Call for Panels: Comparative Law, Faith & Religion

The American Society of Comparative Law has announced that the theme of this year’s meeting in Washington in October will be “Comparative Law, Faith & Religion: The Role of Faith in Law.” The Society has issued a call for panels with a deadline of June 1:

Examples of diverse topics that such a conference could address are: (1) historical or modern day attitudes that result in having faith in a legal tradition or developing religious attitudes towards secular texts such as the U.S. constitution; (2) a comparison of secular faith with religious faith in a legal system, perhaps looking at the history and development of western democracies; (3) the role of Christianity in development of common and/or civil law traditions; (4) comparative approaches to legal ethics and the influence of religion on development and implementation of
ethical rules for lawyers and judges; (5) Islamic visions of dispute settlement and the role of Islamic law in modern day commercial arbitration; (6) the role of Catholicism in development of family law in Latin America; (7) Laws of the nation’s secular authority as faithless law; (8) the continuing influence of Hindu “law”; (9) whether there is such a thing as Buddhist law?; (10) the influence of the Talmud on modern western legal systems or (11) the challenge of teaching about religion in a law school setting; etc. Interdisciplinary work is encouraged.

Further details are here.

Oman, “The Dignity of Commerce”

Here’s a fine new book from William & Mary Law professor Nate Oman (who, by the way, will be joining out Tradition Project this fall), The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press). The book argues that liberal markets are a mechanism for promoting pluralism and tolerance, including religious tolerance. As Nate knows, I’m a bit skeptical about parts of his argument and will be doing a fuller review later this summer. But the book shows tremendous learning and is very thought-provoking–a major contribution to the contracts literature. Here’s the description from the publisher’s website:

9780226415529Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society.

With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.

The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.

Tugendhat, “Liberty Intact”

As readers of this blog know, the Center is in the midst of a three-year research project, the Tradition Project, which examines the continuing relevance of tradition–the received wisdom of the past–for law, politics, and culture. At our first meeting last fall, we focused on tradition in law and, specifically, the traditionalism of the common law method. A new book by Sir Michael Tugendhat, a Judge of the High Court of England and Wales, Liberty Intact: Human Rights in English Law (Oxford) argues that contemporary human rights law derives from English common law antecedents. Several participants in the Tradition Project would no doubt agree. Here’s a description from the Oxford website:

9780198790990 (1)What are the connections between conceptions of rights found in English law and those found in bills of rights around the World? How has English Common Law influenced the Universal Declaration of Human Rights (UDHR) 1948 and the European Convention on Human Rights (ECHR) 1950? These questions and more are answered in Michael Tugendhat’s historical account of human rights from the eighteenth century to present day.

Focusing specifically on the first modern declarations of the rights of mankind- the ‘Virginian Declaration of Rights’, 1776, the French ‘Declaration of the Rights of Man and of the Citizen’, 1789, and the ‘United States Bill of Rights’, 1791- the book recognises that the human rights documented in these declarations of the eighteenth century were already enshrined in English common law, many originating from English law and politics of the fifteenth century. The influence of English Common Law , taken largely from Blackstone’s Commentaries on the Laws of England, can also be realised in the British revolutions of 1642 and 1688; the American and French Revolutions of 1776 and 1789 respectively; and through them, on the UDHR and ECHR. Moreover, Tugendhat argues that British law, in all but a few instances, either meets or exceeds human rights standards, and thus demonstrates that human rights law is British law and not a recent invention imported from abroad.

Structured in three sections, this volume (I) provides a brief history of human rights; (II) examines the rights found in the American and French declarations and demonstrates their ancestry with English law; and (III) discusses the functions of rights and how they have been, and are, put to use.

Jensen, “The Cross”

A few years ago, the European Court of Human Rights took up a case involving the display of the crucifix in Italian public school classrooms. A claimant argued that displaying a religious symbol in a public school interfered with her right, under the European Convention on Human Rights, to educate her children in accordance with her own, secular humanist beliefs. The Italian government argued, somewhat implausibly, that the crucifix was really a neutral symbol that reflected secular, cultural values. (Hey, that’s what the Italian national courts held). The Court sidestepped the issue of what, exactly, the crucifix represented, but held that, even if the crucifix were a sectarian symbol, its display was permissible under the Convention.

The meaning of the cross has thus been a matter of great controversy recently, a least in a legal sense. A interesting-looking new book from Notre Dame theology professor Robin Jensen, The Cross: History, Art, and Controversy (Harvard) addresses the various meanings of the cross throughout history and up to today. Here’s the description from the Harvard website:

9780674088801-lgThe cross stirs intense feelings among Christians as well as non-Christians. Robin Jensen takes readers on an intellectual and spiritual journey through the two-thousand-year evolution of the cross as an idea and an artifact, illuminating the controversies—along with the forms of devotion—this central symbol of Christianity inspires.

Jesus’s death on the cross posed a dilemma for Saint Paul and the early Church fathers. Crucifixion was a humiliating form of execution reserved for slaves and criminals. How could their messiah and savior have been subjected to such an ignominious death? Wrestling with this paradox, they reimagined the cross as a triumphant expression of Christ’s sacrificial love and miraculous resurrection. Over time, the symbol’s transformation raised myriad doctrinal questions, particularly about the crucifix—the cross with the figure of Christ—and whether it should emphasize Jesus’s suffering or his glorification. How should Jesus’s body be depicted: alive or dead, naked or dressed? Should it be shown at all?

Jensen’s wide-ranging study focuses on the cross in painting and literature, the quest for the “true cross” in Jerusalem, and the symbol’s role in conflicts from the Crusades to wars of colonial conquest. The Cross also reveals how Jews and Muslims viewed the most sacred of all Christian emblems and explains its role in public life in the West today.

Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

Classical liberalism was supposed to resolve religious conflict within a society, principally by making religion a private matter and, in compensation, allowing religious communities, within limits, to conduct themselves as they saw fit. Today, the classical liberal model is undergoing a lot of stress, as people, particularly on the left, increasingly question what those limits should be. Hans-Martien ten Napel (Leiden University), one of the most interesting scholars in comparative law and religion today, has a new book, Constitutionalism, Democracy and Religious Freedom: To Be Fully Human (Routledge), that addresses these questions. Here’s the description from the Routledge website:

9781138647152In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

Call for Papers: Student Writing Competition on Religious Liberty

For law students finishing up notes and term papers on religious liberty, here is a great way to publicize your work and win a prize to boot. The International Center for Law and Religion Studies at BYU is running the eighth annual Religious Liberty Student Writing Competition. The top prize is a $4000 cash award. Here are the details:

Purpose: To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.

Form: Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.

Submission: All papers must be submitted on or before July 1, 2017. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. The cover email should note the word count of the paper being submitted. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to papers@jrclsdc.org.

The deadline is July 1. Further information may be found here.

Bordewich, “The First Congress”

The Supreme Court has, on occasion, given the decisions of the First Congress great weight in interpreting the Establishment Clause. The Framers of the First Amendment sat in the First Congress, so it seems plausible to look to their decisions as indications of what the Amendment meant to people at the time. The Court has not strictly held to this approach–when it comes to the Establishment Clause, it doesn’t strictly hold to any approach–but it’s there in the cases.

A new book by author Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster), discusses the history. The publisher’s description follows.

the-first-congress-9781451692112_hrThis “fascinating” (Chicago Tribune), “lively” (The New York Times) history tells how the First Congress and the Washington administration created one of the most productive and far-reaching governments in American history—“gracefully written…and well worth reading” (The Wall Street Journal).

The First Congress may have been the most important in American history because it established how our government would work. The Constitution was a broad set of principles that left undefined the machinery of government. Fortunately, far-sighted, brilliant, and determined men such as Washington, Madison, Adams, Hamilton, and Jefferson (and others less well known today) labored to create a functioning government.

In The First Congress, award-winning author Fergus Bordewich brings to life the achievements of the First Congress: it debated and passed the first ten amendments to the Constitution, which we know as the Bill of Rights; admitted North Carolina and Rhode Island to the union when they belatedly ratified the Constitution, then admitted two new states, Kentucky and Vermont, establishing the procedure for admitting new states on equal terms with the original thirteen; chose the site of the national capital, a new city to be built on the Potomac; created a national bank to handle the infant republic’s finances; created the first cabinet positions and the federal court system; and many other achievements. But it avoided the subject of slavery, which was too contentious to resolve.

The First Congress takes us back to the days when the future of our country was by no means assured and makes “an intricate story clear and fascinating” (The Washington Post).

Tradition and Traditionalisms Compared: A Joint Program of the Tradition Project and the Post-Secular Conflicts Project

Tradition Project

I’m very pleased to announce this conference, to be held in Trento, Italy, on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.

The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl’s very fine book on Russian Orthodoxy and human rights, allow me to recommend it). Mark and I will have more by and by with the meeting’s proceedings.

There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.

Halbertal & Holmes, “The Beginning of Politics”

“‘And after that he gave unto them judges about the space of four hundred and fifty years, until Samuel the prophet. And afterward they desired a king: and God gave unto them Saul the son of Cis.'” In the Book of Acts, the Apostle Paul thus abbreviates the transition, in ancient Israel, from rule by judges to rule by kings–a transition which, Bible readers will remember, did not work out entirely well, at least in the short term. A new book from Princeton University Press, The Beginning of Politics: Power in the Biblical Book of Samuel, by NYU Law professors Moshe Halbertal and Stephen Holmesdescribes the political themes in the Biblical story. The publisher’s description is below:

j10964New insights into how the Book of Samuel offers a timeless meditation on the dilemmas of statecraft

The Book of Samuel is universally acknowledged as one of the supreme achievements of biblical literature. Yet the book’s anonymous author was more than an inspired storyteller. The author was also an uncannily astute observer of political life and the moral compromises and contradictions that the struggle for power inevitably entails. The Beginning of Politics mines the story of Israel’s first two kings to unearth a natural history of power, providing a forceful new reading of what is arguably the first and greatest work of Western political thought.

Moshe Halbertal and Stephen Holmes show how the beautifully crafted narratives of Saul and David cut to the core of politics, exploring themes that resonate wherever political power is at stake. Through stories such as Saul’s madness, David’s murder of Uriah, the rape of Tamar, and the rebellion of Absalom, the book’s author deepens our understanding not only of the necessity of sovereign rule but also of its costs—to the people it is intended to protect and to those who wield it. What emerges from the meticulous analysis of these narratives includes such themes as the corrosive grip of power on those who hold and compete for power; the ways in which political violence unleashed by the sovereign on his own subjects is rooted in the paranoia of the isolated ruler and the deniability fostered by hierarchical action through proxies; and the intensity with which the tragic conflict between political loyalty and family loyalty explodes when the ruler’s bloodline is made into the guarantor of the all-important continuity of sovereign power.

The Beginning of Politics is a timely meditation on the dark side of sovereign power and the enduring dilemmas of statecraft.

 

Conversations: Rod Dreher

rod-dreher

Rod Dreher is a prolific journalist and author, and a senior editor at The American Conservative. He comments regularly on American culture, politics, and religion, and has written three widely-discussed books: Crunchy Cons (2006), The Little Way of Ruthie Leming (2013), and The Benedict Option (2017). His blog at The American Conservative gets about a million page views a month and draws followers from the left and the right. As a recent New Yorker profile explains, Rod has such a wide readership because he covers a wealth of interesting topics, in depth, and with valuable insight: “Because Dreher is at once spiritually and intellectually restless, [his] blog has become a destination for the ideologically bi-curious.”

Recently, Rod, who is a participant in our Tradition Project, agreed to answer some questions about his new, best-selling book, The Benedict OptionThe book argues that traditional Christians need to return to older, more intentional ways of living in order to thrive in a post-Christian culture. In our wide-ranging interview, Rod talks about why he thinks the Benedict Option is so necessary and why it isn’t just for monks and hermits. He discusses examples like classical Christian schooling and Christian centers at secular universities. He addresses the paradox of traditionalism in contemporary life, responds to progressive criticism, and explains the danger that “Technological Man” poses for traditional Christianity.

Movsesian: Rod, let’s begin by summarizing the main theme of your book. As I understand it, you argue that traditionalist, small-o orthodox Christians need to repurpose older, intentional ways of Christian living for our contemporary age. To take the “Benedict Option” means to establish tighter networks, communities, and institutions that will allow American Christians to survive in our post-Christian culture. Is that about right? Why do you think this option is necessary for American Christians today?

Dreher: Yes, that’s it. This is necessary because of the nature of postmodern culture, more on which in a second. In the book, I talk about a couple of social facts that so far, few if any critics have addressed head on. First is the fact that enormous numbers of Americans are leaving institutional Christianity. This has been shown repeatedly in recent years by reputable social scientists. In fact, back in 2010, Robert Putnam of Harvard and Notre Dame’s David E. Campbell said that if it weren’t for the heavy influx of Latino immigrants, the US Catholic Church would be hemorrhaging adherents at the same rate as Mainline Protestant churches. The numbers are not getting better for any of us. Last year, Mark Chaves and David Voas, two of the top sociologists of religion, published a paper analyzing social science data from the last decade or so, and concluding that the US is no longer a counterexample to the “secularization thesis” – that is, the idea that as modernity progresses, religion withers. It’s not true elsewhere in the world, but it was true in the West, with the notable exception of America. But we are now finally on the same steady downward slide that Europe pioneered.

And overwhelming numbers of young adults who still identify as Christians hold a nominal faith that has only scant connection to historic Christian orthodoxy. Their true faith is something the Notre Dame sociologist Christian Smith calls “Moralistic Therapeutic Deism” – basically a shallow, self-centered, feel-good, emotion-driven faith that’s all about being nice and feeling happy with oneself. Smith and his colleagues do their survey work on Millennials, but he has said he is confident that quite a few older American Christians hold the same vapid faith. I concur.

The point is that American Christianity is so shallowly rooted that it will not be able to withstand the strong currents of post-Christian culture. Anecdotally, in my travels around the country, especially to Christian colleges, I am hearing the same thing. One Evangelical professor at a conservative Christian college told me that these kids are all nice and big-hearted, but they come to college knowing next to nothing about Christianity, with no formation at all. The main problem is not these kids, but their parents, their churches, and their Christian schools. Few people want to face the reality of this spiritual and cultural crisis, and to make the kinds of radical changes that are going to be necessary if the faith is going to survive into the coming generations.

American Christians simply cannot imagine that the faith might not be here for their descendants. The history of Europe in the 20th century, especially after the Second World War, ought to disabuse them of that fallacy. I was quite taken by a 2015 book by the historian Edward J. Watts, titled “The Final Pagan Generation.” It’s a short history of Roman elites born just before Constantine’s conversion in the fourth century. They lived through the collapse of paganism, which had been the religion of the Empire for many centuries. It all happened in a single century. Watts shows that these men – intelligent, cultured men – had no idea what was happening around them. They could not imagine that the world that formed them could dissolve so quickly. But it happened. I think it’s happening to us Christians today.

Movsesian: Of course, to call it the “Benedict Option” is to conjure up an image of a monastic retreat from the world—something suggested, as well, by the book’s cover photo of Mount St. Michel. And some Christian critics have taken to you task for that. But that isn’t quite what you mean, is it? You’re not calling on all Christians to live as monastics. Could you explain? Is the Benedict Option only for spiritual virtuosos? What about regular people who live in the world but would like a deeper Christian life?

Dreher: No, I’m not at all encouraging Christians to run for the hills and live like monks. Rather, I’m saying that all of us believers have to live lives of much greater spiritual discipline, with much thicker ties to our local churches and Christian communities. If we don’t, we are not going to make it as Christians through this Dark Age upon us. That’s not just an anxious American journalist saying this; Father Cassian Folsom, the former prior of the Benedictine monastery in Norcia, the saint’s hometown, told me exactly that when I first met him several years ago. This is not a game.

I call this project the Benedict Option after the philosopher Alasdair MacIntyre’s famous final paragraph in “After Virtue,” in which he recalled the example of St. Benedict, leaving the ruins of imperial Rome to found a monastic order. MacIntyre said that today, we await “a new – and doubtless very different – St. Benedict” to help those who wish to live out the traditional virtues create resilient communities capable of doing this amid the chaos and barbarism of our own time. In my book, I ask what would a new and very different St. Benedict look like today? What would he tell us?

We lay Christians – Catholic, Protestant, and Eastern Orthodox – have a lot to learn from the Benedictine tradition. In the book, I talk about certain ways of thinking and living that the Benedictines have from the early sixth century Rule of St. Benedict that we can Continue reading

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