Posted on by Marc O. DeGirolami

Christian Growth and Persecution

A short editorial in The Economist on the subject.  Here’s a bit that I found somewhat perplexing:

Compared both with the wars of religion that once tore Christendom apart and with various modern intra-faith struggles, such as those within Islam, little blood is being spilt. But the brutality matters. Even if Western powers no longer see promoting Christianity’s interests as a geopolitical priority, it is hard to imagine American evangelicals ignoring a full-scale clampdown on house churches in China. And whatever their own beliefs, Western voters have other reasons to worry about the fate of Christians. Regimes or societies that persecute Christians tend to oppress other minorities too. Sunni Muslims who demonise Christians loathe Shias. Once religion is involved, any conflict becomes harder to solve.

This makes it sound as if under ordinary circumstances, “Western voters” would not care very much about Christian persecution, but they ought to care for instrumental reasons — because Christian persecution often goes hand in hand with religious persecution of other groups.  Why would “Western voters” care more about the persecution of “other minorities” than persecution of Christians?  I should think that “Western voters” would be concerned about religious persecution irrespective of the group being persecuted — not for any ulterior motive but because religious persecution is an evil.  Indeed, one might even think that “Western voters” might care very much about persecution of Christians in particular — even if the “Western voters” that the editorial is talking about are not, or are no longer, Christians.  Western culture — in its laws, in its ethics, and in countless other ways — is heavily indebted to Christianity.  Why shouldn’t the persecution of Christians be of special concern to “Western voters”?  And what does it mean to say that “any” conflict becomes harder to “solve” once religion is involved?  Conflicts can be intractable for any number of reasons, many of which have little or nothing to do with religion.  Whether a conflict involving religion is harder to “solve” than “any” other conflict will depend on the particular conflict that we are talking about, won’t it?

Posted on by Marc O. DeGirolami

Classic Revisited: Tocqueville’s “Democracy in America”

This one will be familiar to many CLR Forum readers, but I was reminded of Alexis de Tocqueville’s wonderful work of comparative political science, Democracy in America (1835 & 1840) (readable in its entirety for free, people, for free!)  as I was preparing for my constitutional law class this spring.  Rather than reproducing the well-known tracts about American “democratic” religion, here’s a fragment from Tocqueville’s superb discussion of the unique position of the American federal judiciary.  Note in particular Tocqueville’s emphasis toward the end of the section I’ve reproduced on the fact that the American judge does not deal in “theoretical generalities,” but in very discrete factual particulars.  A proto-minimalist passage, perhaps.  From Volume I:

The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.

The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.

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Posted on by Mark Movsesian

Lecture at Fordham Law

Fordham’s Institute on Religion, Law, and Lawyer’s Work will host a lecture on January 24  by Archbishop Timothy Dolan as part of its “Law & the Gospel of Life” series. Archbishop Dolan will discuss bioethics. Details are here.

Posted on by Mark Movsesian

Call for Papers: Emerging Voices in Islamic Jurisprudence

The Journal of Law and Religion (Hamline) has issued a call for papers for an upcoming conference, “Emerging Voices in Islamic Jurisprudence.” Information is here.

Posted on by Marc O. DeGirolami · 1 Comment

Resistance to Abington v. Schempp

The Supreme Court’s decision in Abington v. Schempp (holding daily devotional reading of the Bible and recitation of the Lord’s Prayer in public school unconstitutional) is one of the most controversial opinions in the entire religion clause canon, perhaps the most controversial.  This story from a couple of days ago in the NY Times reports that it continues to be resisted.  The story gets several things wrong.  For example, consider this statement: “It has been nearly 50 years since the Supreme Court  ruled that officially sponsored prayer in public schools violated the separation of church and state.”  In the first place, “the separation of church and state” is not a standard that a majority of the Supreme Court uses or has ever used to adjudge the constitutionality of a law or policy.  And in the second, assuming that the reference is to Schempp, it is not true that the Supreme Court decided anything of the kind in that case.  It decided that daily devotional reading of the Bible and recitation of the Lord’s Prayer which was intended by the school as a religious ceremony was unconstitutional.  It much later (decades later) decided in a series of opinions that the inclusion of prayers in other school-sponsored activities was also unconstitutional.  At any event, the story contains some interesting reporting on a current controversy discussed earlier here.

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Alderman on The Designation of West Bank Mosques as Israeli National Heritage Sites

Kimberly L. Alderman (University of Wisconsin Law School) has posted The Designation of West Bank Mosques as Israeli National Heritage Sites: Using the 1954 Hague Convention to Protect Against in Situ Cultural Appropriation. The abstract follows. – ARH

This Article considers whether the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (“1954 Hague Convention”) should extend to protect against in situ appropriation of culturally significant sites. This Article examines the text and spirit of the 1954 Hague Convention, and inquires whether the 1954 Hague Convention imposes an obligation on its Signing Parties to protect not just the physical integrity of culturally significant sites, but also the relationship of local peoples with those sites. This Article uses the recent dispute over the Ibrahimi and Bilal Bin Rabah Mosques (also called the Cave of Machpelah and Rachel’s Tomb, respectively) on the Palestinian West Bank as a lens through which to make this inquiry.

Posted on by Mark Movsesian

Secular Netherlands

A couple of days ago I wrote that reports about the prevalence of secularism in Britain may be exaggerated. According to an article last week in Der Spiegel, reports of secularism in the Netherlands would not be. The article profiles Marc de Beyer, an art historian in Utrecht whose specialty is church artifacts – statues, crucifixes, altars, and the like. Lately, de Beyer has been getting a lot of work as a consultant on church liquidations. When a church closes, he can be very helpful in advising which objects will sell, and for how much. Pews are much in demand. Der Spiegel says that “Christianity’s retreat from society” has been very pronounced in the Netherlands, where two churches close per week. The Protestant Church alone loses 60,000 persons a year. At that rate, the article says, the Dutch Protestant Church “will cease to exist” by 2050.

Posted on by Marc O. DeGirolami

Digeser, “A Threat to Public Piety”

A very interesting book by the historian Elizabeth DiPalma Digeser (UCSB), A Threat to Public Piety: Christians, Platonists, and the Great Persecution (Cornell University Press 2012), about the conflict between early Christians and Romans before the Edict of Milan and the Council of Nicaea.  The publisher’s description follows.

In A Threat to Public Piety, Elizabeth DePalma Digeser reexamines the origins of the Great Persecution (AD 303–313), the last eruption of pagan violence against Christians before Constantine enforced the toleration of Christianity within the Empire. Challenging the widely accepted view that the persecution enacted by Emperor Diocletian was largely inevitable, she points out that in the forty years leading up to the Great Persecution Christians lived largely in peace with their fellow Roman citizens. Why, Digeser asks, did pagans and Christians, who had intermingled cordially and productively for decades, become so sharply divided by the turn of the century?

Making use of evidence that has only recently been dated to this period, Digeser shows that a falling out between Neo-Platonist philosophers, specifically Iamblichus and Porphyry, lit the spark that fueled the Great Persecution. In the aftermath of this falling out, a group of influential pagan priests and philosophers began writing and speaking against Christians, urging them to forsake Jesus-worship and to rejoin traditional cults while Porphyry used his access to Diocletian to advocate persecution of Christians on the grounds that they were a source of impurity and impiety within the empire.

The first book to explore in depth the intellectual social milieu of the late third century, A Threat to Public Piety revises our understanding of the period by revealing the extent to which Platonist philosophers (Ammonius, Plotinus, Porphyry, and Iamblichus) and Christian theologians (Origen, Eusebius) came from a common educational tradition, often studying and teaching side by side in heterogeneous groups.

Posted on by Marc O. DeGirolami

Robinson on the Bible and Literature

In connection with my earlier post about how anyone, let alone a federal judge, could believe that the Establishment Clause requires the elimination of religious texts in public school classrooms, here is a complex essay by Marilynne Robinson (of Gilead fame) about the relationship between the Bible and important works of literature.  A bit:

The Bible is the model for and subject of more art and thought than those of us who live within its influence, consciously or unconsciously, will ever know . . . .

A number of the great works of Western literature address themselves very directly to questions that arise within Christianity. They answer to the same impulse to put flesh on Scripture and doctrine, to test them by means of dramatic imagination, that is visible in the old paintings of the Annunciation or the road to Damascus. How is the violence and corruption of a beloved city to be understood as part of an eternal cosmic order? What would be the consequences for the story of the expulsion from Eden, if the fall were understood as divine providence? What if Job’s challenge to God’s justice had not been overawed and silenced by the wild glory of creation? How would a society within (always) notional Christendom respond to the presence of a truly innocent and guileless man? Dante created his great image of divine intent, justice and grace as the architecture of time and being. Milton explored the ancient, and Calvinist, teaching that the first sin was a felix culpa, a fortunate fall, and providential because it prepared the way for the world’s ultimate reconciliation to God. So his Satan is glorious, and the hell prepared for his minions is strikingly tolerable. What to say about Melville? He transferred the great poem at the end of Job into the world of experience, and set against it a man who can only maintain the pride of his humanity until this world overwhelms him. His God, rejoicing in his catalog of the splendidly fierce and untamable, might ask, “Hast thou seen my servant Ahab?” And then there is Dostoyevsky’s “idiot” Prince Myshkin, who disrupts and antagonizes by telling the truth and meaning no harm, the Christ who says, “Blessed is he who takes no offense at me.”

Each of these works reflects a profound knowledge of Scripture and tradition on the part of the writer, the kind of knowledge found only among those who take them seriously enough to probe the deepest questions in their terms. These texts are not allegories, because in each case the writer has posed a problem within a universe of thought that is fully open to his questioning once its terms are granted. Here the use of biblical allusion is not symbolism or metaphor, which are both rhetorical techniques for enriching a narrative whose primary interest does not rest with the larger resonances of the Bible. In fact these great texts resemble Socratic dialogues in that each venture presupposes that meaning can indeed be addressed within the constraints of the form and in its language, while the meaning to be discovered through this argument cannot be presupposed. Like paintings, they render meaning as beauty.

Posted on by Mark Movsesian

Austrian Court Upholds Conviction for “Denigrating Religious Beliefs”

Eugene Volokh has a very interesting post about a recent Austrian case in which a woman was convicted of “denigrating religious beliefs” in connection with a series of lectures on Islam. Eugene puts the case in perspective by comparing it with other recent European blasphemy prosecutions and 19th century American analogues. Actually, I’m not sure that Austria was prosecuting the woman for “blasphemy,” which connotes insults to the majority religion of a state; the prosecution seems more to be about “hate speech” targeting the religion of a minority. The case is a good example of the differences between the American and European approaches to speech about religion, though, as Eugene suggests.