To even begin suggesting that a natural law tradition exists in Islamic law, one has to overcome the hurdles set by those who avowedly deny that such a tradition exists. Respected Islamicists such as Patricia Crone and the late George Makdisi have stated in no uncertain terms that there is no natural law tradition in Islam. Presumably what they mean by this claim is that there is no “orthodox” tradition whereby premodern Muslims (e.g. ca. ninth-sixteenth century CE) allowed human beings to speak on behalf of the divine without recourse to scripture. Reason does not assume any ontological authority akin to that of scripture that would justify using it as a basis for finding, determining and constructing obligations that emanate from the divine.

In a sense, they are right. The dominant Positivist thesis, as expressed in premodern usul al-fiqh or legal theory, holds that where there is no scripture on a matter, one is left in a state of legal suspension (tawaqquf); there is no epistemically coherent way to determine the divine law on that matter, and consequently no one is in a sufficient epistemic position to attribute to God a ruling of any normative force. Fundamentally, this position enshrines within Islamic law a strict scriptural positivism. Jurists argued that all determinations of God's law must find expression, either directly or indirectly, from scripture. Extrascriptural indices, whether in the form of rational proofs or references to nature, do not provide a proper basis or foundation for asserting the divine law.

In New York City on March 18, 2005 Dr. Amina Wadud shocked the Muslim world when she led a mixed-gender congregation in the Friday prayer. The Friday congregational prayer is at the center of Muslim religiosity. On Friday mid-day, Muslims come together as a community and turn collectively toward God. The form of the prayer affirms the community's identity; Muslims pray as brothers and sisters equal before God. They stand in straight lines, shoulder to shoulder. No one has a reserved spot. The rich stand next to the poor.

The gulf in perception between Islamic and secular perspectives over the meaning of human rights is growing. Media reports and western governments repeatedly charge Muslim governments from Sudan to Iran of human rights violations. In some parts of the Muslim world, a string of events indeed suggest that the violation of human rights continue with little sign of immediate abatement. Tragedy is the overriding topos of the media attention that such events receive. The list can become endless, but I will only mention a few incidents in order to highlight the salient contexts and issues for the purposes of a discussion on human rights. The Turkish Muslim feminist Konca Kuris was kidnapped by a Turkish group known as the Hizbullah in 1998 and her dead body was found in 1999.In 1997 Egypt's highest court ruled that the writings of a Cairo University professor, Nasr Hamid Abu Zayd were tantamount to apostasy.In 1992, Muslim militants assassinated the Egyptian human rights activist and essayist Farag Fouda. The 1980s witnessed the international imbroglio amounting to a debacle when Iran's clergy offered a ransom to anyone who would assassinate the Indian-born British author Salman Rushdie for writing novels that offended Muslim sensibilities. On a daily basis, spine chilling reports of death and civilian casualties perpetrated by Muslim militants and the military in Algeria bewilder observers after the army's subversion of the democratic process in that country. In many Muslim countries like Egypt, Syria, Saudi Arabia, Iraq, Iran, Bangladesh, Pakistan and Tunisia, intellectuals are subjected to harassment by traditionalist and fundamentalist quarters alike as well as by governments for their critical study of religion and for opinions that do not meet with approval from the religious establishment. When human rights concerns are raised, officials from Muslim countries accuse the West of using a double standard in its application of human rights, of mounting the human right claim as an instrument of political power against nations who do not further its political and economic agendas.

The focus of the Williamsburg Charter Survey is a subject of abiding interest and importance, the place of religion in public life. The reality it portrays is enormously complex. To understand more fully even this preliminary review of the survey findings, it is appropriate to set the issues in a slightly wider context.

At the heart of the church-state relationship in America is the reality of pluralism. How do expressions of religious conviction remain free of state interference while its adherents press specific and often conflicting interests? The tensions this dynamic creates are as visible and as politically consequential today as they were at the drafting of the Bill of Rights two hundred years ago. Indeed, the tensions may be even greater today because of the changing face of pluralism.

The story is as complex as it is interesting. It involves many actors and many subplots but the overall pattern of change is clear. In the early years of American colonial life, New England was the center of intellectual and cultural activity where a vibrant Puritanism prevailed. The Evangelical and Calvinistic pietism of the Puritans spilled out of New England into the lower colonies with the First Great Awakening in the 1740s.

In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.

Every legal culture has its fundamental words. When we define our subject this weekend as human rights, we also locate ourselves in a normative universe at a particular place. The word “rights” is a highly evocative one for those of us who have grown up in the post-enlightenment secular society of the West. Even those among us who have been graced with a deep and abiding religious background can hardly have escaped the evocations that the terminology of “rights” carries. Indeed, we try in this conference, to take alittle credit here and there for the lustre which the edifice of rights reflects, perhaps suggesting now and again that the fine reflection owes something to some ultimate source of the light.

Judaism is, itself, alegal culture of great antiquity. It has hardly led a wholly autonomous existence these past three millennia. Yet, I suppose it can lay as much claim as any of the other great legal cultures to have an integrity to its basic categories. When I am asked to reflect upon Judaism and human rights, therefore, the first thought that comes to mind is that the categories are wrong. I do not mean, of course, that basic ideas of human dignity and worth are not powerfully expressed in the Jewish legal and literary traditions. Rather, I mean that because it is alegal tradition Judaism has its own categories for expressing through law the worth and dignity of each human being. And the categories are not closely analogous to “human rights.” The principal word in Jewish law, which occupies a place equivalent in evocative force to the American legal system's “rights”, is the word “mitzvah” which literally means commandment but has a general meaning closer to “incumbent obligation.”

Professor Richard Weisberg wrote of The Merchant of Venice, “[p]erhaps no text except the Bible and the United States Constitution has so implicated audiences in fierce straggles for dominance and control.” The remark's seeming hyperbole diminishes when one considers the controversy that surrounds nearly every production, with one New York school district going so far as to remove the text from its curriculum as a consequence of debate over the showing of the BBC's 1981 production of the play to students. It is no different when one turns to the legal scholarship though, arguably, it is the legal Academy's general silence regarding the play that most soundly articulates its rejection of it. It is a silence that cannot be ignored given Merchant's centrality to matters of law. And indeed, when legal theorists do turn their attention to the play, once again it spurs contentious debate.

Though most literary critics agree that the play is thematically rich, presenting a “parade of binaries,” for legal scholars the primary tension is between law and mercy and how, or whether, justice unifies that tension within itself. This question has generated widespread and vehement debate among legal scholars. It is the same with the literary criticism.

The ancient Greeks never speak of themselves as “polytheistic,” of their religion as “polytheism.” Certainly, thinkers comparing various world-views must have given a place to this one early on. Sextus Empiricus, ca. A.D. 200, notes that, if one looks around, some people assume one god, hena theon, some many, pollous; such an observation could probably have been made hundreds of years before. Yet from here to the labels “polytheistic” and “polytheism” is a big step. They are met in no text B.C. It is Philo, outsider and critic, who first employs them.

The ground was prepared in that the adjective was current long before, though not descriptive of a creed. Significantly, the noun is not traceable earlier at all, nor the nominal use of the adjective, what we translate as “a polytheist.” Here is the passage with the adjective from Aeschylus. The daughters of Danaus flee from Egypt to Greece with their father in order not to be forced into marriage by their cousins. Expecting the latter to pursue them, they take refuge at the sanctuary of Argos, favoured—the father explains—by quite a few of the mightiest Olympians; and they implore the king not to let them be dragged from this “many-godded seat.” Even for Lucian, Philo's junior by over a century, the adjective has much the same meaning and, of course, there is no noun.