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.

The historical has a way of not staying put. The materials which constitute the subject of historical inquiry, the public documents, texts, correspondence and artifacts associated with an individual or with a community may remain unchanged, but interpretation of those sources may vary from one generation to another. In the schoolroom textbooks of generations, the early settlers of the North American continent were noble minded immigrants, in the Old World persecuted for their religious faith and in the New bent on the creation of a more congenial society. A romantic view of the colonists may yet pero sist in the popular mind, but the principles which animated that colonial mind are far from accepted today. From the ranks of the reformers who settled in the New World between 1620 and 1630 emerged a theocracy which was to prevail in New England through the latter part of the seventeenth century and most of the eighteenth century. It was a theocracy that came to be replaced by a democracy for reasons internal to its own conception of God's plan for mankind.

Gandhi's Truth Force (satyagraha) was a unique synergism that included foremost ethical principles found in British law and religion and Hindu tradition and culture. This truth force was rooted in Gandhi's childhood experiences as an Indian Hindu and was cultivated in his formal legal training in London. It culminated in the mass application of nonviolent noncooperation which eventually led to the liberation of the untouchable class in India and forced the British to give India her independence.

The focus of this essay is directed toward two specific influences on Gandhi's Truth Force, namely, the Sermon on the Mount and the Principles of Equity—influences acknowledged by Gandhi as formative in his philosophy. These two formative perspectives were two major sources providing for Gandhi the just means and legitimate ends of social and racial equality. In them he discovered a common ethical language, which would become a part of the language he used to synchronize the actions of millions of Indians in concerted non-cooperation and, at the same time, successfully capture the British conscience for his cause of a free India.

What has happened here thus far is precisely what we needed to see: an analysis of what is happening in other parts of Africa and an honest exchange of views, including disagreements, in preparation for the kinds of discussions which must be undertaken right now about the future of South Africa. That is what I propose to address.

A couple of preliminary remarks, however. Let me thank Valparaiso University and the School of Law for inviting me and the other speakers. This kind of discussion is extremely useful. Also, I direct your attention to our symposium at the University of Pittsburgh scheduled for March 17-19, 1988, the third in a series of symposia addressing post-apartheid South Africa. The sessions are open to the public, registration is free and some of the participants here will present papers. At previous symposia, we have had people like Professor Bob Seidman and representatives of the ANC, the Pan-Africanist Congress, the Black Consciousness Movement, the United Democratic Front and the South African Council of Churches. Other participants have included Aggrey Mbere, Godfrey Sithole, Ben Magubane and Jacqueline Williams. In addition, people like Peter Mahlangu would make an important contribution in the area of future labor relations and labor legislation.

Though freedom of religion remains one of our most cherished values, it is still among the most controversial of constitutional rights. This is especially true in the context of military service. Even those who purposefully enlist in the armed forces, implicitly giving up certain liberties they freely enjoyed as civilians, would not relinquish their freedom of conscience. Yet the right to practice their religious beliefs, unfettered by arbitrary governmental restrictions, is regularly challenged.

Fortunately, however, most western cultures regard religious liberty as so fundamental that their military establishments routinely develop regulations to accommodate specific religious practices.

This principle was of particular import in the recent conflict in the Persian Gulf, during which the American government sought to limit the conduct of its military personnel so as not to offend the religious sensibilities of fundamentalist Arabs, specifically the host nation of Saudi Arabia. To what extent such political and strategic restrictions impinge upon basic constitutional principles is a question that has not yet been fully explored.

What is more miserable than uncertainty!

Martin Luther, ON THE BONDAGE OF THE WILL

Accordingly, those who thus philosophize more subtly over these terms appear to be ridiculous

John Calvin, INSTITUTES OF THE CHRISTIAN RELIGION

Commentators agree about two things concerning the free exercise clause of the first amendment: first, that its primary purpose is to protect religious liberty; and second, that its jurisprudence seems unguided and incomprehensible. Scholars and courts have proposed various free exercise tests, none of which has proven satisfactory in producing consistency and predictability. Moreover, such tests invariably require judges to make subjective inquiries into beliefs; such inquires are harmful to religious freedom. This article proposes a clear, practical and objective free exercise test for granting judicial exemptions to individuals, based on the underlying value of safeguarding religious liberty.

This comment on Chaim Saiman's illuminating comparison between rabbinic and Christian approaches to religious texts that are in some sense authoritative focuses on what we can fairly infer from the sharp difference he describes. I believe there is much more to be said on this fascinating topic, and I now write with large gaps in my understanding of relevant subjects. I concentrate here on the question whether the Christian view that Professor Saiman describes actually has strong logical implications for what one should regard as desirable interpretive and legislative strategies for the (secular) law of large diverse societies. On that crucial point, I am more skeptical than Saiman appears to be.

I begin with a few preliminary observations, and then pose some other questions about connections between religious perspectives and views about ordinary legal interpretation before tackling my main topic.

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

Here, at the very beginning of our conference, it may be useful for me to restate summarily some of the main themes in The Meaning of Religious Freedom as I understand them. Professor Gamwell begins with what he calls “the modern political problematic.” Regarded from a religious point of view, the problematic is how a religious person (who, in accordance with the author's definition of religion as an answer to “the comprehensive question,” might be a systematic atheist) can logically avoid either denying the political relevance of his faith and spurning public debate; or else entering into public debate, but insisting without argument on the truth of that faith and in that way seeking, at least implicitly, its official establishment. Regarded from a political point of view, the problematic is: how can religious people, with their nonrational faiths, be admitted into the political realm—a realm open to all regardless of diverse faiths and therefore necessarily based on the rational powers we all have in common—without fatally compromising the principled openness of public life? It is a crucial premise of Professor Gamwell's argument that a mere modus vivendi cannot be an adequate answer to this problematic; only a theory of justice will suffice.

The lawyer in American law is an integral and essential part of the legal system. At the inception of this nation, the lawyer's role received official sanction by the Sixth Amendment to the Constitution, which guaranteed the right to assistance of counsel “in all criminal proceedings.”

In Jewish law, by contrast, we find no such guarantee regarding the right to counsel. On the contrary, the lawyer was a concession, forced upon the Jewish legal system by certain exigencies. At no time was the lawyer viewed as essential to the adjudicative process. If anything, the lawyer was formerly seen as an obstacle to ascertaining truth. Nonetheless, the personage of the lawyer has today become an accepted feature of the Jewish legal world.

As in other systems, the lawyer in Jewish law plays primarily two roles, that of advocate and that of legal consultant. In this essay, I will highlight the various aspects of these roles, analyzing the function filled by the legal profession within Jewish law.

Professor Rodes invites us to a fresh view of the role of procedure in God's purpose. He reveals procedure as being itself a creation of God and a way for us to try to do God's business without being God. Through these insights procedure becomes more than merely a time-consuming buffer between people and justice. Professor Rodes shows us the potential of procedure as a means for us to emulate the qualities of God in our legal relations with others.

These insights are indeed welcome. They not only give us a great appreciation of the value of procedure, but also give us a metaphor by which we may call procedure to account and judge whether it fulfills its purposes. As Professor Rodes warns us, procedure separated from the purposes of God can easily be seen as a god itself, invoking our worship rather than our reformation.

Nonetheless, some, including myself, will find it hard to respond fully to Professor Rodes' invitation to take the theological considerations and relate them to our personal practice of our profession. The problem is not with the insights, but with the practice.

In the contemporary age, when we hear references to the First Amendment religion clauses, we may think of cases in which courts have addressed the legality of prayers in schools, the displays of religious symbols during the holiday seasons, or monetary and other tangible assistance provided by governments to parochial schools. Just this past semester, the United States Supreme Court addressed the question of animal sacrifice occuring in a religious ritual as protected conduct under the free exercise of religion clause. Important as these issues are, they are not the subject of this investigation. My proposal is to address the First Amendment religion clauses in a different context. The goal is to show that it is both Constitutionally permissible and helpful (and quite possibly essential) to American republican democracy that the church (and individuals holding religious beliefs) (can and ought to) participate in the public discourse involving a wide variety of political and social issues with which our local, state, and national communities are concerned.