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Agamben, “The Sacrament of Language”

Last month, Wiley Publishing published The Sacrament of Language (Polity March 2012) by well known philosopher Giorgio Agamben. The publisher’s description follows.

Oaths play an essential part in the political and religious history of the West as a ‘sacrament of power’. Yet despite numerous studies by linguists, anthropologists and historians of law and of religion, there exists no complete analysis of the oath which seeks to explain the strategic function that this phenomenon has performed at the intersection of law, religion and politics.

The oath seems to define man himself as a political animal, but what is an oath and from where does it originate? Taking this question as its point of departure, Giorgio Agamben’s book develops a pathbreaking ‘archaeology’ of the oath. Via a firsthand survey of Greek and Roman sources which shed light on the nexus of the oath with archaic legislation, acts of condemnation and the names of gods and blasphemy, Agamben recasts the birth of the oath as a decisive event of anthropogenesis, the process by which mankind became humanity. If the oath has historically constituted itself as a ‘sacrament of power’, it has functioned at one and the same time as a ‘sacrament of language’ – a sacrament in which man, discovering that he can speak, chooses to bind himself to his language and to use it to put life and destiny at stake.

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Kadri on the Many Facets of Shari’a

This month, Farrar, Straus & Giroux publishes Heaven on Earth: A Journey Through Shari’a Law From the Deserts of Ancient Arabia to the Streets of the Modern Muslim World, by Sadakat Kadri, a lawyer and journalist.  Kadri attempts to clarify prevailing misunderstandings over Shari’a and its application both in the ancient and modern worlds.  Above all, Kadri illustrates that Shari’a is far from monolithic; rather, its application today and throughout time has been varied and a matter of debate.  While Shari’a has occasionally been considered synonymous with harshness, Kadri reveals its essential ethic of compassion and equity—one not reducible to simplistic generalization.

Please read the New York Times review of Heaven on Earth here.  Please listen to the author’s interview on NPR’s Fresh Air here.  The publisher’s description follows the jump. Read more

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Sternlieb on the Shomrim and the Establishment Clause

Sarah Sternlieb (Emory University School of Law) has posted When Eyes and Ears Become Arms of the State: The Dangers of Privatization Through Government Funding Insular Religious Groups. The abstract follows.

The Shomrim, Hebrew for ‘guards,’ operate as an ancillary police force in Hasidic communities. Defined by devout adherence to traditional norms, Hasidic Jews confine themselves to insular communities within America. However, like many insular or inherently religious communities, they appear to have a propensity to discriminate against outsiders in their attempts at seclusion. Although the Shomrim hold themselves out as their community’s primary police force, they frequently commit bias crimes and other discriminatory acts. This Comment advances the novel argument that the Shomrim are state actors, and that government funding to the Shomrim may also violate the Establishment Clause. The Shomrim receive substantial government funding, maintain close ties and connections with the police and the state, and perform a public function. Because these connections constitute a ‘close nexus,’ the Shomrim’s actions are fairly attributable to the state. As state actors, the Shomrim would be held accountable to constitutional limitations, and would be prohibited from discriminating against outsiders. However, remedying this attribution of state action implicates additional constitutional problems. This Comment proposes that under current state action doctrine and Establishment Clause jurisprudence, the only permissible solution in this context is to remove government ties and funding.
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Religion and State in Neoliberal Africa

This month, University of Notre Dame Press publishes Displacing the State: Religion and Conflict in Neoliberal Africa.  Edited by James Howard Smith of U.C. Davis and Rosalind I.J. Hackett, Professor of Religious Studies at the University of Tennessee, Knoxville, Displacing the State collects essays exploring religion’s role in African colonialism.  It also collects essays exploring the ways in which religion shaped post-colonial African politics and continues to shape politics in present-day Africa.

For the publisher’s description, please follow the jump.  Notre Dame Press excerpts James Howard Smith’s introduction to the volume here. Read more

Posted on by Mark Movsesian · 1 Comment

More on the SSPX, the Vatican, and Religious Freedom

A couple of days ago, I noted the negative response of the Society of Saint Pius X, a traditionalist Catholic body, to the U.S. Conference of Catholic Bishops’ recent statement on the importance of religious freedom. The SSPX criticized the American concept of religious freedom, which the Conference had endorsed, as a more or less Protestant idea inconsistent with traditional Church teaching. I guessed that the SSPX represented a rather small movement within Catholicism, but thought it interesting that the bishops’ stance on religion in public life could draw criticism from the right as well as the left.

It turns out I may have underestimated the importance of the SSPX.  (A lesson: outsiders really should not assume they understand relations at the Holy See). La Stampa reports this week that the Vatican and the SSPX are poised to sign an agreement to make the SSPX a personal prelature of the Pope, like Opus Dei. This is big news. Pope John Paul II excommunicated the founder of the SSPX, the French Cardinal Marcel Lefebvre, for disobedience, but Pope Benedict has been working hard to bring the group back into the fold. One major sticking point has been the issue of religious freedom. The SSPX believes that Vatican II’s famous endorsement of religious freedom, Dignitatis Humanae, contradicts  earlier papal statements, most importantly the 19th Century “Syllabus of Errors,” which famously condemned the idea that “every man is free to embrace and profess that religion which, guided by the light of reason, he shall consider true.”

What does this week’s apparent agreement suggest about the Church’s position on religious freedom? According to La Stampa, although the agreement requires SSPX to submit to the Pope on important doctrinal matters, it specifically allows for “legitimate discussion, study and theological explanation of particular expressions or formulations found in the documents of the Second Vatican Council.” Given the SSPX’s long, and apparently continuing, discomfort with Dignitatis Humanae, this language might mean that the concept of religious freedom, at least as understood in at Vatican II, is once again up for debate within the Church. That’s what the La Stampa article suggests. But, as I say, outsiders really should not assume they understand relations at the Holy See.

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The significance of internal views

As part of my Clark Byse fellowship this year, I taught a small workshop during the Fall semester on religious freedom. One of my sessions was devoted to getting a glimpse at the internal views of religions on religious freedom. In that session, I tried to examine religious freedom in two internalist intertwined senses. The first is a faith’s particular attitude to adherents of other faiths, while the second is freedom of conscience for its own adherents. Of course, these religious traditions are far from monolithic and surely there are dissensions within each faith community. There are enough similarities however to be able to paint one tradition’s views on the matter with broad brush strokes, I think. As expected with these kinds of topics, there was a lively discussion regarding the value of such viewpoint. One of the claims was that it does not matter what religions think internally because in any case they will have to conform to the overarching values of – more often than not – the liberal democratic state in which they find themselves.

The point that I was trying to make in the session of course was that it does matter what religions think. The clearest example would be the turnaround of the Catholic Church (though not all would probably agree with me that this could be considered a turnaround – some argue that it is a development in doctrine) with regard to freedom of conscience from the Syllabus of Errors to Dignitatis Humanae. For the past decade, the subject of these reconciliation efforts, that is, to recover internal resources which could be made compatible with external liberal values, and to judge a faith by its own Read more

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Zucca, “Law, State and Religion in the New Europe: Debates and Dilemmas”

Last month, Cambridge University Press published Law, State and Religion in the New Europe: Debates and Dilemmas (Cambridge March 2012) by Lorenzo Zucca  (King’s College London). The publisher’s description follows.

As the new Europe takes shape, debates which had been confined to its constitutional structure are spilling over into more general areas, not least the field of law and religion. In this edited collection a team of experts seek to establish whether religion and the ‘new’ Europe are in conflict. The collection looks at the question from two perspectives. Initially it considers the question from the perspective of the most influential schools of political thought. The second approach is to look at the theory and operation of the European human rights, with concluding remarks by Joseph Weiler. This title will be of interest to scholars of European constitutional and human rights law, as well as legal theorists. It will appeal to scholars in the field of law and religion.

Posted on by Mark Movsesian · 1 Comment

Outflanking the Bishops Conference on the Right

Last week, we noted  a report from the U.S. Conference of Catholic Bishops on the importance of religious freedom in America, Our First, Most Cherished Liberty: A Statement on Religious Liberty. Most of the time, one hears about dissents from the Catholic Left, which disagrees with the bishops on issues like abortion and homosexuality. Last week, though, there was a reminder that dissenters also exist on the Catholic Right.

The Society for Saint Pius X is a traditionalist Catholic body, formed around opposition to Vatican II, with an ambiguous relationship to the Church. Pope John Paul II excommunicated the society’s founder, and the society lacks canonical status, but recently the Vatican and the SSPX have been negotiating a formalization of the society’s place within the Church. It’s noteworthy, therefore, that the SSPX has responded to Our First, Most Cherished Liberty with a statement of its own. The SSPX is not impressed. In fact, it views the bishops’ statement as another example of an Americanist compromise that dilutes the Catholic faith. “Liberty,” the society asserts, is a matter of freely following the will of God, as that will is expressed in the Catholic Church; it has nothing to do with the American notion — strongly influenced, the SSPX argues, by heretical Calvinist theology — of personal freedom. It is precisely this American idea of personal freedom, the society maintains, that has led to things like the HHS contraceptives mandate. The SSPX calls on the bishops to abandon the principles of the Church’s “opponents” and return to the Church’s own.

As Rick Garnett points out over at Mirror of Justice, this argument was settled at Vatican II itself, in the Church’s Declaration on Religious Freedom, Dignitatis Humanae. I don’t know how large a movement the SSPX represents within Catholicism, though I suspect it’s fairly small. Still, it’s interesting to think of the bishops as reflecting a middle-of-the-road position — within the Catholic Church, that is.

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Meyerson, “Endowed by Our Creator: The Birth of Religious Freedom in America”

Endowed by Our Creator: The Birth of Religious Freedom in AmericaAt the end of the month, Yale University Press will publish Endowed by Our Creator: The Birth of Religious Freedom in America (Yale April 2012) by Michael I. Meyerson (U. of Baltimore School of Law). The publisher’s description follows.

The debate over the framers’ concept of freedom of religion has become heated and divisive. This scrupulously researched book sets aside the half-truths, omissions, and partisan arguments, and instead focuses on the actual writings and actions of Washington, Adams, Jefferson, Madison, and others. Legal scholar Michael I. Meyerson investigates how the framers of the Constitution envisioned religious freedom and how they intended it to operate in the new republic.

Endowed by Our Creator shows that the framers understood that the American government should not acknowledge religion in a way that favors any particular creed or denomination. Nevertheless, the framers believed that religion could instill virtue and help to unify a diverse nation. They created a spiritual public vocabulary, one that could communicate to all—including agnostics and atheists—that they were valued members of the political community. Through their writings and their decisions, the framers affirmed that respect for religious differences is a fundamental American value. Now it is for us, Meyerson concludes, to determine whether religion will be used to alienate and divide or to inspire and unify our religiously diverse nation.

Posted on by Marc O. DeGirolami

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

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