This academic year has been an exciting one for the Center for Law and Religion at St. John’s. CLR has launched this website, hosted an innovative colloquium on 
law and religion at the New York campus, and published the proceedings of the second annual Religious Legal Theory Conference, among many other activities, and CLR faculty have published articles and participated in conferences around the world. Our year-end report is available here. Thanks to our friends for their continuing support, and please let us know if you have any suggestions for future activities.
A Question for Mike Helfand on Religious Arbitration
Mike, thanks for the very interesting posts you’ve been doing this month. I wonder if I could ask about something in your last post, in which you discuss the case with the arbitration agreement calling for “three Orthodox rabbis.” A state court refused to enforce the agreement, since enforcement might have required the court to decide whether the named arbitrators were, in fact, “Orthodox,” which would impermissibly have entangled the court in a religious question. You suggest that the court’s concern with entanglement was overstated, and I have some sympathy with that view.
I wonder whether last week’s Second Circuit decision in Commack Self-Service Kosher Meats has any implications for your argument. In that case, the Second Circuit upheld a NY law requiring sellers of kosher products to indentify which private organization had made the kosher certification. The law did not raise entanglement concerns, the court argued, because the law did not require civil government to certify that particular products were, in fact, “kosher.” The law simply facilitated private decision-making by requiring sellers to disclose the basis for their assertions about their products. If sellers wished to sell, and consumers wished to purchase, products with a “kosher” certification from the United Methodist Church, for example, the state would not object.
Might a mechanism that defers to the decisions of private organizations avoid entanglement issues in arbitration agreements? For example, we could require parties who seek religious arbitrators to specify ahead of time which private associations will name the arbitrators. For example, the parties could agree that any disputes between them “will be resolved by three Orthodox rabbis from the Beth Din of America.” In enforcing such an agreement, a civil court would not be endorsing the proposition that rabbis from the Beth Din of America are, in fact, “Orthodox.” The court would merely be deferring to the parties’ decision to defer to the Beth Din’s decision. Of course, this solution would privilege organizations like the Beth Din over less institutional arbitration mechanisms, and that might pose an establishment problem under current doctrine. But is it worth thinking about?
Hammill, “The Mosaic Constitution”
Here is a very interesting contribution to intellectual, literary, and
political history, The Mosaic Constitution: Political Theology and Imagination from Machiavelli to Milton (U. Chicago Press 2012), by Graham Hammill (SUNY Buffalo). The publisher’s description follows.
It is a common belief that scripture has no place in modern, secular politics. Graham Hammill challenges this notion in The Mosaic Constitution, arguing that Moses’s constitution of Israel, which created people bound by the rule of law, was central to early modern writings about government and state.
Hammill shows how political writers from Machiavelli to Spinoza drew on Mosaic narrative to imagine constitutional forms of government. At the same time, literary writers like Christopher Marlowe, Michael Drayton, and John Milton turned to Hebrew scripture to probe such fundamental divisions as those between populace and multitude, citizenship and race, and obedience and individual choice. As these writers used biblical narrative to fuse politics with the creative resources of language, Mosaic narrative also gave them a means for exploring divine authority as a product of literary imagination. The first book to place Hebrew scripture at the cutting edge of seventeenth-century literary and political innovation, The Mosaic Constitution offers a fresh perspective on political theology and the relations between literary representation and the founding of political communities.
Hashmi (ed.), “Just Wars, Holy Wars, & Jihads”
Here is a very interesting collection of essays on religious perspectives
on military engagements of various kinds: Just Wars, Holy Wars, & Jihads: Christian, Jewish, and Muslim Encounters and Exchanges (OUP 2012), edited by Sohail H. Hashmi (Mount Holyoke). The publisher’s description follows.
Just Wars, Holy Wars, and Jihads explores the development of ideas of morally justified or legitimate war in Western and Islamic civilizations. Historically, these ideas have been grouped under three labels: just war, holy war, and jihad. A large body of literature exists exploring the development of just war and holy war concepts in the West and of jihad in Islam. Yet, to date, no book has investigated in depth the historical interaction between Western notions of just or holy war and Muslim definitions of jihad. This book is a major contribution to the comparative study of the ethics of war and peace in the West and Islam. Its twenty chapters explore two broad questions:
1. What historical evidence exists that Christian and Jewish writers on just war and holy war and Muslim writers on jihad knew of the other tradition?
2. What is the evidence in treatises, chronicles, speeches, ballads, and other historical records, or in practice, that either tradition influenced the other?
The book surveys the period from the rise of Islam in the early seventh century to the present day. Part One surveys the impact of the early Islamic conquests upon Byzantine, Syriac, and Muslim thinking on justified war. Part Two probes developments during the Crusades. Part Three focuses on the early modern period in Europe and the Ottoman Empire, followed by analysis of the era of European imperialism in Part Four. Part Five brings the discussion into the present period, with chapters analyzing the impact of international law and terrorism on conceptions of just war and jihad.
The Political Relevance of Religious Leaders
The New York Times is reporting that President Obama made fairly significant efforts to placate various religious leaders almost immediately after he announced last week that he now supports same-sex marriage (see this post by my colleague, Mark, in which the President explained that his position on same-sex marriage was informed by his Christian faith). One of the people whom the President contacted expressed concerns that this policy shift might have implications for religious liberty. The President is reported to have responded: “Absolutely not. That’s not where we’re going, and that’s not what I want.”
What is most interesting is not the wide range of reactions that the President received from religious leaders, all of whom are otherwise aligned with the President politically, but that the President believed it to be crucial as a political matter to reach out to so many religious figures only hours after he made the announcement. That alacrity speaks to the continuing political importance of these religious communities, whether for the right or the left.