RESEARCH SEMINAR IN FOREIGN, COMPARATIVE,
AND INTERNATIONAL LAW:
WEEK 3, SESSION 1 – JANUARY 30, 2014
Susan Gualtier
Foreign, Comparative, and International Law Librarian
[email protected]
LSU Law Center
RELIGIOUS AND CANON LAW: BASIC CONCEPTS
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Religious Law:
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Based on sacred texts
Interpreted by religious or legal scholars
Very few countries have a religious law monosystem
Most often applies in regulating the religion’s own
institutions, or in areas of family and succession law
Submission to religious law may be compulsory or by
choice, depending upon the religion, country, and
situation
Can affect the development of common law or civil
law in a country where it is applied
Examples include Islamic (Shari’ah), Jewish
(Hallakah), Hindu, and Buddhist laws
RELIGIOUS AND CANON LAW: BASIC CONCEPTS
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Canon/Ecclesiastical Law:
Laws made by or adopted by ecclesiastical authority, for
the government of a Christian organization and its
members
 Most often associated with Roman Catholicism
 Comprises both divine law (including natural law) and
positive, law formulated in conformity with the divine law
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Divine law: law that is created through divine revelation
Natural law: the idea that there is a fixed set of laws, ethics,
and morals that applies to all people and is waiting to be
“discovered”
Positive law: law that is created by people, rather than
discovered; conceptually at odds with the idea of natural law
Can affect the development of common law or civil law in a
country where it is applied
GENERAL SOURCES
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Secondary sources are essential for a full
understanding of the meaning of religious texts.
You should not be interpreting religious texts on your own,
even if they are primary sources of law.
 You should rely on scholarly interpretation and commentary
by experts in the fields of theology, religious law,
history, and philosophy.
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Legal and non-legal databases
Topical resources:
 Books
 Comparative law sources
Country-specific resources
SOURCES OF ISLAMIC LAW (SHARI’AH)
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The Quran
The primary source of law
in Islam.
 Believed to be the direct
words of Allah, as revealed
to and written down by the
Prophet Muhammad.
 All other sources of law
must be compatible with
the Quran.
 Only turn to other sources
if the Quran does not speak
directly to a legal question.
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SOURCES OF ISLAMIC LAW
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The Sunnah
Traditions or known practices of the Prophet Muhammad
Many have been recorded in volumes of literature, known
as the Hadith
Include things that the Prophet Muhammad said, did, or
agreed to, and which are understood to constitute either
outright or implied approval of certain activities
SOURCES OF ISLAMIC LAW
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The Hadith
The collected reports of what the Prophet Muhammad said
and did during his lifetime.
During the first few decades after the Prophet Muhammad's
death in A.D. 632, those who knew him directly shared and
collected quotations and stories related to the Prophet's life.
• Then, during the first two centuries after the Prophet's death,
scholars conducted a thorough review of the stories, tracing
the origins of each quotation along with the chain of narrators
through whom the quotation was passed.
• Quotations that were not verifiable were deemed "weak" or
even "fabricated," while others were deemed "authentic" and
collected into volumes.
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Each hadith, therefore, consists of two parts: the text of
the story, along with the chain of narrators that
supports the authenticity of the report.
The Hadith are gathered into collections, which vary in
degrees of importance according to Muslim scholars.
SOURCES OF ISLAMIC LAW
Sahih Muslim Book 006, Hadith Number 2367.
Sahih Muslim Book 06. Fasting
Chapter : Fasting in Ramadan should necessarily be commenced with the sight of the
new moon and finished with the sight of the new moon. If the weather is cloudy at the
beginning or at the end, then complete thirty days.
Ibn'Umar (Allah be pleased with-both of them) reported Allah's Messenger (may peace
be upon him) as saying: The month of Ramadan may consist of twenty-nine days. So do
not fast till you have sighted it (the new moon) and do not breakfast, till you have
sighted it (the new moon of Shawwal), and if the sky is cloudy for you, then calculate.
SOURCES OF ISLAMIC LAW
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Consensus
When Muslims are unable to find a
specific legal ruling in the Quran or
Sunnah, they seek the consensus of
the community
Different schools of thought define
consensus in different ways:
Consensus of the first generation of
Muslims only
 Consensus of the first three
generations of Muslims
 Consensus of the jurists and scholars of
the Muslim world
 Consensus of all the Muslim world,
both scholars and laymen
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SOURCES OF ISLAMIC LAW
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It is considered a matter of consensus that the
Five Pillars of Islam are obligatory for all
members of the Muslim faith.
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Islamic creed (declaration of faith)
Daily prayers
Almsgiving
Fasting during the month of Ramadan
Pilgrimage to Mecca at least once in a lifetime
SOURCES OF ISLAMIC LAW
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Analogy
In situations that have
not been clearly
addressed in the other
sources, judges may use
analogy, reasoning, and
legal precedent to decide
new case law.
This often happens when
a general principle is
applied to new
situations.
SOURCES OF ISLAMIC LAW
Example:
 Drinking and drugs
Islamic law expressly forbids the
drinking of wine. Jurists have
applied this prohibition to other
intoxicating beverages like
whiskey and beer, as well as to
drugs such as opium.
 Reasoning: Islamic law prohibits
wine because it leads to
intoxication. Thus, other
intoxicating substances are also
prohibited by analogy.
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WHERE TO FIND ISLAMIC LAW SOURCES
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Print:
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Quran
Hadith
Written records of Islamic jurisprudence
Secondary and topical sources
Online resources:
Various versions of the Quran online: check date of
translation, translator’s reputation, reliability, etc.
• Hadith Collection Online:
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Sunnah.com
Islamic Family Law at Emory University:
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http://www.law.emory.edu/ifl/
Centre of Islamic and Middle Eastern Law, University of
London
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http://www.hadithcollection.com/
http://www.soas.ac.uk/cimel/
Yearbook of Islamic and Middle Eastern law (available
through HeinOnline)
SOURCES OF JEWISH LAW (HALLAKAH)
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The Torah (Written Law)
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Consists of the first 5 books of the Old Testament
Considered to be divine revelation
Contains 613 laws that form the basis
from which all of Jewish law is derived
The Oral Law
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Considered to be divine revelation
Clarifies, compliments, and supplements the laws written in the Torah
Was initially handed down orally from generation to generation, until it
was compiled and edited in 220 A.D. into a codification known as the
Mishnah. The Mishnah consists of self-contained oral laws that do not
correspond directly to the written laws of the Torah.
Oral law has also been codified in two other sources:
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The Halakhic Midrashim - compilations of oral laws that correspond directly to
written law contained in the Torah.
The Tosefta - contains additional oral laws that were not included in the final
version of the edited Mishnah.
Together, the written and oral laws are referred to as “Torah Law.”
SOURCES OF JEWISH LAW
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The Talmud
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Refers to several individuals works that are generally
published as a set:
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The Mishnah (oral law)
The Gemara
 Contains reports of seven generations’ worth of debates and
statements of the rabbis of the great academies of the Land of
Israel and Babylonia, concerning the interpretation and
application of the Mishnah.
 These recorded debates and statements resulted in thousands of
rabbinic decrees that form the bulk of Jewish law today.
Several commentaries on the Mishnah and the Gamara
In other words, the Talmud 1) contains the
text of the oral law; 2) serves as the primary
source of the rabbinic law; and 3) contains
commentaries whose authority has risen to
the level of a primary source of Jewish law.
SOURCES OF JEWISH LAW
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Law Codes
Because the Talmud contains not only law, but also nonlegal subjects, rabbis have created comprehensive law codes
by separating out the actual laws from the Talmudic
discussions and putting them together by subject to form
codes.
 The codes themselves are authoritative and have the force of
law.
 The major codes include:
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Mishneh Torah/Code of Maimonedes - (1170s-1180s)
Arba'ah Turim/"Tur" - (c.1270-c.1343)
Shulchan Aruch - (1565)
The Mishneh Torah and the Tur provided the
basis for the Shulchan Aruch, which is the most
important of the Jewish legal codes. For hundreds
of years , the Shulchan Aruch it has been accepted
as the final and authoritative codification of the
laws found in the Talmud.
SOURCES OF JEWISH LAW
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Responsa
Written rabbinical opinions on legal disputes or issues
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Published in compilations
Can be considered the "case law" of Jewish law, consisting of the
decisions of rabbis that responded to questions of Jewish law submitted
in writing.
Are a primary source of law
Researching the responsa is difficult, especially for the non-expert
300,000 known responsa in 3000 books by dozens of authors
No comprehensive digest of all of these decisions
While each individual compilation may be organized by topic, the
decisions are not organized, indexed or digested across different
compilations
Most are not translated into English
No comprehensive list of the compilations, let alone the individual
decisions.
The best available strategy is to locate several major translated
compilations and check each for the desired topic.
WHERE TO FIND JEWISH LAW SOURCES
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Print
Torah, Talmud, Mishnah, Law Codes, and Commentary
Jacob Neusner, Halakah: An Encyclopedia of the Law of
Judaism
 Secondary and topical sources
 Bibliographies:
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Menacham Elon, Jewish Law: History, Sources, Principles
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Weisbard, Phyllis Holman and David Schonberg, Jewish Law:
Bibliography of Sources and Scholarship in English
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Contains an extensive bibliography of compilations of responsa
Contains over 500 pages of citations of primary sources (including
compilations of responsa) and contemporary treatises
Chad Baruch & Karsten Lokken, Research of Jewish Law Issues: A
Basic Guide and Bibliography For Students And Practitioners, 77
U. DET. MERCY. L. REV. 303 (1999-2000)
WHERE TO FIND JEWISH LAW SOURCES
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Online
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Jewish Law Research Guide at University of Miami School of Law
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Jewish Law: Examining Halacha, Jewish Issues and Secular Law
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http://www.jlaw.com/
Jewish Encyclopedia (1901-1906; public domain)
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http://www.law.miami.edu/library/judaicguide.php
http://www.jewishencyclopedia.com/articles/14216-talmudic-law
Soncino Edition of the Talmud Online
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http://halakhah.com/indexrst.html
CANON LAW SOURCES (ROMAN CATHOLIC)
The Holy Bible (Old and New Testaments)
Teachings of the Apostles and of the Church's
official teaching authorities
Custom
Codes
First Code of Canon Law – (1917)
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For many centuries, canon law was created and passed
down through penitentials, papal documents, decisions
of Church tribunals, and various other documents and
compilations.
In response to political upheavals and growing
secularism in the 19th century, the Church codified its
laws, resulting in the first written Code of Canon Law.
The Code of Canon Law superseded all previous
compilations.
New Code of Canon Law – (1983)
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Revised Code
Written following the Second Vatican Council (19621965)
Supersedes the previous Code
SAMPLE SECTION OF THE CANON CODE
TITLE I.
 THE OBLIGATIONS AND RIGHTS OF ALL THE CHRISTIAN
FAITHFUL (Cann. 208 - 223)
Can. 208 From their rebirth in Christ, there exists among all the
Christian faithful a true equality regarding dignity and action by
which they all cooperate in the building up of the Body of Christ
according to each one’s own condition and function.
Can. 209 §1. The Christian faithful, even in their own manner of
acting, are always obliged to maintain communion with the Church.
§2. With great diligence they are to fulfill the duties which they owe
to the universal Church and the particular church to which they
belong according to the prescripts of the law.
Can. 210 All the Christian faithful must direct their efforts to lead a
holy life and to promote the growth of the Church and its continual
sanctification, according to their own condition.
Can. 211 All the Christian faithful have the duty and right to work so
that the divine message of salvation more and more reaches all people
in every age and in every land.
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WHERE TO FIND CANON LAW SOURCES
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Print:
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Code of Canon Law
The Canon Law Digest
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Canon Law Abstracts:
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A series of documentary volumes that provides official documents from the
Holy Father, the offices of the Roman Curia, the USCCB, etc. that affect
canon law. The arrangement is by canon. Recent publication includes v. 13
covering the years 1991-1995. An index has been published covering the first
eleven volumes.
A twice-yearly review of Periodical Literature in Canon Law by members of
the Canon Law Society of Great Britain and Ireland. The January issue
covers periodicals which appear during the period January to June of the
previous year, the July issue those which appear between July and December
of the previous year.
Commentaries on the Code (for scholars)
Handbooks and guides (for clergy or practitioners)
WHERE TO FIND CANON LAW SOURCES
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Online:
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The Vatican website:
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http://www.vatican.va/phome_en.htm
The Resource Library on this site includes full texts
of Roman Catholic documents, including the Code of
Canon Law and the Roman Catholic Bible, in a
number of languages.
WHERE TO FIND CANON LAW SOURCES
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Online (cont.):
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CLSA Advisory Opinions (Canon Law Society of
America)
http://www.clsa.org/?page=advisoryopinions
 Designed to provide interpretations of the meaning of the
canons established by the revised 1983 Code of Canon Law
of the Catholic Church.
 Interpretations are unofficial and must be weighed against
the official Latin text of the canons themselves.
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The Catholic Encyclopedia:
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http://www.newadvent.org/cathen/
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