Religious Law and Yesterday’s Election in NY-9

As everyone who follows American politics knows, a special election was held yesterday in New York’s Ninth Congressional District – a stone’s throw from CLR headquarters here at St. John’s – to replace former representative Anthony Weiner (D), who resigned because of a sexting scandal.  For the first time in nearly 90 years, in a district where registered Democrats have a 3-1 advantage, the district went Republican.  In fact, it wasn’t all that close.  Bob Turner, the Republican candidate, beat his Democratic opponent, State Assemblyman David Weprin, by 8 percentage points.

Numerous factors contributed to Turner’s upset victory: the bad economy, voters’ disapproval of President Obama’s job performance, in particular, his perceived toughness on Israel, a serious issue in a district with a large Jewish electorate.  But, over at Mirror of Justice, Robert George notes that religion also helped turn the race, in a way that will interest CLR readers:

In the run up to the election, a group of Orthodox rabbis, most from Brooklyn, but including others, notably Rabbi Shmuel Kamenetsky and Rabbi Simcha Bunim Cohen, two nationally prominent Orthodox Jewish authorities, published a letter stating that “it is forbidden to fund, support, or vote for David Weprin.”  The reason?  As a member of the New York state legislature, Weprin, despite his Orthodox Jewish beliefs, voted to redefine marriage to include same-sex partnerships.  This, the Read more

Religion and Human Rights (Green and Witte, eds.)

Emory’s M. Christian Green and John Witte, Jr., have put together a new collection on the relationship between religion and human rights, Religion and Human Rights: An Introduction (OUP forthcoming 2011).  A description follows. — MLM

The relationship between religion and human rights is both complex and inextricable. While most of the world’s religions have supported violence, repression, and prejudice, each has also played a crucial role in the modern struggle for universal human rights. Most importantly, religions provide the essential sources and scales of dignity and responsibility, shame and respect, restraint and regret, restitution and reconciliation that a human rights regime needs to survive and flourish in any culture.

With contributions by a score of leading experts, Religion and Human Rights provides authoritative and accessible assessments of the contributions of Judaism, Christianity, Islam, Hinduism, Confucianism, Buddhism, and Indigenous religions to the development of the ideas and institutions of human rights. It also probes the major human rights issues that confront religious individuals and communities around the world today, and the main challenges that the world’s religions will pose to the human rights regime in the future.

Berman on Equality in Biblical Thought

Scholars debate the extent to which contemporary ideas about legal equality derive from religious, as opposed to Enlightenment, thought.  In a new book, Created Equal: How the Bible Broke with Ancient Political Thought (OUP 2011), Joshua Berman (Bar-Ilan University) argues that Bible, specifically the Pentateuch, provides the earliest theory on record for an egalitarian society. Along the way, Berman compares Biblical constitutionalism with Montesquieu’s version.  A description follows.  — MLM

In Created Equal, Joshua Berman engages the text of the Hebrew Bible from a novel perspective, considering it as a document of social and political thought. He proposes that the Pentateuch can be read as the earliest prescription on record for the establishment of an egalitarian polity. What emerges is the blueprint for a society that would stand in stark contrast to the surrounding cultures of the ancient Near East — Egypt, Mesopotamia, Ugarit, and the Hittite Empire – in which the hierarchical structure of the polity was centered on the figure of the king and his retinue. Berman shows that an egalitarian ideal is articulated in comprehensive fashion in the Pentateuch and is expressed in its theology, politics, economics, use of technologies of communication, and in its narrative literature. Throughout, he invokes parallels from the modern period as heuristic devices to illuminate ancient developments. Thus, for example, the constitutional principles in the Book of Deuteronomy are examined in the light of those espoused by Montesquieu, and the rise of the novel in 18th-century England serves to illuminate the advent of new modes of storytelling in biblical narrative.

Brundage’s “The Medieval Origins of the Legal Profession”

The legal profession as we know it today was born between the 12th and 13th centuries in Europe, and most especially at the University of Bologna.  The new lawyers practiced in church courts — indeed, as James Brundage notes in his magnificent study, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago Press 2008):

[P]rofessional lawyers first emerged in the courts of the medieval church.  Practitioners in civil courts that employed the procedural system of the ius commune [the common, learned law] quickly followed suit and adopted procedures that resembled those already introduced in the ecclesiastical courts.  Development of a professional identity among the canonists thus seems to have supplied a model that other professional groups, such as English common lawyers and university-trained physicians, adapted to their own needs and purposes.  (3)

The term “profession,” Brundage argues, had religious roots “connected with making a solemn promise or undertaking” — as in the phrase, “a profession of faith” — and “[m]edieval lawyers were undoubtedly aware of these religious connotations of ‘profession’ when they used the term professio advocatorum, familiar to them from Roman legal sources, to describe themselves and their colleagues.” 

It is not often that the connections between religion and the idea of law as a profession — and therefore of the notion of professional responsibility — are probed in such keen detail.  I found Chapter 7 of the book, dealing with the advent in the 13th century of formal professional admission procedures and the swearing of an oath to observe a set of ethical rules concerning the new lawyers’ interactions with clients and courts (with concomitant Church sanctions for failure to comply), particularly interesting.  I am not teaching Professional Responsibility this year, but in the past I assigned selections from Tocqueville dealing with the nature of the legal profession.  If I teach the course again, I will also use chunks of Brundage’s excellent book. — MOD [x-posted MOJ]

Levinson on Constitutional Faith

Princeton University Press has re-issued Sanford Levinson’s Constitutional Faith, with a new afterword by the author.  A description follows. — MLM

This book examines the “constitutional faith” that has, since 1788, been a central component of American “civil religion.” By taking seriously the parallel between wholehearted acceptance of the Constitution and religious faith, Sanford Levinson opens up a host of intriguing questions about what it means to be American. While some view the Constitution as the central component of an American religion that serves to unite the social order, Levinson maintains that its sacred role can result in conflict, fragmentation, and even war. To Levinson, the Constitution’s value lies in the realm of the discourse it sustains: a uniquely American form of political rhetoric that allows citizens to grapple with every important public issue imaginable.

In a new afterword, Levinson looks at the deepening of constitutional worship and attributes the current widespread frustrations with the government to the static nature of the Constitution.

Calo on Headscarves, Pluralism, and Human Rights

Zachary Calo (Valparaiso) has posted a new piece, Islamic Headscarves, Religious Pluralism, and Secular Human Rights.  The  abstract follows. — MLM

This paper considers the Article 9 religious freedom jurisprudence of the European Court of Human Rights. It opens by looking at recent decisions involving Islam that stand in tension with the Court’s endorsement of normative religious pluralism. It is argued that the inability of the Court to construct a satisfying account of the place of public Islam within a religiously pluralistic order reflects inherent limitations of the liberal tradition of religious freedom. In particular, the Court’s approach to these cases reveals ways in which the category of human rights has become tethered to a normative secularity that cannot ultimately support a vigorous promotion of religious pluralism. This being the case, the challenge confronting the European Court of Human Rights in its treatment of religious pluralism might be understood as not merely jurisprudential but moral, ontological, and finally, theological. That is, the problematic that must be identified and critiqued concerns the deep ways in which law has been formulated in relation to religion within the modern order. With this in mind, the paper turns in its final section to discussing conceptual jurisprudential alternatives. It is revealing that some of the most creative alternatives, particularly addressing the status of Islam, are being advanced by theologians positioned to think about certain elemental matters outside the sphere of normal jurisprudential considerations. As a point of entry into these conversations, the concluding section considers two of the most important recent reflections on this topic by Rowan Williams and John Milbank.

Hauling the Pope before the International Criminal Court

Yesterday, the Center for Constitutional Rights requested that the International Criminal Court, a tribunal headquartered in The Hague, prosecute the Vatican, Pope Benedict XVI, and three cardinals for “crimes against humanity” in connection with the clergy sex-abuse scandal.  The complaint alleges that the Vatican tolerated the systematic and widespread rape and torture of children and vulnerable adults throughout the world and that Pope Benedict XVI and three cardinals bear personal responsibility for these crimes as a matter of direct authority and respondeat superior.

There are serious legal problems with CCR’s complaint.  First, sexual abuse by clergy does not fit easily within the definition of a “crime against humanity” contained in the ICC’s founding treaty, the Rome Statute of 2002.  The Rome Statute defines a “crime against humanity” as “a widespread or systematic attack directed against a civilian population,” a definition that suggests something like a wartime atrocity.  Second, the Vatican is not a state-party to the Rome Treaty.  That’s not necessarily a show-stopper, as the ICC has jurisdiction over crimes Read more

Only One Way? Critical Perspectives on Christian Pluralism

SCM Press recently released Only One Way?: Three Christian Responses to the Uniqueness of Christ in a Religiously Pluralistic World.  The book presents three theologians’ perspectives on religious pluralism in critical dialogue.  These theologians’ past expressions suggest Only One Way’s content:

Gavin D’Costa, Roman Catholic theologian, has rejected absolute religious pluralism (see Gavin D’Costa, The Impossibility of a Pluralist View of Religions, 32 Rel. Stud. 223 (1996)) as fundamentally flawed.  That view could not, for example, evaluate the truth claims of the Deutsche Christen (“German Christians”), who equated Nazism and gospel and were known to preach in SA uniforms; and the Bekennende Kirche (“Confessing Church”), who refused to embrace Nazified, Christo-Aryanism (see Richard J. Evans, The Third Reich in Power 223–28 (2005)).  In an absolute-pluralist view, how could one distinguish between Reichsbischof (“Reich Bishop”) Müller, who preached Hitler, the national redeemer, and Pastor Dietrich Bonhoeffer, who defied National Socialism and was hanged for his involvement in a plot to assassinate Hitler?  (See D’Costa at 226; Evans at 228).  For an account of Bonhoeffer’s defiance of Nazism, pastoral rebellion (he founded an illegal seminary), and eventual execution on April 9, 1945, eleven days before Berlin’s fall, watch Bonhoeffer (Journey Films 2003).

By analogy, from D’Costa’s examples, absolute pluralism would also prevent us, say, from distinguishing between the Islam that gave rise to the 9/11 attacks and the ancient, peaceful, and culturally profound Islam that abhors the violence that occurred on 9/11.

Read more

Einhorn on Jewish Law and the Excavation of Tombs

Talia Einhorn (Tel Aviv University) has posted Israeli Law, Jewish Law and the Archaeological Excavation of Tombs. The abstract follows. –YAH

The paper discusses the conflict in Israel between the public interest in archaeological research and the religious convictions that human remains, once buried, should not be touched. The conflict is exacerbated by urban development, which, in this ancient land, necessitates rescue excavations of tombs, thus bringing the problem to a head. The article examines, first, the rules of Jewish law, which, the author contends, have made it possible to accommodate the interests of the living, and, secondly, the scientific value of the archaeological excavation of tombs, using recent examples as illustrations. The author concludes that Jewish law could be interpreted and applied more flexibly and could then be reconciled with Israeli law. However, even if such a development were not to take place, then, in keeping with democratic values, government officials and the courts would be required to follow the policies established by the legislator, a balance between the conflicting interests having already been embodied in the law.

Lasson on Anti-Semitism on University Campuses

Kenneth Lasson (University of Baltimore School of Law) has posted Antisemitism in the Academic Voice: Confronting Bigotry Under the First Amendment. The abstract follows. –YAH

The romanticized vision of life in the Ivory Tower – a peaceful haven where learned professors ponder higher thoughts and where students roam orderly quadrangles in quest of truth and other pleasures – has long been relegated to yesteryear. While universities like to nurture the perception that they are protectors of reasoned discourse, and indeed often perceive themselves as sacrosanct places of culture in a chaotic world, the modern campus, of course, is not quite so wonderful.

The academic enterprise in America was besmirched by racism early on: until the latter part of the Twentieth Century, segregation and ethnic quotas were the norm, not the exception. But what was once accepted prejudicial policy has now given way to an aberrational form of political correctness, which still vividly illustrates failures of scholarly rigor – the abandonment of reliance on facts, common sense, and logic in the pursuit of narrow political agendas – and which are all too often presented in the academic voice. Read more