In this article, I intend to explore the normative relation(s) between “God” and “war.” A bit more precisely, I intend to explore the normative relevance of theistic conviction to the proper employment of military violence. Even more precisely, I intend to explore the relevance of theistic conviction to the proper employment of military violence as judged by the so-called Just War Tradition (JWT). Properly interpreted, I take the JWT to provide the best available account of the morality of war. The JWT is not perfect and is bedeviled by serious problems, but it is the best available nonetheless. So, when I reflect on the morality of war, and thus on the normative relation(s) between religion and war, I do so from the perspective of the JWT.

Now this might seem to portend a very brief discussion. As we will see in detail, contemporary adherents typically construe the JWT in resolutely secular terms. Perhaps in order to compensate for its religious prehistory, most insist that the JWT has outgrown its religious provenance and may not be used to legitimate a crusade, a jihad, a holy war, or anything of the sort. In so doing, they align the JWT with the commonplace, endemic to contemporary liberal democracies, that religious wars and religious justifications for war lay far, far beyond the moral pale.

The story would recapture the trace of Judaism, particularly the mystical Jew, in the early literature of international law—I think most readily of Gentilis' obsession with Judaism—a Judaism that seems at once the law that revelation and redemption replace and the mysticism that law and state refuse. Paradoxically enough, we find here our own complex relationship between law and religion exactly mirrored in the relationship between Christianity and Judaism.

This article examines the relationship between the Jewish laws of war and international law. As Kennedy notes in the opening quote, one way of understanding the relationship between Jewish laws of war and international law is as part of the relationship between international law and its “other.” Kennedy defines Jewish law as mystical, and in so doing he asserts that Jewish law is different in form than state law/international law. Kennedy's opposition of Jewish law and international law is not accidental. It is a direct consequence of the history of international law. As Mutua has noted “[i]nternational law claims to be universal, although its creators have unambiguously asserted its European and Christian origins.” From this point of view, international law has “universalized” its particular origins with the consequence that any non-European or non-Christian tradition is not universal and is the “other.” This fact leads Kennedy to argue that international law has ignored (among many other things) the traces of religion, mysticism and Judaism in its history in its quest to claim secular universality.

God has made man with the instinctive love of justice in him,

which gradually gets developed in the world …. I do not pretend

to understand the moral universe; the arc is a long one, my eye

reaches but little ways; I cannot calculate the curve and complete

the figure by the experience of sight; I can divine it by conscience.

And from what I see I am sure it bends towards justice.

Theodore Parker (1853)

A strange mystery it is that Nature, omnipotent but blind, in the

revolutions of her … hurryings through the abysses of space, has

brought forth at last a child, subject still to her power, but gifted

with sight, with knowledge of good and evil, with the capacity of

judging all the works of his unthinking mother. [Gradually, as

morality grows bolder, the claim of the ideal world begins to be

felt, [giving rise to the claim] that, in some hidden manner, the

world of fact is really harmonious with the world of ideals. Thus

man creates God, all-powerful and all-good, the mystic unity of

what is and what should be.

Moreover, with the benefit of hindsight, it is easy to identify in the constant central core of Christian faith, despite the inquisition, despite anti-Semitism and despite the crusades, the principles of human dignity, tolerance and freedom, including religious freedom, and therefore, in the last analysis, the foundations of the secular State.

A European court should not be called upon to bankrupt centuries of European tradition. No court, certainly not this Court, should rob the Italians of part of their cultural personality.

In March, 2011, after five years of working its way through various levels of national and European courts, the Grand Chamber of the European Court of Human Rights decided that a crucifix hanging at the front of a classroom did not violate the right to religious freedom under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Specifically, Ms. Soile Lautsi had complained that the presence of the crucifix violated her and her children's right to religious freedom and that its presence amounted to an enforced religious regime. The Grand Chamber, reversing the lower Chamber's decision, held that while admittedly a religious symbol, the crucifix also represented the cultural heritage of Italians.

The articles assembled in this symposium share their roots in a workshop we organized at the International Institute for the Sociology of Law (IISJ) in Onati, Spain, in June 2011. The workshop, titled “Legal Pluralism and Democracy. When Does Legal Pluralism Enhance, When Does It Erode Legitimacy of and Trust in Democratic Institutions?” examined the consequences of legal pluralism for various facets of democracy, from human rights and political equality to issues of stateness, legitimacy, and self-determination. Half of the papers discussed the application of customary law in pluri-legal systems, particularly in Africa and South America, while the other half dealt with the application of religious law, especially in Muslim-majority countries as well as Israel and India.

Other papers presented at the workshop have been published in the IISJ's “Oñati Socio-Legal Series” on the Social Science Research Network and are available for download at http://papers.ssrn.com/so13/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1605943.

The three articles featured in this symposium address how the law may take account of diversity in the face of the democratic promise of universal rights standards: they probe the question of how to accommodate cultural particularity while also delivering upon the promise of universal and equal citizenship. Both are crucial sources of legitimacy of and trust in democratic political systems, even while they are also often mutually exclusive standards.

A widely held view on the purpose of criminal law is that it is designed to maintain social order. Assuming this view to be correct, how does criminal law achieve its purpose? The standard answer is by deterring crimes through the threat of penalties, and by incapacitating or rehabilitating criminals so that they cannot or will not engage in future crimes. Sociologists, however, have a somewhat different answer: criminal law maintains social order by branding deviant behavior as criminal. Society, it is argued, is constructed through opposition and contrast: it creates and preserves its identity, its distinct structure and unique shape, by emphasizing the differences between its own characteristics and practices and the characteristics and practices of the Other, the deviant. Deviance, in this view, is essentially a relative phenomenon. The definition of deviance, which changes from era to era and from place to place, is just that characteristic which society designates to establish, through it and in contrast to it, its identity and boundaries. Whatever the society, the deviant in that society is one who “represents the forces excluded by the group's boundaries,” informing society “as it were, what the evil looks like, what shapes the evil can assume.” In doing so, the deviant shows society “the differences between kinds of experience which belong within the group and kinds of experience which belong outside it.”

The Balkans, a region where Christianity and Islam have come into close contact since before World War Ii, is an interesting study in legal pluralism. The millet system, under which distinct ethnic-religious communities including Muslims were granted partial institutional autonomy, was at that time a convenient legal paradigm to accommodate minorities within the new national states being created. However, the communist regimes that succeeded the War in the Balkans eradicated legal pluralism in favor of a uniform legal order. As a consequence, the authority to employ shari'a in Muslim communities in this region was abolished under communism.

The political changes occurring in the Balkans after communism was dismantled in the 1990s did not bring back the shari'a courts in most of the Balkans. However, Greece, having escaped these radical political shifts, retained a continuous legal regime that included some legal autonomy granted to the Greek Muslim population that survived a population exchange with Turkey at the end of the Greek-Turkish war of 1919-1922. As a result of the Lausanne treaty, the Muslim population of (Western) Thrace in Greece was granted a special minority protection regime that applied shari'a law to Muslim Greek citizens residing in that region of Thrace. However, shari'a is only applied to certain disputes of family and inheritance law by the local Mufti in Western Thrace who has special jurisdiction over these matters.

A former police chief and a criminologist confirm a famous remark by Margaret Mead when they write: “The initiation of restorative reforms is often based upon the conversion of one key professional in a criminal justice agency.”

New Zealand district court judge Fred W.M. McElrea personalized this rule in his account of how he stumbled on a restorative procedure in the case of a young man in Auckland, who was a Maori and son of a bishop, and who confessed to the crime of robbing a woman's purse. She happened to be a Quaker, and she appeared in court as a gesture of friendship for the offender. When the time came for sentencing, McElrea wondered out loud if there were a way for the young man to be monitored, without imprisonment, by some competent person who knew him. At that, Douglas Mansil, local Presbyterian minister, also present in the courtroom, stood and volunteered his services. Mansil had been the longtime “streetwise” pastor of a congregation in that Auckland neighborhood, known for furnishing the courts with more than a few youth offenders. Together with the Quaker victim of the crime, he kept track of the young man and reported regularly to the court. It was the beginning of McElrea's dedication to restorative justice (RJ) for young offenders in New Zealand. He and other judiciary leaders pay tribute to the influence of Howard Zehr's visit to New Zealand (NZ) in 1994 and Zehr's book, Changing Lenses, which McElrea first read during a sabbatical leave at Cambridge University. Zehr's book and his work in the U.S. had great impact on New Zealand legal officials, many of whom, like McElrea, often give him credit for inspiring shifts to RJ in their thinking about law, judicial process, and ethics.

In the summer of 2011, Dutch teacher Duran Renkema was dismissed from the orthodox Reformed school in Oegstgeest because he had left his wife and family, and decided to openly live together with his boyfriend. In the court case that followed, the judge ruled that the publicly funded denominational school did not have the right to dismiss a teacher who otherwise functioned well, merely because of his sexual identity. In collecting funds so it could take the case to the Equal Treatment Commission, the Dutch gay rights organization Coc emphasized that this was the first time that a teacher at a religious school publicly dared to contest his dismissal.

Although the teacher himself also initially threatened to put the issue before the Equal Treatment Commission (ETC), he later withdrew the case, stating, “my family, partner and I need rest to come to terms with what happened.” He indicated that he hoped that “the discussion and dialogue in the Reformed churches will not come to a halt here, but that they will take this opportunity to show the gay community in the Netherlands that the message in the Bible is one of love.

Nineteenth century jurists sought to make law a science like any other. They believed that the law was not an unprincipled mass of archaic and contradictory rules, nor an extinct body of Latin words that should be venerated in a church reliquary and seldom studied. Rather, they said that it was time for law to take its place in the university and to be dissected under the microscope of scientific analysis. It was by these methods that law's fundamental axioms would be uncovered—which would in turn explain the relationship of all its parts to the whole. And with the right set of principles, new data could be effortlessly incorporated into an ever-growing scientific taxonomy of the law.

This mode of thinking dominated both European and American legal jurisprudence in the mid- to late-nineteenth century and the early twentieth century, although it went by different names. One fundamental thread ran throughout—the law was not unprincipled, but logical. It could be reasonably explained and rationally ordered. This paper demonstrates that Rabbis Isaac Jacob Reines and Moses Avigdor Amiel, two important Jewish thinkers living at the turn of the twentieth century, saw Jewish law, or halakha, in the same light. Although Reines and Amiel may not have been directly influenced by secular jurisprudence, many of the elements of this classical legal science provide an interesting parallel to the answers these two thinkers gave to some of the oldest problems of Jewish law. Most notably, the way in which Reines and Amiel explained the connection between the Torah's oral and written components, as well as the way in which they asserted the internal coherence of halakhic jurisprudence, was similar to the legal formalism of their contemporaries.

Something unexpected has been happening in Africa—and not just Northern Africa, the locus of democratic revolutions since January 2011, when a winter's discontent produced an early Arab Spring. Over the last several years, several sub-Saharan African nations have held democratic elections, produced new constitutions, and even partitioned themselves in relative peace, despite the often dire predictions of foreign governments, media, and election-monitoring organizations.

In many cases, the constitution and reconstitution of these states has been accomplished by means of the referendum vote—sometimes viewed as the anti-democratic purview of special interests in the developed West, but having greater respect and utility as a tool of democracy in the developing South. Kenya produced a new constitution in 2010 by a referendum that has been lauded by international observers for its peaceful process and outcome. The Kenyan referendum followed general elections in 2007, whose results were marred by violence in early 2008. The nearby countries of Zambia and Tanzania are currently in the process of constitutional reform, drawing lessons from Kenya's unexpectedly harmonious proceedings. In all three countries, the constitutional review processes have raised, among other issues, questions of legal pluralism, religious freedom, and relations between the Christian majority and Muslim minority.

Wolfhart Pannenberg is considered by many to be one of the preeminent living Protestant theologians. Now retired, Pannenberg's active career spanned almost five decades. From 1968 to 1994 he was Professor of Systematic Theology at the University of Munich; previously he taught in Mainz and Wuppertal in Germany. Pannenberg has published prolifically, culminating with his three-volume Systematic Theology. Even in retirement, Pannenberg has continued to publish extensively, producing several volumes over the past decade. He has lectured in the U.S. on numerous occasions, and many of his books and articles have appeared in English translation. In this country, Pannenberg is generally associated with the theology of hope, a now-dated movement that was characterized by an emphasis on eschatology and the proleptic anticipation of the future through the events of history. But that association reflects only a limited aspect of Pannenberg's lengthy career, one since eclipsed by the further development of his thinking and concerns.

The breadth of Pannenberg's interests is vast. In addition to his concentration on the classical themes of theology, he has explored other subjects from a theological perspective, among them sociology, science, nature, anthropology, politics and ethics. Over the course of his career, Pannenberg has repeatedly addressed questions of law and jurisprudence, beginning with essays in the early 1960s and continuing up to a publication that appeared in 2004. For the most part, these writings consist of thematic essays, a form Pannenberg has used extensively for a wide variety of subjects. In addition to these essays, portions of Pannenberg's larger works treat law and jurisprudential themes, though as subsidiary topics. His continuing concern with law reflects his view that law is strongly tied to ethics, an area to which he has devoted more attention after he completed his Systematic Theology. Taken together, Pannenberg's writings on law constitute a coherent and reasonably well-articulated theory of law, though one that has unfortunately received limited attention, and no sustained exposition in English. Nonetheless, because of Pannenberg's prominence, and because of his incisive analysis, his work on law deserves attention in this country as well.

The contemporary treatment of rape in the penal codes of Muslim nations has come under increasing scrutiny over the last two decades, as several high-profile cases have arisen in which women have claimed sexual assault but been unable to bring sufficient proof of non-consent. In some cases, claimants have subsequently been punished for fornication (zinā) because their accusations were seen as constituting confession to consensual illicit sex, while in other cases, a resulting pregnancy has been taken as evidence of the same. These cases have illustrated the particular problems that stem from defining rape as a coercive variant of fornication, or zinā.

These cases have largely arisen in the context of national efforts to Islamize the legal code by bringing laws into line with perceived sharī'a guidelines. This slew of cases has prompted journalists, human rights groups and Muslim reformers to ask whether contemporary “Islamic” rape laws are really continuous with the classical Islamic juristic tradition, or whether they may in fact represent distortions of that tradition. A central point of debate has been over whether Islamic juristic discourse truly placed rape—that is, a man's unlawful sexual intercourse with a woman against her will—under the category of zinā, or not.

The tradition of Kemalist secularism (laiklik) in Turkey is often cited to distinguish Turkey as an exceptional case among predominantly Muslim countries. While it is true that the Turkish Constitution, laws, and legal opinions approach the relationship between the state and religion very differently than those of Iran, Saudi Arabia, Egypt, or even Indonesia, it would be wrong to underestimate the role that religion plays in the formation of Turkish legal norms, including citizen understanding of those norms. There is a wealth of literature describing the nature of Turkish secularism and its evolution. A number of both quantitative and qualitative studies inquire about the preference for Shari'a among Turkish voters. The typical question asks whether respondents favor the establishment of a Shari'a state. Over the past fifteen years, these surveys have received response rates ranging between five and twenty-five percent in favor of such a state. However, these results are extremely problematic, because they do not provide any context or meaning for “the establishment of a Shari'a state,” either for those who favor it or for those who oppose it. This study begins to unpack the range of possible meanings attributed to Shari'a within Turkey, both among voters and among intellectuals, as a framework for future empirical studies and as a basis for deeper understandings of the role of Islam within Turkish law and politics.

The role of Islam in the politics of Muslim-majority countries has attracted a plethora of scholarly research over the past two decades that generally refers to this phenomenon as political Islam. Much of the focus of this body of literature is concerned with the reconciliation of Islam and democracy. In recent years, the leading scholarship in this field has attempted to anticipate the future of political Islam and the prospect of post-Islamism. Asef Bayet's work on post-Islamists examines various social movements in the Middle East, arguing that Muslims have made Islam democratic by how they have defined Islam in respect to their particular socio-political contexts. However, others have expressed pessimism about the extent to which domestic conditions in Muslim-majority countries and external geopolitical factors will allow the development of an Islamic democracy. Abdelwahab El-Affendi, for instance, sees four main options for Islamists: full revolutionary takeover of their respective countries; completely withdrawing from political office to become Islamic interest or pressure groups; building broader coalitions while maintaining their ideology; or radically restructuring in order to emulate the model of Turkey's Justice and Development Party (AKP). What is missing in this discussion is attention to the capacity of Islamic political parties to draw on Islamic tradition and evolve in response to modernity through a focus on Islam's higher objectives or a maqasid approach.