Posted on by Mark Movsesian

Jamar on Freedom of Religion

Steven D. Jamar (Howard) has posted Challenges Presented to Law and Public Norms by Claims of Freedom of Religion Arising in Increasingly Diverse Societies on SSRN. The abstract follows.

Because religion is a potent force for many people, it affects the content, structure, and function of law and the law’s relationship to ordering society. The complexity and variability from state to state of the relationships of religion to social, governmental, and legal systems is remarkable. This variability and complexity stems from several major influences including in particular: (1) the diversity of religions and of people’s understanding of and use of those religions; and (2) the mix of religions within a particular state. As predominantly secular countries become more ethnically and religiously diverse, particularly through immigration from regions religiously different from the host country (e.g., the Muslim emigration into Christian Europe), more free exercise and accommodationist demands are being made by those whose religions are not merely a variant of the dominant religion. These demands bring new challenges and require sensitive balancing of conflicting fundamental rights and liberties. This essay examines three books addressing these topics from various perspectives and uses them as a vehicle for some commentary on the nature of the problems encountered.

Posted on by Marc O. DeGirolami

Oman on Islamic Marriage Contracts and the Common Law

Nate Oman has posted a thoughtful piece, How to Judge Shari’a Contracts: A Guide to Islamic Marriage Agreements in American Courts.  The abstract follows.

This Article thus has two goals. The first is to show how the Muslim conception of marriage diverges from the Christian-influenced norms that dominate American law and society. Understanding this divergence provides a necessary background to Islamic mahr contracts. The second goal is to provide lawyers and judges with a doctrinal framework within our current law for analyzing these contracts and reaching sensible results in concrete cases.

The remainder of this Article will proceed as follows: Part II provides an introduction to Islamic law in general, and the law of marriage and divorce in particular, as well as some discussion of how these rules function in practice. Part III summarizes the way in which American courts have dealt with mahr contracts, showing how both husbands and wives seek to deploy arguments based on contract law, the law of premarital agreements, and constitutional law. Part IV provides a framework for analyzing mahr contracts. It argues that such contracts are best dealt with using traditional contract doctrines. Indeed, once the meaning of mahr contracts are properly understood, this Article argues that the common law of contracts is capable of dealing with potential problems presented by mahr contracts without any dramatic legal innovations.

Posted on by Mark Movsesian

Muller on Capitalism and Judaism

Princeton University Press has released a paperback edition of Capitalism and the Jews (2010) by Catholic University historian Jerry Z. Muller. The publisher’s description follows.

The unique historical relationship between capitalism and the Jews is crucial to understanding modern European and Jewish history. But the subject has been addressed less often by mainstream historians than by anti-Semites or apologists. In this book Jerry Muller, a leading historian of capitalism, separates myth from reality to explain why the Jewish experience with capitalism has been so important and complex–and so ambivalent.

Drawing on economic, social, political, and intellectual history from medieval Europe through contemporary America and Israel, Capitalism and the Jews examines the ways in which thinking about capitalism and thinking about the Jews have gone hand in hand in European thought, and why anticapitalism and anti-Semitism have frequently been linked. The book explains why Jews have tended to be disproportionately successful in capitalist societies, but also why Jews have numbered among the fiercest anticapitalists and Communists. The book shows how the ancient idea that money was unproductive led from the stigmatization of usury and the Jews to the stigmatization of finance and, ultimately, in Marxism, the stigmatization of capitalism itself. Finally, the book traces how the traditional status of the Jews as a diasporic merchant minority both encouraged their economic success and made them particularly vulnerable to the ethnic nationalism of the nineteenth and twentieth centuries.

Providing a fresh look at an important but frequently misunderstood subject, Capitalism and the Jews will interest anyone who wants to understand the Jewish role in the development of capitalism, the role of capitalism in the modern fate of the Jews, or the ways in which the story of capitalism and the Jews has affected the history of Europe and beyond, from the medieval period to our own.

Posted on by Marc O. DeGirolami

Stanley Fish, Intentionalism, and Law Teaching

Stanley Fish has an interesting column about teaching law with specific reference to learning about constitutional law and the religion clauses.  He says much that I agree with and that picks up on at least some of the themes in his entertaining, Save the World on Your Own Time.

A small but, I think, important feature of the column is the emphasis on (his variety of) intentionalism or purposivism to understand legal doctrine.  He writes: 

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