today, along with the times, we are required to be able to adapt to the rapid development of information technology, where every activity or job is made easier by the emergence of various digital-based systems or applications that uphold the principles of effectiveness, and efficiency and modernity. So that now various agencies both from government, private sector, and others continue to innovate in the use of technology to facilitate work while still paying attention to the accuracy of results and ease of work supervision, this aims to improve the quality of employee performance and achieve the agency's goals. Initially, the implementation of case financial administration activities within the Religious Courts was still carried out manually. By the cashier as a duty supervisor, each financial transaction is recorded in the Root Financial Master Book according to the registered case number. The recording of each transaction is carried out on a cash basis. The cashier will record the income from the down-payment of incoming cases and incur costs related to the case process such as processing fees, non-tax state income (PNBP), notification of summons to the Plaintiff/Applicant/Defendant/Respondent, notification of notification, local inspection (decent), editorial staff stamp duty and others, or make a return of the remaining down payment to the parties whose case has been decided in the trial. Considering that the recording activities are related to the registration of incoming cases, trial activities, the existence of cases that have been dropped as well as daily transactions that are handed over to each Treasurer and Bailiff. Likewise, when presenting case financial reports, journaling is done manually which is of course quite time-consuming and prone to recording errors. As the Case, Tracking Information System (SIPP) application, which is further complemented by the Badilag Case Financial Application, enables the management of case financial administration and reporting to be carried out effectively, efficiently, and transparently. The way it works is by inputting every case financial transaction into the SIPP, the data is directly integrated with the e-Financial application

Border Disputes: Religious Adjudication Along the Private/Public Divide

Abstract The article uses Israel’s volatile jurisdictional dynamics of the past two decades concerning access to religious community justice, as a telling case for examining the way legal pluralism is deployed along the public–private divide. The Israeli case exhibits a complex combination of an ostensibly liberal democratic regime, a commitment to a particularistic ethno-national political project, structural entanglements of state and religion against the backdrop of an unsettled constitutional order, and an historically diffuse mode of often-illiberal normative ordering within its diverse religious communities. All this provides a rich backdrop for various strategies by communal and institutional elites seeking to consolidate power, legitimacy, and authenticity in their often mutually-reliant jurisdictional projects. The article explores several salient episodes from Israel’s religious jurisdiction dynamics, focusing for purposes of analytical clarity on the case of Jewish orthodox legality. The analysis uncovers the main strategies stakeholders resort to, and shows how agency flows in different ways, with the choices of each player affecting the possibilities of the others. The institution at the arguable top of the system—the Supreme Court—is shown to be often devoid of effective means of elucidating, let along imposing, a coherent vision for a fragmented jurisdictional field. Conceptually, the judicial forum is revealed as the locus of an ongoing, uneasy engagement among normative imaginaries in a sometimes-competitive, sometimes-collaborative negotiation over coherence, tolerance, authority, and legitimacy.

Questioning the Customary Inheritance Law After Law No. 3 of 2006 about Religious Jurisdiction

Customary inheritance dispute might occur when the heirs cannot reach agreement between divisions of property or during inheritance law point which will be used. Indonesia acknowledges 3 existing inheritance laws which are western civil inheritance law, Moslem’s inheritance law, and customary inheritance law. Legal action of inheritance law is usually resolved by deliberation but if there is no agreement reached between these processes, therefore court mechanism can be used to make law suit and dispute resolution. UU No 3 of 2006 about religious jurisdiction is a legal product that is issued to provide improvement (Amendment) against UU No 7 of 1989 about religious jurisdiction. UU No 3 of 2006 is giving significant impact against the existence of custom inheritance law in Indonesia. Before this constitution is created, religious jurisdiction can accept customary inheritance disputes for Moslem people according to the criteria which have been stated in UU No 7 of 1989. Since UU No 3 of 2006 is created, therefore customary inheritance law, even though the heirs are Moslem, must follow the district court mechanism. This will provide increasingly narrow space for the existence of customary law in the future. This program is held in Pati, Central Java, where custom inheritance law still exists and is being used in Pati community. Dissemination and harmonization regarding customary law is important to maintain sustainability and existence of customary law in Indonesia.

تقویم السنة النبویة لبعض عادات الجاهلیة (نعى المیت أنموذجا )

ملخص البحث: بينت فيه معنى الجاهلية وبعض عاداتها المحمودة التى أقرها الإسلام کالجود والکرم ونصرة الضعيف والمظلوم، ثم بينت بعض العادات المذمومة التى تخالف سماحة الإسلام والتى قد أبطلها الإسلام کإحداد المرأة، أو العادات التى قومها کمسألة نعى الميت. وأما المبحث الأول فقد اشتمل على مطلبين: المطلب الأول: عرفت فيه معنى النعى واشتقاقاته عند أهل اللغة وعندل أهل العرف واستخداماته عندهم. المطلب الثانى: ذکرت فيه کيفيات النعى وصوره وبينت فيه أن معناه متفاوت. فتارة يکون بإرسال رجل ينعى الميت فى المجالس ويذکر مأثره وصفاته، وتارة يکون النعى بالإعلام بدون ذکر المفاخر، وتارة يکون بالنياحة والندب. وأما المبحث الثانى: فبينت فيه حکم النعى فى ضوء السنة النبوية وقد اختلف حکم النعى تبعا لاختلاف صورته، واشتمل على أربعة مطالب. المطلب الأول: وبينت فيه حکم النعى المستحب وهو الذى قصد به تکثير عدد المصلين لرجاء قبول دعائهم وشفاعتهم للميت. المطلب الثانى: وبينت فيه حکم النعى المباح وهو الذى تقتضيه الضرورة لتجهيز الميت والقيام بحقه من الغسل والکفن والحمل والصلاة عليه وتشييعه ودفنه. المطلب الثالث: بينت فيه حکم النعى المکروه وهوالذى کرهه الصحابة والتابعون وهو الذى يشبه نعى الجاهلية. المطلب الرابع: وبينت فيه حکم النعى المحرم وهو الذى يکون بالندب والنياحة وکأنه اعتراض على قدر الله سبحانه وتعالى. ثم الخاتمة: وبينت فيها أهم النتائج التى توصلت إليها من خلال البحث، ثم أعقبت ذلک ببعض التوصيات التى أوصى بها المسلمين عامة والباحثين وطلاب العلم خاصة. ثم ذکرت فهارس علمية للمصادر والمراجع وکذا فهرس الموضوعات. ومن أهم النتائج التى توصلت إليها. أولا: جواز نعى الميت والاخبار بموته للمصلحة الشرعية من القيام بحقه حتى الدفن. ثانيا: أن النعى الجائز هو ماکان على سبيل الإعلان دون أن يصحبه شىء من ذکر المآثر والمفاخر کما کان يفعل أهل الجاهلية. ثالثا: حرمة النعى إذا کان عن طريق الندب والنياحة. Abstract: In the introduction, I gave a comprehensive definition of Pre-Islam and the good habits Which Islam had acknowledged such as hospitality, generosity, supporting the oppressed, weak or overpowered. Then he tackled the bad habits which infringe upon the tolerance of Islam. Islam actually had abdicated such habits such as the women wearing mourning clothes to mourn the dead. In section 1, I have included several points: I gave a linguistic definition of mourning and the derviations of the word. I gave a definition of mourning according to society and norms and how they used it. I gave different aspects of mourning and how there are differences from one society to another. Sometimes mourning is done by sending a person who would mourn a dead person in public meetings, and mention some of his good deeds and righteousness. Mourning is also conducted through a person who just informs other people. On other occasions, mourning is featured through crying and whining the dead person. In Section 2, I explained the religious jurisdiction of the Sunna. Clerics had disagreement about mourning. Here we have four parts: Section 1 indicated the preferred jurisprudence which meant the doubling of mourners praying for the dead person asking God’s forgiveness and atonement. Section 2 contained the accepted jurisprudence required at time of necessity to prepare the dead and clean him/her up and get the casket and carrying him/her to the grave, prayer, mourning and burying. Section 3 explained the disliked jurisprudence which the companions of the prophet had shunned and disliked concerning mourning which is similar to Pre-Islam period. In section 4, I explained the forbidden jurisprudence which has crying and whining as if it were an objection on God’s destiny. The conclusion indicated the most important results reached and the recommendations for further research. Then paper contained references and indexes. The most important findings of the research went this way: It is acceptable by Sunna to mourn the dead and inform people so that he or she could be given everything like preparing the funeral, and coffin. Mourning is also acceptable if it is meant for informing people and mentioning some of the dead person’s good deeds. It is forbidden to cry and whine over dead people.

Freedom of Religion and the Legal Status of Churches: A Case Study from the Serbian Constitutional Court

This article offers a short study of the conjugation of freedom of religion, freedom of association and the legal status of religions and churches. Human rights are elaborated as defined in international human rights law, accentuated by the jurisprudence of the European Court of Human Rights. A compliance case that came before the Constitutional Court of the Republic of Serbia provides a national jurisprudential example useful for the analysis of relations between human rights and the legal status of a church. Analysis of the law is both horizontal and vertical: a description of norms is intertwined with a discussion of principles of identity and equality. The article explores whether the principles of human rights and freedoms and the norms regulating the legal status of a church are consistent with each other; whether these principles are independent and how their mutual relationship influences the application and interpretation of the law; and whether the norms prescribed by international law or in national jurisprudence can be applied independently of canon law, or whether application of the law has to take into account specific religious jurisdictions and relations between churches which are rooted in their autonomous canon law.

A Prolonged Abrogation? The Capitulations, the 1917 Law of Family Rights, and the Ottoman Quest for Sovereignty during World War 1

AbstractThe 1917 promulgation of a new Ottoman family law is recognized as a landmark moment in the history of Islamic law by scholars of women and gender in the Middle East. Yet the significance of the 1917 law in the struggle over religious jurisdiction, political power, and Ottoman sovereignty has been overlooked in the scholarship on both Ottoman legal reform and World War 1. Drawing on Ottoman Turkish, German, French, and English sources linking internal interpretations of the law and external reactions to its passage, we reinterpret adoption of the family law as a key moment in the geopolitics of World War 1. We demonstrate that passage of the law was a critical turning point in the wartime process of abrogating the capitulations and eliminating the last vestiges of legal extraterritoriality in the Ottoman Empire. The law is situated in its wartime political context and the geopolitical milieu of larger Europe to demonstrate that, although short-lived, the 1917 family law was a centerpiece of the wartime struggle to define extraterritorial rights of the Ottoman Empire, the Great Powers, and their protégés within the empire.

Inclusion Versus Exclusion in Intra-Orthodox Politics: Between Agudat Israel and Hungarian Orthodoxy*

Abstract Ever since the concept of Jewish Orthodoxy emerged in the early-19th century, and especially after Jews were awarded equal civic rights in the 1860s, several religious leaders sought to establish Orthodox organizations. They, however, faced two main obstacles: first, the concept of an Orthodox organization was new to Jewish history and conservative rabbis automatically opposed anything new and condemned it as “modern.” Second, an Orthodox organization meant a religious jurisdiction superior to that of the local rabbis who were reluctant to give up the full authority they enjoyed. Following a long period of deterioration in the power and influence of the rabbis, local Orthodox organizations were established in Hungary, Galicia and Germany. In 1912, after the establishment of international movements by Reform rabbis, Maskilim, Jewish socialists, and finally the Zionists, leading Orthodox figures decided to establish the international Orthodox organization titled Agudat Israel. Recognizing its critical role in preserving traditional Judaism, individual rabbis and local Orthodox organizations from many countries joined Agudat Israel. The only country whose rabbis refused to join was Hungary. There, Jewish Orthodoxy enjoyed a special civil status and had its own separate communities. Seeking to maintain their distinct status, Hungarian leaders demanded that Agudat Israel declare itself an Orthodox organization and refrain from accepting Jews who belonged to non-Orthodox communities, who were lax in their religious conduct, or who supported Zionism. After deliberating the pros and cons, Agudat Israel decided to decline the “Hungarian demand” and, instead, to accept every Jew who wanted to join. Consequently, most Hungarian rabbis banned the organization. Nevertheless, the political and social circumstances following World War I drove some Hungarian rabbis and their communities to join Agudat Israel.

Challenges Related to Rituals and Law Facing Saudi Students in the UK

Saudi students studying abroad encounter some challenges as regards the climate and culture of the UK. These challenges may not only be observed in the language and academic curriculum. Hence, this study aims to test the rooted religious values and jurisdiction practices among Saudi Muslims concerning their experiences, needs and other challenges while studying in the UK. This study included a sample of 100 Saudi students enrolled in a different academic year in the UK institutes. Findings reveal that the majority of the Middle Eastern students experienced difficulties in offering prayers, displaying Islamic rituals such as funerals, and paying Zakat to people. These students also experienced problems in learning about juristic and judicial regulations and identifying the significance of civil and human rights, intellectual/religious tolerance, and women’s rights. Most of the students experienced issues with their wives due to the social environment. Understanding this experience is significant to help ease the students' challenges and make their experience in the UK successful.

Is There a Right to Choose a Religious Jurisdiction over the Civil Courts? The Application of Sharia Law in the Minority in Western Thrace, Greece

The minority in Western Thrace, Greece, has long enjoyed a special status where family and inheritance matters were subject to Sharia law and religious jurisdiction (Mufti). After judicial controversy for many years over the compulsory character of this “minority privilege”, the matter has been brought before the European Court of Human Rights (ECtHR). In view of the hearing of the case of Molla Sali v. Greece before the Grand Chamber, the Greek Parliament voted for the possibility for the members of this minority to choose either religious or civil law and jurisdiction—a right for them to exit the minority community. Although a step forward, this right raises a serious challenge to the rule of equality before the law and the right to a fair trial. Therefore, the paper seeks its possible legal foundations in the international obligations of the Greek state to protect religious freedom and the minority community and stresses the need to be accompanied by the “right to voice”, meaning a true reform of the procedure before the Mufti and an effective constitutionality control of his decisions.

Creating an »Orthodox« Past: Georgian Hagiography and the Construction of a Denominational Identity

In the early Middle Ages, Georgia consisted of two kingdoms. The western part was called Egrisi by the local inhabitants, and Lazica by the Byzantines and to the east of the Likhi range of mountains was Kartli, known as Iberia to outsiders. Egrisi was ruled from Constantinople for much of this period with vassal overlords, but Kartli was harder to control and its leaders often played the Byzantine and Persian Empires off against each other in order to maintain some autonomy over their territories. Until the early seventh century Kartli was under the religious jurisdiction of the Armenian Catholicos and officially non-Chalcedonian (miaphysite), but at the Council of Dvin in 610 the Kartvelians rejected Armenian ecclesiastical authority and declared an autocephalous Georgian Church. This new Church joined the Chalcedonian fold and accepted the authority of the patriarch of Constantinople.One of the defining events of Georgian ecclesiastical history is the arrival of the Thirteen (As)Syrian Fathers in Kartli in the sixth century. The vitae of these shadowy figures and their origins and doctrinal beliefs are still rigorously disputed today. The information given (or deliberately obscured) in eighth and ninth century accounts of the (As)Syrian Fathers is crucial for our understanding of how Kartvelian confessional identity evolved and was conflated with ideas of Kartvelian nationhood. This paper will explore the construction of Kartvelian national identity through the lens of ecclesiastical history and examine how past events, in particular the narrative of the (As)Syrian Fathers, were deliberately obfuscated in the quest to create an »Orthodox‹ past.

The instrumentalization of religion in the Ottoman Empire at the time of European expansion (1800-1914). A journey through the historical foundations of today’s Turkish policies

This article focuses on the use of religion by the Ottoman central power in order to prevent the loss of territories (and populations) from the end of the 18th century until the beginning of the 20th century. Especially after the Treaty of Küçük Kaynarca, the Ottoman ruler and his entourage decided to use his caliphal status in two different directions. On the one hand, the symbolic leadership of the Ummah claimed by the Sultan was mobilized in remote Muslim territories in order to obtain external allies; on the other hand, the Sublime Porte instrumentalized the title of Caliph to make Western powers accept that albeit lost, territories comprising Muslim populations formerly under Ottoman rule would remain under the religious jurisdiction of the Sultan. Implemented from the last decades of the 18th century onwards, this policy has been relatively successful. The various bilateral or multilateral treaties to which the Ottoman government was a party resulted in the establishment of strong and durable ties between Muslims of regions that were previously part of the Ottoman Empire, such as Greece, Bulgaria, Bosnia or Crimea.

Pelaksanaan PMK No. 93/Puu-X/2012 Mengenai Penyelesaian Sengketa Perbankan Syariah Sesuai Isi Akad di dalam UU No. 21 Tahun 2008 Tentang Perbankan Syariah

The research showed that the sharia banking still used the Law by District Court as an alternative of the settlement for the Sharia banking disputes because the legal counseling about the forum of settlement for the sharia banking disputes was not effective yet as stipulated in Article 55 Paragraph (1) of the Law No. 21/ 2008 regarding Sharia Banking in conjunction to Article 49 of the Law No. 3/ 2006 regarding the Religious Jurisdiction which states that it assertively gives the absolute authority to the Religious Jurisdiction to receive and settle the sharia economic disputes including the sharia banking disputes; there is a factor of the readiness ofthe Religious Jurisdiction to settle the sharia banking disputes;the next factor was that the judge of the District Court did not refuse the lawsuit addressed to him even though it was obvious that the absolute authority is possessed by the Religious Jurisdiction; another factor was that there was lack of trust from the customers of sharia banks to the Religious Jurisdiction; because the Religious Jurisdiction was so far considered to only settle the divorce cases. Furthermore, the results also showed that the judge viewed that these provisions are contrary to Article 28D Paragraph (1) of the 1945 Constitution explaining that every person shall have the right of recognition, guarantees, protection and certainty before a just law, and of equal treatment before the law. The settlement for the sharia banking disputes in accordance with the contract contents after the Constitutional Court Verdict No. 93/PUU-X/2012 tend to have changed the clausal forum for the dispute settlement, which previously referred to the District Court, now it refers to the Religious Jurisdiction and Basyarnas (National Sharia Arbitration Agency). It can be seen in the contracts made at some Sharia Banks in Indonesia, such as Bank Syariah Mandiri, Bank BRI Syariah, Bank Muamalat Syariah, Bank Sumut Syariah, and Bank BTN Syariah.

PENYELESAIAN SENGKETA PERKAWINAN TERHADAP HARTA BERSAMA TERKAIT ISTERI NUSYUZ (DURHAKA) DAN AKIBAT HUKUMNYA DI INDONESIA

The divorce rate in Indonesia is quite high according to the data presented by Religious Jurisdiction Chamber (Badilag) of Indonesian Supreme Court in 2015 there are 96,678 cases of talak petition and 249,578 cases of divorce lawsuit. This article will elaborate the legal consequences of talak petition based on the reasons that the respondent (wife) has committed seditious (nusyuz) against claimant (husband), moreover this article will also reveal empirically the motivation of the wife committed seditious. In most cases, the wife may commit seditious triggered by violent act committed by her husband or marry another woman secretly. When trying such cases, the court must adjudicate carefully and thoroughly the reasons of request for talak which contended by the husband and its background. The careful and thorough trial on the evidences presented by the parties may lead to judgment which just and fair as the settlement of the dispute in divorce cases and distribution of matrimony properties.

La fatale attrazione tra diritto sacro e diritto secolare nel modello israeliano: la giurisdizione dei tribunali rabbinici in materia di matrimonio e divorzio

SOMMARIO: 1. La giurisdizione dei tribunali rabbinici in materia di status personale: il matrimonio e il divorzio nel diritto halachico e nei piu recenti orientamenti giurisprudenziali - 2. Diritto, stato e religione nel modello giuridico israeliano: religious law vs. secular law? - 3. L’incorporazione diretta del diritto ebraico nel modello israeliano: law as religion, religion as law - 4. Beis Din, identita religiosa e risoluzione alternativa delle controversie.The fatal attraction between religious law and secular law in the Israeli legal system: the jurisdiction of the rabbinical courts in matters of marriage and divorceABSTRACT: This article explores a unique case study of privatized family law in a liberal democratic state in the Western world: Israel. The complex relationship among law, religion and state presents characters quite peculiar in the Israeli experience. Due to historical and cultural reasons, among the systems belonging to western legal tradition, there is no other country that experiences more intensely the problem of religion’s place. In matters of marriage and right to divorce, the Israeli system nominally adheres to exclusive religious law and jurisdiction, by means of rabbinical courts, but religious and civil systems interact profoundly, shaping its family law as a hybrid creature of civil and religious legal elements. Unlike what happens in other countries, such as Canada, United Kingdom or United States, the Supreme Court of Israel has not yet undertaken a detailed policy analysis of the balance between the rights and obligations of the husband and wife in the process of enforcing divorce judgments, but sanctions against recalcitrant spouses in Rabbinical courts in Israel have been addressed in light of the principles of Jewish and constitutional law. The implementation of fundamental rights in family law matters, specifically the one of equality between spouses, is a prerogative of the jurisprudence of secular courts.

Challenges of Pluralistic Societies with Dissimilar Cultural Identities and Religious Legal Traditions: ADR and the Role of Religious Mediation and Arbitration

Summary: 1. The Challenges of Pluralistic Societies with Dissimilar Cultural Identities and Religious Traditions: from a Melting Pot to a Cultural Mosaic - 2. European Catholic Tradition of Dual Legislation and Jurisdiction: 2.1. The Development of the Religious Jurisdiction: from the Episcopalis Audientia under the Christian Roman Empire to the Homologation of Religious Decisions by a Civil Judge – 2.2. The Development of Secular and Religious Jurisdictions: from the Leges Barbarorum et Romanorum under the Principle of Personality to the Medieval Dual Jurisdiction in Europe – 2.3. Religious Minorities under Christian Rulers – 3. Muslim Legal Tradition of Plural Jurisdictions: 3.1. Muslim Empires and the Dhimma System – 3.2. Islamic Communities in Transition: from the Pre-colonial Era to the Colonial Rule – 3.3. The Exceptionality of Palestine and Israel- 4. Toward a Global World: Legal Pluralism and the Development of ADR. The Role of Religious Mediation and Arbitration: 4.1. The American Experience in Religious Arbitration: the Jewish Beth Din Courts and the Challenge of Islamic Arbitration – 4.2. Confronting the Fear of Islamic Arbitration Tribunals in the UK, Canada, and Australia - 5. Conclusions. Abstract: Most of juridical systems are historically developed from the interaction of two main legal principles: the principle of personality and the principle of territoriality. Roman Law is one of the best examples of it; its legacy channeled the growth and coexistence of religious and secular jurisdictions in the Germanic kingdoms of Western Europe. Under the principle of personality of laws, bonding individuals to their cultural or religious communities, legal pluralism was the common grounds from the Antiquity to the pre-Modern era. However, as a result of the religious wars in the Holy Roman Empire between Catholics and Protestants in the 16th and the 17th centuries, the Westphalian state model reinforced a territorial religious jurisdiction under the principle cuius regio eius religio, allowing the ruler to impose his religion on his subjects. The Muslim legal tradition developed, as well, plural juridical systems from the Dhimma System. One of them was the Ottoman Millet system that was adapted from the colonial era to the most of Middle East nation-states as a bonding personal religious law applied to non-Muslim communities. The secular paradigm of the Rule of Law, centralizing and reinforcing state and federal legislative powers, is implemented in Europe and her former colonies in the 19th century under the nation-state constitutional model, expanding worldwide the principles of territoriality and citizenship. As a result, religious legal systems are progressively confined to the private sphere. However, the secular paradigm is confronted gradually by a new development of legal pluralism, mainly as an effect of an extensive increment of global migrations; Halakha or Jewish Law, Canon Law or Catholic Law, Sharia or Islamic Law, are gaining strength as formal or informal religious ADR under the principle of Religious Freedom. Religious legal systems are becoming an innovative tool of mediation, conciliation, and arbitration accepted by some secular jurisdictions around the world, although there is a polarized debate about it. In today´s global world, which are the lessons to be learned from legal traditions and contemporary models of legal pluralism? Can religious legal systems become a tool of mediation for restorative justice preventing and exiting from violence? This article addresses this juridical and social challenge from an interdisciplinary comparative analysis.