Posted on by Marc O. DeGirolami

What Does It Mean to Call a Judicial Decision Particularist?

Hosanna-Tabor has come and gone, with a flurry of commentary out of the gate  and now a bit of (perhaps welcome!) silence.  Last week, I described the decision as particularist, but I did not define the term.  Judicial particularism is a concept that I explore in my current book project, Tragedy and History: The Quality of Religious Liberty, but for purposes of this post, I thought to offer some quick-shot thoughts about what judicial particularism might mean — first what it does not, or need not, mean, and second what I believe it does, or at least could, mean. 

If judicial particularism is taken to mean only the simple and bland proposition that “context matters” in the adjudication of cases, then that seems fairly uncontroversial. Of course context matters.  Who would disagree?  Even those who prefer the ostensible discipline of hard rules in adjudication acknowledge that general rules are not self-applying and that the specifics of a case will and ought to affect the outcome. 

Judicial particularism also does not necessarily mean or imply adjudicatory narrowness, in the sense of deciding only the absolute minimum that one needs to dispose of the case.  It is true that often times particularistic judgments may also be narrow judgments.  Indeed, this is a position with great appeal.  But one could be both a judicial particularist and write a decision that intimates (perhaps subtly, in dicta, or perhaps implicitly, by failing to say anything) the resolution of other, future cases that are factually similar on similar grounds, or the resolution of other, future cases that are factually dissimilar on dissimilar grounds.

Following Jonathan Dancy’s work on moral particularism, I take the core of judicial particularism to be that it is possible to decide cases reasonably predictably without the necessity of relying on a single general value or principle, or even a set number of general values or principles, to do so.  The sting in particularism is not that ‘context matters’ but that reasons or values which are important in some specific context may not be so in others.  Reasons or values do not have either constant or categorical weight across a range of disputes, or even among cases within a range, so that what is a reason for reaching a judgment in one set of circumstances may not, as Dancy puts it, retain the same “polarity” in another set of circumstances. 

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Erne on Christian and Islamic Views on Human Rights

Jaanika Erne (University of Tartu) has posted Islamic and Christian Understanding of Fundamental Rights as Constitutive Values. The abstract follows.

Purpose – The paper attempts at introducing the main differences in Islamic and Christian human rights thought.

Design/methodology/approach – The paper uses the Old and New Testament, the Qur’an and the European Convention on Human Rights as ideological-theoretical framework with the aim to compare religions and values with the aim to define the compared religions. Definition of religions helps to better understand the tensions of a political character, an example brought by Jacob Neusner is the relationship between the State of Israel and its Muslim neighbors, served as a religious conflict (Neusner 1999: xi).

Findings – Although already the ten commandments in the Christian tradition and Islamic tradition to a great extent overlap, formulation of rights and interpretation of rights to a great extent differ in these traditions. The differences result even in the assertions that distinguish, the Islamic marketing approach from (not to say oppose to) the marketing approach in the Western countries by Islamic scholars who view the Western marketing approach as secular marketing approach
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Posted on by Mark Movsesian

Careers in Canon Law?

A thousand years ago, Catholic canon-law courts had an active docket and an extensive jurisdiction that covered contracts, property, torts, and much else. Over centuries, in a process Harold Berman famously described in Law and Revolution, the docket dwindled and the jurisdiction contracted. As a result of secularization, church courts lost most of their jurisdiction and importance  in Catholic life. Nowadays, canon-law courts  are reserved principally for marriage annulments.

According to an AP story this week, though, things may be starting to change, at least in the United States. The AP reports on  a significant recent rise in litigation before church courts. Some litigation involves  priests accused of sex abuse, but much concerns everyday matters like parish closings, use of church property, even complaints about non-liturgical music. More and more, it seems, Catholics see church courts as the proper place to air their grievances and seek redress. In fact,  something of a new practice area seems to be developing. The AP story describes the practice of attorney Michael Ritty from upstate New York, who employs three lawyers in his canon law firm.  A small practice, to be sure, but indications are the field is growing. “‘Most of us, when we were training, were preparing for marriage tribunals, marriage annulments,’ said Monsignor Patrick Lagges of Chicago, a canon lawyer for three decades….  ‘Now there’s such a broad range of things. It’s a much broader field.'”

Posted on by Marc O. DeGirolami

Elver, “The Headscarf Controversy”

Related to Ms. Hummel’s post below, a new book, The Headscarf Controversy: Secularism and Freedom of Religion (OUP 2012) by Hilal Elver (UC Santa Barbara) is scheduled to be released next month and treats subjects of great interest to CLR Forum readers from what I think is an unusually ambitious cross-cultural perspective.  The publisher’s description follows.

Hilal Elver offers an in-depth study of the escalating controversy over the right of Muslim women to wear headscarves. Examining legal and political debates in Turkey, several European countries including France and Germany, and the United States, Elver shows the troubling exclusion of pious Muslim women from the public sphere in the name of secularism, democracy, liberalism, and women’s rights.

After evaluating political actions and court decisions from the national level of individual governments to the international sphere of the European Court of Human Rights, Elver concludes that judges and legislators are increasingly influenced by social pressures concerning immigration and multiculturalism, and by issues such as Islamophobia, the “war on terror,” and security concerns. She shows how these influences have resulted in a failure on the part of many Western governments to recognize and protect essential individual freedoms.

Employing a critical legal theory perspective to the headscarf controversy, Elver argues that law can be used to change underlying social conditions shaping the role of religion, and also the position of women in modern society. The Headscarf Controversy demonstrates how changes in law across nations can be used to restore state commitments to human rights.

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Enright on Ireland and the Hijab

Máiréad Enright (University of Kent, Canterbury) has posted Girl Interrupted: Citizenship and the Irish Hijab Debate. The abstract follows.

This article discusses the case of Shekinah Egan, an Irish Muslim girl who asked to be allowed to wear the hijab to school. It traces the media and government response to her demand, and frames that demand as a citizenship claim. It focuses in particular on a peculiarity of the Irish response; that the government was disinclined to legislate for the headscarf in the classroom. It argues that – perhaps counter-intuitively – the refusal to make law around the hijab operated to silence the citizenship claims at the heart of the Egan case. To this extent, it was a very particular instance of a broader and ongoing pattern of exclusion of the children of migrants from the Irish public sphere.