Posted on by Michael Helfand

Putting the Legal in Religious Legal Theory

I just finished reading Samuel Levine’s essay RLT: A Preliminary Examination of Religious Legal Theory as a Movement, which considers the challenges facing the creation of a Religious Legal Theory (RLT) movement akin to Critical Legal Studies, Law & Economics and Empirical Legal Studies.  As Levine notes, the growing – and, to mind, successful – Religious Legal Theory conferences (the three annual RLT conferences thus far have been held at Seton Hall, St. John’s and Pepperdine) indicates that there is a conglomeration of research and scholarship revolving around some central concept captured by the label “religious legal theory.”

Among the challenges to the RLT movement detailed by Levine, I was most drawn to the tension between the pluralism embedded within RLT – it brings together different methodologies, disciplines and faith perspectives – and the need for a movement to advance a “foundation of meaningful concepts” in order to retain coherence, integrity and longevity.

As I’ve thought about this challenge, I’ve wondered whether RLT can do more to capitalize on the legal within religious legal theory.  By that I mean, further focus its efforts on the ways in which religion and religious life incorporates legal structures and norms.  This inquiry might itself be described as two-fold: to what extent does religious life mimic that of a legal system – and how might those similarities impact the nation-state’s treatment of religion.  As example, RLT might further explore the methods of authority, interpretation, and norm-creation within religious communities and compare those methods to compare to other legal structures.  Moreover, to the extent religion and law share important similarities, questions of accommodation, deference and enforcement might require considering religion alongside, for example, international law and foreign law where the nation-state has contemplated navigating the competing claims of conflicting legal norms.  Such an approach would incorporate insights of legal pluralism, international legal theory, political philosophy, and indigenous law into the RLT movement.

This is not to say that this isn’t already happening; to the contrary, there is growing amount of writing on this very issue – and probably more to come in light of the Supreme Court’s recent pronouncements in Hosanna-Tabor v. EEOC.  Some examples that come to mind – just to name a few – include Paul Horwitz’s work on First Amendment Institutions (here and here), Joel Nichols recent book Marriage and Divorce in a Multicultural Context, Ayelet Shacher’s book Multicultural Jurisdictions, Perry Dane’s work on church autonomy and legal pluralism (see, e.g., here and here), Rick Garnett’s work on religious institutions, (see, e.g., here and here), Chaim Saiman’s Jesus Legal Theory, and Mark Movsesian’s Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence.

Consider this a pitch for more of the same and for moving this focus into the center of the RLT movement.

Posted on by Mark Movsesian

Valliere, “Conciliarism”

Where does authority lie in the Christian church? Who has the ultimate say on canons and doctrine? These questions have preoccupied Christianity pretty much from the beginning, and one traditional answer has been the “ecumenical council,” a collection of bishops from around the world who convene to consider disputes about theology and practice. The most famous such council was the Council of Nicea in 325 A.D., which fixed the date for Easter and issued the historical Christian creed that bears its name. (The council was called by a pagan emperor, Constantine, a fact that itself opens the door to interesting questions about church-state relations). Human nature being what it is, Christians fairly quickly fell into debate about which councils were in fact ecumenical and binding. For Oriental Orthodox Christians, there have been three, the latest of which convened in the fifth century; for Eastern Orthodox, there have been seven, the latest of which convened in the eighth century; for Catholics, there have been 21, the latest of which, Vatican II, ended only in 1965. Protestant Christians, who have a much looser concept of the church, typically do not vest the councils with as much importance.

All of this is background for what looks to be an interesting new book by Butler Professor Paul Valliere, Conciliarism: A History of Decision-Making in the Church (Cambridge 2012). The publisher’s description follows:

Conciliarism is one of the oldest and most essential means of decision-making in the history of the Christian Church. Indeed, as a leading Orthodox theologian Alexander Schmemann states, ‘Before we understand the place and the function of the council in the Church, we must, therefore, see the Church herself as a council.’ Paul Valliere tells the story of councils and conciliar decision-making in the Christian Church from earliest times to the present. Drawing extensively upon the scholarship on conciliarism which has appeared in the last half-century, Valliere brings a broad ecumenical perspective to the study and shows how the conciliar tradition of the Christian past can serve as a resource for resolving conflicts in the Church today. The book presents a conciliarism which involves historical legacy, but which leads us forward, not backward, and which keeps the Church’s collective eyes on the prize – the eschatological kingdom of God.