Around the Web

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

O’Collins, “Tradition: Understanding Christian Tradition”

Not too much explanation necessary for this book note, in light of our long-standing 9780198830306interest here at the Center for Law and Religion in the subject of tradition and its relationship to law, politics, culture, and religion. This book studies the nature of tradition as a source of interpretation and authority in Christianity specifically: Tradition: Understanding Christian Tradition (OUP) by Gerald O’Collins, S.J. The way that the title is phrased makes me wonder whether Oxford is planning a series of volumes about tradition in different religious contexts. At any rate, here is the description.

A 1963 report on tradition from the Faith and Order Commission of the World Council of Churches signalled a substantial convergence between the churches over Christian tradition and its relationship to Scripture. However, since the 1960s theologians have regularly ignored the theme of tradition. The few who have discussed this theme have not used the help provided by some sociologists towards understanding the role of tradition in human and religious life: for instance, as being all-pervasive and as shaping the identity of various societies and groups. The process and presence of Christian tradition embrace baptism and other sacraments, Bible, creeds and other doctrines, art, architecture, hymns, pilgrimages, literature, the celebration of Christmas, Easter and other feasts, and much else besides. Particular traditions can call for scrutiny and reform. Tradition: Understanding Christian Tradition proposes various criteria (e.g. the message of the Scriptures and spiritual experience) for discerning and evaluating specific traditions. Through the power of the Holy Spirit, the risen Christ himself is the central Tradition (upper case) at the heart of all Christian traditions. The Spirit remains the primary bearer of the Church’s tradition; the secondary agents of tradition include not only ordained ministers but also all the baptized faithful. In the history of Christianity, tradition has interpreted and actualized the Scriptures, but has also been interpreted and challenged by them. An appendix explains the insights coming from specialists in the study of collective memory; their work also sheds light on the workings of Christian tradition.

Movsesian on Religious Polarization

To follow on Marc’s post yesterday, here is the video of my panel presentation earlier this month’s at the annual Notre Dame Ethics and Culture Center Conference. The title of the panel, chaired by Notre Dame Law Professor (and Tradition Project member) Marah Stith McLeod, was “A House Divided–Polarization in Our Common Life,” and the subject of my talk, beginning at the 35:45 mark, was “Church and State in a Time of Polarization.” Thanks to Marah and my co-panelist, John Carr (Georgetown), and to the Notre Dame Center Director, Carter Sneed, for inviting me!

McLendon, “The Psychology of Inequality”

I am not a scholar of Jean-Jacques Rousseau, but what little I know and have read by Rousseau persuades me that he is a very helpful philosopher for understanding our own time and place in 21st century America. His account in the Discourse on the Origins and Basis of Inequality (as well as Emile) of amour-propre–or love of self, sometimes rendered loosely as the need for recognition or validation–is one feature of his thought that offers great insight for our own controversies about identity politics, tribalism, and many other political problems of contemporary political life in liberal democracies.

Here is a new book that focuses on some of these features of Rousseau’s thought and is 15896well worth checking out for the Rousseau novice: The Psychology of Inequality: Rousseau’s “Amour-Propre” (U Penn Press), by Michael Locke McLendon.

In The Psychology of Inequality, Michael Locke McLendon looks to Jean-Jacques Rousseau’s thought for insight into the personal and social pathologies that plague commercial and democratic societies. He emphasizes the way Rousseau appropriated and modified the notion of self-love, or amour-propre, found in Augustine and various early modern thinkers. McLendon traces the concept in Rousseau’s work and reveals it to be a form of selfish vanity that mimics aspects of Homeric honor culture and, in the modern world, shapes the outlook of the wealthy and powerful as well as the underlying assumptions of meritocratic ideals.

According to McLendon, Rousseau’s elucidation of amour-propre describes a desire for glory and preeminence that can be dangerously antisocial, as those who believe themselves superior derive pleasure from dominating and even harming those they consider beneath them. Drawing on Rousseau’s insights, McLendon asserts that certain forms of inequality, especially those associated with classical aristocracy and modern-day meritocracy, can corrupt the mindsets and personalities of people in socially disruptive ways.

The Psychology of Inequality shows how amour-propre can be transformed into the demand for praise, whether or not one displays praiseworthy qualities, and demonstrates the ways in which this pathology continues to play a leading role in the psychology and politics of modern liberal democracies.

“America and the Just War Tradition” (Hall & Charles, eds.)

The Just War tradition–an umbrella term for a set of ideas and customs concerning the9780268105266 circumstances in which nations may take military action in their own defense or on behalf of others–draws on a rich history of religious justifications for, objections to, and arguments about war. Here is a new collection of essays concerning its application in American law and politics: America and the Just War Tradition: A History of U.S. Conflicts (Notre Dame Press), edited by Mark David Hall and J. Daryl Charles.

America and the Just War Tradition examines and evaluates each of America’s major wars from a just war perspective. Using moral analysis that is anchored in the just war tradition, the contributors provide careful historical analysis evaluating individual conflicts.

Each chapter explores the causes of a particular war, the degree to which the justice of the conflict was a subject of debate at the time, and the extent to which the war measured up to traditional ad bellum and in bello criteria. Where appropriate, contributors offer post bellum considerations, insofar as justice is concerned with helping to offer a better peace and end result than what had existed prior to the conflict.

This fascinating exploration offers policy guidance for the use of force in the world today, and will be of keen interest to historians, political scientists, philosophers, and theologians, as well as policy makers and the general reading public.

Notre Dame CEC Conference Panel on “Shield or Spear: The Power of Speech”

Here is the video of my panel with Michael Moreland and Rick Garnett at a recent conference at Notre Dame, discussing the current condition of free speech. For those disinclined to read the paper below, you can get a rough sense of some of the points in it in the video. I appreciated the chance to chat with Mike and Rick to get a sense of where we agree (on many issues) and perhaps see things a little differently (a smaller, but interesting and important, set of issues) as to the First Amendment.

New paper: “The Sickness Unto Death of the First Amendment”

I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.

What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.

This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.

Around the Web

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

Courtenay, “Rituals for the Dead”

Yesterday’s book note concerned the place, if any remains, of religion in the modern 9780268104948university–religious or otherwise. Here is a related entry about the rather more integrated role of religion in the medieval university, in which religious ritual played an important part and in which prayer for deceased colleagues helped to preserve the connection between the living and the dead. But perhaps it isn’t so much that religion as such has left the modern university, as that the nature of university rituals has simply changed to reflect very different religious commitments.

The book is Rituals for the Dead: Religion and Community in the Medieval University of Paris (Notre Dame Press) by William J. Courtenay.

In his fascinating new book, based on the Conway Lectures he delivered at Notre Dame in 2016, William Courtenay examines aspects of the religious life of one medieval institution, the University of Paris, in the thirteenth and fourteenth centuries. In place of the traditional account of teaching programs and curriculum, however, the focus here is on religious observances and the important role that prayers for the dead played in the daily life of masters and students.

Courtenay examines the university as a consortium of sub-units in which the academic and religious life of its members took place, and in which prayers for the dead were a major element. Throughout the book, Courtenay highlights reverence for the dead, which preserved their memory and was believed to reduce the time in purgatory for deceased colleagues and for founders of and donors to colleges. The book also explores the advantages for poor scholars of belonging to a confraternal institution that provided benefits to all members regardless of social background, the areas in which women contributed to the university community, including the founding of colleges, and the growth of Marian piety, seeking her blessing as patron of scholarship and as protector of scholars. Courtenay looks at attempts to offset the inequality between the status of masters and students, rich and poor, and college founders and fellows, in observances concerned with death as well as rewards and punishments in the afterlife.

Rituals for the Dead is the first book-length study of religious life and remembrances for the dead at the medieval University of Paris. Scholars of medieval history will be an eager audience for this title.

Judge Diane Sykes at the Colloquium in Law and Religion Today

We are delighted to welcome the Honorable Diane S. Sykes to the Colloquium in Law andDiane Sykes.jpeg Religion today!

Judge Sykes will be discussing a number of her opinions involving law and religion, including Korte v. Sebelius (a contraception mandate for-profit RFRA case before Burwell v. Hobby Lobby); CLS v. Walker (an equal access/speech case before CLS v. Martinez); Books v. Elkhart County (involving state-sponsored religious displays); and Tagami v. City of Chicago (concerning the role of a moral tradition in satisfying intermediate scrutiny for both expressive conduct and Equal Protection Clause purposes).

Welcome, Judge Sykes!

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