The recently created Oxford Journal of Law and Religion has published a number of brand new pieces, all of which are available for free for a time. Among these are articles by John Milbank, Javier Martínez-Torrón, Julian Rivers, Christopher McCrudden, Michael Wiener, Nazila Ghanea, Heiner Bielefeldt, Peter Edge, and Jonathan Caplin. Read them all!
Here is the description of Milbank’s extremely interesting looking piece, Against Human Rights: Liberty in the Western Tradition.
There is a now longstanding debate concerning the origin of the notion of subjective rights and their definition. Subjective rights as ‘possessive individualism’ should be distinguished from active and claim rights nonetheless objectively grounded. The latter gain ground in the Middle Ages in essential continuity with classical objectivist notions of justice as ‘right order’ that remained influential in practice into the 18th century. The former represents a serious rupture promoted largely in the first place by Franciscan theology well before early modernity. This model is dangerous because it seeks to evade the fundamental question of distribution and does not truly uphold personal dignity. Notions of ‘right order’ and distributive justice safeguard the values of the West, whereas foundational ‘human rights’ tend to erode them.
Abdullahi Ahmed An-Na’im (Emory U. School of Law) has posted Religious Norms and Family Law: Is it Legal or Normative Pluralism? The abstract follows.
The core question for this Symposium issue of the Emory International
Law Review is how to mediate the tension between democratic demands for the application of religious norms and human rights concerns, especially
regarding the rights of women and children. Such demands tend to be more
intensely asserted in family matters, perhaps because of the intimacy of family relations and the central role of the family as a marker of identity and agent of children’s socialization. Tensions among the competing bases of public policy and legislation tend to come in sharper focus in pluralistic societies because of the multiplicity of exclusive claims of religious truth and visions of the public good. While using the topic of Sharia in Nigeria as a primary case study, this Symposium also includes discussions of broader theoretical and globally comparative perspectives on the mediation of competing normative claims.
The mediation of such controversies and tensions will continue to be the
primary function of politics in every society, where disputes are routinely
mediated through compromise and accommodation. That politics of mediation includes the possibility of coercive adjudication before state courts when voluntary compliance fails to work. Indeed, the peace, stability, and well-being of every society depend on its ability to mediate and adjudicate such disputes in a peaceful and orderly manner. The more the proponents of each side in a dispute perceive their position as open to negotiation and compromise, the better the prospects for political stability and social justice. This is unlikely to be the case, however, where people believe their positions to be immutable because they are ordained or mandated by God or, in the case of a customary norm, because they are part of the irreducible core of their culture. Read more
David A. Skeel Jr. (U. of Penn. Law School) has posted Hauerwasian Christian Legal Theory. The abstract follows.
This Essay, which was written for a Law and Contemporary Problems symposium on Stanley Hauerwas, tries to develop an account of public engagement in Hauerwas’ theology. The Essay distinguishes between two kinds of public engagement, “prophetic” and “participatory.” Christian engagement is prophetic when it criticizes or condemns the state, often by urging the state to honor or alter its true principles. In participatory engagement, by contrast, the church intervenes more directly in the political process, as when it works with lawmakers or mobilizes grass roots action. Prophetic engagement is often one-off; participatory engagement is more sustained. Because they worry intensely about the integrity of the church, Hauerwasians are more comfortable with prophetic engagement than the participatory alternative, a tendency the Essay calls the “prophetic temptation.” Hauerwasians also struggle to explain what can or should participatory engagement look like.
After first comparing Hauerwas’s understanding of Jesus’s Sermon on the Mount with that of his two twentieth century predecessors, Walter Rauschenbusch and Reinhold Neibuhr, the Essay turns to Hauerwasian public engagement and the prophetic temptation. The Essay then considers the implications of Hauerwas’s theology for three very different social issues, the Civil Rights Movement, abortion, and debt and bankruptcy.
Today is Martin Luther King Day in the United States. In commemoration, here’s a passage from Dr. King’s famous Letter from a Birmingham Jail, which he wrote in 1963 to answer clergy who had criticized his willingness to break laws as part of his anti-segregation campaign:
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I it” relationship for an “I thou” relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.
Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a Read more