Posted on by Marc O. DeGirolami

Frakes, “Collation of the Laws of Moses and the Romans”

One of the earliest works of comparative law was created by an anonymous author in the 4th century AD, the Collatio Legum Mosaicarum et Romanorum, or Collation of the Laws of Moses and the Romans, on the similarities and differences between Roman and Jewish law.  Robert M. Frakes (University of Munich) has now published Compiling the Collatio Legum Mosaicarum et Romanorum in Late Antiquity (OUP 2011), which explores the work of this anonymous collator.  The publisher’s description of this fascinating book follows.

The expansion of Christianity and the codification of Roman law are two of the most significant facets of late antiquity. The Collatio Legum Mosaicarum et Romanarum, or Collation of the Laws of Moses and the Romans, is one of the most perplexing works of late antiquity: a law book compiled at the end of the fourth century by an anonymous editor who wanted to show the similarity between laws of the Hebrew Bible, or Old Testament, and Roman law. Citing first laws from the Hebrew Bible – especially from Exodus, Leviticus, and Deuteronomy which he believed were written by Moses – the anonymous Collator then compared corresponding passages from Roman jurists and from Roman laws to form discussions on sixteen topics such as homicide, adultery, homosexuality, incest, and cruelty towards slaves. While earlier scholars wrestled with dating the Collatio, the religious identity of the Collator, and the purpose of the work, this book suggests that the Collator was a Christian lawyer writing in the last years of the fourth century in an attempt to draw pagan lawyers to seeing the connections between the law of a monotheistic God and traditional Roman law.

Frakes’s volume presents a five-chapter historical study of the Collatio with a revised Latin text, new English translation, and a historical and juristic commentary.

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Shows about Nothing: Is Popular Culture Nihilist?

Last month, Thomas S. Hibbs, Professor of Ethics and Culture and Dean of the Honors College at Baylor University, published the second edition of his Shows about Nothing: Nihilism in Popular Culture (Baylor), which updates—with reference to new television programs, films, and books—the volume’s first edition (Spence 1999).  Hibbs sees underneath much of popular culture a “Nietzschean framework of nihilism” whereby no ethical right and wrong can be discerned.  In this popular culture, according to Hibbs, we see the fulfillment of Nietzsche’s prediction that moral emptiness is an inevitable result of liberal democracy.  Whether Hibbs is correct—that popular art’s refusal to give morally definite conclusions necessarily implies an abandonment of morality rather than artistic reflection of the moral ambiguity in the world it depicts—is debatable (and perhaps to no end:  Does art reflect life, or life art?—as Oscar Wilde pointedly asked), but his book certainly raises interesting considerations, specifically in relation to a popular culture rarely subject to such inquiry.

Please follow the jump for the publisher’s description. Read more

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Theodoret’s Last Apologetic in Context

This year, Dr. Yannis Papadogiannakis, lecturer in Patristics at Wolfson College, Oxford, publishes Christianity and Hellenism in the Fifth-Century Greek East: Theodoret’s Apologetics against the Greeks in Context (Oxford, 2012).  Dr. Papadogianakis contextualizes Theodoret’s last apologetic within its socio-cultural milieu—in the conflict between emergent Christian civilization and the dominant socio-religious structures of the late Roman Empire.  See the publisher’s abstract after the jump. Read more

Posted on by Marc O. DeGirolami

Ninth Circuit Strikes Down Proposition 8

Today, in Perry v. Brown, the Ninth Circuit affirmed the district court’s determination that California Proposition 8 — in which the people of California had declared marriage to be the union of a man and a woman, which in turn reversed the judgment of the California Supreme Court — violates the Due Process and Equal Protection Clauses of the U.S. Constitution.  In a 2-1 decision, the court, in an opinion authored by Judge Stephen Reinhardt, held that none of the reasons offered by the proponents of Proposition 8 were legitimate under the most deferential standard of review that the court exercises in these kinds of cases — rational basis review.  Throughout the decision, the court repeatedly emphasized that this case was about taking away a right which had already been granted (by the California Supreme Court), rather than extending a right which had not yet been granted.  The dissenting judge disagreed with the court’s conclusions with respect to the rationality of the reasons offered in support of Proposition 8.

Unlike in the district court decision, there is little in this decision which overtly concerns religion.  The court did reject the claim that Proposition 8 protects religious liberty by making it less likely that religious institutions would be penalized for refusing to provide services to same-sex couples.

But the more interesting connections are indirect.  The court held that taking away the right of gay marriage (after it had been provided by the California Supreme Court) bore no rational relationship to the aims of childrearing, responsible procreation, and the promotion of a stable family structure.  It also held that the aim of preserving a tradition — including one based on “sincerely held private belief” — is not rationally related to a legitimate state interest.  Here’s a portion of the court’s opinion at 71-72:

Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’  Romer, 517 U.S. at 634.  We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.

UPDATE: Over at the Volokh conspiracy, Orin Kerr makes a very interesting point that, at least on my reading, the Ninth Circuit did not consider in its panel opinion.  Kerr writes that at least a part of the reason that the people of California might have voted for Proposition 8 was to register — “symbolically,” as the Ninth Circuit says — their disapproval of the California Supreme Court’s decision to extend marriage to homosexual couples.  The point was to issue a rebuke to the California Court.  One can, of course, agree or disagree with that symbolic popular expression.  But to my mind, it is difficult to conclude that a symbolic expression  with that motivation does not satisfy the rational basis standard of review.

Posted on by Mark Movsesian

Israel’s Rabbinical Court Jails Husband Indefinitely for Refusing to Divorce Wife

A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.

This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”

Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals.  Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.

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Education and Belief: Pluralism Part 1

Let me begin with a thought experiment. Suppose that a majority of parents in a school district wished their children to have a traditional curriculum that included Latin, The Norton Anthology of American Literature, sentence diagramming, advanced mathematics and experimental science. Also suppose these parents wanted the teachers to have subject matter instead of education degrees. Suppose, further, they wanted the philosophical framework of their children’s schooling to be Modern Orthodox Judaism. Finally, suppose that these parents agreed to comply with the district’s regulations for school facilities, extracurricular activities and student-teacher ratios, and to surpass the district’s academic standards. Would the district fund the new school?

No, because the United States’ educational system was not designed to allow this kind of diversity. This comes as no surprise to most Americans. But they might be surprised to learn that this is in sharp contrast to virtually every other liberal democracy. In England, for example, if such parents provide 15% of the capital costs, Central Government contributes the remaining 85% and also funds the ongoing operations of the school. In the Netherlands, the new school would be funded on an equal footing with the Muslim, Catholic, Montessori, and Anthroposophic schools down the street.

Why the difference? The answer lies in political philosophy and its interactions with history and culture.

In the 1840s and ‘50s, America’s states adopted a “state control” model in which the government provides a common educational experience Read more

Posted on by Marc O. DeGirolami

Religious Legal Theory: Religion in Law, Law in Religion

I am pleased to announce that the St. John’s Law Review has published several papers from a symposium of the Second Religious Legal Theory Conference, which the Center for Law and Religion organized and hosted.  There are many excellent contributions, including a terrific keynote piece by Steve Smith, Nonestablishment, Standing, and the Soft Constitution, the text of which can be accessed at the link. 

The publication occurs at an auspicious moment, as the Third Religious Legal Theory Conference will occur at Pepperdine Law School at month’s end, under the auspices of the Nootbar Institute on Law, Religion, and Ethics, and with the able organization of Bob Cochran and Michael Helfand.

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Religious Exceptions and the NJ “Marriage Equality and Religious Exemption Act”

The New Jersey Star-Ledger reports that the NJ State Assembly has enough votes to pass a proposed same-sex marriage bill. The Assembly will officially vote on the bill on February 16, three days after the Senate takes up the bill. Governor Chris Christie has repeatedly promised to veto any same-sex marriage legislation and has instead urged a referendum on the issue.

As I noted in a previous post, exceptions for religious groups have been a prerequisite to the passing of same-sex marriage legislation in other states, most notably New Hampshire, Vermont and New York. These exceptions have focused on two areas. First, they allow clergy to refuse to solemnize same-sex marriages and prevent both state action (i.e. penalizing or withholding benefits) and individual causes of action resulting from such refusal. Second, these exceptions allow a religious organization, like Catholic Charities, to “tak[e] … action … calculated … to promote the religious principles for which it is established or maintained.” Arguably, this language would allow a foster care service, run by Catholic Charities, to refuse to place children with same-sex couples, a scenario that has become a kind of litmus test on the strength of religious exceptions to same-sex marriage laws.

With this in mind, it is surprising that there has not been more press coverage about the NJ law’s religious exceptions. Read more

Posted on by Marc O. DeGirolami

What We Get When We Talk About Religion and Politics

I found this piece by Frank Bruni in Saturday’s New York Times to be interesting in several respects.  One of Bruni’s claims is that we have not yet really tried to explain the various character flaws and other personality quirks that we (by which I mean the Times writers) see in Mitt Romney by reference to his religious background.  It is important that we do this, says Bruni.  So, for example, we should try to understand Romney’s “muffled soul” by engaging in some extended religious psychology about Mormonism.  Here’s a bit from Bruni:

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Posted on by Mark Movsesian

Langton et al., “Islamic Economics and Finance: A European Perspective”

From Palgrave Macmillian, a new work on applying Islamic finance in the European context, Islamic Economics and Finance: A European Perspective (Jonathan Langton, Cristina Trullols and Abdullah Q. Turkistani eds. 2011). The authors suggest that the global financial crisis has led to an interest in alternative economic models, including the Islamic, with its emphasis on business ethics. The publisher’s description follows:

The global economic crisis has driven many economists around the world to seek alternative solutions to the western capitalist model which has proven to have some shortcomings. One prominent area of that research has been Islamic Economics and Finance. Based on the Muslim teachings of shari’ah, this system differs significantly from conventional economics and finance, notably in the prohibition of interest and strong emphasis on moral ethics.

In June 2010, IE Business School, with King Abdulaziz University, gathered in Madrid some of the world’s foremost scholars, academics and practitioners of Islamic Economics and Finance to discuss how this alternative philosophy can be applied in western financial markets. This collection of highlights from that conference and original articles, specifically addresses the post-crisis application, as well as the Legal and Tax Implications, of this growing and relevant economic philosophy in Europe, including in the area of Project Financing.