Posted on by Marc O. DeGirolami

Ayelet Shachar at St. John’s Law School

The Center for Law and Religion is pleased to announce that Professor Ayelet Shachar (Toronto) will visit us at St. John’s Law School next Monday, April 16, at 4:15 pm.  Hers is the sixth and final session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor Shachar will discuss her ongoing work involving the legal status of religious tribunals as well as more general problems of religious pluralism.  Among the papers for consideration will be her thoughtful chapter on state, religion, and the family in this book.

Academics in the New York area and beyond are welcome to attend.  Please let me know.

Posted on by Mark Movsesian

Walter Russell Mead on Religious Ignorance in the Media

In a democratic society, law and public policy follow, however imperfectly, public opinion. That’s why it’s important that journalists, who do so much to shape public opinion, cover stories thoroughly and correctly. When it comes to covering religion, however, Walter Russell Mead writes this weekend, the mainstream media’s ignorance dramatically skews things:

False panics over alleged theocracies lurking under every bush (haha), inability to analyze or cover major news stories involving Islam, and a persistent overestimation of global support for the secular rights-driven agenda that serves much of the MSM as a guiding ideology in lieu of religion can all be traced back to the religious illiteracy of so many journalists today. The MSM covers US politics less effectively than it could and missed the boat on the Arab Spring primarily because it has so little grasp of what religion is and how it works.

There’s lots of evidence for what Mead alleges. A couple of years ago, I heard a BBC announcer refer to Easter as the day on which Christians commemorate the death of Jesus. I’m not sure what can be done, except to encourage journalists to learn more about religion and cover it carefully. Sites like Mead’s, FaithWorld, and GetReligion are helpful correctives.

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O’Halloran on The Profits of Charity

In August of this year, Oxford University Press will publish The Profits of Charity by Kerry O’Halloran (Australian Centre for Philanthropy and Nonprofit Studies at the Queensland U. of Tech.).  The book will appeal to those with an interest in faith-based organizations. The publisher’s description follows.

The Profits of Charity examines the contemporary law governing the involvement of charity in commerce and explores the reasons why this involvement is dramatically changing. From a perspective familiar to charity lawyers, NGO managers, and scholars, Kerry O’Halloran identifies the concepts and the law underpinning charities and their profits by tracing legal developments in the field and identifying the resulting opportunities and challenges for the future. At a time when many leading nations are confronting economic recession, the threat of terrorism, and the retreat of the ‘welfare state,’ this book explores why governments are turning to charities in their quest to cultivate social capital, consolidate civil society, and promote civic engagement.

In The Profits of Charity, Professor O’Halloran undertakes a comparative analysis of the balance struck among government, charity, and commerce in five leading common law nations, including the United States, Canada, England and Wales, New Zealand, and Australia. He uses analysis of legislation, outcomes of charity law reviews, and recent case law to illustrate jurisdictional differences, and concludes with an assessment of the extent and significance of the recalibrated relationship and considers the overarching issues that arise between charity law and social policy.

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Hensler on Sports at a Fundamentalist Christian University and the Nature of Tort Law

Louis W. Hensler III (Regent U. School of Law) has posted Torts as Fouls: What Sports at a Fundamentalist Christian University Taught Me About the Nature of Tort Law. The abstract follows.

This essay is largely a response to John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 918 (2010). I propose a refinement of Goldberg and Zipursky’s vision. In my view, tort is better seen, not as recourse for “wrongs,” but rather as sanction for “fouls.” In other words, tort merely forces the rule-breaker to consider the consequences of his conduct rather than prohibiting the conduct altogether by a punitive sanction. I believe this refinement solves some of the problems presented by Goldberg and Zipursky’s approach.

I first started thinking about the distinction between providing recourse against a wrongdoer and sanctioning a rule breaker while I was a participant and spectator in the intramural sports program at a fundamentalist Christian university where the intentional foul (e.g., to stop the clock while time was running out in a basketball game) was not allowed. This approach seemed generally consistent with the overarching philosophy of the school – all conduct was either right or wrong. Violating rules was wrong. Intentionally violating rules, even with a willingness to accept the sanction provided by the rules of the game, was wrong. The intentional foul was an implicit rejection of moral absolutes and acceptance of moral pragmatism. I never quite came to fully accept that view of the intentional foul. Read more

Posted on by Mark Movsesian

Sharia Is My Main Priority: Egyptian Muslim Brotherhood Candidate

According to the Reuters FaithWorld blog, the Muslim Brotherhood’s candidate for the Egyptian presidency, Khairat al-Shater, declared last week that restoring Sharia would have the highest priority in his administration. “Sharia was and always will be my first and final project and objective,” he told a group called the “Religious Association for Rights and Reform.”

One shouldn’t be surprised. Since its founding, the MB has made restoring Sharia in Muslim societies its main goal. Moreover, the idea that law should be based on Sharia is quite popular in Egypt.  Indeed, in a recent, widely-reported survey, a majority of Egyptians said that Sharia should be the only source  of law in their country.

Do comments like al-Shater’s mean that non-Muslim minorities should worry? That’s not as clear, frankly. People who say they favor “Sharia” may mean different things.  Perhaps, as Noah Feldman argues, “Sharia” in  contemporary Muslim politics suggests a more or less democratic, rule of law society informed by religious principles. Non-Muslims would not necessarily have to worry about this version of Sharia. If, however,  “Sharia” means something like classical fiqh, which placed severe restrictions on Christians and other non-Muslims, calls for its restoration are quite worrisome.

Which version does the MB endorse? The MB has been presenting a moderate face to the world. Its official English-language website contains a slew of articles attempting to reassure Egyptian Christians (and Western liberals) that minority rights would be protected under the MB’s version of a Sharia society. Like “Sharia,” however, “rights” can mean different things, and the MB will also have to assuage more militant Islamists who are not so interested in moderation. Time will tell.

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Happy Easter and Historicizing Religious Freedom

Happy Easter to everyone! (and happy Passover as well!)

Before anything else, I want to thank Marc for inviting me to guest blog for the month. I have been a follower of this blog since its founding and found it especially useful for keeping up with the latest news/events and scholarship involving religious freedom.

What I will blog about for the rest of the month would be snippets of arguments and claims that I make in my ongoing dissertation, as well as float some ideas about law and religion in general. Hopefully some or any of these could jumpstart an interesting conversation. At the very least, I aim to give my own take on some issues which I feel are obscured by the politics and culture wars necessarily involved when it comes to issues of what I would call public religion.

Public religion, in the sense that it is a kind of religion deployed for public purposes – as a matter of identity and social practice, is making a comeback as news and events plus the incredible volume of academic and popular writing on the subject suggests. (As an aside, I was involved in the organization of a graduate student conference with the theme Religion and Civilization in International History where we heard fascinating papers on the subject) When it comes to law and religion, at least from the American side of things, most of the writing on the subject however, tend to coalesce around stories on various Supreme Court cases involving the Religion Clauses. But the story of American religious freedom has an external dimension as well, in terms of its centuries-old tradition of promoting democracy, human rights and religious freedom abroad. (I believe this is in fact partly a subject of ongoing investigation and research at the Politics of Religious Freedom project). In fact, it has done so through law in many instances, drawing on prevailing domestic ideas and motivations at particular times. Many people are not familiar with the extent of American involvement in the protection of religious freedom abroad, and this is the story that my dissertation, The Law on Religious Liberty and the Rise of American Power, seeks to tell.

I don’t intend to give a summary of the dissertation but what I want to start my blogging stint with is what I think are the normative implications of historicizing religious freedom in this way. What does such a historical reframing achieve? One implication I can think of at the moment is that it does support in part the frequent contention that Western notions of religious freedom which found their way to contemporary legal structures and institutions are incompatible with non-Western conceptions of this principle. It supports the part where Western ideas did indeed inform religious freedom as we understand it and as we enforce it today, e.g. this post by Elizabeth Shakman Hurd over at Immanent Frame which closely studies Talal Asad’s recent contribution to the Cambridge Companion to Religious Studies, is one version of this claim, but not the part necessarily about its incompatibility. It might not be obvious but much is at stake when it comes to deciding how to interpret the history of religious freedom. When courts and government actors act in accordance with a single overarching narrative, there are practical consequences. And so assuming such a history, even if we  concede that the story of international religious freedom is about imperial tendencies and asymmetric exercises of power, can religious freedom nevertheless be saved?

More on that and other things in the next post.

Posted on by Marc O. DeGirolami

Welcome to Anna Su!

We are delighted to announce that Anna Su, Clark Byse Fellow and an SJD candidate at Harvard Law School, will be our guest for the month of April.  Anna’s doctoral and other scholarly work is in law and religion: we’ve noted some of her interesting scholarship before, and we look forward to learning more about that and her dissertation activities as well. 

Kevin Walsh may be posting a bit more soon as well, so we’ll be lucky to have a few guest voices on CLR Forum in the coming weeks.

Posted on by Marc O. DeGirolami

Clive Bell on Paganism and Impressionism

The New Republic will from time to time reprint old essays on various subjects.  Here is a 1923 piece by the formalist art critic Clive Bell, whose ideas about the nature of aesthetic experience have always seemed to me nearly universally wrong.  That notwithstanding, I found his discussion in this piece of the connection between impressionism and paganism to be illuminating — one of the most concise explanations for why I have always disliked impressionism with such great intensity.  A bit:

The cultivated rich seem at last to have discovered in the impressionists what the impressionists themselves rediscovered half by accident. They rediscovered paganism—real paganism I mean—something real enough to be the inspiration and content of supreme works of art. Paganism, I take it, is the acceptance of life as something good and satisfying in itself. To enjoy life the pagan need not make himself believe that it is a means to something else—to a better life in another world for instance, or a juster organization of society, or complete self-development: he does not regard it as a brief span or portion in which to do something for his own soul, or for his fellow creatures, or for the future. He takes the world as it is and enjoys to the utmost what he finds in it: also, he is no disconsolate archaeologist spending his own age thinking how much more happily he could have lived in another and what a pagan he would have been on the banks of the Ilissus. No, paganism does not consist in a proper respect for the pagan past, but in a passionate enjoyment of the present; and Poussin, though he painted bacchanals galore, would have been quite out of place in the world of Theocritus. Your true pagan neither regrets nor idealizes: and while Swinburne was yearning nostalgicly for “the breasts of the nymph in the brake,” Renoir was finding inspiration for a glorious work of art in the petticoats of the shop-girls at the Moulin de la Galette.

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Shah on Muslim Law in the Western Context

Prakash Shah (Queen Mary, University of London School of Law) has posted In Pursuit of the Pagans: Muslim Law in the English Context. The abstract follows.

In this Working Paper, I make the case that a reconfiguration of law is taking place in the contact between Western and Muslim law. Muslim law is itself a complex, pluralistic amalgam of different legal ‘bricks’, and in the context of the struggle for Islam to be acknowledged as a legitimate source of value pluralism in the Western context, the religious aspects of Muslim law, with their doctrinal justifications, are being foregrounded. With the English case as the main focus, I further argue that customs among Muslims are suppressed in this process of ‘shariatisation’. Beyond that, even Muslim doctrines are being placed under the spotlight in various ways. These changes are taking place as a result of Muslims living as non-dominant communities in Europe, where they are under the gaze of the dominant culture and are judged to be potential or actual violators of human rights and the rule of law. Relying on Balagangadhara’s (2005) explanation of the ‘dynamic of religion’, I present these processes as an outcome of the collision of two religious cultures, the Islamic and the Western.

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Pierik on State Neutrality in Europe

Roland Pierik (University of Amsterdam) has posted State Neutrality and the Limits of Religious Symbolism.  The abstract follows.

The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention. Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools.

In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense. As Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas. In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states. Read more