Religion & Law
This section includes literature on:- freedom of religion in constitutional, human rights and international law
- religious law eg: Sharia law; Jewish law
Jurisdiction: Indonesia
Abstract: This study aims to find out field facts related to the effect of implementing regional legal products, namely Regional Regulations (Peraturan Daerah) with a Religious (Shari’ah) nuance, especially during the COVID-19 pandemic which has an impact not only on legal social problems but also on the economy due to restrictions on the movement of community activities (PPKM). Based on this condition, the government is required to be more creative and innovative in overcoming problems in society, including poverty. Local regulations are required to contribute to the community, not only in normal conditions but also during an emergency. This study uses empirical legal research methods with a case approach. The results of the study show that: The implications or impacts of implementing regulations with sharia nuances during the pandemic, especially with regard to the Al-Qur’an Reading and Writing Regional Regulations and the Zakat Regional Regulations can partially facilitate the task of regional heads in handling social affairs, both regarding education, especially in eradicating Al-illiteracy. The Qur’an in which society creates independence through the efforts of each individual to develop themselves, both through formal and non-formal education, including the process of carrying out their obligations as God’s creatures. The existence of the Regional Regulation on Zakat is able to support the development and the community’s economy in the midst of an uncertain situation due to the pandemic, through the distribution of direct assistance, both in the form of business capital money and means of transportation (bentor). Together with the National Amil Zakat Agency (Baznas), the local government also intervenes in low-income communities in each sub-district gradually. As a recommendation, local governments need to maximize the provisions of regional regulations with sharia nuances to support development in the field of formal and non-formal education, by accommodating the regulatory substance of the learning process in the pandemic era. The regional regulations on zakat need to be maintained and improved in order to support the community’s economy by expanding the income pool, increasing programs, and targeting communities as recipients of assistance.
Aimonetti, Justin W and Christian Talley, ‘Religious Exemptions as Rational Social Policy’ (2021) 55 University of Richmond Law Review 25–60 [pre-print] Abstract: In its 1963 decision Sherbert v. Verner, the Supreme Court interpreted the Free Exercise Clause to permit religious exemptions from general laws that incidentally burdened religious practice. Sherbert, in theory, provided stringent protections for religious freedom. But those protections came at a price. Religious adherents could secure exemptions even if they had no evidence the laws they challenged unfairly targeted their religious conduct. And they could thereby undermine the policy objectives those laws sought to achieve. Because of such policy concerns, the Court progressively restricted the availability of religious exemptions. In its 1990 decision Employment Division v. Smith, the Court then abandoned the Sherbert regime altogether. Incidental burdens would no longer suffice for Free Exercise exemptions. Instead, Smith predicated future exemptions on litigants’ showing that laws unfairly targeted religious practice or granted exemptions to secular entities that were arbitrarily withheld from religious comparators. Smith’s revision, this Article contends, subtly but profoundly changed how public policy interacts with the Free Exercise Clause. Smith created a world in which religious exemptions often promote, rather than impede, rational policy. Smith’s framework helps detect laws that are rooted in animus, rather than reason, or that impede their own efficacy with gratuitous secular exemptions. Applying that insight to recent religious liberty litigation contesting coronavirus lockdowns, this Article contends that many of those suits made state responses to COVID-19 more rational. Despite the scholarly criticism religious litigants endured, their suits exposed both irrational over-enforcement of lockdown measures against religious entities and irrational under-enforcement of those measures against their secular counterparts.
Akeel, Ahlam Mohammad, ‘The Legal Basis for Confronting the Epidemic “Coronavirus” And Its Impact on Psychological and Physical Health Islamic Perspective’ [2024] American Journal of Science Education Research (advance article, published online 11 April 2024) Abstract: The coronavirus pandemic is a contemporary event that has had its effects on humans in various aspects of life, which requires Sharia scholars to apply all their efforts to clarify its issues and rulings related to it, and to emphasize the precedence of Islam and its validity for every time and place for prevention and elimination of the epidemic, by activating the rules related to the pandemic, and extracting the new issues rules depending on the Quran and the teaching of Prophet Mohammad (peace be upon him). This research aims to study the most important foundations and legal means to confront and prevent the pandemic, either in belief, worship, economics, entertainment, education, or health, with an explanation of the legal components of mental health effects on individual, family, and society, in the event of the ban during the epidemic. The researcher’s substantial results are the importance of educating Muslims about jurisprudence and belief provisions in the event of the epidemic, the need to make use of contemporary social media, the necessity of taking legal Excuses to confront the epidemic and preventing its spread, obeying the guardian and those who take his place in adhering to the ban, and the prohibition of harming oneself and people by violating the ban laws. Spreading the epidemic intentionally or unintentionally, and the legality of zakat at the time of the epidemic to pay for people’s needs and the permissibility of paying it before its time. There are other recommendations that are found through the research.
Al-Astewani, Amin, ‘To Open or Close? COVID-19, Mosques and the Role of Religious Authority within the British Muslim Community: A Socio-Legal Analysis’ (2021) 12(1) Religions Article 11 Abstract: A whirlwind of developments have unfolded in the UK since the emergence of the COVID-19 pandemic, which has subsequently instigated an intensely animated debate among British Muslim religious leaders about the contentious and sensitive topic of mosque closure, producing a rich and sophisticated spectrum of responses. These responses emerged within the dramatic global background of an imminent closure of Islam’s most cherished mosque to international pilgrims, namely the sacred precinct in Mekkah. The stakes were, therefore, high for British Muslim religious leaders considering mosque closure, facing the stark dilemma of compromising the sacrosanct status of the mosque and congregational worship in Islam or putting the lives of British Muslims in their hundreds of thousands at risk. This paper seeks to analyze the role of religious authority within the British Muslim community through the lens of the responses of the community’s religious leaders to the COVID-19 closure of mosques. It builds upon a Special Issue published by this journal on leadership, authority and representation in British Muslim communities. The issue of COVID-19 mosque closure in the UK presented an excellent case study for this papers analysis, manifesting as it does the dynamic way in which religious authority in the British Muslim community continues to evolve. This paper thus seeks to use this case-study to further enrich the literature on this topic.
Al-Gorany, Sameer Mohammed, ‘Covid-19 Pandemic and Religion: Islamic Law Perspective: A Mini Review’ (2021) 3(1) Global Journal of Public Health Medicine 315–326 Abstract: At the moment, humanity lives in chaos and panic as a result of what is being spread about COVID-19 pandemic through media, including TV’s and social networks. This mini review displayed the procedures and the measures to deal with the diseases and pandemics according to the Islamic Shari’a concept. It also addressed the responsibility of the patient and the doctor in such situations as well as against other diseases. In addition, this review addressed the causes and the symptoms of COVID-19 pandemic and how it could spread, avoided and treated by following and committing to the recommendations of the Islamic religion and through the application of holy Quran verses as well as the prophet’s speech. This is due to the fact that the Islam is a comprehensive religion that can effectively well handle all the humanity issues and solve all of its scientific and practical implications.
Al-Sheyab, Loiy Ahmad et al, ‘The Rule “Al’aadah Muhakkamah” (Tradition Was Basic of Law) and Its Impact on Jordanian Social Customs; COVID-19 Model’ (2021) 58(1) Psychology and Education Journal 994–1011 Abstract: This study aims to shed light on social phenomena and find out the implications for society, as this study is the first - to the extent of my knowledge - especially since it was researched from a legitimate perspective and the development of solutions and treatment them. However, societies stuck to them despite their negative effects,to come virus Covid 19 to change the compass. The study addressed the role of the jurisprudential rule "habit" in dealing with social phenomena in the time of Covid19, in an attempt to identify the aspects of these phenomena and know the extent of these phenomena and their causes and effects, to find a clear vision in societies by determining the extent of the penetration of these phenomena and their impact. However, the applications of these phenomena in the time of Covid 19 made the research and its results mainly in taking preventive and therapeutic measures and adhering to what is said by The Shariah, and the ability of societies to see these phenomena and customs. The study provided suggestions to ensure the continued elimination of these phenomena and overburdened habits, which were overcome in Covid 19.
Angioi, Silvia, ‘Addressing Health Inequalities in Times of COVID-19: Minorities and Indigenous Peoples between Deeply Rooted and New, Emerging Forms of Discrimination’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 19–30 Abstract: In numerous countries, the spread of the COVID-19 epidemic has affected ethnic, racial and religious minorities most severely, along with indigenous peoples. On one hand, the pandemic is laying bare the presence of deeply rooted patterns of discrimination in access to health; on the other hand, for some states and non- state actors, it also represents a useful opportunity to persecute particular ethnic and religious minorities through additional forms of discrimination, labelling, stigmatization and scapegoating.
Asman, Asman and Tamrin Muchsin, ‘Maqasid Al-Shari’ah in Islamic Law Renewal: The Impact of New Normal Rules on Islamic Law Practices during the Covid-19 Pandemic’ (2021) 20(1) Mazahib: Jurnal Pemikiran Hukum Islam 77–102Jurisdiction: Indonesia
Abstract: The vast and multidimensional impact of the Covid-19 pandemic has forced all countries to establish policies to prevent the transmission of Covid-19, including Indonesia. Not a few countries are not ready to make decisions to find new, more effective ways to prevent Covid-19. In Islamic law, ijtihad is part of lawmaking in the implementation of worship and muamalah, which solves problems that arise and mitigates policy implementation. This article uses a normative juridical approach to the issue because it can showcase the benefit of Islamic law for humans. Moreover, it aims to generate ideas in the renewal of Islamic law, especially in the implementation of worship and mu`amalah (social transaction/relation), and inform the government to make decisions that intersect with Islamic law during the Covid-19 pandemic. The focus of this research is how does covid-19 affect the practice of Islamic law in worship and mu`amalah? This study finds that government policies and regulations are currently in line with Islamic law. The most critical considerations in determining the compatibility of government policies and rules with shari’a are maintaining the soul’s safety, maintaining the continuity of religion through rukhshah, and maintaining the economy. Also, the Islamic rulings (fatwa) issued by ulama in response to government policies and rules are expected to guide worship and mu`amalah, build awareness and solidarity of Muslims, and relate to the people’s economy today.
Asman, Asman and Resali bin Muda, ‘Social Dynamics on the Increasing Divorce of Malay Communities during COVID-19 in Sambas West Kalimantan, Indonesia Perspective of Islamic Family Law’ (2023) 17(2) Al-Manahij: Jurnal Kajian Hukum Islam 153–166 Abstract: The purpose of this study is to find out the causes and provide alternative solutions to the increase in divorce of the Malay community in Sambas Regency, West Kalimantan. The emergence of Covid-19 at the beginning of 2019 as a very scary and deadly virus for mankind in this world. One of them is Indonesia, which has been greatly affected by Covid-19, both from the family economy side and from the family resilience side. One of the cases that occurred in Sambas Regency was that in 2021 there was an increase in divorce during the Covid-19 pandemic, resulting in a change in status. This type of research is a type of qualitative research that prioritizes field studies with a normative juridical approach. The focus in this research is what causes the increasing divorce status of the Malay community during the Covid-19 period in Sambas Regency? And what are the alternative solutions to reduce the high divorce rate during the Covid-19 period in Sambas Regency. The findings of this study are the increase in divorce in Sambas Regency, the existence of conflicts in the families of married couples which results in divorce the main cause of problems in life or family economic resilience, communication in the family is tenuous and marriage. immaturity is caused by being too young to start a household. The alternative solution provided by this study is that husband and wife must communicate actively without prioritizing 2E, namely emotion and egoism to avoid conflict, synergistic active intervention from religious leaders, government, KUA, BBKN and families, to conduct socialization in order to create good relationships for newly married couple or husband and wife who have been married for a long time.
Asni, Fathullah, Ahmad Yusairi Yusli and Amirah Izzati Umar, ‘The Role of The Perlis State Mufti Department in Restraining Covid-19 Through Fatwas and Legal Guidelines’ (2021) 11(10) International Journal of Academic Research in Business and Social Sciences 311–328 Abstract: The spread of COVID-19 has had a detrimental effect on various sectors, especially on the health sector, where it has resulted in hundreds of thousands of deaths being recorded worldwide. The spread of this epidemic has led the World Health Organization (WHO) to declare COVID-19 a pandemic. Specifically, in Malaysia, the number of infected individuals is 1.8 million cases, and the number of deaths is 17,000 cases. Various parties comprising the Federal Government and the authorities have taken various approaches to curb the spread of the COVID-19 epidemic from continuing spread. Meanwhile, in the state of Perlis, among the bodies responsible for curbing the spread of this epidemic is the Perlis State Mufti Department which is responsible for issuing fatwas for Islamic religious affairs to be followed by Muslims, especially in the state of Perlis. Based on this background, this study would like to examine the role of fatwas issued by the Perlis Mufti Department in curbing the spread of COVID-19. This study uses a qualitative approach involving a literature review covering books, journals, fatwas and related circulars. The data obtained will be analyzed using document analysis methods. The study results show that there are four official fatwas and four legal guidelines issued related to COVID-19. The study results found that all fatwas and legal guidelines issued were aimed at curbing the spread of the COVID-19 epidemic and based on strong Islamic arguments. The study ended with some suggestions for improvement after a discussion was done on the study results.
Asran, Mohammad Hamdan Abdeen, ‘Tort Liability of Novel Coronavirus (COVID-19) Transmission: A Comparative Study Between Civil Law ad Rulings of Islamic Jurisprudence’ (2022) 6(12) Journal of Positive School Psychology 700–720 Abstract: Amidst this terrible spread of the Coronavirus pandemic, it has been observed that one person has transmitted the disease and infected millions of people all over the world, causing human damage to lives, material damages to funds, assets and property, and other moral injuries that are represented in psychological and moral pains suffered by families as a result, particularly when they loss a family member. Here, an important question arises, does a person, who suffered a damage as a result of an infection transmitted to him by a person with corona virus, have the right to claim liability and compensation? This study highlights the definition of liability concerning the transmission of an infection, as well as the definition of an infection and the elements of tort liability related to the transmission of COVID 19 pandemic infection, and how such infection is transmitted and its effect on tort liability. The study also deals with the legal and legitimate basis for the responsibility for the transmission of infection, and how compensation for damage resulting from an infection can be estimated, and the Islamic point of view on determining the responsibility for transmitting the infection and claiming a compensation for. The study also looks at the case of abstaining from receiving treatment medical doses and vaccinations and its impact on the tort liability and compensation claim by the infected person.
Assahary, Salman, Nilda Efelmi and Sarbaitinil Sarbaitinil, ‘Islamic Sharia and New Normal Covid-19 in the Sense of Political Communication in West Sumatra’ (2021) 8(10) International Journal of Multicultural and Multireligious Understanding 51–57 Abstract: Islamic sharia in the form of Islamic lifestyle terminology in political communication by MUI Sumatera Barat is opposite to the new normal terminology of the central government. This is a dilemma for people in West Sumatra. This study aims to know the model of political communication conducted by the MUI of West Sumatra and the central government related to the handling of the Covid-19 pandemic. Furthermore, the study was designed to search for the supporting factors and inhibitors as well as the response of the community in West Sumatra. Qualitative research methods are used in this study with a descriptive case study approach. Primary data collection techniques are carried out with interviews and observations. Meanwhile, secondary data is obtained through literature studies conducted on a variety of relevant reading sources according to the topic of research. The results showed that the model of political communication conducted by MUI of West Sumatra in addressing the new normal terminology of the central government is an interactional model by integrating Islamic values and customs. Meanwhile, the communication model of the central government is a model of the effect hierarchy that teaches knowledge, attitudes, and behaviors by learning, feeling, and doing. The supporting factors of MUI terminology in West Sumatra are Islamic community organizations and Minangkabau indigenous communities and supporters of central government terminology of all elements of nationalist society. Factors inhibiting MUI terminology have not yet applied Islamic qanun sharia in West Sumatra while socialization from the central government is considered to be minimal. Some people respond to Islamic lifestyle terminology but some respond to the new normal terminology Covid-19 from the central government.
Awaliyah, Dita Faradila et al, ‘Husband and Wife Role to Maintain Family Resilience during the Covid-19 Pandemic: Islamic Law Compilation Perspective’ (2024) 2(1) Journal of Family Law and Islamic Court 1–11 Abstract: During the Covid-19 Pandemic, many couples divorced due to various factors, including disputes and the economy. However, many families have strong resilience in the face of the Covid -19 Pandemic so that their families remain harmonious. This article discusses the role of husband and wife in improving family resilience during the Covid-19 Pandemic. This is field research was conducted in Medali, Mojokerto, East Java, Indonesia. The data is collected through interviews and documentation to answer existing problems. Qualitative methods with a deductive mindset analyze the results of interviews and documentation. This study concluded that during Covid-19 Pandemic, the husband and wife in Medali maintained their family resilience by playing a role in meeting daily needs, fulfilling economic aspects, and fulfilling education for children. In addition, they support each other and are convinced that this Pandemic is a provision from Allah, so they must pray and be grateful. The family carries out the role of husband and wife in Medali during the Covid-19 Pandemic according to the Compilation of Islamic law, articles 77 and 79.
Aziz, Norazlina Abdul et al, ‘Is the Covid-19 Vaccine Halal? Revisiting the Role of National Pharmaceutical Regulatory Agency (NPRA) and JAKIM’ (2021) 6(10) Malaysian Journal of Social Sciences and Humanities (MJSSH) 413–428 Abstract: The urge to be vaccinated has increased rapidly during the outbreak of the COVID-19 pandemic. Resorting vaccine products is seen as the only way to break the chain of COVID-19 spread and eventually stop the pandemic. To this dire need, many consumers face the dilemma to be vaccinated or to opt-out of the vaccination program when the safety issues of vaccine products are widely circulated. The Muslim consumers, particularly, experiences double worry on the issue of safety and halal status of the vaccine product. Due to the emergency call to have the vaccine in the market as soon as possible, the innovation and production were carried out in an expedited manner, and the necessity to have the vaccine be certified as halal was bypass. When the news on the vaccine product uses non-halal ingredients reaches the Muslim community in Malaysia, they were taken aback and demanded immediate answers from the authorities. Thus, in addressing this issue, this study intends to critically analyse the role of NPRA and JAKIM in ensuring the safety and halal status of a product with the aim of suggesting a review of the existing role. This article adopts a qualitative research methodology where interviews will be the supporting method to a library-based and doctrinal study.
Azmi, Amylia Fuziana, Nik Salida Suhaila Nik Saleh and Zaharuddin Zakaria, ‘Jurisdictional Conflicts in Facing COVID-19 Pandemic: An Analysis of Hibah Cases in Negeri Sembilan Syariah Courts’ (2020) 3(1) INSLA E-Proceedings 622–628 Jurisdiction: Malaysia
Abstract: This study investigates the impacts of the Covid-19 pandemic on the number of hibah cases brought before the Syariah Courts in the state of Negeri Sembilan. In 2020, statistic reveals that a total number of 30 hibah cases have been registered in the Negeri Sembilan Syariah Courts. Interestingly, the total number of cases registered this year has decreased as compared to 51 cases for the previous year. This study discovers that the Covid-19 pandemic has an effect on the number of registered and resolved cases pertaining to hibahin Negeri Sembilan Syariah Courts. This study recommends that electronic method such as e-proceeding to be fully implemented so as to enable the public to access the court easily. It is hoped that findings of this study will shed light on the issue of jurisdictions concerninghibahand beneficial in providing clear and precise information on the jurisdiction of the Syariah Courts in deciding hibah matters.
Babie, Paul T and Charles J Russo, ‘If Beer and Wrestling Are “Essential,” So Is Easter: COVID-19, Freedom of Religion or Belief, and Public Health in Australia and the United States—Why Rights Matter’ (2020) 55 New England Law Review 45 Abstract: This article contains four parts. Part I sets out how FoRB concerns raised by opponents of the restrictions that have been raised in a variety of locations would be dealt with under the Australian Constitution. We begin with this Australian analysis first because it serves as a proxy for a jurisdiction which has no constitutional protection of fundamental rights and freedoms, such as FoRB. This analysis suggests that these excesses might go without remedy when rights are not protected. The American analysis demonstrates what happens when rights are protected. Part II turns to an analysis of the same restrictions pursuant to the American First Amendment right to free exercise of religion. This part, too, serves as a proxy for how these restrictions can be dealt with in a jurisdiction which provides for comprehensive constitutional protection of fundamental rights and freedoms. Our objective is to demonstrate that when rights are protected, the correct approach to dealing with the restrictions is to balance the need to preserve public health while respecting the right to FoRB for all. Part III provides concluding reflections on why protecting FoRB matters. Safeguarding religious freedom matters because in the absence of protection for rights, the sorts of excesses which encroach on FoRB might, almost imperceptibly, creep far beyond the violation of but one right to deny many rights which form the core principles of liberty, freedom, and the rule of law itself—concepts which underpin the very nature of democratic government.
Baharuddin, Ahmad Syukran et al, ‘Offense of Spreading Infectious Disease and Methods of Proof Through Forensic Science’ (2020) 3(1) INSLA E-Proceedings 340–350 Abstract: Since 1988, a specific Act has been enacted concerning the prevention and control of infectious diseases. This Act is known as the Prevention and Control of Infectious Diseases Act 1988. The preamble to this Act states that it was enacted to amend and consolidate laws relating to the prevention and control of infectious diseases and to provide for other matters relating thereto. In this Act, there are several types of actions that if committed can be convicted as an offense under this Act, among them include acting in a manner that can spread infectious diseases. This study discusses matters related to offense causing the spread of infectious diseases from the view of civil and Syariah law. It also covers scientific methods to prove such offense. This qualitative study has collected relevant data through primary and secondary documents and subsequently analysed it using the document analysis method. The result of this study found that the act of exposing others to the risk of infection is an offense and it is forbidden in Islam. Several scientific methods can be used in convicting this offense; among them are medical reports, travel records, physical examinations, CCTV footage, and biological examinations. This study suggests that the aspect of proof for such cases should be emphasized because such studies have not yet been conducted by previous researchers
Baharuddin, H, ‘Parenting Styles During the Covid-19 Pandemic: A Conception of Islamic Family Law’ (2021) 5(1) Al-Bayyinah: Jurnal of Islamic Law 13–28 Abstract: The covid-19 pandemic situation has led to many changes in living conditions and various activities that are mostly carried out at home in order to reduce and prevent the chain of transmission of the corona-19 virus. This study aims to provide an illustration of the role of parents at home during the Covid-19 pandemic situation by providing the rights that must be given to children by correlating them with the concept of childcare in Islamic family law. The urgency in education studies in the review of Islamic family law is to emphasize the position of parents who are not only responsible for providing a living, including in matters of success in education. This is a conceptual study, which seeks to explore the concept of childcare that is built in Islamic family law. The findings in this study indicate that childcare according to Islamic family law in the covid-19 pandemic situation, namely: 1) teaching children to do good and keep away from badness, this is done by way of parents giving examples and accompanying children when learning, 2) Parenting with affection, this care is done by providing safety and guidance to children, 3) Fulfilling the needs of children. In the conception of Islamic family law it is known as hadanah rights or child care which is widely understood, both in terms of livelihood to children’s intelligence. The implication of this finding is that during the pandemic, parents have a significant role, in addition to living needs, parents are also required to ensure children’s intelligence through the fulfillment of education.
Baihaqi, Yusuf, ‘The Flexibility of Islamic Law: Criticism Toward the Intepretation of Indonesia Online Preacher on Youtube for Covid-19’ (2023) 8(1) Jurnal Mahkamah : Kajian Ilmu Hukum Dan Hukum Islam 71–84 Abstract: The existence of YouTube as a social media video platform that is easily accessible and has a wide reach, is often used to share ideas, concepts, and thoughts, especially when the Corona pandemic hit the world, preachers were no exception. This article examines the interpretations of preachers on YouTube media regarding Covid-19 that conflict with the adaptability of Islamic law. This article employs an analytical descriptive, the writer evaluates Youtobe-based online da’wah content with a focus on the interpretation of Covid-19, then analyzes it based on a flexible approach to Islamic law. A study of the online preachers’ interpretations shows there is ambiguity in the opinions of online preachers about Covid-19 epidemic. This interpretation is similar to their claim that the prohibition and restrictions of the pilgrimage during the Covid-19 period were part of a conspiracy against the Islamic faith, the prohibition on congregational prayers during the Covid-19 period was seen an insult to the Islamic religion and keeping distance during congregational prayers during this time was in violation of Prophet’s Sunnah. The writer states that the fundamental cause of the conflicting interpretation of Islamic law is a lack of knowledge of how flexible it is.
Bakry, Muammar et al, ‘Arguing Islamophobia during COVID-19 Outbreaks: A Consideration Using Khuṣūṣ Al-Balwᾱ’ (2020) 9 International Journal of Criminology and Sociology 2757–2765 Abstract: The threat of Islamophobia continues to surface. The latest is related to COVID-19. Islam considered as the source of the virus suddenly went viral, even with the hashtag #coronajihad. The implementation of religious rituals by ignoring social distance by certain groups can be one of the triggers besides propaganda and conspiracy from antiIslam. This article aims to provide an argument against Islamophobia with consideration of Khusus Al Balwa. The approach used is a combination of normative and empirical facts amid the heterogeneity of Muslims during the pandemic. An interesting finding from this research shows that khusus al-balwa is a concept that Muslims need amid co19 hegemony, especially in terms of providing a complex understanding to present a calming Islam rather than a threat. In reality, khusus al-balwa happened a lot amid the pluralism of Muslims to prevent the outbreak of Islamophobia amid co-19 issues. Consideration of khusus al balwa contribute to prevent the negative stigma that could harass verbally and physically to the muslem. In fact, the special concept of al-balwa has not been much studied by observers of Islamic law which is covered because of the ‘fame’ of ‘umum al-balwa. Khusus al-balwa has not been fully taken into consideration by the Mufti, both individuals, and institutions in bringing forth fatwa products.
Baldwin, Guy, ‘The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom’ (2021) 26(4) Judicial Review 297–320 Abstract: Restrictions imposed by governments in response to the spread of the novel coronavirus SARS-CoV-2 have presented a human rights challenge around the world. The difficulty of balancing public health against human rights has been particularly acute in relation to freedom of religion, as measures limiting attendance at places of worship or requiring their temporary closure have been challenged in the courts. This article analyses judicial decisions in the US and UK that have considered the lawfulness of restrictions on places of worship. Although the legal approaches to assessing violations of freedom of religion in the US and UK are different, both approaches have led to the similar result of courts taking issue with the imposition of certain public health restrictions on places of worship.
Ballano, Vivencio O, ‘Analyzing the Morality of Owning and Suspending Patent Rights for COVID-19 Vaccines in the Light of Catholic Social Teaching’ (2021) The Linacre Quarterly (advance article, published online 8 December 2021) [pre-print available on SSRN] Abstract: Using the Roman Catholic Church’s set of moral principles on social concerns called Catholic social teaching (CST) and utilizing some secondary data and scientific research literature, this article examines the morality of India and South Africa’s request to the World Trade Organization (WTO) to temporarily suspend the property rights and patents of top pharmaceutical companies to their vaccines to allow low-income countries to locally manufacture them to save the lives of the poor during this COVID-19 pandemic. Applying the theological method of ‘See-Judge-and-Act,’ this article argues that the suspension of patents for COVID vaccines is morally justifiable in the light of CST’s principles on the universal destination of earth’s goods, the common good, and preferential option for the poor. The top pharmaceutical companies cannot claim absolute ownership to their vaccines as they do not totally own and fund the entire development and production process. Furthermore, the right to private ownership and patents has a social dimension and must serve the common good and welfare of the poor, especially in times of global emergency such as the COVID-19 pandemic. Patent holders have a moral obligation to promote the common good and save the lives of the poor which must prevail over their capitalist quest for profit. This article recommends that Catholics and Christians must join this crusade for the suspension of patents as part of their spirituality of social transformation., Summary: Applying the Roman Catholic Church’s set of moral principles on social concerns called CST and utilizing some secondary data and scientific research literature, this article examines the morality of India and South Africa’s request to the World Trade Organization to temporarily suspend the property rights and patents of top pharmaceutical companies to their vaccines to allow low-income countries to locally manufacture them to save the lives of the poor during the current pandemic. Applying the theological method of ‘See-Judge-and-Act,’ this article argues that the suspension of patents for COVID vaccines is morally justifiable in the light of CST’s principles on the universal destination of earth goods, the common good, and preferential option for the poor. It recommends that Catholics and Christians must join this crusade for the suspension of patents as part of their spirituality of social transformation., Short Summary: This article argues that patents of the top pharmaceutical companies to their COVID-19 vaccines must be suspended as requested by India and South Africa in the WTO in the light of CST’s moral principles on the universal destination of earth’s goods, the common good, and preferential option for the poor.
Barak Corren, Netta and Lotem Perry-Hazan, ‘Bidirectional Legal Socialization and the Boundaries of Law: The Case of Enclave Communities’ Compliance with COVID-19 Regulations’ (Hebrew University of Jerusalem Legal Research Paper (forthcoming), 4 March 2021) Abstract: COVID-19 has challenged people worldwide to comply with strict lock-downs and meticulous healthcare instructions. Can states harness enclave communities to comply with the law in such crucial times, even when compliance conflicts with communal sources of authority? We investigated this question through the case of Israeli ultra-Orthodox schools compliance with COVID-19 regulations. Drawing on semi-structured interviews with school principals, documents and media sources, and a field survey, we found that the state has the capacity to quickly internalize new norms and harness the cooperation of previously suspicious communities. At the same time, we found that communal authorities were able to shield widespread communal defiance from legal enforcement. These findings expose the bidirectionality of legal socialization: As the community uses its defiance power to attenuate the law, it socializes public authorities to accede to their bounded authority. As public authorities come to realize that the community cannot be brought to full compliance, they curtail enforcement efforts and socialize the community to operate outside the law. This paper was prepared for the Journal on Social Issues special issue on legal socialization, marking the first 50 years of research on this highly influential theory. Our findings animate the reciprocity assumption in legal socialization theory and highlight one of the crucial tasks for the next 50 years of research: to examine the bidirectionality of legal socialization and discover its socio-legal effects.
Begović, Nedim, ‘Restrictions on Religions Due to the Covid-19 Pandemic: Responses of Religious Communities in Bosnia and Herzegovina’ (2020) 8(2–3) Journal of Law, Religion and State 228–250 Abstract: This article explores the restrictions that have been recently placed on religions in Bosnia and Herzegovina on congregating and conducting religious rituals during the covid-19 pandemic, as well as the perceptions and responses of the main religious communities to these restrictions. Our data sources included the state covid-19 regulations, the guidelines of religious communities regarding worship services, congregational prayers, and other activities during the pandemic, and media articles covering religion and the covid-19 issues on a domestic and regional scale. Our research has shown that not all religious communities have been equally supportive of state regulations that restricted the religious freedom of individuals and religious communities. Their responses have ranged from strict harmonization of internal religious guidelines with the state covid-19 regulations to declarative support of public health recommendations while ignoring them in practice.
Benkhashem, Abdallah Faraj Abdallah et al, ‘Responsibility State in Islamic Theology and Libyan Law in the Event of an Epidemic Covid-19 Model Overview’ (2023) 7(1) Journal of Positive School Psychology 41–53 Abstract: The purpose of this research was to determine the scope of the state’s obligation according to Islamic jurisprudence and Libyan law in the event that an epidemic, using Covid 19 as an example, is allowed to spread. The fragility of the health authorities in Libya and their failure to absorb the Covid pandemic is the source of the difficulty with the research. This shortcoming is reflective of the fact that the state’s responsibilities in Libya are relatively limited. In Libyan law, there are a number of legal requirements that, if followed, would lead to increased emphasis on the responsibility of the state. The research used an analytical method to investigate Islamic jurisprudence and Libyan law regarding the nature of the state’s duty in the event of the spread of an epidemic (Covid 19). The inductive method was also used in the study to extrapolate the texts of the Holy Qur’an and the Sunnah of the Prophet regarding instances of the spread of the epidemic and the responsibility of the state according to Islamic jurisprudence and Libyan law. This was done in order to draw conclusions about these topics. In addition, a comparative method was used throughout the investigation. in order to make a comparison between the texts of Libyan law and Islamic jurisprudence in relation to the spread of diseases. According to the findings of the study, the concept of the Corona pandemic in Libyan law is compatible with Islamic law. Furthermore, the study revealed that it is the state’s responsibility to control the Corona epidemic in accordance with the principle of equality in duties and costs before society. According to the findings of the research, the legislation in Libya has to be revised in such a manner that it helps contribute to outlining the legal processes and measures that need to be taken for each epidemic individually. This will help restrict the development of similar epidemics in the future.
Berg, Thomas C, ‘Religious Freedom Amid the Tumult’ (University of St. Thomas (Minnesota) Legal Studies Research Paper No 20–13, 17 August 2020) Abstract: The Supreme Court Term ending in summer 2020 was action-packed for religious freedom. The Court decided six cases pertaining to the issue—double, even triple the usual number—in contexts from school choice to public-health closures of churches to clashes between religious liberty and nondiscrimination laws. The decisions also came at a time of extraordinary stress and turbulence in society, and they relate in striking ways to those forces of turbulence. This Article discusses religious freedom in relation to three Ps of turbulence: Pandemic, Polarization of culture and politics, and Protests over racial injustice. In each of these areas, the Article aims to explain the Court’s approach and defend religious freedom today as a vital aspect of human dignity. Among many lessons from today’s crises is that religion, freely chosen and exercised, is a vital aspect of human identity. Religious exercise provides individuals with strength and comfort in the stresses of a pandemic. Religious belief motivates service to others in schools and social-service agencies; credible legal threats to those organizations aggravate our already dangerous polarization. Now as much as ever, it is vital to defend religious freedom for all. Despite some mixed signals, the current Supreme Court seems willing to shoulder that task. But to defend religious freedom credibly means recognizing rights for others too. Christian conservatives must support religious liberty and equality for Muslims as well. A credible defense of religious freedom also calls for confronting rather than denying the problems of racial inequality. And it calls for drawing careful lines so that LGBT people can participate in economic life and traditionalist religious organizations can follow their religious identity.
Bernaerts, Jonathan and Adriaan Overbeeke, ‘Case Law on the Freedom of Religion during the COVID-19 Crisis in Belgium’ (2022) 64(4) Journal of Church and State 663–682 Abstract: The combat against the COVID-19 pandemic in Belgium led to the adoption of several measures that impacted the freedom of religion or belief. The particular focus of this article is the collective exercise of religion in places of worship and its protection by judicial actors during the first two years of the COVID-19 crisis. This choice was prompted by the fact that the government measures taken in this context had significant consequences for this form of religious manifestation. Where necessary for a proper understanding of the policy choices made by the government, attention will be paid to the legal nature of the measures that restricted the freedom of religion or belief, but this aspect is not at the center of this article. We will consider only briefly the individual aspects of religion that were impacted, such as personal prayer in a place of worship or visits to a building of worship, and the collective worship in other venues. The measures applicable to other domains in society will also only be discussed to the extent that they were part of the discussed judgments.
Billauer, Barbara Pfeffer, ‘Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018-2019 Measles Pandemic or the Law as a Public Health Response’ (2022) 71(2) Catholic University Law Review 277–344 Abstract: Following the recent decision in Roman Catholic Diocese v. Cuomo, clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018-2019 measles epidemic for that guidance.Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the legal response to vaccination in the two countries, and between two neighboring ultra-Orthodox localities in New York. The research demonstrates the efficacy of differing legal responses, a novel approach to empirically assessing the impact of legal intervention. In so doing, the Article demonstrates the power of the law to help quash epidemics, demonstrating its use as a public health tool. The Article also reaffirms the constitutionality of protecting public health via governmental measures that might trespass on individual rights, such as mandating vaccination. I also discuss legal challenges mounted by the anti-vax community. Finally, and critically, this article demonstrates the importance of lawyers being knowledgeable with epidemiological terms and principles when mounting defenses to governmental initiatives.
Billauer, Barbara Pfeffer, ‘Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (Il)Literacy’ (SSRN Scholarly Paper ID 3787319, 17 February 2021) Abstract: On October 6, 2020, shortly before the Simchat Torah holiday, New York’s Governor Andrew Cuomo promulgated extensive lockdown requirements which all but eviscerated worship in areas heavily affected by COVID-19. The Executive Order instigated a suit by the Roman Catholic Diocese and the Agudath Israel of America claiming their religious rights had been violated. Turning its back on 225 years of public health law affirming the states police powers to protect the public health – even if this trespassed on constitutional rights, the dicta of the majority hagiographizes and expands constitutional rights to levels not seen before. This essay first contextualizes the decision in light of its timing. I then examine the dicta, contrasting judicial sentiment here to past historical decisions evaluating quarantine in prior epidemics. I then compare similar lockdown orders in Israel which did not invite the same religious push-back, and finally I examine the significant lacuna in scientific understanding demonstrated by the majority as significantly affecting the outcome.
Bird, Brian, ‘COVID-19 and Religious Freedom in Canada’ (2022) 64(4) Journal of Church and State 621–640 Abstract: In Canada, constitutional litigation arising from restrictions on worship and religious gatherings during the COVID-19 pandemic has yielded vindication for state authorities. To date, religious claimants in Canada have lost in every case where they have challenged the constitutionality of restrictions on these activities under the Canadian Charter of Rights and Freedoms.1 This result invites closer scrutiny. The Canadian provinces in which court rulings have been issued on this matter featured differing public health rules for worship and religious gatherings. While most provinces went no further than altering capacity limits and requiring physical distancing and masks, British Columbia prohibited in-person worship for several months across the province. Even among the provinces where capacity limits were the standard approach, there has been much variety when it comes to the size of permitted gatherings. Some of these provinces have opted for rules that apply throughout the province. Other provinces have opted for a region-by-region approach. This article will pay particular attention to the situation in British Columbia given that it was the most severe restriction on religious freedom in the country, both in nature and duration, and because litigation arising from this restriction is ongoing.2 It also seems intuitive to say that religious claimants should stand the best chance of success in court in this case. If the claimants in British Columbia fail, it is hard to imagine similar claimants faring better in other parts of Canada.
Black, Ann, ‘In the Time of the COVID-19: Law, Religious Freedom and the Secular State’ in Religious Freedom in Secular States (Brill Nijhoff, 2022) 42–72 Abstract: This chapter will reflect on the triangulation of law and religious freedom within the secular state during the COVID-19 pandemic. To encompass its global impact, the chapter will draw on illustrative experiences from many secular nations. It will begin with how religions themselves conceive pan-demics (once described as plagues or pestilence), before considering secular state approaches and priorities. The responses of religious adherents to state measures are in turn assessed in four categories (1) adaptors, (2) endorsers, (3) defiers and (4) challengers. The final part looks at religious minorities who were labelled super-spreaders, thus becoming COVID-19 scapegoats.
Black, Ann, ‘Regulating the Covid-19 Pandemic: Fatwas, Law, and Policy in Australia’ (2022) 7(1) Journal of Law and Policy Transformation 9–27 Abstract: The COVID-19 pandemic tested governments, health systems, and religious communities. Australia prioritised health and community safely over freedom of religion which impacted on religious communal activities, which for Muslims were significant. Unlike Indonesia and other Muslim majority countries, where there is a respected well-established role for ulama, either collectively or individually, giving guidance and rulings (fatwas) to governments and Muslims, in a secular nation, like Australia, it is less established. This paper evaluates the ways by which the three main Islamic organisations in Australia aided their communities during the pandemic and to extent to which they supported their government in implementation of a regulatory raft of isolation and social distancing policies as well as the vaccine mandate. This is done by analysis of fatwas issued during the pandemic. It concludes that by working with, not in opposition to the government regulations, they provided optimal outcomes for the Muslim community and Australia.
Blackman, Josh, ‘The “Essential” Free Exercise Clause’ (2021) 44(3) Harvard Journal of Law & Public Policy 637–760 Abstract: The article details the evolving history of the U.S. Supreme Court’s caselaw in applying the Free Exercise Clause to the restrictions on religious gatherings during the COVID-19 pandemic. It traces the Court’s shift from a regime that was deferential to such restrictions to one that rules in favor of the free exercise of religion. Court cases mentioned include South Bay Pentecostal Church v. Newsom, Calvary Chapel Dayton Valley Church v. Sisolak, and Roman Catholic Diocese of Brooklyn v. Cuomo.
Boaz, Danielle N, ‘Moral, Environmental, and Physical Contamination: Africana Religions and Public Health before and during the COVID-19 Pandemic’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 57–74 Abstract: In 2020, global restrictions on religious gatherings raised questions regarding the extent to which governments could restrict religious liberty to protect the public. Although the COVID-19 pandemic heightened public awareness about such issues, African diaspora religions had already been widely persecuted as ‘superstitions’ that posed a threat to public health from the 18th century to the early 20th century. This article argues that discrimination against Africana religions has continued in the 21st century using similar rhetoric, as private citizens and governments in the Atlantic world have restricted religious practices that they claim threaten moral, environmental, and physical health.
Bottoni, Rossella, ‘Implications of the COVID-19 Pandemic for Religious Minorities from the UN Perspective’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 3–18 Abstract: The COVID-19 pandemic has posed a serious challenge to the enjoyment of freedom of religion or belief. This article examines how this was addressed in the context of the UN machinery on human rights protection. UN documents indicate a holistic perspective that the global crisis could not be solved only with public health and emergency measures, but also required a human rights-based approach. The UN also exhibited a concern for application of the principles of necessity and proportionality, with particular regard for the inclusion of marginalized and vulnerable groups, such as religious minorities.
Brady, Kathleen, ‘COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy’ (2021) Fides et Libertas (forthcoming) Jurisdiction: USA
Abstract: Religious litigants challenging COVID-19 restrictions on in-person worship services typically argue that these restrictions discriminate against religion in violation of the Free Exercise Clause. Demands for equal treatment have intuitive appeal, and they also fit with the Supreme Court’s current religion clause jurisprudence. However, there are a number of drawbacks to approaches that focus on equal treatment. It can be difficult to identify the appropriate secular benchmarks for determining whether discrimination has taken place, and religious congregations are usually not actually asking for equal treatment. What they really want is to maximize their ability to gather together safely in person.In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Supreme Court granted applications for emergency injunctive relief in two cases challenging 10- and 25-person limits on houses of worship in COVID-19 hotspots in New York. The Court found that New York’s rules favored secular activities over religious practice and failed to satisfy the strict scrutiny required of discriminatory action under the Free Exercise Clause. However, many of the examples of discrimination given by those in the majority seemed strained, and the justices appeared less interested in the threshold showing of discriminatory treatment than in applying heightened scrutiny to significant restrictions on religious worship. The Court’s shift in focus from discrimination to close scrutiny of worship restrictions is the right one, but those in the majority neither acknowledged this shift nor signaled a new framework or approach that would explain or guide it. In this short essay, I argue that the appropriate framework for analyzing restrictions on religious worship is the doctrine of church autonomy that has been emerging in the Court’s recent religion clause jurisprudence. Viewing conflicts over COVID-19 restrictions through this lens can better clarify what is at stake when clashes occur as well as better inform the scope and limits of institutional freedom in this context.
Burke, Ciarán, ‘Abusus Non Tollit Usum? Korea’s Legal Response to Coronavirus and the Shincheonji Church of Jesus’ (2020) 4(5) The Journal of CESNUR 64–85 Abstract: The legislative framework crafted by the Korean government in response to the MERS outbreak in 2015 informed its approach when COVID-19 appeared on its territory. This framework conferred broad powers upon the authorities to react promptly and effectively to the pandemic as it developed. However, the relevant legislation suffered for a lack of human rights safeguards, and was ultimately rather opportunistically employed by the government to target an unpopular religious community, raising questions about Korea’s commitment to the rule of law and human rights standards.
Burke, Ciarán, ‘COVID-19 and Korea: Viral Xenophobia through a Legal Lens’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 91–104 Abstract: Although South Korea’s response to COVID-19 has been praised as efficient, effective, and well-planned, the legislation devised to tackle the pandemic suffered from a lack of human rights safeguards and was rather opportunistically employed by the government to target an unpopular religious community. In such situations, it falls to the courts to provide protection to those who may have suffered as a result of state excesses. The trial of Chairman Lee Manhee of the Shincheonji Church of Jesus places these issues in sharp relief. Chairman Lee’s prosecution is instructive regarding applications of the rule of law in situations of national emergency, freedom of religion, and the inadequacy of traditional legal remedies for certain human rights violations.
Bussey, Barry W, ‘Contagion: Government Fear of Religion during the COVID-19 Crisis’ [2020] Revista General de Derecho Canónico y Derecho Eclesiástico del Estado 54 Abstract: This paper examines emerging trends in the responses of governments and religious communities to the COVID-19 health crisis. It reviews the initial measures taken by the authorities, along with the early compliance of churches, observing that mutual collaboration represents the ‘finest hour’ in recent church-state relations. However, as questions arose over the potency of the disease, perceived inconsistency of policies, and political acquiescence to racial protest movements, dynamics began to shift. A minority of religious communities appealed to the sovereignty of divine law in order to resist extended prohibitions on communal worship. This paper analyzes the implications of such resistance, urging that governments could better achieve their objectives by treating religious communities as essential, autonomous partners striving towards a shared goal.
Chopra, Rohit, ‘Secularism, Religion, and the State in a Time of Global Crisis: Theoretical Reflections on the Work of Abdullahi An-Na’im’ (2022) 36(4) Emory International Law Review 647 Abstract: This Essay presents a primarily theoretical examination of critical aspects of Abdullahi An-Na’im’s body of work. Drawing on my earlier work, the essay describes the current historical moment as one of ‘crisis globalization,’ a normative condition characterized by the rise of authoritarianism and erosion of democracy across the globe, a backlash against religious and other kinds of minorities, as well as by a general sense of existential uncertainty stemming from the impact of climate change, terrorism, and our vulnerability to pandemics like Covid-19. I argue that An-Na’im’s work speaks especially powerfully to several aspects of this new condition. An-Na’im’s theorization and reconceptualization of the relationship between the secular and the religious, and his elaboration on the role of state and society in mediating that relationship, help us think through and grasp the rise of authoritarianism and religious majoritarianism. They also illuminate a path and template for countering these trends, as elaborated in An-Na’im’s articulation of the necessity and challenge of endowing the relationship of the state and religion, and a corresponding idea of the secular, with cultural legitimacy. In the Essay, I also examine these ideas with reference to recent developments in India, the distinct character of whose experience with secularism seems increasingly under threat.
Christians, Louis-Léon, ‘Covid-19, Law and Religion in Belgium’ in International Conference on Covid-19 Pandemic & Religious Freedom: Reports from North America and Europe, University of Portsmouth (UK), 2-3 December 2020 (2020) Abstract: The paper introduces to some specificities of the Belgian regulation of religious liberty during the COVID-19 crisis.The Belgian regime of recognised religions has had very few ‘advantages’ during the COVID-19 crisis, apart from maintaining the salaries of priests and other religious ministers. Even towards recognized religions, a lack of empathy has been shown by public authorities — even in their public speeches. Nevertheless, religious officials maintained a position of support for the government’s health measures, although legal challenges have been filed by some of the more radical devotees.
Collings, Justin and Stephanie Hall Barclay, ‘Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty’ (2022) 63(2) Boston College Law Review 454–520 Abstract: Last term, five Justices on the Supreme Court flirted with the possibility of revisiting the Court’s First Amendment test for when governments must provide an exemption to a religious objector. But Justice Barrett raised an obvious, yet all-important question: If the received test were to be revised, what new test should take its place? The competing interests behind this question have become even more acute in light of the COVID-19 pandemic. In a moment rife with lofty rhetoric about religious liberty but riven by fierce debates about what it means in practice, this Article revisits a fundamental question common to virtually all approaches to the issue: What must a government do to justify restrictions on religious exercise? Every extant adjudicatory framework--including proportionality and strict scrutiny approaches--purports to require such governmental justification. But they do so through different frameworks and with dramatically different degrees of rigor. In our view, it is rigor and not labels that really counts--the rigor with which courts require governments to justify religious restrictions. Differences in rigor cannot be explained in terms of the underlying adjudicatory framework. Neither the proportionality framework that prevails internationally nor the strict scrutiny framework prominent in the United States suffices, standing alone, to require governments to meaningfully justify restrictions on religious exercise. To require genuine justification, courts must: (1) require governments to treat religiously-motivated conduct in an evenhanded way vis-à-vis analogous secular conduct; (2) oblige governments to show, with evidence, that the religious restrictions are necessary; and (3) avoid redefining a controversy’s theological stakes in ways that minimize the religious claimant’s dilemma. Proportionality and strict scrutiny are both capable of incorporating these three factors, but courts applying the two tests do not always do so. In this Article, we survey how courts across several jurisdictions have succeeded or failed in this regard, paying particular attention to conflicts arising in the COVID-19 context. We also suggest some possibilities of convergence that will help both proportionality courts and strict scrutiny courts to better protect the core substance of religious liberty.
Colombo, Ronald J, ‘When Exemptions Discriminate: Unlawfully Narrow Religious Exemptions to Vaccination Mandates by Private Colleges and Universities’ (Hofstra University Legal Studies Research Paper (forthcoming 2021)) Abstract: Numerous colleges and universities have imposed COVID-19 vaccination mandates upon their students. Most of these mandates have been accompanied by the purported recognition of medical and religious exemptions. With regard to religious exemptions, some are unjustly discriminatory. Most notably, they give preference to students who are members of organized religions over students who are not. And even facially neutral exemptions can be administered in an unjustly discriminatory way by, for example, giving preference to one set of religious denominations over another, or by engaging in ‘religious profiling’ (whereby students of a particular denomination are held completely beholden to the beliefs of that denomination (as ascertained by the school’s administration), despite their own sincere and genuine religious beliefs to the contrary).Students attending public colleges and universities have federal constitutional and statutory protections against such discrimination; students attending private institutions do not. Rather, students attending private colleges and universities are at the mercy of state law and afforded only those protections against discrimination recognized by the state in which their institution is located.Although the research and insights presented herein should be applicable, in whole or in part, to any state with antidiscrimination laws protecting college students, this paper’s focus will be on New York’s Human Rights Law. It will demonstrate the ways in which religious exemptions can and do violate the law by illegally discriminating against students upon the basis of religion. It will examine one particularly ill-advised and unlawful policy (Hofstra University’s) and showcase one that comports with best practices (that of Syracuse University’s). For the present, there exists significant uncertainly regarding the promulgation of COVID-19 vaccination mandates. Private vaccination mandates may or may not be lawful, and religious exemptions thereto may or may not be required. But what is clear, however, is that in New York, and most likely in any other state where students are protected against discrimination, a religious exemption to a private college or university vaccination mandate must be nondiscriminatory.
Conklin, Michael, ‘Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the Religious Freedom and Restoration Act’ Northwest University Law Review, NULR of Note (21 May 2020) Abstract: On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were ‘pansies.’ After holding church services on March 29, Howard-Browne was arrested for unlawful assembly and violating the public health emergency order. This paper analyzes how Florida’s strict RFRA statute would likely apply to such an act.
Cooper, Levi, ‘Pandemics in the Promised Land: The Hasidic Experience’ (2020) 33 Australian Journal of Jewish Studies 5–26 Abstract: This study recounts how in 1786 a community in the Ottoman Empire faced a pandemic. This community, a group of Hasidim from Eastern Europe, had arrived in the Land of Israel in 1777, significantly boosting the local Jewish population. The outbreak created hardships for the fledgling community, which was forced to make decisions in its bid to survive. As an addendum to the account, I reproduce annotated primary text: A Hebrew letter written after the pandemic had subsided. The current COVID-19 pandemic forms the backdrop for the study, adding a layer of relevance and meaning to this historic episode.
Corbin, Caroline Mala, ‘Religious Liberty in a Pandemic’ (SSRN Scholarly Paper No ID 3634084, Social Science Research Network, 23 June 2020) Abstract: The coronavirus pandemic caused an unprecedented shutdown of the United States. The stay-at-home orders issued by most states typically banned large gatherings of any kind, including religious services. Churches sued, arguing that these bans violated their religious liberty rights by treating worship services more strictly than analogous activities that were not banned, such as shopping at a liquor store or superstore. This short Essay examines these claims, concluding that the constitutionality of the bans turns on the science of how the pathogen spreads, and that the best available scientific evidence supports the mass gathering bans.
Cowart, Tammy, Tsuriel Rashi and Gregory L Bock, ‘Should Pharma Companies Waive Their COVID-19 Vaccine Patents? A Legal and Ethical Appraisal’ (2023) 12(3) Laws Article 47 Abstract: Pharmaceutical companies, like many other types of companies, are incentivized to create, manufacture, and distribute new products, in part due to the legal protections of patent law. However, the tension between patent rights and the public good has been heightened as pharma companies developed new vaccines to combat the COVID-19 pandemic. Wealthy governments paid well for vaccines and received ample supplies, while low- and middle-income countries struggled to obtain access to any vaccines. Some countries called for pharmaceutical companies to waive their patent protections for vaccines in order to facilitate the worldwide manufacture and distribution of COVID-19 vaccines. This paper will examine the rationale of patent protection and patent waiver issues, then compare these concepts with ethical constructs and a Jewish perspective.
Cranmer, Frank, ‘October 2020–January 2021’ (2021) 23(2) Ecclesiastical Law Journal 223–228 Abstract: The period under review continued to be dominated by the COVID-19 pandemic. The Westminster Government and the devolved administrations issued a joint statement on 16 December 2020 outlining a series of relaxations on social contacts between 23 and 27 December but even so it seemed that there were mixed feelings about any relaxation. The Scottish First Minister, Nicola Sturgeon, continued to stress that the Scottish Government’s recommendation was to celebrate Christmas at home and to keep interactions with other households to a minimum. The Welsh Government decided that social interactions should be limited to two households only, to be followed by a further lockdown from 28 December.
Cranmer, Frank, ‘Government and Parliamentary Report: February-May 2020’ (2020) 22(3) Ecclesiastical Law Journal 361–367 Abstract: Reviews parliamentary and regulatory developments of relevance to ecclesiastical lawyers, including: how coronavirus-related legislation has affected the conduct of religious services, the progress of the Brexit negotiations, and the Church of England (Miscellaneous Provisions) Measure 2020.
Creemers, Jelle, ‘Freedom of Religious Assembly in Belgium: Legislation and Praxis Concerning Religious Freedom during the COVID-19 Pandemic’ in Jelle Creemers and Tatiana Kopaleishvili (eds), Religious Freedom and COVID-19 (Routledge, 2024) Abstract: This chapter discusses religious freedom in Flanders, Belgium, with a special focus on the limitations of religious gatherings during the COVID-19 pandemic. It demonstrates a notable gap between, on the one hand, the high value assigned to the freedom and opportunity to celebrate communal religious rites in the constitution and, on the other, the political attitudes towards such religious celebrations, particularly in a time of crisis. It first explains the Belgian legal protection offered to communal religious celebration and the specifics of the Belgian religion-state relations. Second, it offers an overview of the limitations to this right during the pandemic, putting it into perspective by observing other restrictions on personal freedom of movement. Particular attention is given to newspaper articles that illustrate how religious communities and actors, policymakers, and the Council of State responded to the restrictions and to one another. Finally, a concluding discussion follows, bringing together the main lessons drawn from this exercise.
Creemers, Jelle and Tatiana Kopaleishvili (eds), Religious Freedom and COVID-19: A European Perspective (Routledge, 2024) Book summary: The impact of the COVID-19 pandemic will be a topic for academic research for years to come. This collection brings together international scholars from various disciplines to analyse the impact of the pandemic on both religious freedom and on religious community life in Europe. Divided into two parts, the first focuses on theoretical considerations, while the second explores local challenges and includes case studies from countries with different socio-political profiles. The book includes critical evaluations of public crisis management of religious communities during the pandemic, as well as critical reflections on religious freedom appeals in such crisis. In sum, the volume probes and challenges scholars and students of law, religion, politics, and sociology to go beyond the typical oppositions in considering Freedom of Religious Belief in the current secular European context. The work will be a valuable resource for academics, researchers, and policy-makers working in the areas of Law and Religion, Human Rights Law, Sociology, and Political Science.
Dama, Nadia Safira, ‘Legal Consequences of Betel Marriage Settlement During the Covid-19 Pandemic’ (2022) 4(2) Estudiante Law Journal 348–359 Abstract: This study aims to determine the legal consequences of betel marriage settlement during the Covid-19 pandemic. The type of research used is sociological juridical and this study uses a descriptive research approach and qualitative data analysis techniques. The results of this study show that the legal consequences of an unrecorded marriage can cause the marriage to be invalid in the eyes of positive Indonesian law, but according to religion and public belief that the marriage is valid as long as it meets the conditions and legal pillars of a marriage itself. As for the settlement, there are two things, namely the application for a marriage and remarriage hearing. However, the bad factor is that if the marriage partner has obtained a child, then in civil law the child does not have a nasab with the father but only has a nasab with a mother and her family.
Dayan, Fazli, ‘Post Covid-19 Rulings of Islamic Law on Pandemics: An Analytical Study with Reference to Necessity and Juristic Creativity in Management of Consequential Issues Related to Ncov-19 Virus’ (2023) 11(3) Russian Law Journal 1487–1530 Abstract: Certainly, pandemics have been one of the most appalling threats to human life throughout the human history. It is an historical fact that billions of people have died because of contagious ailments. Presently, we are in the 21st century which is known for scientific and biomedical advancements. But unfortunately, we also became victims of a precarious pandemic named Covid-19. The most interesting thing is that the contemporary experts have not been able to discover any remedy for this treacherous disease yet. In this situation, the views of Islamic scholars have diversified whether religion has a cure for the pandemics? Being Muslims, we believe that Islam guides us via application of preventive and therapeutic measures for the preservation and protection of life as a primary objective of Islamic law. While responding to Covid-19 Pakistani Muslim population at large were more adherent to the legal edits and verdicts (fatwās) issued by religious clerics than the state authorities. Hence, they have acknowledged those rules and regulations which were mediated by religious scholars. In this back drop the present study is designed to investigate the post Covid-19 rulings of Islamic law on pandemics to assess whether the NIH and WHO SOPs/guidelines are compatible with Islamic injunctions? Consequently, this research found many examples in Prophetic Seerha (life) to get protection from pandemics and lethal diseases. Correspondingly, in this article, efforts are made to determine the moral, ethical and practical teachings of Islam to cure the pandemics and deadly diseases with special reference to Covid-19. Thus, an analytical approach is adopted with a qualitative research methodology. Resultantly, the researcher observed that Islam has a complete set of ethical code to prevent and protect from pandemics and fatal diseases. Therefore, it is argued that people should adopt the ethical teachings of Islam for infectious diseases keeping in view the contemporary biomedical norms. To combat pandemics in Pakistan, the state departments are required to heed towards religious guidelines while not forgetting the application of medication as suggested by physicians and experts of the field.
DeLoach, Andrew R, ‘What’s the Use of Religious Freedom?’ (2020) 10(2) Journal of Christian Legal Thought 1–12 Abstract: This brief essay considers the question whether the Constitutional right and international human right to religious freedom is under threat, particularly in the time of COVID-19 and government-ordered restrictions on religious worship. It surveys a potential drift toward secularism in the United States by comparison with the French system of laïcité, and responds to this drift with recommendations for the robust use of religious freedom.
Doty, David A and Mark E Chopko, ‘Work With What You Have: Navigating Religious Accommodations in the American Vaccine Era’ (2022) 64(4) Journal of Church and State 600–620 Abstract: Pandemic-response regulations in the United States have become increasingly reliant on the COVID-19 vaccine in curbing the spread of the virus—so much so that many states have implemented targeted regulations mandating vaccinations for employees working in high-risk settings, such as hospitals and long-term care facilities. The regulations implemented in New York, Maine, and Rhode Island proved to be the most controversial and legally significant, insofar as they seemingly did not provide for religious exemptions.1 Groups of religious healthcare workers swiftly initiated various lawsuits, charging that the vaccine mandates circumvented well-established antidiscrimination rights under federal law. In each case, federal courts were asked to decide whether these state mandates, by failing to account for religious accommodations, worked to preclude certain antidiscrimination rights created by Title VII of the Civil Rights Act of 1964.2 Title VII has long required covered employers to provide, upon an employee’s request, reasonable accommodations for said employee’s ‘sincerely held religious beliefs,’ so long as such accommodations would not pose an ‘undue hardship’ on the employer.3 The federal courts, however, declined to intervene.4 Indeed, each of these three regulations withstood their respective challenges and have been permitted by the courts, including the U.S. Supreme Court, to take effect. These regulations were not invalidated, but were found rather to exist subject to Title VII. Thus, employers are still required to provide, in the absence of certain exceptions, reasonable accommodations to an employee’s sincerely held religious beliefs. In effect, the courts have neither guaranteed nor erased religious exemptions to vaccine mandates, but have rather referred religious objectors back to Title VII and the decades-long principles and balancing tests developed thereunder.
Du Plessis, Georgia Alida, ‘COVID-19 and Limitations to the International Right to Freedom of Religion or Belief’ (2021) 63(4) Journal of Church & State 619–647 Extract from Introduction: The largest pandemic outbreak in the twenty-first century to date is the coronavirus disease (COVID-19), causing, as of October 6, 2020, 1,051,475 deaths worldwide.1 This has caused countries worldwide to institute drastic regulations that are affecting human rights, economics, health, and politics. The right to freedom of religion or belief (FORB) as contained in the International Covenant on Civil and Political Rights (ICCPR) has been challenged and affected by the unique and urgent circumstances created by the COVID-19 pandemic and the immediate threats posed to society. The article proceeds by discussing the general international human rights framework regarding FORB. Two possible instances of limitation during COVID-19 are analyzed in depth. The possibility of derogation from some elements of FORB during public emergencies under the notions of freedom of assembly, freedom of association and religious minority rights is investigated. Thereafter, the limitation of FORB during COVID-19 and under Article 18, on two of the listed grounds—namely, ‘public health’ and ‘the rights and freedoms of others’—and the resulting doctrine of proportionality, will be scrutinized. The aim is to indicate the process of establishing the proportionality of ‘social distancing’ limitations to FORB under COVID-19. Finally, recommendations are given as to the responsibilities of States Parties toward FORB in the event of proportional limitations during COVID-19.
Du Plessis, Georgia Alida and Adina Portaru, ‘Restrictions to Religious Worship during COVID-19: A Bird’s-Eye View of Court Decisions from Selected European Countries and the European Court of Human Rights’ (2022) 64(4) Journal of Church and State 641–662 Abstract: The COVID-19 pandemic has put the spotlight on the justification, basis, and scope of limitations of rights and freedoms during public health crises. As stated by Javier Martínez-Torrón, ‘COVID-19 has served to cast new light on how our legal systems face issues that are essential in our conception of the rule of law, and manifest with special clarity in moments of crisis.’ In terms of the right to freedom of religion or belief (FoRB), the pandemic has also shed light on how several European countries and their legal systems interpret this right in moments of crisis and under the rule of law. Although the economic and public health complexities raised by a pandemic are vast (and exacerbated by an initial lack of scientific knowledge), it remains that FoRB is among the rights most affected by the pandemic (together with freedom of movement and assembly). It is therefore fundamental for states to institute measures mitigating the pandemic’s consequences for the immaterial and spiritual, that is, beyond biological and economic considerations only. This article makes recommendations, based in legal analysis, as to how state authorities and other entities can best do this.
Dutta, Shukla and Supriyo Kundu, ‘The Recent and Changing Trends of Divorce Post Covid-19 Lockdown in India Concerning the Hindu Law’ (2022) 3(1) Jus Corpus Law Journal 290–303 Abstract: There was a time in India when there were almost no/fewer trends of divorce in the Hindu community, as it was a pretty rare phenomenon and not at all prevalent. According to Hindu Law, the marriage of two persons is considered to be a sacramental union. We know divorce to be the disintegration of marriage, or as the legitimate end of a marriage, to manage the issues brought among the two married people due to marriage. Divorce in those days brought severe mental injury. The child of a divorced relationship was poorly treated, thus causing a pathetic experience for the divorcees. However, after the Hindu Marriage Act, 1955 (hereinafter referred to as ‘the Act) was introduced, all Hindu laws related to relationships in family and society were thoroughly revised, including divorce, which caused the disintegration of marriages progressively simpler when the Act was amended in 1976. However, with the advent of modernization and westernization in today’s world, the rigid boundaries that were once a part of traditional Hindu life have completely changed in terms of lifestyle and relationships. The reasons for this change were women empowerment and employment, change in demographics from the rural villages to the urban cities or metros, the breaking up of extended families into small nuclear families, and live-in relationships. It can be understood that the conventional systems have been erased in modern society, thus offering a lenient socio-cultural life. With the onset of the Covid19 lockdown, the rate of divorce spiked throughout the country and led to the breaking up of most couples during this time. This Research paper will lay stress on the changing scenario of divorce before and after the Covid-19 lockdown, examine the recent trends and causes for divorces during this period, and suggest possible solutions that might resolve the problems in a family.
Earley, Brady, ‘Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics’ (SSRN Scholarly Paper ID 3908624, 20 August 2021) Abstract: This article undertakes a comparison of legal restrictions on religious gatherings in the United States during the 1918 Spanish Flu pandemic and the COVID-19 pandemic. After contextualizing each pandemic within its legal, political, and social culture, the analysis distills prevailing principles between the two health crises and their approach to religious liberty. Evidence suggests that courts in both periods relied upon proportionality and equality to resolve disputes between government bans on worship services and conscientious objectors. However, the experience of multiple local governments in 1918 models a better way. Instead of using proportionality or equality, these local officials relied on reciprocity between government and religious groups. Their approach tended to produce fewer bans, fewer deaths, and fewer cases during the 1918 pandemic and offers a useful precedent for government officials currently managing the religious freedom concerns of COVID-19.
Ergeson, Elliott, ‘One Nation Subsidizing God: How the Implementation of the Paycheck Protection Program Revealed the Deteriorating Wall Between Church and State’ (2022) 106(6) Minnesota Law Review 2653–2692 Abstract: The article focuses on implementation of the paycheck protection program revealed the deteriorating wall between church and state. It mentions Congress sought to address their plight by passing the Coronavirus Aid, Relief, and Economic Security (CARES) Act which offered forgivable loans to small businesses and nonprofits to help them stay afloat. It also mentions direct funding of religious entities by the federal government stands to the Founders' understanding of the Establishment Clause.
Erokhina, Yulia, ‘Stereotyping of the Russian Orthodox Church in Fake News in the Context of the COVID-19 Pandemic: Semiotic and Legal Analysis’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1187–1213 Abstract: Fake news is created as ordinary news stylistically but it consists of deliberate disinformation or hoaxes (aimed at misinforming or deceiving people). The text is generally constructed to cause negative emotions and feelings in readers: fear, panic, distrust, and paranoia. It is done to manipulate the opinion and consciousness of a large number of people and eventually leads to changes in the values, ideas and attitudes that already exist in the public awareness. The result is a schism that has already gone beyond the usual spiritual strife. Moreover, its expansion has weakened the defining feature of Russian Orthodoxy which lies in trust and support of the state and authorities. The Russian Orthodox Church has to deal not only with public health crisis but also with profound differences within its ranks over the churchgoers’ behavior in the conditions of a pandemic. The article analyzes legal regulations and mechanisms for countering fake news about the Russian Orthodox Church, and provides examples from the judicial practice. It also determines the mechanisms of the worshippers’ reaction to the fake news involving the Russian Orthodox Church. Using semiotic methodology, the author reveals re-encoding of the symbolic meaning of such signs as ‘Russian Orthodox cross’ and ‘red cross’. The connotative meaning of these signs leads to contradictions in the conditions of the COVID-19 pandemic.
Fernando, Henky, Irwan Abdullah and Mohamad Yusuf, ‘Reception of Law Worship:The Experiences of Muslims Worship During Pandemic Covid-19’ (2022) 22(2) Nurani: Jurnal Kajian Syari’ah dan Masyarakat 201–212 Abstract: The reception of law worship during the pandemic Covid-19 is a pattern that is very important to reflect on as a lesson learned after the Covid-19 pandemic. This study, in addition to providing a conceptual understanding of Muslim religious law receptions pattern during the pandemic Covid-19, also to reflects this reception contextually. This study uses a qualitative descriptive approach. Data collection was carried out through an interview process with Muslims who actively carried out worship activities in the congregation during the pandemic Covid-19 at the Kotagede Mataram Gede Mosque. The analysis in this study was carried out through the process of reducing, describing, and inductively interpreting the data, to obtain a classification and conclusion regarding Muslim religious law reception pattern. This study found that the Muslim worship law reception pattern during the pandemic Covid-19 was not least carried out through three contexts, namely; reception in the context of adaptation, reception in the context of negotiation, and reception in the context of resistance. This study also recommends the importance of comparing Muslim worship law reception patterns in a more macro context.
Fides et Libertas: The Journal of the International Religious Liberty Association (2021) (Special Edition on COVID-19 and Religious Liberty) This open access special issue includes the following articles:
- Kathleen A. Brady, ‘Covid-19 and Restrictions on Religious Worship: from Nondiscrimination to Church Autonomy’ 23
- Louis-Leon Christians, ‘Covid-19, Law and Religion in Belgium’ 65
- Alejandro González-Varas, ‘Law, Religion, and Coronavirus Between the United States and the European’ 71
- Dwight Newman, ‘Covid-19, State Guidance Documents on Religious Services, and the Potential of Pre-Infringement Engagement with Religious Communities’ 90
- Christopher C Lund, ‘Quarantines, Religious Groups, and 81 Some Questions About Equality’ 100
- Daniel Bennett & Andrew R. Lewis, ‘The Coronavirus Pandemic and Restrictions on Churches: Evaluating the Christian Legal Movement’s Role in Polarizing Religious Freedom’ 117
- Mala Corbin, Caroline, ‘Religious Liberty in a Pandemic: Constitutional Challenges to Mass Gathering Bans’ 130
- Michael J. Deboer & Jeffrey B. Hammond. ‘Conflicts Between Public Health Measures and Religious Freedom in a Period of Pandemic’ 142
Abstract: The coronavirus has caused an unprecedented shutdown of biblical proportions. As the world manages a pandemic, of similarities of the 1918 Influenza, that has caused a shutdown of the United States, gatherings like religious services have been subjected to sweeping stay-at-home orders banning congregation. This piece examines the claims of Churches who have faced restrictive and violative enforcement of government order that has allowed homologous activities, such as shopping or dining, at the expense of religious liberties, past to present.
Friesen, Amanda and Paul Djupe (eds), An Epidemic among My People: Religion, Politics, and COVID-19 in the United States (Temple University Press, 2023) [OPEN ACCESS BOOK] Book summary: The pandemic presented religion as a paradox: faith is often crucial for helping people weather life’s troubles and make difficult decisions, but how can religion continue to deliver these benefits and provide societal structure without social contact? The topical volume, An Epidemic among My People explains how the COVID-19 pandemic stress tested American religious communities and created a new politics of religion centered on public health. The editors and contributors consider how the virus and government policy affected religion in America. Chapters examine the link between the prosperity gospel and conspiracy theories, the increased purchase of firearms by evangelicals, the politics of challenging public health orders as religious freedom claims, and the reactions of Christian nationalists, racial groups, and female clergy to the pandemic (and pandemic politics). As sharp lines were drawn between people and their governments during this uncertain time, An Epidemic among My People provides a comprehensive portrait of religion in American public life.
Ganarin, Manuel, ‘Canon Law under the Test of the Pandemic. Critical Issues and Opportunities’ in Serving out of Love: Theory and Practice in Social Teaching of the Catholic Church (Szent István Társulat, 2023) 298–304 Abstract: In light of the decrees of the President of the Council of Ministers to address and contain the spread of Covid-19, the Catholic Church in Italy has cooperated with civil authorities to prevent ecclesial gathering activities that could increase the risk of transmission of the infection. The article aims to carry out an exploration and evaluation of the different measures adopted by the ecclesiastical authorities – Holy See, Italian Episcopal Conference, regional Episcopal Conferences, diocesan Bishops – in light of the intrinsic elasticity of the ius Ecclesiae, structurally capable of designing adequate solutions to avoid crowds of people, also ensuring full freedom in the exercise of the saving mission of the Church, which is expressed above all in the liturgy and the sacraments.
Ganarin, Manuel, ‘Specific Application and Potential of Canon Law during the Pandemic in Italy’ (2021) 61(121) Ius Canonicum 199–243 Abstract: In light of the decrees issued by the President of the Council of Ministers to combat and contain the spread of Covid-19, the Catholic Church in Italy worked with the civil authorities to ensure that gatherings in church settings would not increase the risk of infection. The purpose of this paper is to provide an in-depth analysis and assessment of the measures taken by ecclesiastical authorities – the Holy See, Italian Episcopal Conference, Regional Episcopal Conferences, Diocesan Bishops – within the intrinsically flexible framework of ius Ecclesiae, enabling solutions that would avoid gatherings while also ensuring full freedom to enact the salvific mission of the Church, which is expressed above all in the liturgy and the sacraments.
Gates, Alexander A, ‘Legal and Ethical Implications of Mandatory COVID-19 Vaccination Programs’ (2022) 25 Quinnipiac Health Law Journal 125 Abstract: This article will explore the legality behind vaccine mandates that inherently infringe on civil liberties and what it means for people in different walks of life. In Part II, this note will illustrate the historical background of vaccines and discuss the characteristics that make vaccines unique in preventing infection from otherwise deadly viruses. In Part III, a constitutional basis for compulsory vaccination will be reviewed using case law. In Part IV, the religious and philosophical exemptions that are inherent objections to vaccines will be discussed. In Part V, the Food, Drug, and Cosmetic Act’s (FDCA) Emergency Use Authorization (EUA) will be explored. In Part VI, this note will determine the legality of vaccine mandates in specific situations. In Part VII, the ethical considerations of mandating a vaccine will be evaluated using different frameworks. Part VIII will conclude with a legal and ethical analysis of vaccine mandates.
Ghazali, Robi Musthofa Al, ‘Boarding House Rent Refunds During Covid 19 Based on Sharia Economic Law’ (2022) 1(1) Nusantara Economy 38–47 Jurisdiction: Indonesia
Abstract: This research discusses the issue of returning boarding fees for tenants who do not stay at their boarding houses during the Covid 19 pandemic. Apart from that, this research also discusses the review of Islamic Economic Law. This research is field research. Respondents to this study were village heads, boarding house owners and tenants. The collection techniques used were observation, documentation, and interviews. The findings of this study are that the boarding house owner provides compensation for the cost of renting a boarding house during the Covid-19 pandemic. According to Sharia Economic Law, the return of this rental fee is appropriate and fulfils several conditions and pillars of the rental contract. However, tenants were disappointed during the Covid 19 pandemic because the rent payments were the same as before the pandemic; the tenants’ obligations continued to be carried out to pay the rent in full. The benefit rights obtained are not proportional to the payment in full. So, the practice of returning boarding house rent during a pandemic, according to Islamic economic law, is permissible as long as both parties are willing and do not harm both parties.
Gitter, Donna M, ‘First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions’ (2022) 71(6) American University Law Review 2243–2317 Abstract: The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases. This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views of the proper exercise of the state’s police powers to promote public health and safety, and of the protections afforded by the Free Exercise Clause. Part I of this article considers state vaccination jurisprudence in the United States, beginning with the seminal 1905 case of Jacobson v. Massachusetts, illustrating that federal and state courts have consistently deferred to states’ exercise of their police powers in mandating vaccination, and have held that states need not offer religious exemptions to vaccination. Part II of this article analyzes the two recent cases brought by health care workers who petitioned the Supreme Court for emergency relief from vaccine mandates. This Part focuses on the dissenting Justices’ view that a state must offer a religious exemption to vaccination if it offers a secular one. Part III explores how these dissenting justices developed their interpretation through cases relating to restrictions on religious gatherings, thereby changing Free Exercise jurisprudence significantly during the pandemic era. Finally, Part IV critiques the view that a state violates the Free Exercise Clause where it permits a secular but not a religious exemption to a state vaccine mandate, and explains how the Supreme Court can distinguish the cases concerning pandemic gatherings from cases involving vaccine mandates, so as to uphold state vaccine mandates as constitutional.
Gold, Azgad, ‘Are Healthcare Workers Obligated to Risk Themselves during the COVID-19 Pandemic According to Jewish Law? A Response to Solnica et Al’ (2020) 46(11) Journal of Medical Ethics 736–737 Abstract: Solnica et al argue that ‘Jewish law and modern secular approaches based on professional responsibilities obligate physicians to care for all patients even those with communicable diseases’. The authors base their viewpoint on the opinion of Rabbi Eliezer Waldenberg and apply it to suggest that physicians are obligated to endanger themselves during epidemics, such as COVID-19. It is argued that Solnica et al’s analysis of Rabbi Waldenberg’s text and their conclusion that healthcare workers are obligated to endanger themselves while treating patient who suffer from contagious illness during epidemics according to Jewish law suffer from various shortcomings. Indeed, Jewish law looks favourably on healthcare workers who take a reasonable risk in treating their patients in the context of epidemics. However, it is considered a voluntary supererogatory act—not obligatory. Solnica et al may express a legitimate ethical viewpoint. However, it does not seem to represent the mainstream approach of what Jewish law would demand as obligatory from its practitioners.
Greene, Alan, ‘Closing Places of Worship and COVID-19: Towards a Culture of Justification?’ (2021) 25(3) Edinburgh Law Review 393–400 Introduction: In Reverend Dr William JU Philip and others for Judicial Review of the closure of places of worship in Scotland (Philip), Lord Braid in the Court of Session upheld a challenge by the leaders of several Christian denominations to the Scottish Government’s COVID-19 regulations that required the closure of all churches for congregational worship and private prayer. The closures were in response to increasing COVID-19 cases and the particular risk posed by the new B117 variant which emerged in late 2020. The petitioners raised two distinct issues: firstly, that the respondents lacked any constitutional power to restrict the right to worship in Scotland; and secondly, that even if it did have that power, the closure was nevertheless an unjustified infringement of their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (‘ECHR’) and to associate with others under Article 11 ECHR. As to the first question regarding the constitutionality of the measures, the applicants highlighted the separation between church and state as affirmed in the Acts of Union and Article IV of the Declaratory Articles appended to the Church of Scotland Act 1921. This was dismissed by the court, noting that if the state’s civil power could allow for a more draconian interference with worship such as the imposition of a curfew, then logically, a less draconian interference must also be permissible. The principal question for the court therefore was not whether to draw a clear demarcating line between church and state but rather a question of proportionality as to where the line must be drawn. Here, the court assessed the proportionality of the measures’ impact on the petitioners’ right to manifest their religious beliefs under Article 9 read in conjunction with their right to associate with others under Article 11 ECHR. The court found that these measures were a disproportionate interference with the right to freedom of religion under Article 9 ECHR as the Government failed to show that no less intrusive means other than the closure of places of worship were available to address the legitimate aim of reducing the risk of the spread of COVID-19 by a significant extent. On its face, this looks like a victory for human rights enforced by a muscular judiciary scrutinising closely the justifications proffered by the political branches of government; yet overall, the judgment is unsettling as to the conception of human rights and the rule of law being protected.
Gur-Arye, Miriam and Sharon Shakargy, ‘Solidarity, Religious Freedom and COVID-19: The Case of the Ultra-Orthodox Sects in Israel’ (2021) Netherlands Journal of Legal Philosophy (forthcoming) Abstract: The paper discusses the tension between social solidarity and religious freedom as demonstrated by the refusal of the ultra-Orthodox sects in Israel to comply with Covid-19 regulations. The paper provides a detailed description of the refusal to comply with the regulations restricting mass prayer services in synagogues and studying Torah in the yeshivas, thus interfering with the ultra-Orthodox religious life. The paper suggests possible explanations for that refusal, based on either religious beliefs or a socio-political claim to autonomy, and discusses whether the polity should be willing to tolerate such a refusal on the basis of the cultural defence. The paper concludes that the drastic restrictions which the regulations posed on religious life were justified by the need to reduce the spread of the pandemic. Under such circumstances, the enforcement of social distancing regulations must be given priority over religious freedom.
Hakim, Lukmanul, Muhammad Qias Faslur Rahman and Shifa Sabilla Aprilia, ‘Review of Sharia Economic Law on Rahn’s Practices at the Surakarta Sharia Pawnshop during the Covid-19 Pandemic’ (Proceedings of the 2nd International Conference on Islamic Economics, Islamic Finance & Islamic Law (ICIEIFIL), 2022) 32–38 Abstract: The huge impact of COVID-19 on the economy has made it difficult for people to meet their funding needs. The government established a pawnshop institution which is currently growing rapidly. Sharia pawnshops are currently the choice of the Muslim community because in practice there is no usury. The practice of pawning is familiar with the Rahn contract. Pawning activities have existed since the time of the Prophet sallallaahu ’alaihi wa sallam and he has been practicing. The process of pawning is allowed in Islam as long as it is in accordance with Islamic law, there is no interest / usury in the pawn transaction. Pawning / rahn has been regulated in the DSN-MUI fatwa Number 25/DSN-MUI/III/2022. The process of borrowing through pawnshops is much shorter and the terms are relatively simple, causing pawning activities to develop rapidly until now. The purpose of this study is to describe the process of rahn practice at sharia pawnshops during the COVID-19 pandemic and to describe the views of sharia economics regarding the practice of rahn contracts during the COVID-19 pandemic. The method used in this study is a qualitative method sourced from primary data, namely the Sharia Pawnshop which is located at Jl. Captain Mulyadi No.242, Ps. Kliwon, Kec. Ps. Kliwon, Surakarta City. Methods of data collection in this study in the form of interviews and observation methods. The practice of rahn contracts at the Sharia Pawnshop in Surakarta is in accordance with sharia economic law. In Sharia Pawnshops, they use savings services per 10 days, this is different from conventional Pegadaians which use interest per 15 days. During the Covid-19 pandemic, the Sharia Pawnshop in Surakarta provided relief / leeway in payment, the period of pawning / rahn in sharia economic law was 4 months, and reduced to 5 months.
Harniati, Sri Harniati Sri and Nasri Hamang Nasri Hamang, ‘The Impact of Covid-19 on the Resilience of Families of Parepare Nusantara Port Transport Workers: Islamic Marriage Law’ (2021) 2(1) Al-Iftah: Journal of Islamic studies and society 81–94 Abstract: This study discusses the impact of Covid-19 on the resilience of the families of port workers at Nusantara Parepare in the perspective of Islamic marriage law.With the problem of how the impact Covid-19 on the resilience of the families of Nusantara port transport workers in Parepare City. This type of study is a field study, namely a study that collects data directly from labor community informants. This study was conducted using a phenomenological approach. The results of this study indicate that 1) The impact of the Covid-19 pandemic has caused the economy of the port worker community to be increasingly difficult and deprived. At the time of the closure of the Nusantara port, many of the port workers family conditions were not harmonious because their income was greatly reduced and decreased drastically;2) Condition family resilience due to the Covid-19 pandemic has greatly impacted port workers because the familys economy is increasingly depressed, making it very vulnerable to conflict in the family, and 3) The resilience and harmony of a family since the Covid-19 pandemic has led to disputes and conflicts due to the non-fulfillment of the necessities of life. And the families of port transport workers during the Covid-19 pandemic have become problematic families.
Hasan, Hamzah, ‘Pros and Cons of Online Criminal Case Settlement During the Covid-19 Pandemic: Study on Islamic Criminal Law’ (2021) 1(1) Jurnal Al Tasyri’yyah 15–26 Jurisdiction: Indonesia
Abstract: The online criminal trial discourse has become a hot discussion topic by criminal law practitioners, especially regarding the obscenity case in Petamburan that involved the suspect, HRS. HRS himself and his lawyer refused to hold the online trial for being contrary to the Criminal Procedure Code (KUHAP) although there is a Memorandum of Understanding between the Supreme Court, Attorney General’s Office, Police, and the Directorate General (Ditjen) of Corrections regarding the Implementation of Criminal Trial Proceedings via video conferencing as efforts to prevent the spread of Covid-19 on April 13, 2020. This study aims to provide an answer that Islamic criminal procedural law can accommodate models of virtual criminal case resolution because it considers emergency situations. Moreover, the reason for the emergency has to do with humanity. The data used as materials for data analysis was library research which were taken from fiqh books, written documents, laws and other regulations. The results show that Islamic criminal law can consider its feasibility.
Harisman, Harisman, ‘The Use of Vaccination as an Effort to Prevent the Spread of the Covid-19 Virus in the Perspective of Islamic Law’ (2023) 5 Proceeding International Seminar of Islamic Studies 307–312 Abstract: This article intends to analyze the use of vaccination as an effort to prevent the spread of the covid 19 virus from the perspective of Islamic law. Because in the midst of the community there are still many doubts about vaccination. For this reason, normative research was carried out with study materials originating from the Qur’an, hadith and various literature related to this discussion. The results were analyzed qualitatively which were then described. It can be found that the use of vaccination in preventing the Covid-19 virus is justified as long as it fulfills sharia provisions based on considerations, namely: 1) an emergency situation (daruriyah) by providing relief (rukhsah) with the intention of eliminating mafsadad, and 2) benefit (maslaha mursalah) by attention to three aspects, namely: its influence, its scope, and the strength of its argument.
Heradhyaksa, Bagas et al, ‘Indonesia Sharia Stock Investment During Covid-19: Based on Islamic Economic Law Review’ (2023) 11(3) Jurnal IUS Kajian Hukum dan Keadilan 512–527 Abstract: The development of technology and financial literacy has increased the number of Indonesians who use stocks as an investment instrument. This also has an impact on the popularity of Islamic stocks. This is because many people are interested in Islamic investment instruments. However, the COVID-19 pandemic has had a significant impact on stock price movements. Sharia stock prices have also experienced very volatile movements due to the COVID-19 pandemic. This phenomenon raises the question of whether investing in Islamic stocks during the COVID-19 pandemic is against Islamic economic law. This is because Islamic stock prices seem to be filled with uncertainty and have experienced a very significant price decline. Moreover, due to the COVID-19 pandemic, the number of stock investors is increasing rapidly. This article aims to analyze Islamic stock investment during the COVID-19 pandemic through the perspective of Islamic economic law. To analyze this issue, this article collects data through library research. The data were analyzed using qualitative methods. In the end, this article finds that investing in Islamic stocks during the COVID-19 pandemic does not contradict the principles of Islamic economic law. Instead, this article suggests that the public can take advantage of a certain momentum to start investing in Islamic stocks.
Hill, Mark, QC, ‘COVID-19, Constitutions, and the Courts: Evaluating the Impact of the Coronavirus Pandemic on Religious Liberty’ (2022) 64(4) Journal of Church and State 702–720 Abstract: Commentators on the spread and consequences of COVID-19 pandemic tend to be epidemiologists and statisticians, modeling likely developments in the future based on past events. As the evidence changes, so do their predictions, allowing governments, health providers, and others to adjust their own responses, claiming to be following the science. Graphs and tables of infection and fatality have dominated print and broadcast media. Writing in the early summer of 2022, some two and a half years after COVID-19 was first identified in Wuhan, China, in December 2019, provides a tolerably robust vantage point from which to identify and assess the extent to which steps taken by governments throughout the world had an impact upon the individual and collective right to freedom of religion.1 Governments responded in different ways, but all responses involved some restrictions on the freedoms enjoyed by citizens, including (but certainly not limited to) freedom of religion or belief, as articulated in pan-national human rights instruments as well as constitutional and similar provisions applicable in the domestic laws of each state. The thrust of this article is an evaluation of the constitutionality of the restrictions imposed by national governments, and the efficacy of the courts in ensuring the exercise of religious freedom.
Hisan, Khairatun and Andini Rachmawati, ‘The Review of Emergency Concept in Islamic Law Towards the Fatwa of the Indonesian Ulema Council No. 14 Of 2021 on the Use of Astrazeneca’s Covid-19 Vaccine’ (2022) 5(2) Journal of Indonesian Comparative of Syari’ah Law 121–139 Abstract: The increase in the number of patients caused by COVID-19 makes the government try to reduce the number of disease victims with various efforts, one of which is vaccination. One of the vaccines that have been registered to the Indonesian Ulema Council is AstraZeneca vaccine products. Based on MUI fatwa No. 14 of 2021, the vaccine is haram because it uses pork-derived trypsin in its production but become allowed because of emergencies and some of the reasons in the fatwa. Nevertheless, the implementation of the fatwas is less than optimal, one of which is due to the fatwa MUI that is not binding. Some people refuse to use the vaccine because it is considered not currently included in the emergency. After all, other vaccines are halal and pure to use. This research aims to review emergency concepts in Islamic law towards fatwa MUI No. 14 of 2021 on AstraZeneca Product Vaccine Use Law. This research is qualitative research using normative Islamic legal research methods with document study data collection techniques. The data analysis used is inductive. The results of research that has been conducted show that the use of emergency concepts in MUI fatwa No.14 of 2021 Concerning the Use of COVID-19 Vaccine AstraZeneca products have been following the concept of emergency in Islam which includes fears of loss of life and limbs; emergencies that have occurred; there is no other way to avoid an emergency except by performing prohibited acts; the discovery of halal and sacred medicine and the recommendation of a credible doctor; not contrary to the basic Islamic sharia, including safeguarding the rights of others; there is a statement from the Government that the emergency has occurred in a country; and must prevent it with reasonable levels.
Hodge, James G, Hanna Reinke and Claudia M Reeves, ‘Balancing Religious Freedoms and Public Health Protections During the COVID-19 Pandemic’ (SSRN Scholarly Paper No ID 3619427, 4 June 2020) Abstract: Extraordinary responses to the COVID-19 pandemic are generating substantial debates over the scope and reach of public health powers and religious freedoms. Emergency declarations at every level of government to limit societal impacts of COVID-19 may shift constitutional norms, but do not completely negate rights to free exercise or assemble. Yet, no one has an unmitigated right to harm others in pursuit of their faith. Somewhere between individual religious rights and communal public health objectives lies a legally viable balance. Finding it during the pandemic is controversial. Among the most contentious issues are governments’ temporary orders suspending large religious gatherings to maintain social distances. While many religious leaders have complied, others have vociferously objected. Reaching accord begins with an assessment of legal principles of separation of church and state, especially concerning claims of religious rights to assemble despite unprecedented public health risks.
Houser, Ryan and Andrés Constantin, ‘COVID-19, Religious Freedom and the Law: The United States’ Case’ (2023) 49(1) American Journal of Law & Medicine 24–40 Abstract: During the emergence of SARS-CoV-2 and the COVID-19 pandemic, public health officials exercised their police powers to combat the spread of the virus. The pandemic-related legal interventions adopted throughout the United States included lockdown orders and mask mandates. However, these policies and interventions meant to promote the general welfare of the public, in defense of common good, were met with legal challenges, especially in opposition to interventions’ impact on the exercise of religion. This article provides a legal analysis of the policies meant to curb the COVID-19 pandemic with a focus on legislative and judiciary actions and their implications for religious freedom. Ultimately, we hope this article will help inform future legal analyses on conflicts between public health and religious freedom in the context of pandemic legal preparedness efforts.
Ilmih, Andi Aina, Kami Hartono and Ida Musofiana, ‘The Financing Restructuring Legal Analysis for Debtors Affected by Covid-19 in Sharia Multifinance Institutions’ (2021) 8(2) Jurnal Pembaharuan Hukum 172–183Jurisdiction: Indonesia
Abstract: This study focuses on problematic financing by debtors affected by Covid-19 at Islamic multi-finance institutions in Semarang City, with the aim of finding the reality of the form of problematic financing experienced by debtors during the Covid-19 Pandemic. This study uses an empirical juridical approach, data analysis using descriptive-analysis methods. Based on the research that has been done, the regulation of the Financing Restructuring Law is guided by POJK Number 11/POJK.03/2020 concerning National Economic Stimulus as a Countercyclical Policy on the Impact of Coronavirus Disease 2019 which regulates asset determination, financing restructuring and provision of new funds. The impact arising from the existence of a financing restructuring policy for debtors affected by Covid-19 can be viewed from the following aspects: (1) Juridical Aspect, meaning that there are no sanctions for the financing institution as a creditor if it does not follow or apply, only based on the willingness of the creditor; (2) Economic Aspect, can help debtors to recover and stabilize the economy so that they can fulfill promises (achievements) to creditors; and for creditors the impact on financial activities or transactions that occurred during the Covid-19 pandemic can still be stable; (3) Psychological Aspects, meaning that one side fosters a strong mentality and confidence for creditors/financing customers to fulfill their obligations, and on the other hand, the existence of the presence of financial institutions is maintained in the future.
Imran, Ali Imran Sinaga, ‘Tracing the Existence of Legal Smart in Islamic Jurisprudence Post-Covid-19 Pandemic’ (2022) 1(1) Tadarus Confrence of International Islamic Civilization 58–65 Abstract: One of the traces of the post-Covid-19 pandemic on the technology side is that people are getting smarter in using online applications, making it easier or faster to do all things and at the same time seeing results quickly. However, in terms of sources of Islamic law, there are two kinds of sources of Islamic law, namely agreed sources of Islamic law and sources of Islamic law that do not agree with various categories, experiencing a new problem, namely the emergence of other sources of Islamic law and is called Legal Smart in Islamic Jurisprudence. Legal Smart in Islamic Jurisprudence is in the form of institutions and some are in the form of individual-partial. Its existence and position are still foreign in the hierarchical sources of Islamic law. Anyone quickly discovers, consumes and shares this legal istinbath without considering its quality and this is dangerous at the level of authority of Islamic law and is very concerning. This research is one of the author’s direct surveys and observations on the sharing of WhatsApp, Tiktok, Facebook, and Google applications in Islamic law products developed by people who do not have an established basis of Islamic law. The reading community should be more selective and not so easily accept legal messages of less quality, especially this online application.
Inazu, John, ‘COVID-19, Churches, and Culture Wars’ (2022) 18(2) University of St. Thomas Law Journal 307–329 Abstract: The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to stop the spread of a deadly virus, a public health interest of the highest order. These already high constitutional stakes were further heightened by a rapidly changing pandemic, a heated presidential election, and Justice Amy Coney Barrett’s Supreme Court appointment, all of which fueled the fire of the culture wars. This article explores the free exercise implications of the Court’s resolution of challenges to the COVID-19 shutdown orders through these constitutional and cultural lenses.
Ismail, Wan Abdul Fattah Wan et al, ‘The Admissibility of Digital Document According to Syariah Law: A Preliminary Analysis’ (2020) 3(1) INSLA E-Proceedings 471–480 Abstract: Major shifts in the science and technology landscape have made the collection and analysis of digital evidence an increasingly important tool in resolving crimes as well as preparing the case for the trial in the court. Digital documents are known as electronic documents and it can be used as a means of proof in court. Also, digital documents can be used as evidence in the category of documents based on the definition given in Section 3 of the Syariah Court Evidence (Federal Territories) Act 1997 [Act 561]. However, the digital document as a means of proof is still needed to be discussed in detail regarding its admissibility in the Syariah court. This is because there is no specific provision according to Syariah Court Evidence law on the use of it. This study, therefore, focuses on the concept of digital documents as evidence according to Syariah Law. This study aims to discuss from the Islamic legal perspective on digital documents as a means of proof from the holy Quran, hadith, legal maxims and acts. This study also will focus on the admissibility of the digital document as evidence in the Syariah court in Malaysia. The methodology of this study is a qualitative approach by using document analysis of article papers, journals, statutes and also related document references. The results show that the need to accept the admissibility of digital document as evidence very high, especially for use in the Syariah court. Studies show that the use of the digital document as evidence serves to support other evidence presented in court.
Jalili, Ismail, Fadillah Ulfa and Syahidah Rena, ‘Gendered Resilience: Islamic Legal Maxims and Pandemic Responses Amid Indonesia’s Environmental and Societal Challenges’ (2024) 12(9) Journal of Law and Sustainable Development e3965–e3965 Abstract: This study aims to explore the intersection of gendered resilience, Islamic legal maxims, and pandemic responses within the context of Indonesia’s environmental and societal challenges. It seeks to understand how Islamic jurisprudence and gender dynamics can shape effective responses to crises, particularly in a nation grappling with diverse socio-environmental issues. Through qualitative methods, including content analysis of religious, legal texts, and case studies, the research examines practical applications of Islamic legal principles in crisis response. Findings reveal that gender-sensitive interpretations of Islamic legal maxims improve community resilience and pandemic responses by fostering equitable resource distribution. The study highlights successful case studies and discusses integration challenges in policymaking.
Jamaruddin, Wahida Norashikin and Ruzian Markom, ‘The Application of Fintech in The Operation of Islamic Banking Focussing on Islamic Documentation: Post-COVID-19’ (2020) 3(1) International Seminar on Syariah and Law (INSLA) E-Proceedings 31–43 Abstract: FinTech is innovation, and it is developing rapidly as part of current human need dealing with financial transactions in daily life, embracing the banking industry as convenience instruments to the consumers. Adapting FinTechin Islamic banking is challenges in terms of Shariah-compliant as the essential elements of riba’,maysir, and gharar prohibited from forming part of the FinTechcomponent. Islamic finance institutions in the world face problem in dealing with financial transactions as well as saviour during pandemic COVID 19, where most countries in the world are affected and declared lockdown as an emergency solution to cutthe chain of COVID 19. Concerning the pandemic crisis, problems on the operation of Islamic banking adopted Islamic Fintech need to explore, which also concerning the conduct of legal firms in managing Islamic banking documentation. The objective of this paper is to identify the application of Islamic fintech in Islamic banking, the legal framework of Islamic fintech, issues in managing the operation and Islamic banking documentation at legal firms, and analysethe suitability of Islamic fintech in the service of Islamic banking during the Movement Control Order. The methodology used in attaining the objectives is qualitative by utilizing the library as the data centre, review the journals and articles, including collecting data from books and available reports. As a result of the study, the paper suggested new norms need a new approach by Islamic finance and any legal institution since the operation heavily relies on the adherence to Syariah requirements and guidelines issued by Bank Negara Malaysia and Security Commission. The support from the government in providing an adequate legal framework for fintech’s instrument to operate needs attention, and consultation among the experts is much welcome by the fintech community.
Jauhari, M Sofwan and Abdul Ghoni, ‘The Level of People’s Obedience to MUI Fatwas (COVID-19, Bank Interest, and Interfaith Marriage)’ (2020) 20(2) AHKAM : Jurnal Ilmu Syariah 233–256 Abstract: Indonesian Ulama Council (MUI) is an organization for Muslim scholars who provide guidance for the Muslim community in the form of fatwās on a particular situation on which the community can rely. In the ongoing situation relating to the COVID-19 pandemic since March 2020, MUI released a fatwā as to how to face the pandemic. This research is aimed to measure the level of people’s obedience to the fatwā. To obtain an accurate measurement, this research involves two others MUI’s fatwās - a fatwā related to bank interest and a fatwā related to interfaith marriage – by way of making a comparison. This research uses mixed methods which combined the quantitative method using SPSS and the qualitative method. This research finds that the young unmarried Muslim, mostly under-25- year-old university students, have the highest level of obedience to the fatwā related to COVID-19. The fatwā related to interfaith marriage is the most obeyed fatwās, and fatwā related to COVID-19 is the least one among three fatwās in this research.
Käsehage, Nina (ed), Religious Fundamentalism in the Age of Pandemic (Transcript, 2021) [open access book]
Contents:
- Yaakov Ariel, ‘Cultural Wars and Communal Perseverance: Jewish Fundamentalism in Our Time’ 25 - 46
- Anastasia Mitrofanova, ‘The Impact of Covid-19 on Orthodox Groups and Believers in Russia’ 47 - 80
- Nina Käsehage, ‘Towards a Covid-Jihad – Millennialism in the field of Jihadism’ 81 - 106
- Uran Botobekov, ‘How Central Asian Salafi-Jihadi Groups are Exploiting the Covid-19 Pandemic: New Opportunities and Challenges’ 107 - 148
- Olga Torres Díaz, ‘Islamic Fundamentalism Framing Politics in Mali: From the Middle Ages to the Age of Pandemic’ 149 - 178
- Miguel Alvarez Ortega, ‘Global Virus, International Lamas: Tibetan Religious Leaders in the Face of the Covid-19 Crisis’ 179 - 220
- Barbara Lucini, ‘Dismantling Prejudices on Muslim Communities in Italy in Times of Pandemic: not just Religious Fundamentalism’ 221 - 250
- Peter Antes, ‘Religious Fundamentalism – A Misleading Concept?’ 251 - 262
Abstract: The freedom of worship constitutes the quintessence of religious freedom and is also affiliated with the autonomy enjoyed by church organisations. In the times of a pandemic, the freedom of worship is subject to restrictions in accordance with the requirements of the principle of proportionality. This topical version of religious freedom is influenced significantly by the autonomy enjoyed by the different religious denominations in line with the current State, which outlines the relationships between them. In Cyprus, where the homotaxy system applies to the autocephalous Orthodox Church of Cyprus, a remarkable autonomy pursuant to the State and canon law is generally enjoyed. This is evidenced by the management of the restrictive measures imposed on the freedom of worship during the lockdown phase and the period of the gradual easing of the restrictive measures.
Kembarawan, I Gusti Komang, ‘Law Compliance with the Implementation of Hindu Religious Cereminies [sic] in the City of Mataram in the Framework of Maintenance of Social Solidarity During the Covid-19 Pandemic’ (2022) 5(01) Jurnal Hukum Agama Hindu Widya Kerta 32–45 Jurisdiction: Indonesia
Abstract: This study was conducted to analyze legal compliance in the implementation of Hindu religious ceremonies in the city of Mataram in the context of maintaining social solidarity during the COVID-19 pandemic. This phenomenon is related to the adaptation of the implementation of Hinduism in Mataram city regarding Social Restrictions during the Corona Virus Pandemic (Covid-19). This research is designed in a qualitative descriptive type. The results of this study obtained three answers from the formulation of research problems. First, legal compliance in carrying out religious ceremonies for Hindu communities in the city of Mataram in the midst of the implementation of social restrictions in preventing the spread of the COVID-19 pandemic is still being carried out by conditioning and complying with health protocols. Second, legal compliance in the implementation of Hinduism is indicated by a change in the implementation of religious ceremonies which are no longer performed lively, but are regulated by avoiding crowds. Third, legal compliance in a small scope is applied in carrying out religious ceremonies in the family environment and as much as possible reducing the implementation of religious ceremonies outside the home. Although there are people who carry out religious ceremonies outside their homes, they are required to comply with health protocols.
Khalil, Muhammad Ainul Hakim Muhammad et al, ‘Advantages of Temporary Waqf in Combating COVID-19 Pandemic in Malaysia’ (2020) 3(1) INSLA E-Proceedings 167–180 Abstract: Waqf is a form of charity which is highly recommended in Islam. In Malaysia, most of the states impose solely on perpetuity property based on Shafiᶜiy school of law view as stated in State Administration of Islamic Law Enactment and State Waqf Enactment. However, there are certain states allowed the implementation of temporary waqf such as Johor, Federal Territory of Kuala Lumpur, and Sarawak. In 2020, most of the country across the world including Malaysia are affected by deadly disease which is known as COVID-19. The World Health Organization (WHO) declare it as pandemic on January 2020. Malaysia Government has issued Movement Control Order (MCO) as a preventive measures to overcome this contagious disease. Many institutions and employment sectors are ordered to stop their operation temporarily. The negative impact of MCO affected daily life routine, public safety and security, education, and business. Thus, the objective of this paper is to study the concept of temporary waqf from the Islamic perspectives and to explore the advantages of temporary waqf in combating COVID-19. This paper has conducted inductive and deductive methods. In this qualitative research, data has been collected by using library research, observations, and interview. The result of this paper shows that temporary waqf products brought many advantages as compared to perpetuity waqf in combating this pandemic COVID-19.
Kurniawan, Nicko Diaz, ‘Legal Protection of Cancelled Prospective Hajj And Umrah Contributors During Covid-19 Pandemic: The Basis of Law No. 8/2019 Concerning The Organization of Hajj and Umrah’ (2022) 1(3) SRAWUNG (Journal Of Social Sciences And Humanites) 83–90Jurisdiction: Indonesia
Abstract: The impact of Covid-19 which caused hajj and umrah trips were having problem, therefore the government has limited these worship activities to held during this pandemic. There are two objectives of this research, such as to find out the accuracy of the government’s policy regarding the cancellation of Hajj and Umrah departures during the Covid-19 pandemic and to analyze the legal protection stipulated under Law No. 8/2019 regarding the cancellation of the departure of prospective pilgrims. The method used in this research is a logical examination method combined with a standardized exploration strategy (juridical regularizing) and a conceptual approach. The existence of this pandemic caused the government to issue a new regulation, that is a decision through KMA No. 494/2020 and KMA No. 660/2021 concerning cancellation of Hajj departures. The policy contains security, safety, and health with the aim that pilgrims are not exposed to the Covid-19 virus. The type of government protection for prospective pilgrims, such as ensuring security, comfort, and funds for pilgrims who cancel their Hajj or Umrah.
Lathifah, Anthin, Briliyan Ernawati and Anwar Masduki, ‘Problems with the Islamic Legal System Regarding Child Marriages in Indonesia during the Covid-19 Pandemic Period’ (2022) 22(2) Ijtihad: Jurnal Wacana Hukum Islam dan Kemanusiaan 155–176 Abstract: The high number of child marriages during the Covid-19 pandemic period poses problems related to the Islamic legal system in Indonesia. This study aims to describe the problems of the Islamic legal system regarding the phenomenon of child marriages during the pandemic period in Indonesia. This paper is the result of a qualitative research with a socio-legal analysis approach, that is based on Friedman & Hayden’s legal system theory. The results of the study show that there are three substantial problems with the Islamic legal system, namely: (1) the problem associated with the legal substance where the Marriage Law stipulates the age of a bride to increase from 16 to 19-year-old as contained in article 7 paragraph (1) of the Marriage Law number 16 of 2019, while at the same time it enables child marriages to be carried out through a marital dispensation request, it acknowledges marital vows (ithbat), and there is an absence of legal sanctions for violating the Marriage Law; (2) the problem related to the legal structure of child marriages that is rooted in the formation, enforcement, and development of child marriage law; and (3) the problem of legal culture in relation to the legal behavior of child marriage, unregistered marriages (sirri) for minors, and the lack of social arrangements to promote the culture of marriage at a mature age. Therefore, this paper offers a reconstruction of the Islamic legal system in terms of legal substance, legal structure, and legal culture to minimize child marriage practices in Indonesia.
Laws (2021) 10 (Special Issue: ‘The Crisis of Religious Freedom in the Age of COVID-19 Pandemic’) Hill, Mark, ‘Coronavirus and the Curtailment of Religious Liberty’ (2020) 9(4) Laws Article 27
Abstract: Even public health emergencies must be handled within the framework of the rule of law. The alternative is social chaos. Every nation on earth has been touched by the impact of COVID-19, a deadly pandemic that has changed; perhaps permanently; the manner in which we are governed and live our daily lives. This paper addresses the effect of the State’s response to the threat of Coronavirus upon the enjoyment of religious liberty, both directly and indirectly.
Haynes, Jeffrey, ‘Donald Trump, the Christian Right and COVID-19: The Politics of Religious Freedom’ (2021) 10(1) Laws Article 6
Abstract: This paper examines the issue of religious freedom in the USA during the coronavirus pandemic of 2020–2021, during the presidency of Donald Trump (2017–2021). It contends that the ability of state governors to close religious places of worship illustrates both the limits on the power of the president and that public health can take supremacy over religious freedom in today’s America. The paper is organised as follows: first, we identify the importance of religious freedom for the more than 20 million Americans who self-classify as Christian evangelicals. Second, we assess the transactional importance that President Trump placed on Christian evangelicals’ religious freedom. Third, we look at one kind of Christian evangelicals—that is, Christian nationalists—to see how they regarded restrictions on their religious behaviour caused by COVID-19. Fourth, we briefly examine several recent legal cases brought against the governors of California and Illinois by the Liberty Counsel, the leading Christian evangelical legal firm in the USA. Led by Matthew Staver, Dean of the Liberty University Law School, Liberty Counsel regularly represents Christian nationalists who challenge state-imposed restrictions on religious gatherings during the coronavirus pandemic.
Chopko, Mark, ‘The Constitutionality of Providing Public Funds for U.S. Houses of Worship during the Coronavirus’ (2021) 10(1) Laws Article 8
Abstract: U.S. constitutional jurisprudence precludes the direct government funding of religious activity. At the same time, the jurisprudence surrounding the U.S. First Amendment Religion Clauses has evolved to support the general inclusion of religious entities in programs through which a government advances some overarching public interest, such as health care or social services, but does not involve the Government in advancing religion per se. Moreover, the most recent U.S. Supreme Court cases hold that it is a violation of the First Amendment to exclude a religious actor, solely because it is religious, from a general public program and funding on equal terms with secular actors. Pandemic relief from the federal government has been made available to houses of worship (churches, mosques, synagogues, etc.) to mitigate the economic impact of government lockdown orders and public health restrictions on assembly, by offsetting loss of revenue and avoiding the suspension or termination of employees. The extension of such relief sits precisely at the crossroads of debated legal questions about whether such assistance is aid to religion—prohibited—or neutral disaster relief on equal terms with other community-serving entities—permitted. This article concludes that the inclusion of houses of worship is constitutional, given the trend and direction of U.S. law, although the matter will continue to be debated as the effects of the pandemic recede.
Baumgardner, Paul, ‘Immunizing the Flock: How the Pandemic Court Rewrote Religious Freedom’ (2021) 10(1) Laws Article 12
Abstract: When coronavirus began to descend upon the United States, religious freedom advocates across the country sounded the alarm that citizens’ religious practices and institutions were under threat. Although some of the most extreme arguments championed by these advocates were not validated by our legal system, many were. This article explores the underappreciated gains made by religious freedom advocates before the U.S. Supreme Court over the past year. As a result of the ‘Pandemic Court’, religious freedom in the United States has been rewritten. This promises to radically change the educational, employment, and health prospects of millions of Americans for the rest of the pandemic and long afterwards.
Androutsopoulos, George, ‘The Right of Religious Freedom in Light of the Coronavirus Pandemic: The Greek Case’ (2021) 10(1) Laws Article 14
Abstract: The purpose of this article is to take into consideration the impact of unprecedented restrictions due to COVID-19 on the exercise of religious freedom according to the Greek legislation and case-law. The crucial fact to be examined is the proportionality of the exceptional measures of the Greek State. At the beginning of the pandemic, religious ceremonies were allowed only in the presence of clerics, but nowadays they are permitted on the condition that the measures of ‘social distancing’ are being followed strictly. As it is generally accepted, the Greek State managed to deal with the pandemic without deviations from constitutional order and protection of fundamental rights, in accordance with a ‘pressing social need’. In this context, the case-law of the Greek courts is of great importance, which ruled that the above mentioned restrictions did not offend the principle of proportionality, especially because of their temporary and short-term character. Nevertheless, these restrictive measures must be revised from time to time, considering the updated, epidemiological data in order to be selected the most appropriate and less stringent on a case-by-case basis. Consequently, these judgments do not give government a blank cheque regarding the management of the pandemic, but rather provide them with a clear framework which is able to guarantee the measures’ accordance with the Greek Constitution. However, the potential risk that people may become used to the restrictions imposed after the crisis has passed must not be overlooked.
Fornerod, Anne, ‘Freedom of Worship during a Public Health State of Emergency in France’ (2021) 10(1) Laws Article 15
Abstract: This paper analyses three key decisions issued by the French State Council in 2020 following emergency proceedings concerning the impact of pandemic-related measures on the freedom of worship. The Council interestingly recalls that the freedom of worship is a fundamental freedom, but shows, too, how it is influenced by circumstances when determining whether the measures limiting the freedom to practice one’s religion are proportionate to the goal of protecting public health.
Ahmad, Nehaluddin, ‘Protecting the Rights of Minorities under International Law and Implications of COVID-19: An Overview of the Indian Context’ (2021) 10(1) Laws Article 17
Abstract: The concept of majority rule and respect for minority rights is demonstrated in several constitutions of the world. Oppression by the majority of the minority is barred by articles of these respective constitutions. Today, democracy is mostly a method of government of the people that is ruled by the people. The issue of minority rights is at the center of the concept of civic rights. Minority protection, thus, operates on the hypothesis that religious, cultural, and linguistic affiliations are essential features of the very notion of a civic, just society. This paper offers an alternative account of why minority rights have international significance and more information on the value of an international, socially just process for the allocation of resources by states. By this approach, international minority rights speak to the wrongs that international law itself produces by organizing international political reality into a legal order. This article focuses on the uncertain effect of religious autonomy in India and the outcome of democracy in the country. While the Indian constitution guarantees autonomy to its religious minorities and promises minorities their freedoms, Indian democracy, which was once considered remarkable in scale and duration, has been weakened by the rise of xenophobic nationalism and threats to religious minorities. Even the safety and religious freedom of minorities have been compromised during COVID-19. In the last few decades, these trends have been clear; however, they have dramatically increased in the last few years, and the administration has turned a blind eye.
Tengatenga, James, Susan M Tengatenga Duley and Cecil J Tengatenga, ‘Zimitsani Moto: Understanding the Malawi COVID-19 Response’ (2021) 10(2) Laws Article 20
Leathers, William, ‘Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard’ (SSRN Scholarly Paper ID 3863451, 9 June 2021) Abstract: The coronavirus disease 2019 (COVID-19) pandemic has unsettled societies and economies of people and countries all over the world. Malawi is no exception. As such, the COVID-19 pandemic is more than just a health crisis. Countries have responded by instituting lockdowns and other restrictive measures among the populace. These have, in turn, elicited negative responses and legal challenges; most of which are rights-based. The main challenge has been that of the restriction of individual and religious freedoms. It is, thus, no surprise that reactions against government decrees restricting religious gatherings in the wake of the pandemic have been challenged in the courts. We will explore the Malawian traditional religious concept of healing and wholeness, give a chronological outline of government decrees and the responses to the pandemic, and conclude with an analysis using some reflections on Ferdinand Tönnies concepts of Gemeinschaft and Gesellschaft and recollection of traditional religion and critique of the new evangelicalism leading to an understanding of the Malawian response to the pandemic.
Abstract: This Article makes three arguments, all rooted in Lukumi’s value-judgment justification for the general applicability standard. First, Lukumi’s value-judgment justification is much broader than Lukumi itself suggests, and potentially so broad as to be unworkable. Second, this broad standard means both that Tandon was rightly decided and that Smith itself was not—according to the logic of Lukumi and Tandon, the very law in Smith was not generally applicable. And third, in addition to showing that Smith was wrongly decided on its facts, this value-judgment justification fundamentally undermines the general applicability rule itself. First, Lukumi grounds the general applicability standard in a rule against value judgments: the government may not devalue religious conduct in the pursuit of its interests. But government interests come in different levels of generality. As an example, the government’s interest in ‘Stopping the Spread’ of COVID-19 in the home serves its broader interest in ‘Stopping the Spread’ of COVID-19 more generally, which in turn serves a broader interest in public health. As applied to value judgments, these different levels of generality have two significant implications. First, the government may make value judgments in the pursuit of its interests at all levels of generality. And second, as the level of generality increases, so too does the scope of the conduct that threatens those interests. Unless analogous secular conduct must be inherently analogous to the relevant religious conduct, combining a high level of generality with all conduct that threatens it produces a theoretically justified but practically unworkable general applicability standard. Nevertheless, Tandon partially confirms this broad reading of Lukumi. While Tandon does not address whether analogous secular conduct must be inherently analogous, it casts the government’s interest at a high level of generality: stopping the spread of COVID-19 in general. As such, it is not sufficient, as the dissent suggests, that religious and secular conduct were treated alike at the interest’s lowest level of generality: stopping the spread of COVID-19 in homes. Importantly, had the general applicability analysis in Smith been conducted at this level of generality, Smith would have come out the other way. Finally, in addition to casting doubt on whether Smith was decided correctly on its facts, the value-judgment justification fundamentally undermines the rule of general applicability itself. Value judgments inhere in the very act of regulation. Before regulating religion at all, the government must calculate religious costs and adjudge those costs to be outweighed by some governmental interest. This too is a value judgment, and this too should be subjected to the strictures of strict scrutiny.
Levine, Samuel J, ‘Hands-Off Religion in the Early Months of COVID-19’ (SSRN Scholarly Paper ID 3708424, 1 October 2020) Abstract: For decades, scholars have documented the United States Supreme Court’s ‘hands-off approach’ to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, judicial rulings and rhetoric in these cases illustrate ways in which the hand-off approach remains, at once, both vibrant and vulnerable to critique.
Levine, Samuel J, ‘The Supreme Court’s Hands-Off Approach to Religious Questions in the Era of COVID-19 and Beyond’ (2022) 24(1) Journal of Constitutional Law 276–312 Abstract: For decades, scholars have documented the United States Supreme Court’s ‘hands-off approach’ to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. Although the Court’s approach is based in well-grounded prudential and jurisprudential concerns revolving around the role and capacity of judges to adjudicate religious issues, the Court has expanded the contours of the hands-off approach to the point that some scholars have found parallels in the political question doctrine, accordingly dubbing the Court’s approach the ‘religious question doctrine.’ Whatever the title, the Court’s expansion of the hands-off approach has prompted substantial scholarly criticism, as well as notable instances of dispute—if not disregard—by prominent judges, likewise on both prudential and jurisprudential grounds. Since the start of the COVID-19 pandemic, these issues have repeatedly been brought to the forefront of legal, political, and popular discourse, as courts across the United States, including the Supreme Court, have faced difficult and often unprecedented—and, heretofore unforeseeable—questions about the place of religion and religious practice in American law and society. Concomitant with disputes over limitations on religious gatherings due to the pandemic, in July of 2020, near the end of a term that was extended because of the virus, the Supreme Court decided two important cases turning on religious doctrine. More recently, confronted with cases of its own over religious gatherings amid the pandemic, rather than issuing decisions that provide clear guidance, the Supreme Court has produced contentious and fractured rulings that stand as but further illustrations of unsettled and unsettling aspects of these ongoing controversies. This Article suggests that, taken together, judicial rulings and rhetoric in these cases demonstrate that the hands-off approach remains, at once, both vibrant and vulnerable. Specifically, the Supreme Court’s July 2020 decisions both reinforced and extended the scope and impact of the hands-off approach, elucidating the basic elements of the Court’s approach while at the same time exemplifying some of the problems latent in judicial failure or refusal to decide issues of significant import. The religious gathering cases, in turn, offer a poignant example of the difficulties the hands-off approach imposes on judges when the proper resolution of a case seems to require, at least in part, a measure of inquiry into the substantive doctrine underlying a religious practice. Part I of the Article briefly outlines the contours of the hands-off approach, highlighting the development and evolution of the doctrine and identifying some of the concerns, justifications, and critiques that have influenced and accompanied the Court’s analysis. Part II of the Article turns to the two important Religion Clause cases the Court decided in July 2020, during the early months of the COVID-19 pandemic, demonstrating the continuing centrality of the hands-off approach, both enriching and complicating judicial decision making. Part III examines cases in which religious claimants challenged governmental limitations on religious gatherings, finding that differences in attitudes toward the hands-off approach and other forms of judicial deference may help explain stark differences in judicial rulings and judicial rhetoric. On the basis of these assessments, the Article concludes that taken together, these cases demonstrate the abiding relevance—and limitations—of the hands-off approach to questions of religious practice and belief, in both ordinary and extraordinary times. As such, the Article closes with the hope that the Supreme Court will closely examine the critiques, acknowledge the underlying problems, and consider some of the proposals that, for decades, scholars, dissenting justices, and others have offered, toward a more workable, more effective, and more uniting approach to questions of religious practice and belief.
Madera, Adelaide, ‘Litigating Religious Freedom in the Time of COVID-19: A Comparative Analysis’ (2022) 64(4) Journal of Church and State 721–731 Abstract: Courts have received a huge number of applications concerning COVID-19 provisions and processed multiple legal challenges concerning ad interim relief against emergency measures, often resorting to urgent procedures. Such exceptional procedures have led to summary judgements where legal matters concerned were scrutinized in a limited way. However, courts have given a significant contribution to a crucial challenge: clarifying ‘whether and to what degree fundamental rights can be subject to restrictions due to an unprecedented health crisis.’ Although a comparative analysis shows that in various legal contexts courts have scrutinized cases following multiple standards of review, a common set of practices can be found. A crucial question concerns the role of the judiciary during an emergency, namely what degree of deference is due toward executive boards? Emphasizing the ‘near uniformity’ of judicial approaches, Mark Hill’s comparative analysis of the judgements of several jurisdictions (including African courts), showed that at the outbreak of the pandemic, courts granted a broad latitude to the executive, and deferentially accepted their decisions. Justices acknowledged that the executive powers were better placed to take the most appropriate decisions in the light of their experience and knowledge. However, as time went by and scientific evidence increased, deference declined.
Manamperi, Lakmali Bhagya, ‘A Critical Human Rights Perspective on the Sri Lankan Government’s Forced Cremation Policy of COVID-19 Deceased in the Context of Religious Majoritarianism’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 105–116 Abstract: The State-sanctioned forced cremation of COVID deceased in Sri Lanka was a policy which blatantly discriminated the religious rights of certain minority communities – the Muslims, for whom cremation is forbidden by their religion, and certain sections of the Christian community who consider burial as the traditional way of farewell to the dead. This paper analyzes how COVID-19 was used as a tool for State intervention in the religious matters in a Constitutional context where religious majoritarianism prevails. It is suggested that more secular features, would improve the respect for human rights of the country.
Manchin, Gayle and James Carr, ‘Don’t Let Religious Freedom Become a Casualty of Coronavirus’ in Barrie Sander and Jason Rudall (eds), Opinio Juris Symposium on COVID-19 and International Law (2020) Abstract: Introduction: How far can a government limit religious freedom in the name of fighting the coronavirus (COVID-19) under international law? As the global pandemic continues, many national and local governments are grappling with this question. Religious gatherings are important opportunities for people to practice and share their beliefs, but they are also sites for transmission of COVID-19, endangering not only participants in these gatherings but everyone with whom they interact. Crises require decisive government action, but governments often use times of crisis to encroach on individual freedoms or target minority groups long after the crisis has passed.
Mansyuroh, Firqah Annajiyah and Rahmat Fadillah, ‘Opportunities and Threats of Online Loans During the Covid-19 Outbreak: The Importance of Disseminating Sharia Economic Law to South Kalimantan Society’ (2022) 3(1) Proceeding International Seminar of Islamic Studies 687–694 Abstract: During the covid-19 outbreak, there was a drastic decrease in income with living expenses that still had to be met, causing people to finally decide to take out loans to meet their daily needs. This also happened to the people of South Kalimantan, where there were cases of illegal online loans that violated sharia economic law in various aspects. This paper examines the importance of disseminating sharia economic law during the covid-19outbreak.This topic is theoretically and practically important in legal culture. Public Understanding of the opportunities and threats of online loans cannot be separated from the intensity of dissemination and counseling carried out to society. This research combines empirical legal analysis with survey method to see how the opportunities and threats of online loans are according to South Kalimantan’s people. The results of this study will show that public welfare and the principle of legal fiction must be supported by the dissemination of law to the entire public of South Kalimantan.
Meybodi, Seyed Mostafa Mirmohamadi and Nasrollah Jafari, ‘Legal Principles and Strategies to Encourage Citizens to Get Vaccinated against COVID-19 Virus’ [2024] Journal of Community Health Research_ _Abstract: Following the outbreak of COVID-19 pandemic, in some countries, mandatory vaccination programs were put to practice. However, there were widespread opposition against vaccination, which is investigated in this research. With the emergence of corona virus in the world and the need to end this dangerous pandemic, various countries, including Iran’s legal system, decided to implement ‘compulsory vaccination’ mechanisms. The findings of this study indicated that the government from the perspective of various schools (even the school of individual originality) was not only allowed to legislate rules to make vaccination obligatory, but also it was expected to enact appropriate laws to create public safety. According to the principles of Islamic jurisprudence and law, including the priority of collective interests over the individual, the rule of no harm, and the authority of the Supreme Leader, the government is not only authorized but also obliged to enact laws for making vaccination obligatory.
Miftahudin et al, ‘Empowering Students’ Religiosity to Fight Radicalism and Anarchism after Covid-19 and The Act of Omnibus Law at Higher Education’ (2021) 21(2) Al-Ulum 345–361 Abstract: Radicalism and anarchism can be carried out by students who are studying at public or private universities, especially in Serang City, Banten Province. The purpose of this study is to examine and improve the religiosity of university students in Serang City in countering radicalism and anarchism. The research used a qualitative approach with phenomenology as a method. The results of this study conclude that the religiosity of students in Serang City can be improved in several ways; carrying out periodical Islamic studies, istighasah (praying), learning to read and write the Qur’an, commemorating Islamic holidays, reviewing Islamic books, I’tikaf (staying) and taking care of the mosque, and going a pilgrimage. The role of universities in countering radicalism and anarchism, meanwhile, is by assigning Islamic religious education lecturers to guide and control the students to follow those activities.
Mohamed, Faiz Asyraf Razali et al, ‘The Relationship Between Non-Halal Animals and Pandemic Diseases According to the Shafie School of Islamic Law’ (2023) 8(2) Journal of Contemporary Islamic Law 53–60 Abstract: Humans have been confused about the type of animal to become a daily consumption. Many research has proven the link between animals and the onset of disease. In recent years, many diseases of animal origin have spread, and some have been classified as pandemics, for example, SARS, MERS, COVID-19, and Ebola. Most of these diseases are caused by zoonotic creatures that are derived from animals. This research aims to find the relationship between the pandemic diseases and animals via analyses based on Islamic law. The study utilised qualitative methodology as the main framework. Secondary data related to the record of disease emergence from animal consumption and Halal principles literature have been collected. Findings show that most animals that spread diseases are illegal or prohibited to consume in Islam, e.g., pigs, bats, and pangolins. In Islam, principles of Halal principles are used to control food choices. These principles are built on the basis that all things consumed in the human body must be allowed by the Quran and hadith, clean, permissible, and safe. Therefore, Islam has laid down some conditions related to animal consumption. Findings also proved the relationship between the cause of the pandemic disease and prohibited animals based on Halal principles. Halal principles can be considered a comprehensive instrument compromising Islamic law in food consumption and recent human necessities. This study suggests more research to be conducted in exploring the impact of Halal principles towards human food consumption in avoiding diseases.
Mokhtar, Mohd Na’im, ‘Reformation of Syariah Judiciary Institution During COVID-19 Pandemic’ (2020) 3(1) INSLA E-Proceedings 18–22 Abstract: In Malaysia, the pandemic of coronavirus COVID-19 has impacted almost all areas of our life. The administration of the Syariah courts is no exception. The effects of the pandemic have been felt until now. Following the movement control order (MCO) on March18, all operations at Syariah courts nationwide have been halted. However, it did not stop the administration of JKSM and the Syariah courts which have continuously discussed, using the online platforms, to formulate reforms if the MCO was finally over. If justice delayed is justice denied, the COVID-19 would seem to be a disaster for our judicial system. But eight months into the crisis, there are signs that what is slowing courts overall is actually accelerating reforms in procedures. This is undoubtedly the hikmahor the positive side of COVID-19. When the pandemic finally ends, we hope that some of the changes that have been introduced will continue to be endured by the Syariah judicial system, and the efforts for reforms will continue.This speech explains the impact of covid-19 pandemic on Syariah judiciary, particularly on its operation and how has the institution, i.e. the Syariah courts dealt with it and the reforms that are taken in making sure the continuity of its service during the pandemic.
Mongiardo, Joseph, ‘Constitutional Law - How a 2019 Measles Outbreak Has Paved the Way for COVID-19 Vaccination Mandates - C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, 191 A.D.3d 52 (N.Y. App. Div. 2020)’ (2022) 18 Journal of Health & Biomedical Law 72–82 Abstract: Efforts to vaccinate a general population have a legacy of longstanding conflict, pitting the state’s duty to the general welfare, health, and safety of all its people against the fundamental freedom of free exercise of religion for its citizens. In C.F. v. N.Y.C. Dep’t of Health & Mental Hygiene, the Appellate Division of the New York Supreme Court addressed whether a municipal board of health’s vaccine mandate violated residents’ religious freedom under the 1st and 14th Amendments. Neutral laws of general applicability, which pass the rational basis test, need not stand up to strict scrutiny and do not implicate the Free Exercise Clause. The Appellate Division of the New York Supreme Court, with an eye toward potential COVID-19 vaccination mandates, affirmed that a vaccine mandate is a reasonable and proper exercise of a state’s police power and does not violate federal or state constitutional rights to the free exercise of religion when done for a ‘compelling state interest... narrowly tailored to apply only to a specific, confined geographical area with a high incidence of disease and only applied for a limited period of time’.
Moore, Kathleen M and Jed D Forman, ‘Defiant Worship: Religious Liberty Talk and Rights in COVID-19 Pandemic Times’ (2022) 64(3) Journal of Church and State 479–505 Abstract: This article draws on interactive social media content collected from Facebook and Twitter during the first six months of the COVID-19 pandemic in order to examine responses to the public health measures that restricted indoor forms of religious assembly. Restrictions on indoor religious gatherings were challenged in courts and their constitutionality was addressed by the Supreme Court over the summer of 2020. This historic period, with lockdowns, testing, contact tracing, and vaccines—not to mention its prohibition on public gatherings—provides a unique opportunity to assess religious liberty claims during a nationwide public health emergency. Taking advantage of this rare opportunity, the article offers a critical analysis of religious freedom discourse engendered by the coronavirus pandemic. We adopt a fairly unconventional approach to explore social media content for the meanings given to religious freedom in this historic moment.
Movsesian, Mark, ‘Law, Religion, and the COVID Crisis’ (2022) Journal of Law and Religion (Advance article, published online 2 February 2022) [pre-published version available on SSRN] Abstract: This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.
Mubarak, Syaugi, ‘Implementing the Fiqh of Disaster in Islamic Criminal Law Perspective and Legal Relevance of Mui’s Fatwas during the COVID-19 Pandemic’ (2023) 18(1) International Journal of Criminal Justice Sciences 79–96 Abstract: Islamic criminal law has co-existed as a major legal system along with other community laws. When pandemic occurred and instinbᾱth al hukm (fatwas) were issued by MUI, it was argued whether the noncompliance of these fatwas would be seen as a criminal offence under the Islamic criminal law; Islamic legal experts opine that kejahatan or any unlawful act that is injurious to human body, property or morals is a forbidden act and carries punishment under the category of criminal offence. This study aimed to establish how the fatwas of the MUI related to the COVID-19 pandemic in Indonesia were seen as disaster fiqh or legal maxims and whether they could be equivalent to the laws such as Law of the Republic of Indonesia, Number 24 of 2007, concerning Disaster Management; or Regulation No 21 of 2008 Implementation of Disaster Management. The fatwas of the MUI and sampled for this study were issued during 2020 and 2021. The results showed that the legal maxims in MUI fatwas during the COVID-19 pandemic were treated as a product of disaster fiqh. It was reiterated that the fiqh of disaster should be seen as a product of MUI’s ijtihad and that it can serve as a guide for Indonesian Muslims to regulate themselves during the pandemic. This study contributes to providing insights into the legal principles used in MUI fatwas during the pandemic.
Muhsin, Sayyed Mohamed and Muhammad Mumtaz Ali, ‘Facing COVID-19 in The Light of The Maxim “No Harm Shall Be Inflicted or Reciprocated”’ (2020) 3(1) INSLA E-Proceedings 450–458 Abstract: The Islamic legal maxim (al-qāʿidah al-fiqhiyyah) ‘no harm shall be inflicted or reciprocated’ has become particularly significant in this era of pandemic. In the current context, this legal maxim is reasonably expected, provided that if they are adequately employed, to influence people’s choices and guide them to make certain decisions which are simultaneously religious and applicable for preservation of human life. This maxim is construed as prohibition of all actions that carry the notion of wronging, infringing on other’s rights, frustrating, overpowering, or setting back some party’s interests. In this article, we attempt to discern what Islamic jurisprudence has to say in this crucial combat which causes this global crisis. In light of the mentioned Islamic legal maxim, a flowchart that represents the sequence of the certain steps is derived, which is beneficial to be taken into consideration in the choices, decisions and actions related to or in the time of COVID-19.
Mu’in, Fathul et al, ‘Reinterpretation of Livelihoods in Marriage Law and its Implications on Family Resistance in the Time and Post COVID-19’ (2021) 1(2) SMART: Journal of Sharia, Traditon, and Modernity 113–127Jurisdiction: Indonesia
Abstract: The rules regarding a living in Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law imposes the obligation to earn a living only on the husband. These two regulations create problems in society. Many wives demand a living from their husbands. Not a few wives also have jobs and income, but they are spent on their own needs, including for consumptive things, channeling hobbies and others because they think that fulfilling a living is not part of their obligations. This condition is coupled with the interpretation of a number of verses of the Qur’an and the traditions of the Prophet which are still patriarchal. The marriage law and a number of verses of the Qur’an and the Prophet’s hadith need to be reinterpreted. This is because the development of an increasingly advanced era makes the role of women not only as wives who only take care of the household, but also as one of the contributors to the economy. This research uses the library research method. This study concludes that the livelihoods in these two laws and regulations need to be updated to be relevant to current conditions. Supposedly, the wife also has the same obligation in matters of livelihood. The reinterpretation of livelihood using the interpretation of mubadalah is to produce the principle of mutuality. The wife can even be the main breadwinner under certain conditions. This interpretation has implications for the fulfillment of the family’s economy during the pandemic and post-covid-19 pandemic. Because, in difficult economic conditions, the wife participates in helping the family economy on a macro basis or even as the main provider in the household who changes places with her husband.
Mulyo, A Mufrod Teguh, ‘Covid-19; Hoax and Efforts to Prevent It from the Perspective of Islamic Law’ (2022) 6(1) Jurnal Islam Nusantara 24–32 Abstract: The development of an era or what is commonly known as globalization indicates progress in all fields, such as technology, transportation, information, and communication. These advances certainly impact all aspects of life in the world, making it easier to actualize. The consequence of this convenience is the frequent dissemination of hoax information on social media. Thus, this paper will discuss the review of Islamic law related to hoaxes and their prevention efforts in the Covid-19 case study. This study uses a descriptive-analytical approach, which describes a review of Islamic law related to hoaxes and how to prevent them in the millennial era. The results of this study, we must refer to the Qur’an because it is a preventive measure to deal with the reporting of hoax news, Allah condemns someone who brings false news, and in the Qur’an, it is explained so that Muslims always tell the truth and based on facts, every Muslim must be patient and critically examine the information that emerges.
Muthmainnah, Yulianti and Revoluna Zyde Khaidir, ‘An Islamic Legal Hermeneutics on Nafāqah during the Covid-19 Pandemic’ (2020) 1(2) _Ulumuddin Journal of Islamic Legal Studies_ Abstract: Those who work and earn money in the public sphere are obliged to find alimony and provide a living (nafāqah). The assumption that has been believed by the Muslim society is that alimony is a man’s duty (husband to wife, father to family). This assumption has been influenced by several factors such as language construction, state policies and the normative religious understanding. During the Covid-19 pandemic, this one-sided assumption has not only continued discriminatory for women and kept them away from such fair and equal economic access, but also it has tended to take Muslim families’ economy into the risks. This article aims to examine the complexities of working women position in the Islamic legal jurisprudence and provide an alternative narrative of Islamic legal hermeneutics ensuring that the livelihoods do not become the domain of men alone. Accordingly, it can be argued that the alimony might be considered to become the obligation of both men and women equally. Interviews with a number of women at the grassroots level prove that women are being able to play roles in earning a living.
Nugraheni, Destri Budi et al, ‘Problem Identification of Islamic Law Implementation in COVID-19 Mortuary Practice in Indonesia from the Perspective of Forensic Pathologists’ (2023) 17(2) Indian Journal of Forensic Medicine & Toxicology 25–31 Abstract: Indonesia consists of many different ethnic groups and religions. Islam is the major religion in Indonesia, thus also rendering Islamic tradition as being significant in Indonesia. This is also the case with Islamic law. In March 11, 2020, COVID-19 was declared as pandemic by WHO. Since then, there were reported cases of forceful seizure of deceased bodies by the deceased’s family in Indonesia. The aim of this research is to understand the problems related with Islamic law implementation in COVID-19 mortuary practice in Indonesia from the perspective of forensic pathologists. This study also aims to analyze whether the solutions given are in accordance with Islamic law. The sampling method used was convenience sampling. The respondents were forensic pathologists from different areas in Indonesia. 19 out of 20 respondents reported problems and solutions. The solutions were in accordance to Islamic law. Problem that is present in mortuary practice in the context of muslim COVID-19 patients are related to the bathing and shrouding process. There is distrust on whether proper care had been carried out. The situation happened due to the community’s lack of comprehensive understanding of proper Islamic mortuary practice in COVID-19 pandemic context.
Nurdin, Ridwan, Muhammad Ridwansyah and Zakyyah Iskandar, ‘Reconsidering Nafaqah of Family Resilience During the Covid-19 Pandemic in Islamic Legal Perspective’ (2021) 45(1) MIQOT: Jurnal Ilmu-ilmu Keislaman 27–41Jurisdiction: Indonesia
Abstract: The main goal of this research is to comprehend deeply the relation between husband and wife relating to the responsibilty of nafaqat in their family. The methodology used is juridical-sociological; where the data analyzed from textual livelihood obligations conditional or current contextual forces that all family members also have a responsible role in terms of living. The results of the study are as follows: that al-Baqarah requires a husband to provide a living to his wife, but in another context, a wife or other family members can play a role in maintaining family resilience during the Covid-19 pandemic resistance. In reality, however, the nafaqat become mutual responsibility of the husband and wife without any objection.
Nyamutata, Conrad, ‘Funerary Rites and Rights of the Dead: Jurisprudence on Covid-19 Deaths in Kenya, India and Sri Lanka’ (2023) 12(1) Global Journal of Comparative Law 36–69 Abstract: Pandemics are associated with exponential mortality rates, creating heavy burdens on communities. The high death rates affect how societies traditionally conduct funerary practices as governments impose regulations on the preparation of bodies and the conduct of the funerals to stem the transmission of the virus. In societies associated with deeply entrenched customary funerary practices, such limitative measures attract defiance. The tensions between public health objectives and funerary traditions have played out in a number of societies resulting in litigation. At the core of the disputes is whether the right to manifest religion or belief can be upheld, and relatedly, whether the dead have rights to dignified burials irrespective of pandemics. During the covid-19 pandemic, some courts had to grapple with these difficult questions. In this paper, I take a jurisprudential excursion on some disputes in Kenya, India and Sri Lanka to assess the adjudication of conflicts which arose from covid-19 pandemic deaths.
O’Grady, Selina, ‘Black Death, HIV/AIDS and Coronavirus: Can We Do Better than Scapegoat or Tolerate?’ [2020] (3) European Human Rights Law Review 211–214 Abstract: Compares the historical responses to the Black Death and the AIDS crisis with contemporary reactions to the coronavirus pandemic, highlighting the differing reactions of Christian and Muslim communities to the Black Death, including the European persecution of Jews. Assesses whether humanity is now moving beyond blame and tolerance towards a fuller recognition of human dignity and individual rights.
Ożóg, Michał, ‘Qualification of Freedom of Religious Assembly in the Period of Ordinary Functioning of the State and in the Legislation from the Time of COVID-19 Pandemic in Poland’ (2022) 27(2) Białostockie Studia Prawnicze 237–250 Abstract: The subject of this article is to present the legal qualification of the freedom of religious assembly in the period of ordinary functioning of the state and in the content of regulations from the period of the COVID-19 pandemic in Poland. The analysis is concerned with determining how the legislator treats this freedom from the point of view of links between freedom of assembly and freedom of thought, conscience and religion. The function of freedom of religious assembly is presented, as well as the legal model of religious freedom assembly in the conditions of ordinary state action, as well as on the ground of legal regimes possible to introduce in connection with counteracting the occurrence and effects of an infectious disease. In the research the dogmatic method was applied. Amendments to the Law on Assemblies and special law regulations have been proposed to take into account constitutional principles and values, as well as ongoing social changes.
Parmet, Wendy E, ‘From the Shadows: The Public Health Implications of the Supreme Court’s Covid-Free Exercise Cases’ (2021) 49(4) Journal of Law, Medicine & Ethics 564–579 Abstract: This article analyzes the Supreme Court’s ‘shadow docket’ Free Exercise cases relating to COVID-19. The paper highlights the decline of deference, the impact of exemptions, and the implications of the new doctrine for vaccine and other public health laws.
Pera, Alessandra, ‘Islamic Rites and Ceremonies in the Pandemic Emergency Between Parallel Legal Orders’ (2021) 10(1) Comparative Law Review 20–37 Abstract: The essay investigates how some religious Islamic rules have been accommodated in front of the Covid emergency in some European countries and religious communities, highlighting the different and interconnected dimensions involved in this process of accommodation. The author uses the word country, having regard to the state-territorial legal order; and the word religious community, referring to the Islamic rule of law-religion model, based on a personal law conception. In particular, after some conceptual definition on some peculiar issues involved (para. 1), the analysis goes through some rules on funeral rites and ceremonies (para. 2) and on the sacred pilgrimages (para. 3).The conclusive remarks (para. 4) underline how the Covid 19’s emergency has given a chance for forms of virtuous reasonable accommodation, looking forward areas of middle ground between parallel legal systems.
Petri, Dennis P and Teresa Flores, ‘The Impact of COVID-19 on Religious Regulation in Colombia, Cuba, Mexico, and Nicaragua’ (2023) 16(1) The International Journal for Religious Freedom (IJRF) 31–56 Abstract: In Latin America and globally, drastic sanitary measures were taken to combat the coronavirus. In this study, we investigate the consequences of these sanitary measures for religious regulation. We compare the situation before and after the sanitary measures taken in four Latin American countries (Colombia, Cuba, Mexico, and Nicaragua). We conclude that the COVID-19 measures mainly restricted the collective dimension of freedom of worship, bringing religious regulation to similar levels as that in some authoritarian regimes. We also found evidence that some governments took advantage of the situation to increase their repression of religious groups.
Phuong, Nguyen Thi, ‘Religion, Law, State, and Covid-19 in Vietnam’ (2020) 8(2–3) Journal of Law, Religion and State 284–297 Abstract: The Vietnamese state has issued numerous measures to prevent the spread of covid-19 in the country. This paper shows how the state used the law to manage religious activities for the purpose of public health during the epidemic. We argued that because of legal, institutional, and religious factors, the Vietnamese state was successful in establishing cooperation with religious organizations to implement measures restricting religious activities to limit the spread of the epidemic in the country.
Pill, Shlomo, ‘The False Promise of Expanded Religious Liberty Rights after the Covid-19 Cases and Fulton V. City of Philadelphia’ (CSLR Research Paper No 14.2022-AFF, 31 July 2022) Abstract: This article explains and critiques the Supreme Court’s recent of constitutionally required exemptions from laws that burden religious practice. This change to long-standing free exercise doctrine was affected in a rapid series of ‘shadow docket’ rulings issues in response to religious challenges to public health capacity restrictions and mask mandates during late 2020 and early 2021 and was reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia.1 In these cases, the Court significantly narrowed the Smith test, which had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free exercise regime, however, facially neutral laws are ostensibly subject to strict scrutiny whenever they fail to accommodate religious practices while permitting any analogous secular conduct. After tracing the development of the Court’s free exercise jurisprudence and explaining the dramatic doctrinal shift that occurred during the height of the Covid-19 pandemic, this article criticizes the Court’s new approach for being analytically incoherent, manipulable, and unworkable. The article goes on to justify these claims by examining the Court’s own inconsistency in responding to free exercise challenges to Covid-19 vaccination mandates.
Pinem, Rasta Kurniawati Br and Fajaruddin Fajaruddin, ‘The Urgence of Marriage Guidelines for Children (Legal Protection for Child Marriage after Covid-19)’ (2022) 1(1) Tadarus confrence of International Islamic civilization 84–92 Jurisdiction: Indonesia
Abstract: Covid-19 hit the world has caused many problems for children. One of them is study at Home by using a gadget that is not supervised by parents. Children are free to use their gadget, exploring unfiltered sites including porn sites that are free to watch. The number of child marriages is increasing nowadays. Child marriages are carried out by poor and less educated people. This declining welfare condition has forced parents to let their children marry. Closing schools when the economic situation worsens also makes many children considered a burden to families who are facing economic issues. Child marriage adds to the risks that children have to face during the pandemic, in addition to increasing violence and mental problems in children. The aim of this paper is to provide solutions in order to improve children’s future. Marriage guidance for unmarried and married children should continue to be improved. For those who are not married, the aim is to avoid child marriage, while for those who are married; they strive for the rights of children to be fulfilled. It is hoped that possible to maintain an existing marriage by being given a strengthening of faith, science in order to foster a household based on religious values. The method used in this paper is to collect some facts; from webinars, research papers, and those obtained through social media information that is believed to be the news. Furthermore, the data is searched and then rearranged according to the predetermined writing rules. The results obtained are the need for marriage guidance for children aged both unmarried (pre-marital; teenagers, married age), prospective brides and married couples under five years old; that aimed to provide reinforcement in order to maintain their marriage since they are vulnerable to problems.
Piwko, Aldona Maria, ‘Islam and the COVID-19 Pandemic: Between Religious Practice and Health Protection’ (2021) 60(5) Journal of Religion and Health 3291–3308 Abstract: This paper concerns a problem, the global pandemic COVID-19, which has influenced religious practices with respect to health protection across the Muslim world. Rapid transmission of the virus between people has become a serious challenge and a threat to the health protection of many countries. The increase in the incidence of COVID-19 in the Muslim community took place during and after the pilgrimages to Iran’s Qom and as a result of the Jamaat Tabligh movement meetings. However, restrictions on religious practices have become a platform for political discussions, especially among Muslim clergy. This paper is an analysis of the religious and political situation in Muslim countries, showing the use of Islam to achieve specific goals by the authorities, even at the price of the health and life of citizens.
Pohlman, Zachary B, ‘“Churches” in a Time of Coronavirus’ (SSRN Scholarly Paper No ID 3704110, 2 October 2020) Abstract: Six months after in-person church services came to a grinding halt, religious attendees are returning to the pews—but in significantly fewer numbers. This steep decline in church attendance, even if only for the short term, could have lasting effects for how we conceive of ‘churches’ as a legal and religious matter.Legally, the lack of in-person services could affect a church’s status for tax benefit purposes. I argue that a ‘church’ defined under the ‘congregational approach’—that which requires the regular, in-person gathering of individuals to engage in worship—should retain its status as a church so long as a community of religious believers intends to hold regular, in-person religious gatherings, transitory crises that make such gatherings impossible notwithstanding. Religiously, the virus-induced shutdown of in-person religious activities may in fact cause religious believers to rethink the importance of liturgy and ritual and community for what it means to be a church. This blog post focuses specifically on community and the important role that fostering church community will play in the return to normalcy for churchgoers.
Pratiwi, Cekli Setya, ‘Indonesia’s Legal Policies Amid Covid-19’ (2022) 6(2) Journal of Southeast Asian Human Rights 182–203 Abstract: The Covid-19 pandemic has forced States to promulgate various legal policies to restrain public activities, including limiting or prohibiting people to exercise their right to religious freedom or beliefs (FoRB) in the public sphere and imposing repressive sanctions. International Human Rights Law (IHRL) regulates the standard limitation of FoRB, but the Government of Indonesia struggled to balance respecting FoRB and protecting public health, especially in the emergency of Covid-19. While the Government is oriented to protect public health, new violations of FORB add more backlog on unresolved cases. Through a Human Rights-Based Approach and case studies, three essential principles of FoRB, namely the principle of non-discrimination, the principle of proportional restriction, and the principle of non-coercion in religion, will be analyzed qualitatively to assess, first, the extent to which legal policies in Indonesia amid Covid-19 are compatible with IHRL. Second, the extent to which these legal policies impact the right to religious freedom of the people. Third, to ask the question: how should the legal policies in the Covid-19 era be formulated so that the State can balance the protection of public health and religious freedom?
Preston, Cheryl B, ‘Women in the Church of Jesus Christ of Latter-Day Saints and the COVID-19 Freeze’ (2020) 13(3) SquareTwo_ _Abstract: During the COVID-19 freeze, women in The Church of Jesus Christ of Latter-day Saints have faced typical burdens and losses in practical terms, but more importantly, many women have faced barriers to religious observance. Although not limited to them, this has been particularly felt by single sisters. Women’s experience in religion is a significant issue.
Priambudi, Zaki et al, ‘An Analysis of The Imposition of Criminal Sanction to COVID-19 Vaccination Objectors Through the Lens of Criminal Law and Qiyas Shafi’i Mazhab in Indonesia’ (2022) 20(1) Pena Justisia: Media Komunikasi dan Kajian Hukum 60–73 Abstract: This article aims to answer whether vaccination is a right or an obligation and how criminal law and Qiyas Shafi’i Mazhab views the basic provisions of criminal law against vaccination objectors. By combining doctrinal and socio-legal research method, this article concludes that vaccination is an obligation because a person’s personal right to choose health services, especially COVID-19 vaccination has turned into a public right. Vaccination is the government’s obligation to protect public health as part of meeting health needs, following the mandate of the constitution and human rights. According to the relative punishment theory, the application of criminal sanctions is an effort made to maintain public order and peace of society, not as a means of repaying the perpetrator’s mistakes. Thus, the sanctions imposed on the perpetrator are solely to provide fear so that they do not repeat their actions and other people do not follow them. There are three main objectives of relative theory, namely prevention, prevention, and reform. Whereas Qiyas Shafi’i Mazhab puts forward the application of qiyas as a justification for imposing criminal sanctions against vaccination objectors. Because a person is prohibited from doing something that endangers himself and others, punishment according to the Qiyas Shafi’i Mazhab can be applied. There are similarities between criminal law and Qiyas Shafi’i Mazhab to a view of the obligation to vaccinate, that is, both allow the reduction of individual human rights for the sake of common interests. Ultimately, this article recommends the need to regulate the handling of COVID-19 vaccination objectors through act so that vaccination and law enforcement can run comprehensively, not partially.
Putra, DI Ansusa, Sayuti and Rahimin Affandi Abdul Rahim, ‘Inconsistency of Salafi’s Bid’ah Concept: Shifting The Quran-Hadis Law Consideration During Covid-19 Pandemic in Indonesia’ (2024) 24(1) Al-Risalah: Forum Kajian Hukum dan Sosial Kemasyarakatan 120–140 Abstract: For the past century, Bid’ah (Eng. Innovation) is a fundamental-sociological problem in modern Muslim life. During the COVID-19 pandemic, Salafis in Indonesia took a different path than usual to respond new innovations in the rules of Islamic worship practices. This article highlights the dynamics of understanding bid’ah as a Salafi order in Indonesia during the COVID-19 pandemic. Through reading Salafi data and documents, the article finds that Salafis confirm new innovations in religion during the pandemic which are different from previous Salafi orders to refer directly to the Quran and Hadith regarding to the issue of Bid’ah. This shows the inconsistency of Salafi understanding in terms of reviewing law in the context of social change. This inconsistency was carried out by: first, changing the approach in quoting and referring to the Quran and Hadith from a puritanism approach to a maslahah approach. Second, changing the aim of selecting Quran and Hadith legal propositions from returning to the understanding of the Salaf to referring to the Salaf’s experience regarding epidemic conditions (thaun). This Salafi order circumvents aspects of Islamic law by accepting ‘new bid’ah’ (new innovations) during Covid-19 is proof of Salafi flexibility on the issue of Bid’ah.
Ra, Mohammad Syahrul, Yusuf Hamdika and Sholahuddin Al-Fatih, ‘The Impact of COVID-19 Through the Lens of Islamic Law: An Indonesian Case’ (2020) 7(3) Lentera Hukum 267–278 Abstract: Coronavirus Disease 2019 (COVID-19), a virus founded in China, has spread worldwide as it has become pandemic. As a result, significant and detrimental impacts are undeniable to global citizens, including those in Indonesia. With the government’s suggestions like introducing physical distancing and large-scale social restriction, they slow down economic growth. Also, they impact religious practices, particularly those performed by Muslims in Indonesia. This paper will discuss the impact of the COVID-19 pandemic through the lens of Islamic law. There are two main issues to analyze. First, what is the impact of COVID-19 on community activities in the view of Islamic law? Second, what is the impact of COVID-19 on religious communities in carrying out worship? This paper finds that the COVID-19 pandemic has adversely impacted religious worship activities in public places by considering this virus’s rapid transmission. It is followed by the closure of worship places to encourage citizens to practice their religious activities at home. Thus, the whole community was urged, and some were prohibited following the mapping zone experienced by each region. Given Islamic law believed and trusted by Muslims, in the end, the government has issued a new normal policy by opening places of worship with health protocols.
Rachmadhani, Fajar, Mualimin Mochammad Sahid and Ahmad Wifaq Mokhtar, ‘Implementation of the Islamic Law Transformation’s Rule (Taghayyur Ahkām) During COVID-19 Pandemic in the Perspective of Majelis Tarjih Muhammadiyah in Indonesia’ (2022) 10(1) Malaysian Journal of Syariah and Law 108–117 Abstract: This study aims to uncover and analyze one of the methods and rules of law-making (istinbāth ahkām) carried out by the Muhammadiyah fatwa institution, the Majelis Tarjih dan Tajdid, or known as ‘Manhaj Tarjih Muhammadiyah.’ One of the many methods used by Majelis Tarjih in issuing legal decisions and fatwas is the Rules of Islamic Law Transformation (taghayyur ahkām). The research also attempts to contextualize the rules of Islamic law transformation with the decisions or guidelines for the implementation of worship (Ibadah) that have been issued by the Muhammadiyah Central Leadership through the Majelis Tarjih, especially during the current Covid-19 pandemic. The results of this study are beneficial both practically and theoretically. The practical benefit of this research is that it may provide guidelines for the implementation of worship during the Covid-19 pandemic based on argumentative arguments and the principles and objectives of Islamic law, one of which is guarding religion (Hifz ad-Dīn) and guarding human lives (Hifz an-Nafs). Meanwhile, the theoretical benefits from this research are to expand the knowledge and discourse of Islamic scholarship, especially in the field of Islamic law. Thus, Islam can manifest in the midst of mankind to provide real solutions to existing problems. This research uses qualitative research focusing on library research with descriptive analysis. Consequently, the researchers applied the Ijtihād of Majelis Tarjih’s Method known as ‘Manhaj Tarjih Muhammadiyah’ written by Syamsul Anwar as well as based on the results of the Tarjih National Assembly (Munas) XXX in Makassar in 2018, also the decision of the Muhammadiyah Central Leadership No. 02/EDR/1.0/E/2020 regarding Guidelines for Worship in Covid-19 Emergency conditions and several other Tarjih fatwas related to guidelines for carrying out worship during the Covid-19 pandemic as primary data. In addition, the secondary data are from various sources, such as fiqh books, ushul fiqh, and maqaṣid as-syarī’ah. Besides, the study uses a content analysis approach to bring up the messages objectively and systematically.
Rachmawati, Irma and Mohd Zakhiri Md Nor, ‘Legal and Shariah Framework of Crowdfunding in Batling Covid-19: Some Observation in Indonesia’ (2021) 6(2) BiLD Law Journal 1–9 Abstract: Crowdfunding provides a group with an alternative investment option. Its existence makes it simple for people in an organisation who have limited funds. Especially for those who have been afflicted by the COVID 19 pandemic. Crowdfunding can be an alternative financing method for Indonesian small and medium-sized businesses. The purpose of this study is to investigate the legal and Shariah framework for crowdfunding in Indonesia. This paper also investigates how Crowdfunding can benefit the Micro, Small, and Medium Enterprises (MSMEs) sectors during Covid-19 in Indonesia. The report employs qualitative legal research as its methodology. A descriptive and analytical process is used to analyse the data. This paper found that Crowdfunding benefits the MSMEs sector during the Covid-19 period. Some models of crowdfunding are based on the Shariah principles of wakaf, zakat, waqf, and sadaqah. There is no clear law governing online crowdfunding. Online crowdfunding is also vulnerable to fraud, hijacking, and illegal activity. As such, it is critical to improve Indonesia’s legal and regulatory framework for crowdfunding activities.
Rahim, Rohani Abdul et al, ‘Implementation of Community Activities Restrictions During The Covid-19 Pandemic in Criminal Law Perspective’ (2022) 22(2) Nurani: Jurnal Kajian Syari’ah dan Masyarakat 261–274 Jurisdiction: Indonesia
Abstract: Minister of Transportation Regulation Number 25 of 2020 on Transportation Control during the Idul Fitri Homecoming Year 1441 Hijri in the context of Preventing the Spread of COVID-19. This Regulation of the Minister of Transportation Number 25 of 2020 regulates the transportation system during the Large-Scale Social Restrictions (PSBB) implementation, especially related to the 2020 Idul Fitri Homecoming. The formulation of the problem in this study: first, how could the elements of actions be categorized as violations of criminal law norms? second, could the violation of the prohibition of homecoming be categorized as a violation in the criminal law?. The purpose of this study is to find out that violations of the homecoming ban have met the elements that can be categorized as violations of criminal law norms. The research method used normative legal research for this research and used the Theory of Legal Effectiveness for the theory. This study concludes that: First, an act that can be categorized as a violation of criminal law, then there must be elements of a criminal act, both from a theoretical and legal point of view. Second, that the Ministerial Regulation (Permen) cannot contain criminal provisions.
Ramadhani, Rahmat, ‘Eradication of Soil Mafia in the Post-Covid-19 Pandemic Based on National Law and Islamic Law’ (2022) 3(1) Proceeding International Seminar of Islamic Studies (INSIS) 678–686Jurisdiction: Indoensia
Abstract: The land mafia takes advantage of land scarcity with land related parties for various purposes. The Ministry of Agrarian Affairs and Spatial Planning (ATR)/National Land Agency (BPN) as the institution most responsible for land administration is still paying attention to the existence of the land mafia. It is necessary to know about the workings of the land mafia who will always seek information about the development of land prices in certain areas by the Local Government such as the Regional Government. This research uses normative law research methods (Normative Law Research). In accordance with the type and nature of the research, the data sources used are secondary data consisting of primary legal materials and secondary legal materials consisting of books, scientific journals, scientific papers and articles that can provide an explanation of primary legal materials. Various efforts were carried out by the government to achieve the goal of eradicating the land mafia, among others through the implementation of land registration as regulated in PP No. 24 of 1997 concerning Land Registration. Indonesia’s national law that discusses the eradication of the land mafia is contained in the Technical Instructions of the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency on Prevention and Eradication of Land Mafia. The land mafia is an act of usurping the rights of others, in Islam it is threatened to be hung around his neck from the seven layers of the earth. Sheikh Abdul Azhim bin Badawi al-Khalafi quoted from the Almanhaj page. said, from Sa’id bin Zaid radhiyallahuanhu, he said, "I heard the Messenger of Allah sallallaahu 'alaihiwasallam say ‘Whoever takes a little land in an unjust way, then (Allah) will hang it from the seven layers of the earth’. From Salim from his father Radhiyallahuanhuma, he said, "The Prophet sallallaahu 'alaihiwasallam said: "Whoever takes a small amount of land in a way that is not justified, then he is immersed in the soil on the Day of Resurrection up to seven layers of the earth.”
Ramdlany, Ahmad Agus, ‘Analysis of Moderatism Principles In The Formation of Islamic Legal Fatwa (Study of the MUI Fatwa on Covid 19)’ (2024) 19(1) Rechtidee 80–102 Abstract: The MUI fatwa is one of the products of Islamic law that is endorsed by the government in implementing a policy, including yesterday when for more than 2 years Indonesia experienced the Covid 19 pandemic. Various policies were implemented by the government to control this pandemic. What is quite crucial is the social restriction policy that is directly related to worship. If you’re not careful, this could become an issue that can be fried politically. This is where the role of the MUI fatwa finds its urgency. By endorsing the MUI fatwa, the government has the legitimacy to place various restrictions on worship. The choice of the MUI is certainly not without reason, the representation of Muslims and moderate principles are the main points. The purpose of this article is to find out the principles of moderation that are held in forming a fatwa. In general, the type of article research is qualitative research, the nature of the research is descriptive, the approach is normative, The technique for collecting data is a literature review technique, by collecting primary and secondary data for later reading and analysis . The data analysis technique used is descriptive and content analysis . The results of the study show that the MUI has issued 12 fatwas regarding the pandemic phenomenon. Of the three fatwas sampled for analysis, namely Fatwa No. 14 of 2020 concerning Organizing Worship in a Situation of a Covid-19 Outbreak, Fatwa No. 23 of 2020 concerning Utilization of Zakat, Infaq, and Sadaqah Assets for Combating the Covid-19 Outbreak and its Impact, and Fatwa Number 14 of 2021 concerning the Law on the Use of Covid-19 Vaccines As a product of Astrazeneca, it was found that the MUI has tried to place itself in the middle, meaning that it has applied the principle of moderation in setting its fatwas.
Rashi, Tsuriel and Andrew A Schwartz, ‘Contracts Capsized by COVID-19: A Legal and Jewish Ethical Analysis’ (2021) Journal of Business Ethics Advance article, published 4 March 2021 Abstract: Countless contracts have been undermined by the COVID-19 pandemic of 2020 as well as government orders to contain it. Flights have been canceled, concerts have been called off, and dorms have been closed, just to name a few. Do these all count as breaches of contract—or are the parties excused due to the extraordinary circumstances? And how should the losses be allocated between the parties? The law provides one set of answers to these questions; ethics offers another. With a focus on American law (developed over the past two centuries) and Jewish ethics (developed over millennia), this paper shows that the two systems are in accord with some respects and differ in others: Both law and Jewish ethics would excuse a party who cannot complete his contract due to a force beyond his control, like the COVID-19 pandemic. Yet Jewish ethics would require that the excused party still be paid, while American law would not.
Rashid, Rafaqat, ‘An Islamic Ethico-Legal Framework for Pandemics: The Case for COVID-19’ in Aminah Al-Deen and Aasim I Padela (eds), Islam, Muslims, and COVID-19: The Intersection of Ethics, Health and Social Life in the Diaspora (Brill, 2023) 233–270 Abstract: The COVID-19 pandemic has led to a dramatic loss of human life worldwide and presents an unprecedented challenge to life, economy, food systems, and public health. Goal setting, planning, and prevention strategies, to achieve objectives and reduce public harm are all important Islamic acts prescribed by Islamic law, preserving the higher objectives of the Shariʿa (maqāṣid al-sharīʿa). There is a need to provide holistic, well-informed Islamic advice to Muslim Shariʿa scholars, Imāms, Muslim communities, and Islamic organizations at both the local and global level. This is not to suggest that there is only one opinion which everyone must follow but, rather, there is a need to offer a systematic approach or an ethico-legal framework that can ensure our decisions make an impact, are informed by science and epidemiology, and adhere to the Islamic tradition. This framework needs to be consistent, easy to follow, and authentic in its source, both from the perspective of the Islamic tradition and the medical science associated with public health policy. This chapter is an effort to address intersections between the Islamic ethico-legal tradition, medical science, and public health policy, in order to provide direction and guidance when there is conflict between public health interventions and mandatory Islamic legal imperatives during pandemics like COVID-19.
Rayhan, Muhammad A et al, ‘Acceptance and Willingness to Purchase a Hypothetical COVID-19 Vaccine in a Region under Shariah Law: A Cross-Sectional Study in Aceh, Indonesia’ (2022) 2(2) Narra J [unpaginated] Abstract: Vaccines are urgently needed to control the coronavirus disease 2019 (COVID-19) pandemic. The aim of this study was to determine the acceptance of and willingness to purchase a hypothetical COVID-19 vaccine in the general population of Aceh, a holistic Shariah law implementation province in Indonesia. An online cross-sectional study was conducted using a quota sampling technique between 1 to 24 September 2021. To determine hypothetical vaccine acceptance, respondents were asked if they were willing to accept vaccines with combinations of either 50% or 95% effectiveness and either 5% or 20% risk of adverse effects. Willingness to purchase was assessed by asking whether the participants would pay for such vaccines at certain price points. Logistic regression analysis was used to assess the associated determinants. Out of 377 respondents included in the final analysis, 86.5% were willing to accept a COVID-19 vaccine with 95% effectiveness and 5% adverse effects. The acceptance rate dropped to 45.1% if the risk of adverse effects was 20%. Vaccines with 50% effectiveness and 5% adverse effects were acceptable to 42.2% but the acceptance went down to 17.2% if the risk of adverse effects increased to 20%. Multivariate analysis found that men were twice as likely to accept a vaccine with 95% effectiveness and 5% adverse effects compared to females (aOR: 2.01; 95% CI 1.05–3.86). We found that 156/377 (41.3%) of respondents were willing to purchase a COVID-19 vaccine and of these participants 71.1% were willing to pay between Indonesian Rupiah (IDR) 50,000–150,000 (US$ 3.33–10.00). In conclusion, the acceptance rate of a hypothetical COVID-19 vaccine varied based on effectiveness and the risk of adverse effects.
Razali, Mohamed Faiz Asyraf, ‘The Relationship Between Non-Halal Animals and Pandemic Diseases According to the Shafie School of Islamic Law’ (2023) 8(2) Journal of Contemporary Islamic Law 53–60 Abstract: This paper explores the connection between the consumption of certain animals and the emergence of pandemic diseases, particularly in the context of Islamic law, specifically the Shafie School. Humans have long been uncertain about which animals are suitable for daily consumption. Numerous studies have demonstrated a link between animal sources and the onset of various diseases. In recent years, several animal-origin diseases have become pandemics, such as SARS, MERS, COVID-19, and Ebola. These diseases are predominantly zoonotic, originating from animals. This research aims to investigate the relationship between pandemic diseases and animal consumption through the lens of Islamic law. The study adopts a qualitative methodology, relying on secondary data about the emergence of diseases related to animal consumption and literature on Halal principles. The findings indicate that many animals associated with disease spread are considered haram (prohibited) for consumption in Islam, including pigs, bats, and pangolins. Islamic dietary laws, or Halal principles, govern food choices based on the belief that everything consumed should be permissible according to the Quran and Hadith, as well as clean, permissible, and safe. Consequently, Islam has established specific conditions for animal consumption. The research also confirms the link between pandemic diseases and the consumption of prohibited animals, as defined by Halal principles. Halal principles offer a comprehensive framework that aligns Islamic dietary laws with contemporary human needs. The study recommends further research into the impact of Halal dietary principles on human food consumption and disease prevention.
Razali, Mohamed Faiz Asyraf et al, ‘The Relationship of The Causes of Pandemic Diseases with Animals Consumption: Observation Studies Based on Halal Standards in Islamic Law’ (2023) Abstracts of the International Halal Science Conference 2023 136-139 (published online 22 August 2023) Abstract: Humans have been facing confusion in determining the type of animal to become a daily consumption. Many research has proven the link between animals and the onset of disease. This research aims to find the relationship between the pandemic diseases and animals via analyses based on Islamic law. The study utilised qualitative methodology as the main framework. Secondary data have been collected which are related to the record of disease emergence from animal consumption and halal principles literature. Findings show that mostly animals that spread diseases illegal or prohibited to consume in Islam, e.g., pigs, bats, and pangolins. In Islam, principles of halal principles are used in controlling food choices. These principles are built on the basis that all things consumed in the human body must be allowed by the Quran and hadith, clean, permissible, and safe. Therefore, Islam has laid down some conditions in related to the animal consumption. Findings also proved the relationship between the cause of the pandemic disease and prohibited animals based on halal principles. Halal principles can be concluded as a comprehensive instrument compromising the Islamic law in food consumption and recent human necessities. This study suggests for more research be conducted in exploring the impact of halal principles towards human consumption of food in avoiding diseases.
Redding, Jeffrey A, ‘Queer/Religious Friendship in the Trump Era’ (SSRN Scholarly Paper No ID 3681093, 26 August 2020) Abstract: Shortly after Black Lives Matter protests broke out around the United States this past spring, a curious protest took place in the state of Texas. Organized in response to the Texas governor’s coronavirus-related order to close businesses devoted primarily to the serving of alcohol, an alliance of Texas bar owners staged a ‘Bar Lives Matter’ protest outside of the Texas State Capitol building in the city of Austin, while also coordinating a lawsuit challenging the governor’s order in U.S. federal court. This lawsuit instigated by the Texas Bar and Nightclub Alliance followed in the footsteps of other lawsuits brought by Christian churches around the nation challenging pandemic-related limitations on in-person religious services. In July, responding in apparent disgust to the activities of devoted drinkers in Texas and elsewhere, the well-known economist and liberal columnist Paul Krugman lamented the potentially deadly reopening situation facing U.S. schools and students in the fall, opining in The New York Times that ‘the reason we are in this position is that states, cheered on by the Trump administration, rushed to allow large parties and reopen bars. In a real sense America drank away its children’s future.’ In this (draft) essay, I aim to explore the pandemic pitting of bars against babies, and then too churches against children. Moreover, I will demonstrate that the constellation of competing interests present in the coronavirus pandemic—the defining moment of the Trump presidency—cannot be broken down along neat political affiliations or dispersed across predictable camps on either the left or right. Rather, what we are seeing again is the crisscrossing of political, religious, and sexual interests defying easy categorization. These days, indeed, it seems almost as if Gayle Rubin’s ‘80s-era ‘bar dykes’ have managed to commandeer the contemporary Texas Bar and Nightclub Alliance, and that Paul Krugman could have been writing for Phyllis Schlafly’s Eagle Forum rather than for The New York Times.
Reinbold, Jenna, ‘How COVID-19 Changed the World (of Free Exercise)’ (2022) 64(4) Journal of Church and State 562–580 Abstract: After more than two years in the midst of a global pandemic, life is returning to a semblance of normal for many Americans. This return to normal, however, has been tempered by an awareness of some of the irrevocable changes that COVID-19 has wrought. One realm of American life that has been permanently transformed by COVID-19 is the realm of church–state interaction—more specifically, the realm of litigation related to “religious freedom.” That COVID-19 would have a significant impact on the US church–state landscape is hardly surprising. For at least two decades, the issue of religious freedom has been both legally unsettled and highly politically charged in this country, a situation rife with opportunities to transform even mundane church–state disputes into potent legal flashpoints. In such a context, the sudden emergence of a pressing nationwide health crisis requiring government restrictions on many of Americans’ most basic communal activities was bound to have certain religious freedom implications. Beginning almost immediately with the onset of the pandemic in the spring of 2020, this is precisely what has occurred.
Reiss, Dorit R, ‘Vaccines Mandates and Religion: Where Are We Headed with the Current Supreme Court?’ (2021) 49(4) Journal of Law, Medicine & Ethics 552–563 Abstract: This article argues that the Supreme Court should not require a religious exemption from vaccine mandates. For children, who cannot yet make autonomous religious decision, religious exemptions would allow parents to make a choice that puts the child at risk and makes the shared environment of the school unsafe — risking other people’s children. For adults, there are still good reasons not to require a religious exemption, since vaccines mandates are adopted for public health reasons, not to target religion, are an area where free riding is a real risk, no religion actually prohibits vaccinating under a mandate, and policing religious exemptions is very difficult.
Reiss, Dorit Rubinstein and Madeline Thomas, ‘More Than a Mask: Stay-At-Home Orders and Religious Freedom’ (2020) 57(4) San Diego Law Review (pre-print) Abstract: COVID-19 has changed our legal universe. Many states are responding by issuing stay-at-home orders, and as cases rise, may have to prohibit gatherings again. One issue states and courts have to grapple with is what is the relationship between stay-at-home orders and religion. Stay-at-home orders that require closing down churches may be challenged as violating the First Amendment’s guarantee of religious freedom. Under our current jurisprudence, these cases may be handled under a highly deferential standard or under strict scrutiny – depending on the specific order in question, as well as on whether the state has a RFRA. We recommend, in either case, that orders be carefully crafted to impose the minimum prohibitions needed to prevent outbreaks, according to the situation, and that crafters address, generally, the specific things that increase the risk of transmission – for example, prohibit gatherings indoors that are more than in passing, rather than specific activities. We also recommend that crafters avoid drawing value-laden lines (e.g. deciding whether gun stores are more important than churches). Finally, we suggest that courts should rule in ways that support drawing reasonable lines and providing essential information. A separate question is whether stay-at-home orders that exempt churches violate the Establishment Clause’s separation of church and state; we explain why the answer is, probably, no.
Ricca, Mario, ‘Don’t Uncover That Face! Covid-19 Masks and the Niqab: Ironic Transfigurations of the ECtHR’s Intercultural Blindness’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1119–1143 Abstract: This essay, between serious and facetious, addresses an apparently secondary implication of the planetary tragedy produced by Covid-19. It coincides with the ‘problem of the veil,’ a bone of contention in Islam/West relationships. More specifically, it will address the question of why the pandemic has changed the proxemics of public spaces and the grammar of ‘living together.’ For some time—and it is not possible to foresee how much—in many countries people cannot go out, or enter any public places, without wearing a sanitary mask. In short, almost all of us, by obligation or by urgent advice from the public authorities of the various countries, will not live the public sphere with our faces uncovered. The alteration of the social context affecting many Western countries will inevitably involve also the ‘local’ perception of the Islamic veil and—as a matter of equality—the consistency of the prohibition of wearing it. What will thus become of the ban on wearing it in public places established by some countries such as France and asseverated by the ECHR? If everyone can and will have to go around with their faces covered, why should only Islamic women be discriminated against? Will not the change in boundary conditions produced by Covid-19 also induce Western people to re-categorize the meaning of the veil? And will this re-categorization not directly affect the ‘fact’ of wearing the veil, that is, its empirical perception? And still, will this psycho-semantic change not show how empirical perceptions are cultural constructs rather than ‘objective facts,’ as such allegedly independent from the observer’s point of view? Consequentially, will the plurality of perceptions and cultural meanings related to the gesture of covering one’s own face not gain renewed relevance in determining the legitimacy of wearing the veil? The socio-semantic earthquake produced by Covid-19 compels us to rethink this and other issues orbiting around the translation of ‘facts’ into legal language; furthermore, it highlights the instrumentality of many ideological/partisan and ethnocentric assumptions passed off as objectivity regarding those alleged ‘facts.’ The essay will attempt to provide an answer to the above questions by proposing a semiotic-legal approach to intercultural conflicts and, indirectly, the pluralism in law.
Riyadi, Sugeng and Suparno Suparno, ‘Legal Protection for Umrah Pilgrims During the Covid-19 Pandemic’ (Proceedings of the 1st International Conference on Law, Social Science, Economics, and Education, ICLSSEE 2021, March 6th 2021, Jakarta, Indonesia, 2021) Abstract: The Covid-19 pandemic causes religious activities to be delayed, even though, over time, religious activities are carried out adaptively to the virus. This paper discusses the legal protection of pilgrims who canceled their departure due to the Covid-19 pandemic. The method used in this study is empirical juridical, which uses a descriptive-analytical approach as an analytical knife. The data used in compiling this paper is literature and legislation data, and the analysis used is the qualitative analysis method. The study results obtained are the cancellation of Umrah’s departure in 2020 due to the Covid-19 pandemic while the pilgrims have paid in full. Legal protection in the form of compensation reimbursement, both material and immaterial and rescheduling, is in Law No. 8 of 1999 on Consumer Protection.
Rodrigo Lara, Belén, ‘Two Years Later: A Critical Analysis of the Impact of Spanish Law About COVID-19 on Religious Freedom’ (2022) 64(4) Journal of Church and State 683–701 Abstract: COVID-19 has tested the strength of legal systems and the management capacity of governments in exceptional situations. The outbreaks have proven challenging not only in terms of government foresight and legal development to deal with them—as well as for the fact that they are regulated in one way or another by the legal systems of the countries—but by the way in which they are implemented. From a legal perspective, this is a double challenge. On the one hand, the challenge is to analyze the way in which governments have behaved under the legal cover of an emergency situation, providing for measures that have, in the case of Spain, affected the distribution of powers between the public administration, the parliamentary control, and the transparency or degree of collaboration with other institutions or social agents, such as religious communities.2 On the other hand—and it is most relevant for the purpose of this essay—the challenge is also to determine how the government’s provisions, which result from the assumption of extraordinary powers under a state of emergency, have affected the exercise of citizens’ fundamental rights, including religious freedom. Taking into account the assumption of such extraordinary powers, the question arises as to what extent the exercise of governmental powers in this situation has been proportionate, consistent, and respectful of the constitutional framework.
Rothschild, Zalman, ‘Free Exercise Partisanship’ (SSRN Scholarly Paper No ID 3707248, 7 October 2020) Abstract: The pandemic has put into question many assumptions about the way the world, politics, and the judiciary work. This article argues another sacred cow must be revisited: that in free exercise cases, there is no discernible correlation between judicial decision making and politics. This article surveys every merits-based federal court decision pertaining to challenges by religious institutions regarding prohibitions of religious gatherings during the pandemic. It has produced staggering findings: 0% of Democrat-appointed judges have sided with a religious institution, a sizable majority (63%) of Republican-appointed judges have sided with a religious institution, and 0% of Trump-appointed judges have sided with the state or city. Put differently, all Trump-appointed judges have sided with religious institutions and all Democrat-appointed judges have sided with the state or city.The article tracks one particular set of free exercise cases, but the startling findings have broader implications. They suggest judicial partisanship rests as much on the extent to which pertinent law is ambiguous as it does on the extent to which the issues in play are controversial. The article shows how free exercise has recently become controversial. And it explains how the currently most significant aspect of free exercise—the meaning of religious discrimination under the Free Exercise Clause—is mired in confusion. It concludes if free exercise is left in its current state of ambiguity, it will continue enabling judicial partisanship in an area that holds great consequences for other rights, including the future of LGBTQ rights and access to contraception.
Rothschild, Zalman, ‘Free Exercise’s Lingering Ambiguity’ (2020) 11 California Law Review Online 282–295 Abstract: Religious challenges to state-issued stay-at-home orders have become a staple of the litigation generated by the COVID-19 pandemic. Judges hearing these challenges have had to grapple with an old question imbued with new pandemic-related nuance: What constitutes discrimination against religion under the Free Exercise Clause? The answer—as evidenced by the wide divergence in courts’ responses—is anything but straightforward. In this article, I explore an ambiguity surrounding the meaning of religious discrimination in current free exercise jurisprudence, the role this ambiguity has played in recent religious challenges to stay-at-home orders, and how the Supreme Court next term may finally lay this ambiguity to rest.
Rusydianaa, Aam Slamet, Aisyah As-Salafiyah and Muhammad Isa Mustafa, ‘Covid-19, Maqasid Sharia & Islamic Economic Law: VOSviewer Application’ (International Proceeding: Law and Development in the Era of Pandemic, Faculty of Law, Universitas Islam Indonesia, 28 November 2020, 2021) 47–58 Abstract: This study aims to determine the map of the development of research on the theme of Islamic economic law from the point of view of the maqashid sharia in the Covid-19 pandemic published by indexed journals. The study was conducted in November 2020. The data analyzed were more than 50 published papers. The object of study is a published journal published in 2020. The data is then processed and analyzed using the VOSviewer application program to determine the bibliometric mapping of the development of Islamic economic law research from the perspective of maqashid sharia in the Covid-19 pandemic. The results showed that the research development map of this theme was divided into 6 clusters. Cluster 1 consists of 10 topics, cluster 2 consists of 10 topics, cluster 3 consists of 8 topics, cluster 4 consists of 7 topics, cluster 5 consists of 6 topics and cluster 6 consists of 4 topics. The findings from this study indicate that the sharia economy and its instruments and products are in accordance with the maqashid sharia, all the aspect of maqashid sharia must be guarded by all parties involved in Islamic economic activities, especially the government in charge of managing state finances while maintaining a balance of prices and can be applied and this concept even become a solution during the Covid-19 pandemic, where the objectives of each sharia economic instrument become more focused and their usefulness in this field can be optimized. All economic instruments in Islam that are based on maqashid sharia are expected to be a solution that reduces the impact of the economic crisis due to the Covid-19 pandemic and can continue to be utilized in a sustainable manner.
Sandberg, Russell, ‘Is the National Health Service a Religion?’ (2020) 22(3) Ecclesiastical Law Journal 343–354 Abstract: Considers, with reference to the coronavirus lockdown, whether individuals may be legally entitled to refuse to return to the workplace on the ground that they feel that such a return will breach their belief in protecting the NHS. Discusses whether the NHS constitutes a ‘religion’ under ECHR art.9.
Satha-Anand, Chaiwat, ‘The Governor, the Cow-Head, and the Thrashing Pillows: Negotiated “Restrictive Islam” in Early Twenty-First Century Southeast Asia?’ (2022) 13(4) Religions 353 Abstract: There are obviously several ways to explore the issue of Islamic radicalism in Southeast Asia. Instead of focusing on explicit violence such as those carried out by jihadi groups or those associated with them, this research article chooses to examine three empirical cases of Muslims’ expression of ‘restrictive Islam’ that have taken place in the public sphere in both majority and minority Muslim contexts of Southeast Asia. They are: Muslims’ calling for the removal of an elected Chinese Christian governor of Jakarta on account of blasphemy in Indonesia; Muslims’ cow head protest to intimidate Hindus in Malaysia; and some Muslims’ thrashing of pillows at a hospital for COVID-19 patients as an expression of vehement faith-based refusal and protest in Buddhist Thailand against health protocols issued by Thai officials in the current fight against the pandemic in Southern Thailand. This article argues that the ‘restrictive’ lives that some Muslims lead in Southeast Asia today have to assume a negotiated form that is a mixture of ‘high artificiality’, recently adopted from a version of purist Islam they claim to be authentic, and the ‘pure normality’ resulting from a combination of political reality informed by existing forms of governance in these countries and the legacy of how historical Islam arrived in this land. The result is that the ‘restrictive Islam’ espoused by many Southeast Asian Muslims could not be overly ‘extreme’ or ‘radical’ but tends to appear in a somewhat ‘negotiated’ form.
Satyogi, Pooja, ‘Policing and the God of Death: Legal–Religious Iconography Amidst COVID-19’ (2021) 7(1) Society and Culture in South Asia 133–140
Savage, Audra, ‘COVID-1619: A Brief History of Racism’ (SSRN Scholarly Paper No ID 3671093, 10 August 2020) Abstract: Racism is the use of Black people to achieve the goals of white people without regard to the personhood, humanity, and agency of Blacks. This essay explores this definition of racism by tracing the influence of the twin institutions of law and religion in creating and maintaining the slave system in early colonial America. The essay then demonstrates the pernicious and persistent nature of racism by mapping this definition onto the current COVID-19 pandemic and its disproportionate impact on Black Americans.
Seo, Myengkyo, ‘Law-Abiding Citizens in the Age of Social Distancing: Religion and COVID-19 in South Korea’ (2023) Religion, Brain & Behavior (advance article, published online 29 Jun 2023) Abstract: COVID-19 made social distancing a necessity in the contemporary world, which helped the states establish a justification not only to frame good citizenship but also to define the ‘anti-social’ behaviors of the faithful. South Korea provides a compelling example that demonstrates how the religious are required to be law-abiding citizens in the age of social distancing. This study examines the media’s influence in framing public discourse on pandemic, religion, and citizenship, which enabled the state to initiate a new code of conduct to instruct ‘how to behave’ in Korea. Analyzing Big Data on Shincheonji Church and Sarangjeil Church, which, it is argued, caused the first and second periods of COVID-19 rampancy in Korea, this article claims that the media’s COVID-19 coverage creates the brand-new perception that religion is the most responsible for the spread of COVID-19. The legislation of the Infectious Disease Control and Prevention Law vested the government with excessive authority to limit freedom of religion in the name of the public good. In brief, the year 2020 marked the first year for Koreans to define the faithful who comply with the government’s instructions on COVID-19 restrictions as law-abiding citizens and those who oppose as anti-social citizens or criminal offenders.
Severin, Adrian, ‘Protection of Religious Freedom in Romanian and International Law, with Special Reference to the Case Of The Romanian Orthodox Church’ (2020) 14 Conferința Internațională Educație și Creativitate pentru o Societate Bazată pe Cunoaștere - DREPT 10–21 Abstract: The establishment of the state of emergency, followed by the state of alert, in Romania, amid the Covid 19 pandemic, raised the issue of the relationship between the state and the church, as well as that of the legal regime of religious freedom in Romania. In this context, several key questions were asked. What is the distinction between right and its exercise, given that, at most, the exercise can be limited? Who establishes the content of the right to practice a religious cult? The church or the state? Is a law that requires the modification of religious beliefs, even if only in their outward expression, compatible with the principle of religious freedom? May church hierarchs be required to cooperate in enforcing such a law? What are the procedural and substantive conditions regarding the regulation of religious activity? May religious freedom be restricted in some way? If the direct limitation is not allowed, according to the Constitution, could indirect limitations be accepted? This study attempts to answer all of these questions. In essence, the answer is that the state has a wide margin of maneuver in establishing the framework for the manifestation of religious freedom, including the hygienic-sanitary measures imposed by the fight against a pandemic, but it has strict limits. In any case, religious freedom cannot be restricted in any way.
Shannon, Tyler, ‘Texas Proposition 3: A State Constitutional Response to Restrictions on Religious Gatherings’ (2023) 55 Texas Tech Law Review 559–598 Abstract: For centuries, religious groups of all faiths have assembled for in-person gatherings. For most of modern American history, civil law posed little or no barrier to this practice. The COVID-19 pandemic changed that. From the outset of the pandemic, state and local officials issued orders restricting in-person religious gatherings. Some prohibited religious gatherings of all sizes, while others placed restrictions on capacity or limited certain religious practices. As with most things in modern American life, legal challenges ensued, and outcomes varied greatly. Many turned to federal courts, seeking to enjoin state action under federal law. Others have taken a different approach: utilizing the substantive liberty guarantees of state constitutions. These proponents of religious liberty have turned to state constitutions for greater protection of religious gatherings during times of public emergency. In 2021, Texas voters approved their response to the COVID-era restrictions on religious gatherings: an amendment to their state constitution prohibiting government limitations on religious services. This Article analyzes that amendment by discussing its origins, scope, and potential conflict with the federal Establishment Clause.
Shemudara, Olubusola Tunde and Victor O Ayeni, ‘Law and Religion: The Challenges of Citizens as a Result of Covid-19 Pandemic In Nigeria’ (2021) 3(1) International Review of Law And Jurisprudence (IRLJ) 166–170 Abstract: Religion and law play a vital role in maintenance of peace and order in our society. Law is intrinsically related to the society likewise religion. Religion is connected with belief and we have people who are ready to die for what they believe in. Many scholars had written and philosophised on the relationship between law and religion jurisprudentially. The need to pragmatically relate these two concepts to the current greatest challenge of the world, Covid -19 pandemic necessitated this work. This paper therefore, will be a reflection on the relationship between law and religion, the impact of law if any, on the exercise of right of freedom of religion particularly during this era of Covid-19 Pandemic as a result of restriction laws on religion. It finally concludes that law as a concept in a society is much stronger than religion irrespective of their semblance and nexus; that the two are separate; although, the working together of the two will make and build a better society.
Sholeh, M Asrorun Ni’am, ‘Towards a Progressive Fatwa: MUI’s Response to the COVID-19 Pandemic’ (2020) 20(2) AHKAM : Jurnal Ilmu Syariah 281–298 Abstract: This study examines the Fatwās issued by the Indonesian Ulama Council (Majelis Ulama Indonesia/MUI) on Indonesian Muslim attitudes and practical procedures towards their religious behaviors and public demands on the government appreciation and recognition. The fatwās present logical reasoning which has attracted the government’s attention to adopting them and issue legal products based on them. With a normative legal research approach, this study is considered as qualitative research which using critical legal theory to analyze the important points in the Fatwās. As a result, this study finds four important cases in the fatwā on religious attitudes and behaviors during the COVID-19 pandemic: first, the fatwa on COVID-19 has logical reasoning which is in line with paramedical advice; second, the fatwa on COVID-19 is consistent with the government political interests concerning physical and social restrictions; third, the fatwa on COVID-19 ends the negative stigma on the political role of religious actors; and fourth, the fatwa shows the increasing role of Kiai (religious figures) from cultural brokers to actors of Islamic legal scientism.
Shukor, Syahirah Abdul, Noor Osman and Atira Musa, ‘Governing Teaching and Learning Syariah And Law During Covid-19: Some Reflections’ (International Convention on the Basic Structure of Constitution (ICOBAC 2021)-E-Proceedings) (2022) 281–288Jurisdiction: Malaysia
Abstract: The unprecedented pandemic of Covid-19 not only effect the economic and administrative of the country, but it also has pushed to the closure of schools and universities. As a result, the emergence of e-learning or conducting classes via the teaching tools available online such as Microsoft team, google classroom, Zoom and Webex become so imminent to teachers and students. With pandemic of COVID-19, it seems global partnership is urgently needed with teaching and learning are done in a flexible manner by mean of distance learning using the teaching tools provided via the Internet. This article addresses the challenges faced by the university, particularly, in teaching and learning subjects of Syariah and law which need hand-on training and face-to-face lecturers and tutorials. This paper will examine the debates of protecting the public health in cases of COVID-19 as the world is still facing with the uncertainties brought by this dangerous virus. The new norms due to this pandemic introduced new practices such as no mass gathering which include no mass lecture or tutorials, social distancing and regular cleaning regime that are being addressed by the Ministry of Health to public. Hence, it begs to think how teaching and learning Syariah and Law can be materialized in this new norm? As a university which promotes integration of the concept of Naqli and Aqli Knowledge (iNAQ), a revisit to the current situation in facing COVID-19 is essential for the long-term planning of the higher education as well as short term approaches in dealing with its impact. The quality of the assessment made to the students by the lecturers are also crucial in addressing arising issues in teaching and learning during this pandemic. This paper ends with some possible suggestions in maintaining the qualities of teaching and learning of Syariah and Law in this trial time.
Skoczylas, Łukasz et al, ‘Restrictions on Religious Practices in Selected European Countries during the COVID-19 Pandemic: A Legal-Sociological Study from Poland’s Experiences’ (2023) 7(1) Society Register 35–52 Abstract: The aim of this paper is to present legal restrictions related to religious ceremonies during the Covid-19 pandemic, which are not currently in force in Poland but are being applied in selected European countries. The study examines the possible extent of their acceptance by believers in Poland, a country with persistently high levels of religious observance. It transpires that negative evaluations prevail in the case of the following restrictions: advanced registration for participation in religious services, the possibility of only vaccinated persons participating in services, and singing being prohibited. On the other hand, a more positive view was taken of designating specific places that can be occupied in the place of worship, and the requirement for all attendees to wear a mask (including priests and leaders of religious practices). The research revealed a general tendency for those who participate more frequently in religious practices to view restrictions more negatively.
Solahudeen, Isa Olawale and Abdullahi Salihu Abdulrauf, ‘Appraising the Effects of COVID-19 Pandemic Containment Measures on Human Rights in Nigeria: Islamic Law Perspective’ (2023) 10(2: Special Edition on COVID-19) KNUST Law Journal 82–102 Abstract: The COVID-19 is a viral disease caused by a new coronavirus. This disease first emerged in December 2019 in Wuhan, China. Right from there, it spread to almost all the countries of the world. Henceforth, the World Health Organization (WHO) declared that the disease has become a global pandemic. The scale and severity of the COVID-19 pandemic obviously upsurge to the point that large number of deaths has been recorded throughout the world. This obnoxious development has necessitated Nigerian government, like other nations, to impose containment measures to the spread of the disease. These measures include restrictions on movement; closure of religious, economic, and educational places, and ban on social gatherings. However, these measures have negative impacts on certain human rights such as right to freedom of movement; right to life; right to property and others. Thus, this paper examines the infringement upon those rights from standpoint of Islamic law. The paper adopts content analysis and thus relies on both primary sources such as the Qur’an, the Hadith and the 1999 Constitution of Nigeria and secondary sources such as articles in journals, internet materials and text books. This paper found that in the context of serious health threats and public emergencies capable of undermining the life of the nation, restrictions on some rights are justified under Islamic Law provided they are strictly required and are neither arbitrary nor discriminatory in application. The paper concludes by recommending that regards must be had for human rights when implementing COVID-19 preventive measures.
Solnica, Amy, Leonid Barski and Alan Jotkowitz, ‘Allocation of Scarce Resources during the COVID-19 Pandemic: A Jewish Ethical Perspective’ (2020) 46(7) Journal of Medical Ethics 444–446 Abstract: The novel COVID-19 pandemic has placed medical triage decision-making in the spotlight. As life-saving ventilators become scarce, clinicians are being forced to allocate scarce resources in even the wealthiest countries. The pervasiveness of air travel and high rate of transmission has caused this pandemic to spread swiftly throughout the world. Ethical triage decisions are commonly based on the utilitarian approach of maximising total benefits and life expectancy. We present triage guidelines from Italy, USA and the UK as well as the Jewish ethical prospective on medical triage. The Jewish tradition also recognises the utilitarian approach but there is disagreement between the rabbis whether human discretion has any role in the allocation of scarce resources and triage decision-making.
Solnica, Amy, Leonid Barski and Alan Jotkowitz, ‘The Healthcare Worker at Risk during the COVID-19 Pandemic: A Jewish Ethical Perspective’ (2020) 46(7) Journal of Medical Ethics 441–443 Abstract: The current COVID-19 pandemic has raised many questions and dilemmas for modern day ethicists and healthcare providers. Are physicians, nurses and other healthcare workers morally obligated to put themselves in harm’s way and treat patients during a pandemic, occurring a great risk to themselves, their families and potentially to other patients? The issue was relevant during the 1918 influenza epidemic and more recently severe acute respiratory syndrome epidemic in 2003. Since the risk to the healthcare workers was great, there was tension between the ethical duty and responsibility to treat and the risk to one’s own life. This tension was further noted during the 2014 Ebola outbreak in West Africa that left hundreds of healthcare workers dead. The AMA Code of Ethics states that physicians are to ‘provide urgent medical care during disasters…even in the face of greater than usual risk to physicians’ own safety, health or life.’1 Classic Jewish sources have dealt with this question as well. There is an obligation ‘to not stand by idly when your friends life is in danger’; however, the question arises as to whether there are limits to this obligation? Is one required to risk one’s own life to save another’s? There is a consensus that one is not required but the question open to debate is whether it is praiseworthy to do so. However, regarding healthcare workers, there is agreement for ethical, professional and societal reasons that they are required to put themselves in harm’s way to care for their patients.
Stern, Shai, ‘The Dark Side of Communities: Illiberal Religious Communities’ Compliance with COVID-19 Public Health Regulations’ (SSRN Scholarly Paper No ID 3637335, 28 June 2020) Abstract: The COVID-19 pandemic did not eliminate existing social tensions; rather, it at times intensified them. Thus it is unsurprising that the tension between the liberal state and illiberal religious communities likewise intensified, as those communities were late to comply with COVID-19 public health regulations issued by state authorities. This article suggests that alongside the behavioral and psychological explanations for individual non-compliance, illiberal religious communities’ late response to the COVID-19 threats stems out of these communities’ unique characteristics and deeply held norms. Five explanations were provided to support this argument: (1) the structural explanation that focuses on the hierarchical character of decision-making processes in such communities; (2) the communities’ social and spatial characteristics; (3) the constant struggle of illiberal religious communities to control and limit information available to their members; (4) the normative clash between social distancing and communal norms; and (5) the effects of the tension and distrust existing between the state and the communities. Each of these explanations aid in understanding why illiberal religious communities were late to respond to COVID-19 threats, and therefore suffered high rates of morbidity and mortality. This article argued that to some extent, they all result from the interventionist liberal-centric policies embraced by most western states for dealing with illiberal religious communities. Since COVID-19 is not expected to be the last health related crisis, and as other environmental, economic, or security emergencies may still require social adherence to government regulations, liberal states should rethink their policies toward illiberal religious communities. The ability to harness those communities to comply with life-saving regulations may save lives not only within these communities, but also reduce threats to areas and neighborhoods adjacent to those communities. This article suggests that the isolation and fortification processes that illiberal religious communities engage in—the same processes that prevented these communities from responding quickly and effectively to COVID-19 threats—may be mitigated if states embrace pluralistic-centric policies regarding illiberal religious communities. As the article suggests, these policies are not only normatively superior to liberal-centric policies, but they may also increase trust between the parties. Working to establish trusting relationships in times of normalcy may provide both the government and the illiberal religious communities with instruments to properly address emergencies. :
Stevens, Patrick A, ‘Constitutional Interpretation Remains Unsettled After Sixth Circuit’s Preliminary Assessment of University Vaccine Mandate’ (2022) 83 Ohio State Law Journal Sixth Circuit Review Article 001 Abstract: At the beginning of the 2021 school year, Western Michigan University (WMU) instituted a policy requiring student-athletes to be vaccinated against COVID-19, and sixteen student-athletes requested religious exemptions to this requirement, which the university denied. Barred from participation in team activities, these student-athletes sued WMU in federal court for allegedly violating their rights under the First Amendment. The case reached the Sixth Circuit Court of Appeals as WMU sought a stay of the district court’s preliminary injunction, which kept the school from enforcing the vaccination requirement against the plaintiffs. Because the likelihood of success of a plaintiff’s claim is typically the determinative factor when the Sixth Circuit decides whether to stay a district court’s preliminary injunction, the court declined to stay the preliminary injunction in Dahl v. Board of Trustees of Western Michigan University. 5 The court’s analysis in Dahl delineates the distinctions between WMU’s vaccination requirement and mandates that are constitutionally valid. This decision also spotlights the precarious balance between proper deference to sincerely held religious beliefs and misguided deference to what may instead be political and social ideologies masquerading as—or entangled with religious beliefs.
Storslee, Mark, ‘COVID-19, Neutrality, and the Free Exercise of Religion’ [2021] Journal of Law and Religion (forthcoming) Abstract: In a series of cases over the past year, the Supreme Court upheld then struck down COVID-19 restrictions on worship in various states across the country. Those decisions clarified the meaning of the requirement that, under the Free Exercise Clause, laws burdening religion must be ‘generally applicable.’ But they were also criticized for relying on contestable claims that churches and other religious gatherings were comparable to places like grocery stores in their likelihood of spreading the virus. This Article offers a different perspective. In addition to general applicability, the Court has said the Free Exercise Clause also requires that laws be ‘neutral’ with respect to religion. The Court mostly ignored that requirement in the COVID cases. But rightly understood, it may have provided a simpler path for resolving them—and one that didn’t depend on controversial comparisons between churches and campgrounds. Instead, focusing on neutrality would have yielded a common-sense conclusion: where a law or policy grants favored treatment for activities it explicitly deems ‘essential,’ ‘critical,’ or ‘life-sustaining,’ one of those things must be religion. And understanding the rationale behind that conclusion provides important insights about the meaning of the Free Exercise Clause and several other issues at the heart of the First Amendment.
Strasser, Mark, ‘COVID-19, Free Exercise, and Most Favored Nation Status’ (2023) 27(1) Lewis & Clark Law Review 1–38 Abstract: Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities are relevantly similar, misapplying the overly protective approach that it has invented. Given the great diversity of religious belief and practice in our country, it will be impossible to apply this Most Favored Nation status across all religious beliefs and practices, which will mean that the courts will have to pick and choose which religious practices to protect. The Court’s current approach cannot help but undermine religious freedom and respect for the Court.
Suhartono, Suhartono, ‘Legal Certainty and Benefits in Emergency Use Authorization of Sinovac Vaccines as Halal Products During the Covid-19 Pandemic Outbreak in Indonesia’ (2022) 5(1) The 5nd International Conference and Call Paper 198–207 Abstract: The World Health Organization (WHO) has declared COVID-19 as a Global Pandemic and the Government has declared a public health emergency of Corona Virus Disease 2019 (COVID-19) in Indonesia through Presidential Decree Number 11 of 2020 concerning the Determination of the Public Health Emergency of Corona Virus Disease 2019 (COVID-19).So that countermeasures must be carried out in accordance with the provisions of the legislation. Therefore, it is necessary to conduct an effective intervention to break the chain of disease transmission, namely through vaccination efforts. On January 11, 2021, BPOM gave approval for the Use of Sinovac Vaccine in Emergency Use Authorization.” The research used is empirical juridical research, which examines the applicable legal provisions and what happens in reality in society. Concluded the emergency use of Sinovac Vaccine as a Halal product has legal certainty and benefits.”
Sulistiani, Siska Lis, Ramdan Fawzi and Intan Nurrachmi, ‘Waqf Crowdfunding Model in Post-Pandemic Economic Improvement According to Islamic Sharia and National Law’ (2023) 7(1) Amwaluna: Jurnal Ekonomi dan Keuangan Syariah 73–81 Jurisdiction: Indonesia
Abstract: Technological developments make waqf able to be developed in terms of socialization, fundraising, and management in an effort to improve the economy after the COVID-19 pandemic. This study aims to identify and analyze the waqf crowdfunding model for post-pandemic economic improvement according to Islamic law and national law. This research is qualitative with a normative juridical approach, using types and sources of legal data including primary legal sources, Law No. 41 of 2004 concerning Waqf, PP No. 42 of 2006, and other regulations. In terms of Islamic sharia, namely the Al-Quran, Al-hadith, fatwas, and the opinions of related scholars, Secondary legal sources are journals, proceedings, theses, dissertations, and books, while tertiary legal sources are interviews with crowdfunding managers and nadzhir waqf. Then the data is collected through library research and then analyzed to see the synchronization stage and conformity with legal norms and principles through descriptive analysis.
Suriyani, Irma, ‘Legal Protection For Consumers During Covid-19 Pandemic From E-Commerce Perspective Of Fiqh Muamalah’ in Heru Susetyo and Fahrul Fauzi (eds), Hukum Islam Hukum Yang Hidup Di Indonesia (Badan Penerbit Fakultas Hukum Universitas Indonesia, 2021) 107–115 Abstract: Business development has produced various types of goods and services that can be consumed and protected with consumer protection, an inseparable part of healthy business activities or economy. During the Covid-19 pandemic, the utilization of Information Technology, communication media has changed society’s behavior and human civilization. It is urgent to examine how consumer protection in the viewpoint of Fiqh Muamalah is part of national economic development. Guided by the normative research method with a doctrinal approach, this research paper aims to examine and analyze how legal protection toward consumers in the COVID-19 pandemic era, from the e-commerce perspective of fiqh muamalah. The Results OF this Article that if a legal buying and selling contract will have an impact on the transfer of ownership of goods from the seller ownership is transfered due to an agreement/contract between the two parties even though There has been no qabadh, this is in line with what Sheikh Wahbah Az-zuhaily explained that Qabadh in securities trading is sometimes haqiqi (legal ownership) and sometimes Al-qabdh al-hukmi (beneficial ownership). Al-qabadh alhukmi is anything that states the transfer of ownership rights or asset management rights according to ’Urf, which applies without the involvement of traditional hand or acceptance elements. the consequence of qabadh is. The responsibility for the goods is transferred from the seller to the buyer. If the item disappears or is damaged after it occurs sale and purchase and before the qabadh occurs, the goods are borne by the seller because the goods are still under warranty, unless damaged or lost is caused by the buyer/consumer. This is in accordance with the rule of "goods purchased before being accepted by the buyer are still the seller’s guarantee.
Upton, Geoffrey C, ‘Locke in Lakewood: Locating the Proper Meaning of the Free Exercise of Religion in the Time of COVID-19’ (2022) 64(4) Journal of Church and State 581–599 Abstract: One disturbing aspect of the United States’ experience with the COVID-19 pandemic has been the threats and other verbal attacks against elected officials trying to protect public health to the best of their ability. In the most shocking case, which came to light in October 2020, thirteen men plotted to kidnap Michigan Governor Gretchen Whitmer in response to her executive actions to curb the spread of the deadly virus, seeing the Democratic politician as a ‘tyrant’ who had exceeded her legitimate powers. Several months earlier, four hundred miles south, right-wing agitators protesting Kentucky’s public health measures and in favor of gun rights hung that state’s Democratic governor, Andy Beshear, in effigy outside the governor’s mansion at the state capitol in Frankfort, again claiming he was acting as a tyrant. Garnering less attention were extremists acting to defend their governor’s actions against their fellow defiant citizens. One example was in New Jersey, where a man was so irate at the failure of the Haredi (ultra-Orthodox) Jewish community in the town of Lakewood to cooperate with Governor Phil Murphy’s executive orders that he threatened violence in antisemitic terms. The man, Anthony Lodespoto, resided in Howell Township, just north of Lakewood, and sent messages on Facebook on March 26, 2020, in the early days of the pandemic, threatening to beat members of Lakewood’s Jewish community with a baseball bat. While Lodespoto’s anger took a menacing form—he pled guilty to bias intimidation—his frustration with the religious community’s actions amid a public health crisis was shared by other people in New Jersey and across the country. Just a ninety-minute drive north, in South Williamsburg, Brooklyn, the Hasidic Jewish community drew similar condemnation when its members persistently ignored the COVID-related edicts of New York’s then-governor, Andrew Cuomo, and New York City’s then-mayor, Bill de Blasio. One local activist critical of ‘extremist’ Hasidic leaders told The New York Times, ‘There has been a total disrespect to everything medical authorities and the government have been telling us to do … It is total defiance.’
Wandana, Rano, Fairuz Sabiq and Indah Nurhidayati, ‘Legal Divorces During the Pandemic in the Religious Court of Sukoharjo, Indonesia’ (2022) 15(7) Baltic Journal of Law & Politics 421–434 Abstract: The purpose of this research is to describe and explain the meaning of divorce, the impact of divorce, the causes of divorce, and efforts to reduce divorce in PA Sukoharjo. This research method is descriptive qualitative with seven research subjects consisting of five widows and two widowers who experienced divorce during the pandemic at Sukoharjo PA. The results of this study are the emergence of divorce between husband and wife can have a major impact on the social status of women in society. Even though the marriage bond between husband and wife has been broken, the position and both parties towards children are the same in terms of maintenance and care education for children until the child is married or have grown up. Divorce in Sukoharjo PA was caused by infidelity, domestic violence, disputes and fights, as well as economic factors (the double burden of a wife and husband not providing a living). Divorce can have a negative impact on a child’s psychological condition. Reducing divorce cases can be done by limiting the age of marriage, pre-marital counseling for prospective brides, and effectiveness of the KKB (Population and Family Planning) and PK (Family Development) program activities.
Wildan, Asep Dadan, ‘Handling the COVID-19 Pandemic through an Islamic Perspective’ (2021) 4(2) ENDLESS: International Journal of Future Studies 31–42 Abstract: COVID-19 was discovered in Wuhan, China, and has since spread exponentially and massively. Numerous casualties have been reported as a result of this outbreak. As a result, different countries implemented measures to halt the virus’s propagation. Indonesia, like other impacted countries, implemented a Large-Scale Social Restriction (PSBB) scheme. This rule regulates various aspects ranging from the implementation of education, work to worship. In the field of worship, this rule calls for the temporary elimination of worship at houses of worship and replacing them with worship at home. This legislation has both positive and negative consequences in society. Some argue that closing houses of worship is unnecessary since other public spaces, such as markets, remain open. The law is analyzed using a qualitative approach derived from library science and religious studies. This study establishes that prohibiting worship in houses of worship in the event of a pandemic does not break Islamic law. The author assumes that upholding religion by carrying out worship and possible is as important as saving lives by keeping away from disease outbreaks.
Wilson, Robin, ‘The COVID-19 Worship Cases Lessons for Governors in Democratic Governance and Transparency Over “Edicts”’ (2022) 18(2) University of St. Thomas Law Journal 422–509 Abstract: As different highly transmissible variants sweep the country, the COVID-19 Worship Cases hold the key to what governors must do to issue public safety orders that will withstand constitutional scrutiny. Absent a colorable explanation for why churches need to be regulated differently, the governors will find themselves facing a hard reality: ‘Deference, though broad, has its limits,’ as Chief Justice Roberts reminded.
Yani, Ermida and Fauziah Lubis, ‘The Effectiveness of Executing Trialse-Court During the Covid-19 Pandemic in Matters of Shariah Economic Law Perspective Maslahah Mursalah Imam Asy Syatibi: Case Study of the Medan Religious Court’ (2022) 7(2) KABILAH : Journal of Social Community 435–446 Abstract: E-Court is an application that is integrated with SIPP which is used to process lawsuits/applications, payment of court fees, summons, notifications and delivery of decisions electronically, as well as to process other administrative services. Imam Syatibi also said that sharia actually aims to realize the benefit of humans in this world and in the hereafter. In the e-court trial during the Covid-19 pandemic there were benefits that made it easier to conduct trials and there was no harm in the trial. This e-court trial is very effective which makes it easier for every plaintiff and defendant to conduct a trial. In e-court trials it is very often used in the Medan Religious Court itself, especially regarding sharia economic cases, the effectiveness of online case registration through the E-Court application that can be obtained from this application, namely, saving time and money in the case registration process, payment of down payment fees which can be done in multi-channel channels or from various payment methods and banks, Documents are properly archived and can be accessed from various locations and media, Faster Data Retrieval Process.
Zain, Muhammad Fuad, ‘Dispensation and Adaptation of Islamic Religious Practices Based on Fatwas of the Indonesian Ulema Council During Covid-19 Pandemic’ (2024) 21(1) Manchester Journal of International Economic Law 234–248 Abstract: Indonesian government designated the Covid-19 pandemic as a national-scale humanitarian disaster and implemented measures like physical distancing and large-scale social restrictions to stop the spread of Covid-19. These measures have social as well as religious implications such as for collective prayers and worships in mosques. In implementing the restrictive measures to prevent the spread of Covid-19 such as social distancing and lockdowns, the government was supported by a series of fatwas (rulings) issued by the Indonesian Ulema Council (MUI), which has the authority over religious matters. This article applied a qualitative approach to investigate the MUI fatwas on changing the worship procedures during the Covid-19 pandemic and their role in preventing the spread of Covid-19. The main data sources for this research are three MUI fatwas, government policy documents related to Covid-19, and statements made by the government and MUI leaders to the media. In the Islamic law context, the modification of worship rules and procedures was based on the emerging threat of the Covid-19 pandemic warranting legal dispensations. This article found that the MUI fatwas were in line with religious objectives, especially for protecting lives by breaking Covid-19 infection chains in accordance with the government’s social distancing policy. However, the MUI fatwas and circular letters from the Indonesian Minister of Religious Affairs on worship procedures during the Covid-19 pandemic have created a shift in religious practices for Muslims.
Zainuddin, Zainuddin et al, ‘Muslims Resistance to Health Protocols in COVID-19 Funeral: A Study of Islamic Law’ (2022) 6(2) Samarah: Jurnal Hukum Keluarga dan Hukum Islam 757–774 Abstract: Some Muslims have stood up against health protocols for burying COVID-19 corpses. This research aimed to investigate the initial occurrence of this resistance in society, the contributing factors to the resistance, and the implications of the resistance. To date, most studies on resistance focused on social perspectives, but this research probed into the discourse of resistance during COVID-19 from the perspective of legal transformation, especially in Islamic law or fiqh. This study employed a qualitative approach supported by data obtained from printed and electronic media, and informants. The analysis revealed that public resistance to the burial which complied to health protocols was not only embodied in rhetorics or values but made apparent in their attitude. This study concludes that public resistance sucessfully reformed the law by bringing about the new fiqh regarding the burial practice. Since the community might not readily understand and accept this neq fiqh, we advised the government and related institutions to take intensive approaches to introduce this transformation to public.
Zhang, Zheng, ‘Counterterrorism in the Post-Epidemic Era’ (SSRN Scholarly Paper No 4169237, 1 April 2022) Abstract: The global outbreak of the COVID-19 epidemic in 2020 has shifted the world’s focus from counter-terrorism to epidemic prevention, yet the act of counter-terrorism cannot be ignored. This paper first attempts to understand Jihad from the perspective of Islamic law and then analyzes possible post-epidemic acts of terrorism. It then focuses on the FTF, not only in terms of the status of its members but also in terms of the pre-epidemic preventive measures taken by states, such as deprivation of citizenship or nationality. However, it is worth considering whether prohibiting FTFs from returning to their home countries by depriving them of their citizenship or nationality in an epidemic is a violation of their right to vaccination. Finally, the question of whether it is appropriate for the military to take over counter-terrorism operations that would otherwise belong to the police is explored.
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