Religious Law as Foreign Law in Constitutional Interpretation

11 International Journal of Constitutional Law 74 (2013)

SUNY Buffalo Legal Studies Research Paper No. 2013-050

28 Pages Posted: 29 Feb 2012 Last revised: 12 Aug 2014

Adam Shinar

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Anna Su

University of Toronto - Faculty of Law

Date Written: February 29, 2012

Abstract

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The ultimate import of our claim is not that religious law should be used by courts, but that recognizing its potential as a source in constitutional interpretation should result in a deeper and more careful engagement with the possibilities it generates.

Keywords: Religious law, foreign law, constitutional interpretation, judicial review

Suggested Citation

Shinar, Adam and Su, Anna, Religious Law as Foreign Law in Constitutional Interpretation (February 29, 2012). 11 International Journal of Constitutional Law 74 (2013); SUNY Buffalo Legal Studies Research Paper No. 2013-050. Available at SSRN: https://ssrn.com/abstract=2013551

Adam Shinar (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

Anna Su

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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