The statutory prohibition against ritual slaughter, which does not stun the animal prior to slaughter, as required in most Western nations, poses a significant challenge for the international right to freedom of religion or belief in European nation-states. This prohibition is important not only in Europe, or because of the prohibition itself, but because it implicates the legal status of two minority religious communities in these nation-states, those of Judaism and Islam. Some animal rights advocates have objected to ritual slaughter without stunning because, in their view, it causes needless suffering by the animal, and they have been successful in getting their views enacted into law in a number of European countries. Indeed, some countries prohibit ritual slaughtering altogether, as we shall discuss below.

This paper argues that the right to freedom of religion or belief requires nation-states to respect the rights of religious minorities that engage in ritual slaughter, even if they recognize the importance of avoiding unnecessary suffering of animals. Following a review of the legal status of animals in rights discourse generally, we will show why the prohibition of ritual slaughter needlessly results in discrimination against religious minorities, and why it is important that nation-states attempting to reduce animal suffering more clearly specify realistic alternatives for avoiding such suffering that are compatible with current religious mandates about animal slaughter. We will also consider whether the alternative of importing kosher or halal meat in place of ritual slaughtering, proposed by some nation-states as a method of alleviating the harm to religious minorities, is an effective and fair alternative.

During 2006, controversies concerning Shari‘a or Islamic law seemed to dominate media reports. From cartoons to apostasy trials, Shari‘a was deemed to be at the core of controversies that attained international notoriety. Furthermore, Shari‘a was implicitly invoked by the Pope in his now infamous speech at Regensberg, in which he referred to the prophet Muhammad and an early Muslim jurist in order to define Europe as Christian and contrary to all that is Islamic. The Shari‘a-related events of 2006 raised fundamental questions not just about what Shari‘a is, but more fundamentally about the place of Muslims and their religious tradition in the international system. This article attempts to survey the above Shari‘a-related events from 2006 in order to illustrate how references to Shari‘a, whether by Muslims or non-Muslims, were embedded within a larger discourse on identity, community, and difference.

This survey will not provide an in-depth analysis and critique of the Shari‘a doctrines invoked in each case, as that would be beyond its scope. Rather, this article is intended to review the events in light of how “Shari‘a” was characterized, used, and positioned within a larger legal and political discourse. All of them illuminate similar problems of definition and identity that will generally arise in any critical discussion of Shari‘a in the modern day. Shari‘a has arguably become more than a system of legal rules that can be subjected to critical legal scrutiny. Rather, it is also a symbol of political identity, such that any suggestion of legal reform may create political fall out amongst those committed to certain conceptions of identity, political and otherwise. The controversies concerning Shari‘a in 2006 arguably had less to do with legal doctrine, and more to do with how “Shari‘a” can be used and manipulated to facilitate political ends concerning the definition of identity and thereby the separation (and even marginalization) of communities.

The year 2006 marked the twenty-fifth anniversary of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In her recent report to the United Nations General Assembly, Asma Jahangir, the U.N. Special Rapporteur on freedom of religion or belief, stated that despite the time that has elapsed since the Declaration was drafted, it “seems evident that contentious religious issues have not only evolved but also become more acute in many societies.” In a report submitted to the Commission on Human Rights in late 2004, the Special Rapporteur listed “the continuing violations of human rights of members of certain religious minorities, as well as the still widely applied practice of forced conversion” among the main concerns in the area of freedom of religion. Jahangir said that she considers that “such a practice breaches the strongest and most fundamental part of freedom of religion or belief and should be given greater attention by the international community.”

In May 2005 the Special Rapporteur made an in situ visit to Sri Lanka—a country where the issue of unethical conversions has fueled religious tensions in recent years. Approximately 69% of Sri Lanka's population are Buddhists, followed by Hindus (15%), Christians (8%), Muslims (7%) and others (1%). Despite such a majority, the ethnic conflict which has affected Sri Lanka for decades, and which began to escalate again in December 2005 and throughout 2006-07, has been largely devoid of a religious element: relations between the different religious groups have for some time been relatively peaceful. This religious co-existence has, however, begun to deteriorate, due largely to the issue of unethical conversions and a desire to protect the majority religion.

Across medieval Western Europe, those who committed serious wrongs, such as homicide, arson, treason, and rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular. Grisly images of an executioner dismembering a condemned's limbs from his torso, smashing his chest cavity, gouging his eyes, or piercing his body with hot pokers are the common stuff of scaffold art in the high Middle Ages. Such images attest to the critical role of pain in medieval capital punishment. Whereas in our day all attempts are made to render penal death painless, in the high and late Middle Ages, the tie between pain and death is not only tolerated but, at times, purposefully exacerbated.

Analyses of religious liberty in eighteenth-century America often seek to uncover legal principles concerning the relationship between church and state. Many such analyses focus on the Revolutionary-era writings of famous American founders and include among recent works The Founders on God and Government, Jefferson and Madison on the Separation of Church and State, and Thomas Jefferson and the Wall of Separation between Church and State. Related work on religious liberty in early America examines that liberty in conceptual categories derived from the First Amendment's establishment clause which states “Congress shall make no law respecting an establishment of religion.” Scholarship in this field includes The Establishment Clause: Religion and the First Amendment and The First Freedoms: Church and State in America to the Passage of the First Amendment.

Although such scholarship has yielded important, though conflicting, results, the general search for legal principles concerning the relationship between church and state sometimes obscures important complexities in the historical sources. One such complexity is the combination of a political culture of natural rights and the religious culture of an evangelically rooted Protestantism in much of the public discourse on religious liberty in early America. Consider, for example, the two states at the American founding that scholars usually cite as representing two contrasting legal principles on the relationship between church and state, Massachusetts and Virginia. The new state of Massachusetts maintained a religious establishment supported by public taxes while the new state of Virginia did not.

“Human” rights discourse is inherently multicultural, and multicultural discourse is messy. The academese for that goes something like this: I am an “agnostic and ambivalent subject of a double, decentered multicultural choice” (see the following quotations) and my text comes from a minority stance in a “different context.”

Does the First Amendment afford religious organizations special protection when government regulation interferes with their internal activities or affairs? Nearly all scholars would agree that relief is appropriate where government regulation is designed to impede a group's religious mission or otherwise unfairly discriminate against religion, but such cases are rare. The more difficult cases involve neutral, generally applicable laws that are not intended to burden the internal operations of religious groups but, nevertheless, have that effect. Does the First Amendment provide any relief in such situations and, if so, what is the justification for this protection?

In Employment Division v. Smith, the Supreme Court held that the First Amendment does not excuse individuals from compliance with neutral, generally applicable laws that burden religious practice. Legislatures may choose to grant relief in such situations, but if they choose not to do so, the First Amendment does not require any special accommodations or exemptions. However, Smith did not address protections for religious groups, and, indeed, the Court has never directly addressed the scope of First Amendment protections where neutral government regulation interferes with the internal operations of religious organizations. Scholars who have debated this question have advocated a variety of positions.

Kathleen Brady's article, Religious Group Autonomy: Further Reflections About What Is At Stake, is intended to shore up her position that religious organizations deserve extremely broad autonomy from the law. Her thesis is two-fold. First, she believes that the law should not interfere with the internal operations of religious organizations, which is the position she has taken before. Second, she backs off the position apparent in her earlier work that religious organizations do great good, and, therefore, deserve autonomy. Now she posits a new thesis that religious organizations need to be protected from regulation, because they are working out the truth, and society needs the truth. This latter principle rests on the empirical claim that no one can fully know the truth (or even relative harm and benefit), and, therefore, when the law limits religious organizations, it halts the development of truth.

There was a time when I would have agreed with her, but I was then taught that my views were not based in reality. The problem posed by religious entities, even when they intend to seek the truth, is that they are run by humans, with the full spectrum of human fallibility. On this score, religious organizations really are no different than large corporations. The whole range of destructive behavior can be seen in both: fraud, extortion, misappropriation of funds, lying, deceit, covering up scandals like child abuse or doctoring financial records for the sake of the organization's image, and the list goes on. If religious actors are not deterred and punished for bad acts, they wreak great wrongs. This inescapable empirical reality plainly undermines Brady's earlier claims that seemed to imply that religious organizations deserve autonomy for the good they do.

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the years are wide-ranging; for example, he has written insightfully on both sexual ethics and economic justice. The methods that he has used are diverse; he has deftly deployed the tools of historiography as well as logic. Moreover, the normative stances that he has taken defy location on the normal liberal/conservative spectrum as it plays itself out in American political life. He has argued in favor of a legal system that would encourage a more traditional sexual morality, while emphasizing the need to compassionately accommodate those whose lives do not conform to its strictures. He has also maintained the importance of assessing social and economic structures from the perspective of the most marginalized members of the society, without succumbing to romantic illusions that technology, progress, or the dynamism of history will eliminate class stratification and its ensuing divisions of humanity into the “haves” and the “have nots.” His writings at the intersection of law and religion reflect neither the Democratic Party nor the Republican Party at prayer—and neither party at a town hall meeting, for that matter.

Natural law has made a comeback in legal philosophy. The revival of natural law thinking in the legal academy began about thirty years ago and has managed to gain a seat at the table in current jurisprudential discussions. Defining natural law, Brian Bix declares that it “claims that there are fundamental and evaluative connections between the universe, human nature, and morality.” These connections need not have a Christian or even a theistic foundation. A belief in moral realism, that is, the propositions that “(1) there is an objective reality, (2) human beings can know something about it, and (3) there are some things that everyone can, and some things that everyone ought to, do in response to what they know,” ties together theistic and non-theistic versions of natural law. Yet many prominent contemporary natural law theorists—J. Budziszewski, John Finnis, Robert George, and Russell Hittinger —are Roman Catholic. Despite the fact that Finnis and George develop their natural law arguments without reference to any metaphysical states of affairs or transcendent truth claims, natural law continues to be associated with Thomas Aquinas and the subsequent scholastic tradition. Thus, even standards that Finnis and George derive from the internal rationality of law strike some as disguised theology.

I am a lawyer turned theologian turned goat and hog farmer who finds himself attempting to make sense of a path from social ascent to intentional social descent. An economics major who studied just enough philosophy at a Christian college to think he wanted to continue that work while in law school, I found my life captured by the life and work of Stanley Hauerwas. It has all been all downhill from there. As a good friend of mine from law school days who has followed a similar descending path recently suggested, “Stanley Hauerwas ruined my legal career.” Add in required readings by John Howard Yoder and Wendell Berry during graduate school, and you find yourself on a path toward political and economic radicalism, farming, and just maybe, a church for which it is worth living and dying.

But, of course, the voices of Hauerwas and Yoder were not crystallized in isolation. They were forged in the midst of conversation with good colleagues. In this collection of essays we celebrate the life and work of Robert Rodes, a colleague of both Yoder and Hauerwas at Notre Dame in the 1980s. I have learned a tremendous amount from Rodes's historical work on the shape of English law during the period of the Reformation. But in engaging Rodes here, I focus on his constructive work on the role of the law in liberation. What I offer is a set of questions and potential alternatives in response to that work, largely learned from Hauerwas and Yoder.

Sir William Blackstone's Commentaries on the Laws of England is arguably the single most influential work of jurisprudence in American history. Written in the late eighteenth century, it regularly appeared in American law school classrooms up until the early part of the twentieth century, when ridiculing Blackstone and the Commentaries became a part of legal academic orthodoxy and the influence of the Commentaries waned. Blackstone eventually became the poster child for everything that the realists and their descendants thought was wrong with American law—formalism, natural rights and plutocracy.

Both Blackstone's admirers and his detractors have devoted significant attention to his famous account of judging, which holds that judges find (or declare) law rather than make law. In the introduction to the Commentaries, Blackstone states that the judge's job is to determine the law “not according to his own private judgment, but according to the known laws and customs of the land;” the judge is “not delegated to pronounce a new law, but to maintain and expound the old one.” One reason Blackstone's account has been attractive in some quarters is because it supplies apparent answers to a number of problems raised by the idea of judge-made law. If judges merely find and apply authoritative law, their decisions presumptively carry the authority of the law they are applying. Because the law pre-exists the decision, the specter of retroactive liability disappears.

Coming out of a church whose marks of identity include unity, holiness, and universality, it is ironic—and painful—that the “Catholic vote” has become a “metaphor” for polarization in United States culture and politics. As one reporter described the scene in the weeks before the 2004 presidential election:

Tensions have also manifested themselves in the variety of Catholic “voter's guides.” Some list a limited number of “non-negotiable” issues—particular actions that are identified in Catholic moral theology as “intrinsic evil” and suggest that candidates be evaluated according to their stand on these particular issues. For example, the Catholic Answers Voter's Guide for Serious Catholics, first distributed prior to the 2004 election, named “five non-negotiables”: abortion, euthanasia, embryonic stem-cell research, human cloning and homosexual marriage. As these moral principles “do not admit of exception or compromise,” the Guide reasoned that political consequences should be clear: “You should avoid to the greatest extent possible voting for candidates who endorse or promote intrinsically evil policies.”

In the interim between the 2004 and 2006 elections, a few organizations congealed to formulate competing guides. Others rallied around Faithful Citizenship, the United States Bishop's long-standing official commentary on the nexus between the principles of Catholic social teaching and political participation. Others directly challenged the Catholic Answers guide as a distortion of Catholic social teaching and argued that its partisan activities were a potential threat to the Roman Catholic Church's tax-exempt status.

Robert Rodes settled on the metaphor of the pilgrim for his story of the law. For him, pilgrim law is “the jurisprudential manifestation of liberation theology.” To begin my discussion of Rodes and the ongoing story of the law, I begin with a tale of my own pilgrimage to find justice in one place in the world I thought most needed it—when, as Dorothy could have told us from the outset, if it was not in my own back yard, I had never really lost it to begin with. In the mysteries of a Christian life that Rodes emphasizes is rooted in our unknowing, Milovan Djilas figures as central to Rodes's analysis; Djilas himself gave me crucial, but slightly cryptic, wisdom for my journey. Thus I feel haunted by some of the same characters and stories Rodes deems crucial in his pilgrim experience.