As Forum readers know, tradition has been a focus of ours here at the Center. So it’s with interest that we saw a new book from Oxford on the subject, Traditionalism: The Radical Project for Restoring Sacred Order, by historian Mark Aarhus (Aarhus). It looks very interesting, indeed. But the description on the Oxford website is a bit puzzling in one respect. As examples of the major proponents of traditionalism it gives René Guénon, Julius Evola, and Frithjof Schuon, along with Steve Bannon. Burke? Oakeshott? Kirk? At least in the English-speaking world, those names are a lot more prominent. Maybe the book discusses them, too. Anyway, here’s the description:

From a leading expert comes an intellectual history and analysis of Traditionalism, one of the least known and most influential philosophies that continues to impact politics today

Traditionalism is a shadowy philosophy that has influenced much of the twentieth century and beyond: from the far-right to the environmental movement, from Sufi shaykhs and their followers to Trump advisor and right-wing provocateur Steve Bannon. It is a worldview that rejects modernity and instead turns to mystical truth and tradition as its guide.

Mark Sedgwick, one of the world’s leading scholars of Traditionalism, presents a major new analysis, pulling back the curtain on the foundations of Traditionalist philosophy, its major proponents–René Guénon, Julius Evola, and Frithjof Schuon–and their thought. One of Traditionalism’s fundamental pillars is perennialism, the idea that beneath all the different forms of religion there lies one single timeless and esoteric tradition. A second is the view that everything is getting worse, rather than better, over time, leading to the Traditionalist critique of modernity. Sedgwick details Traditionalism’s unique ideas about self-realization, religion, politics, and many other spheres.

Traditionalism provides an expansive guide to this important school of thought–one that is little-known and even less understood–and shows how pervasive these ideas have become.

The Uneasy Relationship of Libertarianism and Religion

Libertarianism is a political philosophy that maximizes individual liberty and minimizes government power. That’s a quick and dirty definition, and it misses all sorts of nuance that I cannot get into here. But it’s probably fair to say that even on this understanding, libertarianism’s tensions with organized religion, with the authority of received wisdom, with what binds a (political) community, and with the force of tradition generally, should be evident. Not that these cannot be negotiated, softened up, accommodated, and so on. But the tensions remain, and they go to the heart of the very different projects and perspectives of libertarianism and organized religion (disorganized, individuated religion, such as it is, may well be another matter).

Here is a very interesting new work (published last spring) on the history of libertarian thought. It’s interesting to observe, in respect of some of my comments above, that the authors describe libertarianism as a 19th century phenomenon that, of course, influenced political thought in the 20th century, too. Its history is quite recent and coincides roughly with the social decline of organized religion, at least in Western nations. The book is The Individualists: Radicals, Reactionaries, and the Struggle for the Soul of Libertarianism (Princeton University Press), by Matt Zwolinski and John Tomasi.

Libertarianism emerged in the mid-nineteenth century with an unwavering commitment to progressive causes, from women’s rights and the fight against slavery to anti-colonialism and Irish emancipation. Today, this movement founded on the principle of individual liberty finds itself divided by both progressive and reactionary elements vying to claim it as their own. The Individualists is the untold story of a political doctrine continually reshaped by fierce internal tensions, bold and eccentric personalities, and shifting political circumstances.

Matt Zwolinski and John Tomasi trace the history of libertarianism from its origins as a radical progressive ideology in the 1850s to its crisis of identity today. They examine the doctrine’s evolution through six defining themes: private property, skepticism of authority, free markets, individualism, spontaneous order, and individual liberty. They show how the movement took a turn toward conservativism during the Cold War, when the dangers of communism at home and abroad came to dominate libertarian thinking. Zwolinski and Tomasi reveal a history that is wider, more diverse, and more contentious than many of us realize.

A groundbreaking work of scholarship, The Individualists uncovers the neglected roots of a movement that has championed the poor and marginalized since its founding, but whose talk of equal liberty has often been bent to serve the interests of the rich and powerful.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, the 9th Circuit Court of Appeals, sitting en banc, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. The school district revoked FCA’s recognition as a club because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, which the 9th Circuit said violated the club’s Free Exercise and Free Speech rights.
  • In Catholic Healthcare International, Inc. v. Genoa Charter Township, the 6th Circuit Court of Appeals ordered a Michigan federal district court to enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail as well as a stone altar and mural after Genoa Township zoning officials insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs argued that the zoning ordinance as applied to them violates RLUIPA, and the 6th Circuit agreed.
  • In Damiano v. Grants Pass School District, two Oregon educators filed their opening brief in the 9th Circuit after a federal district court ruled against them. The educators were terminated after they voiced their opinions online about gender identity education policy solutions, rooted in their religious beliefs, which they claim violated their Free Exercise and Free Speech rights.
  • In Virden v. Crawford County, Arkansas, the Western District of Arkansas denied plaintiffs’ request for a preliminary injunction after the Crawford County Library System implemented a policy removing books with LGBTQ+ themes from the children’s sections of the libraries. Plaintiffs claim this violates the Establishment Clause because the policy was implemented due to pressure from religious objectors. However, the court left open the possibility of a narrower injunction later on. 
  • In The Catholic Store, Inc. v. City of Jacksonville, the Middle District of Florida entered a consent decree which concluded that The Catholic Store, a privately owned Catholic book store in Jacksonville, is exempt from Jacksonville’s public accommodations law. The order exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity.
  •  France’s Council of State upheld the government’s ban on Muslim girls wearing the abaya at school. The court found that the ban did not constitute a serious interference with private life, freedom of worship, or the right to education.

Steve Smith on the Disintegrating Conscience

Our friend (and sometime contributor) Steve Smith of San Diego Law School writes a ton and all of it is worth reading: engaging, erudite, and thought-provoking. His latest book, The Disintegrating Conscience and the Decline of Modernity, forthcoming next month from Notre Dame Press, explores the way the concept of “conscience,” so central to religious freedom, has shifted–actually, disintegrated–over the centuries. It’s a paradox, he writes. Protecting conscience remains a fundamental Western commitment across centuries, but conscience means something very different than it did 500 years ago, something more personal, even solipsistic. Steve’s apparently not optimistic about where this will lead us. Here’s the description from the publisher’s website:

This book considers how the modern concept of “conscience” turns the historic commitment on its head, in a way that underlies the decadence of modern society.

Steven D. Smith’s books are always anticipated with great interest by scholars, jurists, and citizens who see his work on foundational questions surrounding law and religion as shaping the debate in profound ways. Now, in The Disintegrating Conscience and the Decline of Modernity, Smith takes as his starting point Jacques Barzun’s provocative assertion that “the modern era” is coming to an end. Smith considers the question of decline by focusing on a single theme—conscience—that has been central to much of what has happened in Western politics, law, and religion over the past half-millennium. Rather than attempting to follow that theme step-by-step through five hundred years, the book adopts an episodic and dramatic approach by focusing on three main figures and particularly portentous episodes: first, Thomas More’s execution for his conscientious refusal to take an oath mandated by Henry VIII; second, James Madison’s contribution to Virginia law in removing the proposed requirement of religious toleration in favor of freedom of conscience; and, third, William Brennan’s pledge to separate his religious faith from his performance as a Supreme Court justice. These three episodes, Smith suggests, reflect in microcosm decisive turning points at which Western civilization changed from what it had been in premodern times to what it is today. A commitment to conscience, Smith argues, has been a central and in some ways defining feature of modern Western civilization, and yet in a crucial sense conscience in the time of Brennan and today has come to mean almost the opposite of what it meant to Thomas More. By scrutinizing these men and episodes, the book seeks to illuminate subtle but transformative changes in the commitment to conscience—changes that helped to bring Thomas More’s world to an end and that may also be contributing to the disintegration of (per Barzun) “the modern era.”

A Conference on Robert George’s “Making Men Moral” at 30

I’m delighted to announce a conference on Robert George’s groundbreaking book, Making Men Moral: Civil Liberties and Public Morality, on the 30th anniversary of its publication. The conference will be held November 30-December 1, and is being jointly organized by AEI, the Ethics & Public Policy Center, Pepperdine University, and the Project on Constitutional Originalism and the Catholic Intellectual Tradition at Catholic University. You can see the terrific program at the link.

I’m particularly pleased to contribute something to this conference, as Robby’s book was a major influence on me as I thought about an academic career many years ago, shaping the way I thought about so-called “legal moralism” and many other questions in constitutional law and theory that came to occupy me in later years. And I continue to use the book to this day in my own classes as a model to introduce some of the foundational questions of governance that it discusses.

Law & Religion’s Next Phase

Over the summer, I worked on an article (about which more soon) called “The Death and New Life of Law and Religion.” It is in part a historiography of the field, but it also argues that many of the concerns that motivated the field to emerge in the 1970s and 1980s are now at an end, at least insofar as their scholarly interest is concerned. No doubt, scholars, judges, and others will continue to wrangle over them for a variety of reasons. But the field feels to me like it is in transition–moving from one set of questions and objects toward another, or perhaps toward others. As these changes arrive, they will radiate outward, affecting many things. Including the work of this Center.

So I was delighted to see a new book out this fall by Rafael Domingo that appears to sound some similar themes, though with perhaps a different diagnosis, focus, and endpoint. The book is Law and Religion in a Secular Age (CUA Press).

Law and Religion in a Secular Age seeks to restore the connection between spirituality and justice, religion and law, theology and jurisprudence, and natural law and positive law by building a new bridge suitable for pluralistic societies in the secular age. The author argues for a multidimensional view of reality that includes legal, political, moral, and spiritual dimensions of human nature and society. Each of these dimensions of life needs to recognize the existence, influence, and function of the others, which act as a filter or check on the excesses of each other. This multidimensionality of reality clarifies why no legal theory can fully account for law from the legal dimension alone, just as no moral theory makes perfect sense of morality from the moral dimension—and, for that matter, nothing in physics can fully interpret the physical dimension of reality. The premises of a legal system cannot be fully explained by the legal dimension alone because the fundamental conditions and qualities of justice, freedom, and dignity touch all the dimensions of reality in which the human person acts, including the moral and the spiritual, not just the legal. Building on this multidimensional theory of reality, the author explores the core differences and the essential interconnections between law, morality, religion, and spirituality and some of the legal implications of these connections.

Rafael Domingo reminds readers of the vital role of religion in shaping the conceptual framework of Western legal systems, underscores the spirit of Christianity that inspired legal institutions, principles, and values, and recalls the contributions of specific Christian jurists as central figures for the development of justice in society.

Law and Religion in a Secular Age aims to be a valuable antidote against the dominant legal positivism that has cornered public morality, the defiant secularism that has marginalized religion, and any other legal doctrine that diminishes the spiritual dimension of law and justice.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Hindu American Foundation, Inc. v. Kish, a California federal district court ruled that the Hindu American Foundation lacks standing to challenge the California Civil Rights Department’s stance on caste discrimination being a part of Hindu teachings. The court found the organization’s complaint vague and insufficient in demonstrating whom it represented. The complaint broadly claimed to defend the rights of “all Hindu Americans” and “all Americans of faith.”
  • A Texas federal court imposed sanctions on Southwest Airlines for not adhering to a previous order which found the Airline guilty of violating Title VII by firing an employee who shared her religious views on social media. The court required three of the airline’s lawyers to attend religious liberty training by Alliance Defending Freedom (ADF), a Christian legal non-profit. In response to Southwest’s objection to training with an “ideological organization,” the court emphasized ADF’s track record in winning Supreme Court cases on religious liberties.
  • In Union Gospel Mission of Yakima, Wash. v. Ferguson, a Washington federal district court dismissed, on federalism grounds, the plaintiff’s challenge to the the Washington Supreme Court’s interpretation of the state’s ministerial exception doctrine. The federal court saw the plaintiff’s challenge as an indirect attempt to overturn a prior state court decision in violation of the Rooker-Feldman Doctrine.
  • In Tilsen v. Benson, the Connecticut Supreme Court declined to a ketubah, or Jewish marriage contract, in an alimony decision. The court determined that the contract was vague and that enforcing it could breach the establishment clause. The court noted that parties could craft clear agreements that respect religious beliefs without causing legal conflicts.
  • In David v. South Congregational Church, a Massachusetts court dismissed a member’s defamation lawsuit against a church and its leaders. The member was removed from church committees over alleged unethical financial conduct. The court declined to intervene in church disciplinary decisions.
  • Three musicians have filed a lawsuit against the North Carolina Symphony alleging religious discrimination following their termination for refusing the Symphony’s 2021 COVID-19 vaccine mandate. The plaintiffs claim the Symphony violated the First Amendment and Title VII of the Civil Rights Act of 1964 by mandating the vaccine despite their religious objections. The Symphony, which reversed its vaccine mandate in August but did not reinstate the musicians, denies any wrongdoing and insists its actions were in line with health guidelines and the policies of other symphonies.

The First Amendment and the Supreme Court

I was delighted to appear this week as a guest on Pastor Haig Kherlopian’s podcast to discuss the history of the First Amendment, recent Supreme Court decisions on church and state, and other matters. Listen in!

The Decline and Fall of the American Empire?

Gibbon famously wrote that Christianity was partly responsible for the fall of the Roman Empire. By encouraging pacifism and other-worldliness, he argued, Christianity sapped Rome’s fighting spirit. Who knows? Correlation isn’t causation, after all, and anyway a Christian version of the empire survived another 1000 years in the east. But if the rise of Christianity explains Rome’s fall, what explains the apparent decline of the Pax Americana? Surely not the spread of Christian identity: the decline of American influence correlates with a decline in the percentage of Americans who identify as Christians. This week, Yale publishes a book that attempts to explain what’s going on, Why Empires Fall: Rome, America, and the Future of the West. The authors are historians Peter Heather (King’s College, London) and political economist John Rappley (Cambridge). Looks fascinating. Here’s the publisher’s description:

Over the last three centuries, the West rose to dominate the planet. Then, around the start of the new millennium, history took a dramatic turn. Faced with economic stagnation and internal political division, the West has found itself in rapid decline compared to the global periphery it had previously colonized. This is not the first time we have seen such a rise and fall: the Roman Empire followed a similar arc, from dizzying power to disintegration.

Historian Peter Heather and political economist John Rapley explore the uncanny parallels, and productive differences between ancient Rome and the modern West, moving beyond the tropes of invading barbarians and civilizational decay to unearth new lessons. From 399 to 1999, they argue, through the unfolding of parallel, underlying imperial life cycles, both empires sowed the seeds of their own destruction. Has the era of Western global domination indeed reached its end? Heather and Rapley contemplate what comes next.

On a New Christian Humanism (in Education)

Last spring, I gave a talk called “Notes on a New Humanism in Legal Education,” organized by the Center for Law and the Human Person at Catholic University of America’s Columbus School of Law. In it, I argued that one possible model for the future of legal education might be take inspiration from the Christian humanist tradition of education pressed by various late medieval and early Renaissance thinkers (and ably described by Professor James Hankins, for example here and here).

So I was very interested to see this new book out in December, The Wisdom of Our Ancestors: Conservative Humanism and the Western Tradition (Notre Dame Press), by Graham James McAleer and Alexander S. Rosenthal-Pubul. The book presents an interesting intellectual reconstruction of the humanist tradition, offering up something the authors call “conservative humanism.” A book worth engaging.

In this book, Graham McAleer and Alexander Rosenthal-Pubul offer a renewed vision of conservatism for the twenty-first century. Taking their inspiration from the late Roger Scruton, the authors begin with a simple question: What, after all, is the meaning of conservatism? In reply, they make a case for a political orientation that they call “conservative humanism,” which threads a middle way between liberal universalism and its ideological alternatives. This vision of conservatism is rooted in the humanist tradition (that is, classical humanism, Christian humanism, and secular humanism), which the authors take to be the hallmark of Western civilizational identity. At its core, conservative humanism attempts to reconcile universal moral values (rooted in natural law) with local, particularist loyalties. In articulating this position, the authors show that the West—contra various contemporary critics—does, in fact, have a great deal of wisdom to offer.

The authors begin with an overview of the conservative thought world, situating their proposal relative to two major poles: liberalism and nationalism. They move on to show that conservatism must fundamentally take the form of a defense of humanism, the “master idea of our civilization.” The ensuing chapters articulate various aspects of conservative humanism, including its metaphysical, institutional, legal, philosophical, and economic dimensions. Largely rooted in the Anglo-Continental conservative tradition, the work offers fresh perspectives for North American conservatism.