Author ORCID Identifier

0000-0002-5453-6703

Document Type

Article

Publication Date

1997

Keywords

Israel, Iran, Religious rights, Judaism, Islam, Structure of government, Personal rights, Human rights

Abstract

Because law and religion are by themselves complex cultural and historical issues, any study of the interaction between the two will be at least as complicated. If one is to understand both a State's current re­ligio-legal regime and what reform measures are most likely to succeed there, it is necessary to understand at least a little of the nation's history and majority religion. Therefore, Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this dis­cussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies.

Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influ­enced by religion. The first area of discussion is the structure of each government system. This analysis not only sets the legal framework for later analysis, but demonstrates how both Israel and Iran have brought religion into the very fabric of their legal institutions.

The second area of analysis in Part II focuses on the principles of sovereignty and constitutional interpretation utilized by each State. Fa­miliarity with these concepts is necessary in order to learn which religious principles, if any, are incorporated into each nation's general legal environment. These principles, which are implicitly understood by members of the society, are often unstated in judicial opinions or legis­lative enactments and can confuse outside analysts who fail to understand the framework in which laws are created and interpreted by the State. The third area of study involves personal rights. This section dis­cusses what is often called "family law" and includes issues concerning marriage, divorce, abortion, and the rights of women, children, and ho­mosexuals. The use of the term "personal rights" is conscious and is meant to convey the idea that many of the legal questions that fall under the "family law" rubric often have little to do with familial relationships per se and more to do with individual life choices. However, as shall be seen, the group rights approach to law currently utilized in both Israel and Iran may tend to negate the emphasis on individual rights and choice that is prevalent in the West.

The fourth area of consideration in Part II concerns education, an area vital to both the State and parents. Because both parents and the State see education as highly important, conflicts over the structure and form of education can become quite heated and can be among the most difficult to resolve. After identifying and analyzing the laws themselves in Part II, this article discusses in Part III the extent to which Israeli and Iranian laws comply with international human rights conventions concerning relig­ious rights. Since both Israel and Iran follow a group rights approach to law, Part III also considers whether Israel and Iran's religio-legal re­gimes can be legitimated by reliance on group rights theory. After identifying whether and to what extent the two States have infringed upon their citizens' religious rights, Part III addresses the question of whether these infringements tend to increase or decrease the potential for violence within and between societies.

The article concludes by discussing where each nation is heading in terms of religion and law and by offering suggestions as to what each nation, and indeed any nation, should do to create an optimal religious rights framework.

First Page

109

Publication Title

Michigan Journal of International Law

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