Posted on by Mark Movsesian

Religion and Law in the United Kingdom (Mark Hill et al. eds, 2011)

Kluwer has released Religion and Law in the United Kingdom (2011), edited by Mark Hill, Russell Sandberg, and Norman Doe.  A description follows. — MLM

Derived from the renowned multi-volume International Encyclopaedia of Laws, this convenient resource provides systematic information on how the United Kingdom deals with the role religion plays or can play in society, the legal status of religious communities and institutions, and the legal interaction among religion, culture, education, and media. After a general introduction describing the social and historical background, the book goes on to explain the legal framework in which religion is approached. Coverage proceeds from the principle of religious freedom through the rights and contractual obligations of religious communities; international, transnational, and regional law effects; and the legal parameters affecting the influence of religion in politics and public life. Also covered are legal positions on religion in such specific fields as church financing, labour and employment, and matrimonial and family law. A clear and comprehensive overview of relevant legislation and legal doctrine make the book an invaluable reference source and very useful guide. Succinct and practical, this book will prove to be of great value to practitioners in the myriad instances where a law-related religious interest arises in the United Kingdom. Academics and researchers will appreciate its value as a thorough but concise treatment of the legal aspects of diversity and multiculturalism in which religion plays such an important part.

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Anti-Semitism in America’s Favorite Pastime

Kenneth Lasson, Professor of Law at the University of Baltimore School of Law has posted Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers.  The piece explores the experiences of Hank Greenberg (AKA the “Hebrew Hammer”), first baseman and power hitter for the Detroit Tigers, and pitcher Sanford “Sandy” Koufax of the  Brooklyn/Los Angeles Dodgers.  Both endured anti-Semitic taunts, discrimination, and abuse during their careers in “America’s Favorite Pastime,” including for their refusal to play key World Series games so that they could attend Yom Kippur services.  This brief essay raises questions of American religious intolerance through the experience of religious minorities perceived as outsiders in a quintessentially American discipline.  Here is the paper’s brief abstract:

This article mostly discusses two of baseball’s greatest players, Sandy Koufax, and Hank Greenberg. Not only does it describe their great talent at the game, but also the religious discrimination, taunts and abuse they had to endure for their religious beliefs, not just from the public, but occasionally from members of opposing teams as well.

Enjoy.

—DRS, CLR Fellow

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Steven D. Smith: Freedom of Religion or Freedom of the Church?

Professor Steven D. Smith of the University of San Diego School of Law has posted, Freedom of Religion or Freedom of the Church?.  In it, he argues that the modern jurisprudence of the religion clauses is so untidy because it focuses on an amorphous concept of “religion” when instead it should focus on the more discrete concept of “the church.”  See the abstract below:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church – a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church – both the institutional church and the inner church – came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

—DRS, CLR Fellow

Posted on by Marc O. DeGirolami

Moyn’s “The Last Utopia: Human Rights in History”

International human rights is a conspicuous idea in legal discourse today; one can even take specific courses devoted to the subject.  Talk about international human rights has always seemed to me to fit at best imperfectly within our own constitutional framework for thinking about legal rights.  And legal scholar Michael Perry (Emory) has done important work over the years tracing the idea of human rights to a distinctly religious source and foundation (see, for example, his Toward a Theory of Human Rights: Religion, Law, Courts (CUP 2006)).

In The Last Utopia: Human Rights in History (HUP 2010), Samuel Moyn (Columbia) offers a critical and cautionary perspective on the idea of human rights.  The first couple of chapters of the book may be particularly interesting for CLR Forum readers, but the whole thing is well worth considering.  The publisher’s description follows.  — MOD

Human rights offer a vision of international justice that today’s idealistic millions hold dear. Yet the very concept on which the movement is based became familiar only a few decades ago when it profoundly reshaped our hopes for an improved humanity. In this pioneering book, Samuel Moyn elevates that extraordinary transformation to center stage and asks what it reveals about the ideal’s troubled present and uncertain future.

For some, human rights stretch back to the dawn of Western civilization, the age of the American and French Revolutions, or the post–World War II moment when the Universal Declaration of Human Rights was framed. Revisiting these episodes in a dramatic tour of humanity’s moral history, The Last Utopia shows that it was in the decade after 1968 that human rights began to make sense to broad communities of people as the proper cause of justice. Across eastern and western Europe, as well as throughout the United States and Latin America, human rights crystallized in a few short years as social activism and political rhetoric moved it from the hallways of the United Nations to the global forefront.

It was on the ruins of earlier political utopias, Moyn argues, that human rights achieved contemporary prominence. The morality of individual rights substituted for the soiled political dreams of revolutionary communism and nationalism as international law became an alternative to popular struggle and bloody violence. But as the ideal of human rights enters into rival political agendas, it requires more vigilance and scrutiny than when it became the watchword of our hopes.

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Beneke on Religious Violence, Anti-Catholicism, and Rights of Conscience in Early America

Chris Beneke (Bentley University) has posted “Not by Force or Violence”: Religious Violence, Anti-Catholicism and Rights of Conscience in the Early National United States. The abstract follows. – ARH

This essay maintains that the sixteenth- and seventeenth-century wars of religion, as well as the periodic hanging, burning, and disemboweling of heretics, did indeed provide a lush and useful ideological backdrop during the Revolutionary era.  As state and federal constitutions were framed, religious violence was vividly recalled, but it was also safely ensconced in the distant past.  Late eighteenth-century partisans of religious rights generally treated religious violence as the defining characteristic of a regrettable age that all reasonable and sympathetic people would want to avoid reliving, rather than an imminent threat.

This approach to a sanguinary and increasingly remote history was integral to a new legal and cultural framework in which anti-Catholicism slackened and less corporal understandings of religious faith took hold.  It was also integral to the justification of a more expansive conception of rights. Toleration’s protections were limited to preserving dissenters from violence and severe, intrusive forms of persecution.  By contrast, “religious liberty” (a close, late eighteenth-century synonym for “free exercise of religion”), protected them from the more mundane operations of religious oppression, such as restrictions on movement, marriage, and office holding, exclusive incorporation laws, and inequitable taxation, thus clearing the way for full participation in civil life.  To those who conceived and defended religious liberty in the new nation, violence was of course deplorable.  It was just not directly relevant.

Posted on by Mark Movsesian

Jonathan Sacks on Our Impending Doom

This essay by Jonathan Sacks, the Chief Rabbi of Great Britain, has been making the rounds. On the occasion of the 9/11 commemorations, Rabbi Sacks meditates on whether the West really is doomed to follow the path of all great civilizations before it to inevitable decline. He’s not hopeful. Like all civilizations that become rich and powerful, he says , the West today has lost its moral cohesion: it has grown secular, self-indulgent and soft. He thinks the only thing that can save the West is a return to covenental politics of the sort advocated by the Abrahamic religions:

It is a peculiarity of the Abrahamic monotheisms that they see, at the heart of society, the idea of covenant. Covenantal politics are politics with a purpose, driven by high ideals, among them the sanctity of life, the dignity of the individual, the rule of justice and compassion, and concern for the poor, the widow, the orphan and the stranger. G.K. Chesterton called America a “nation with the soul of a church.” Britain used to be like that also. In the 1950s there was no television at certain hours on Sunday so as not to deter churchgoing. Sundays helped keep families together, families helped keep communities together, and communities helped keep society together. I, a Jew growing up in a Christian nation, did not feel threatened by this. I felt supported by it – much more than I do now in an ostensibly more tolerant but actually far more abrasive, rude and aggressive society.

What is unique about covenant is its seemingly endless possibility of renewal. It happened in the Bible in the days of Joshua, Josiah and Ezra. It Read more

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Noda on The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use

Tokufumi Joshua Noda  (Student at Boston College Law School) has posted The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use. The abstract follows. – ARH

Courts have been divided over the proper application of the substantial burden and equal terms provisions of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) to religious land-use cases. In particular, courts and scholars have had trouble balancing the competing concerns between municipalities and religious institutions regarding control over land-use regulations. The basic question remains, how to provide religious institutions with protection against discrimination without conceding too much control over land-use regulations. This Note observes the use of economic principles in Judge Posner’s opinions, which can help guide a balanced, fact-sensitive application of RLUIPA’s provisions. Using this approach, courts can balance competing concerns by weighing them against relevant facts that are specific to each community. Nevertheless, although the economic approach sheds light on the application of RLUIPA, it also reveals new tensions both within RLUIPA’s application and the economic approach generally.

Posted on by Marc O. DeGirolami

Fosi’s “Papal Justice: Subjects and Courts in the Papal State, 1500-1750”

Readers interested in the late history of ecclesiastical law may want to check out Papal Justice: Subjects and Courts in the Papal State, 1500-1750 (CUA Press 2011), by Irene Fosi (G. D’Annunzio, Chieti-Pescara) (translated by Thomas V. Cohen).  The publisher’s description follows.  — MOD

In early modern Europe, justice was always the key to public order and the state’s main pillar. The pope, though the head of the church, was also a prince like any other, but his justice, as machinery and moral model, displayed the double nature of his rule, targeting not only actions but also beliefs and consciences. Irene Fosi, the doyenne of scholars of papal justice, lays out the ambitious, complex, and sometimes baffled endeavors of the pope’s magistrates and through lively anecdotes gives the flavor of the encounter between the pope’s assorted magistrates, inquisitors, and others, and the men and women hauled before the law.

Originally published in Italian and widely acclaimed, Papal Justice has been translated into English by Thomas V. Cohen, professor of history at York University. With the English edition, this lively overview of the papal justice system reaches a transatlantic readership and makes available the fruit of Fosi’s decades-long research in unpublished archives in Rome and the Vatican.

The book examines the very motley shape of the pope’s territorial domain, the institutions found there, and the relationships between Rome and its outlying cities. Microhistories of how things worked form a clear picture of relations between the sovereign and his subjects.

Posted on by Marc O. DeGirolami

Crockpot and Microwave Catholics

Here’s an interesting column by David Gibson from a couple of days ago about Catholics who have been raised as such from birth (often within a family structure), and those who convert to Catholicism later in life.  Gibson mentions it himself, but William James’s discussion of conversion in The Varieties of Religious Experience seems to reflect a preference for the latter.  Peter Berger is quoted at the end of the piece as saying that “religion today is a choice, and we are all converts to one degree or another[.]”  Maybe that’s right, though I wonder whether it might also be right to say that “choice” is a concept with many attendant and very different conceptions.  — MOD [x-posted MOJ]

Posted on by Mark Movsesian

Liveblogging the Religion and Bankruptcy Conference, Part III

This afternoon, I have the pleasure of introducing the conference keynote speaker, Geoffrey Miller of NYU.  Geoff’s talk, “Law and Economics versus Economic Analysis of Law,” distinguishes the former discipline from the latter, using Robert Aumann’s famous economic analysis of Talmudic law as an example.  Geoff argues that the economic analysis of law offers elegance, but that law and economics offers a rich understanding of complex real-world institutions like courts and legal systems.   Taken together, the two disciplines offer “complementary means for obtaining information about the social world.” — MLM