Pontifical Council for Justice and Peace’s Note on Financial Reform

This is a powerfully expressed statement by the Pontifical Council for Justice and Peace on the current financial maladies facing the world.  All of the recommendations warrant sustained thought, and most are well beyond my capacity to assess.

One thing that I did not remember is the call of Pope John XXIII in Pacem in Terris for a “true world political authority” to emerge to serve the common good of humanity.  This vision is taken up by the Council, which talks about the need for “a supranational Authority” to take charge of these matters in light of what is seen as a movement toward greater globalization.  The Council’s recommendations are cautious in this respect, but they are striking nevertheless.  It also seemed to me, especially after Mark’s post below, that thoughts about a global authority reflect a quite Catholic way to envision the issue of human authority, to be contrasted with the more Protestant view of state sovereignty described and championed by Vattel and others.  These old fights never really die.  — MOD

Robinson on Rationalizing Religious Exemptions

Zoe Robinson (DePaul University College of Law) has posted Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion. The abstract follows. – ARH

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation – in terms of constituent voting support – against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.

Is Sovereignty Protestant?

I spent last weekend participating in an interesting Federalist Society/Liberty Fund colloquium, “International Law, Foreign Law, and the Constitution.” Some of readings for the colloquium discussed the development of the concept of sovereignty in international law. It’s striking how closely the concept relates, historically, to the Protestant Reformation. The great theoreticians of sovereignty were mostly, though not exclusively, Protestants seeking to provide an intellectual grounding for the Westphalian system, people like Grotius and Vattel, though Vattel is more an Enlightenment than a Christian thinker, it seems to me. Even Bodin, the 16th Century French writer credited with the first comprehensive theory of sovereignty, was a crypto-Protestant, at least according to the Tudor secret police.

The core components of Westphalian sovereignty were the equality and independence of states. Each state had an equal right to govern itself and no state had the right to meddle in another’s internal affairs. The non-interference principle extended especially to religion. According to Vattel, for example, the Law of Nations, a set of rules derived from natural law, prohibited attempts to impose the “true faith” on a state from the outside. In fact, Vattel argued, even peaceful missionary work was prohibited, unless the local government allowed it. (Vattel made an exception for the Twelve Apostles; they had resisted the state’s attempts to silence them, he conceded, but they could perform miracles). Sovereignty, presented as a matter of natural law, greatly assisted the Protestant Reformers, who were seeking a principled, “neutral” justification for resisting the Catholic Church’s assertions of universal jurisdiction. It takes a natural law to beat a natural law.

Protestants and Catholics don’t fight about these things so much anymore, but one can see a similar pattern in contemporary disputes about international human rights. Even though contemporary human rights law tends to speak in a secular idiom, it’s hard to miss the strong religious, natural law aspect of some of its key concepts, such as “human dignity.” International human rights advocates assert that these concepts are universally true and must apply as a matter of law everywhere. States that resist, in turn, often assert their sovereignty, and their position is often a moral one: “You can’t impose your norms here, because this is our country, and we have the right to decide.” Sovereignty thus continues to serve its historical function as a mechanism for resisting centralized moral authority in a fight about ultimate value. – MLM

Levine on Jewish Law and Tragic Choices in the Holocaust

Samuel J. Levine (Touro Law Center) has posted Jewish Law from Out of the Depths: Tragic Choices in the Holocaust. The abstract follows. – ARH

This article is from the author’s remarks at the Second Annual Holocaust Remembrance Lecture at Washington University. In the article, the author explores the phenomenon of fidelity to Jewish law and morality amidst the horrors of the Holocaust. History records some of the remarkable efforts of Jewish communities and individuals who, in the face of unimaginable conditions, in ghettos and concentration camps, continued to turn to the teachings of Jewish law and ethics for lessons and guidance. The questions and answers that were presented—a portion of which have survived in written form—span all areas of life: from ritual and holiday observance, to commercial law, to domestic relations, to—literally—daily questions of life and death.