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Hiers on Biblical Contract and Tort Jurisprudence.

Richard Hiers (University of Florida) has posted Ancient Laws, Yet Strangely Modern: Biblical Contract and Tort Jurisprudence. The abstract follows.

People generally, and even most biblical scholars, tend to view biblical law as, at best, a random patchwork of odd and antiquated commandments and rules.  The present Article demonstrates that many biblical laws can be understood to have functioned in biblical time, in ways remarkably similar to various laws characterized in modern AngloAmerican jurisprudence as contract and tort law.  In particular, the Article points out that the biblical tort laws found in Exodus 21:18 through 22:17 are structured along lines closely parallel to concepts found in modern tort law jurisprudence.  Many of the  biblical laws considered here give expression to the underlying values of concern for the worth and well being of both individuals and the community.  The findings here should be of interest to both legal and biblical scholars.

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Education & Belief: Democratic Accountability

The key question, as Charles Glenn wrote in Contrasting Models of State and School, is “How the freedom of parents to choose how their children will be educated can be balanced with the opportunity for educators to create and work in schools with a distinctive character, and how both of these in turn should be limited by some form of public accountability to ensure that all children in a society receive a generally comparable and adequate education.” American public education does not achieve this balanced ideal, but many of its proponents worry that a civil society model as practiced in Europe and Asia would be worse.

The prominent political philosopher Amy Gutmann speaks openly about the challenges of democratic education, such as the fact that it cannot be neutral but is, rather, moral and teleological in nature. Rather than consider pluralistic education as a way out of this difficulty, she insists that the current state-control framework of American education “is an essential welfare good for children as well as the primary means by which citizens can morally educate future citizens.” She contrasts “public schooling” with the market mechanisms of private schooling that she believes will lead to unalloyed parental control. Gutmann thinks American public schooling is imperfect (she would like less bureaucracy, for instance), but believes that the practice of what she calls “democratic deliberation” achieves the optimal balance between the interests of the state, parents, and educators.

These are questionable assertions for two reasons. Read more

Posted on by Marc O. DeGirolami

Witte on Early Protestant Models of Church, State, and Marriage

From the excellent Oxford Journal of Law and Religion (whose content is still available for free) is this extremely interesting piece by John Witte (Emory), Church, State, and Marriage: Four Early Modern Protestant Models.  The abstract follows.

This article recounts the rise of four early modern Protestant models of marriage that emerged in place of the medieval Catholic sacramental model. These are the Lutheran social model of Germany and Scandinavia, the Calvinist covenantal model of Geneva, France, the Netherlands and Scotland, the Anglican commonwealth model of England and its colonies and the budding separationist model of John Locke. Theologically, the differences between these models can be traced to the genesis of these models respectively in medieval Catholic sacramental theology, Lutheran two kingdoms doctrines, Calvinist covenantal constructions, Anglican commonwealth theory and Lockean contractarian theories, respectively. Politically, these differences can be seen in shifts in marital jurisdiction. Medieval Catholics vested exclusive marital jurisdiction in the church. Anglicans left marital jurisdiction to church courts, subject to royal oversight and Parliamentary legislation. Calvinists assigned interlocking marital roles to local consistories and city councils. Lutherans consigned primary marital jurisdiction to the territorial prince or urban council. Locke pressed for a sharper separation of church and state in the governance of marriage. The Article concludes with a brief reflection of the implications of the Lockean synthesis for modern contests over marriage law and its governance.

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Woehrling & Jukier on Religion in Canada

José Woehrling (University of Montreal) and Rosalie Jukier (McGill University) have posted Religion and the Secular State in Canada. The abstract follows.

This article reflects the National Report from Canada on Religion and the Secular State prepared by the co-authors for the XVIIIth International Congress of Comparative Law that took place in Washington, D.C., in July 2010. This Report provides a snapshot of the state of the law with respect to religion in Canada from a multitude of perspectives, touching on both its private law and public law dimensions, against the backdrop of the diverse and changing social and religious composition of Canada. The theoretical and constitutional frameworks, as well as important questions of the definition of secularity and the need for reasonable accommodation, are canvassed. Particular applications of religion and the secular state in the arenas of education, marriage and divorce, contracts, religious symbols and hate speech are also discussed.