Waldron on Natural Law

Jeremy Waldron  (NYU School of Law) has posted What is Natural Law Like? The abstract follows.

“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.

Redding on What American Legal Theory Might Learn from Islamic Law

Jeff Redding (Saint Louis U. School of Law) has posted What American Legal Theory Might Learn from Islamic Law: Some Lessons About ‘The Rule of Law’ from ‘Shari‘a Court’ Practice in India. The abstract follows.

In 2010, voters in the state of Oklahoma passed a constitutional amendment that prohibits the Oklahoma courts from considering “Sharia Law.” A great deal of the support for this amendment and similar (ongoing) legal initiatives appears to be generated by a deep-seated paranoia about Muslims and Islamic law that has taken root in many parts of the post-9/11 United States. This Article contends that the passage of this Oklahoma constitutional amendment should not have been surprising given that it is not only right-wing partisans who have felt the need to strictly demarcate and police the boundaries of the American legal system, but also liberal partisans too. Indeed, this Article argues that certain modes of American liberal legal thought actually facilitate the anti-shari‘a mania currently sweeping the United States. As a result, an adequate response to this mania cannot simply rely on traditional, American-style, liberal legal theorizing. Indeed, as this Article argues and explains, some extant American liberal understandings of ‘law,’ ‘legal systems,’ and ‘the rule of law’ are eminently inappropriate resources in the struggle against American forms of reactionary parochialism because these liberal understandings are themselves deeply compromised by their own forms of parochialism.

This state of theoretical affairs is unfortunate. As a result, in the course of demonstrating some of the theoretical inadequacies of American liberal legalism, this Article also commences an alternative theorization about ‘law,’ ‘legal systems’ and, more particularly, ‘the rule of law.’ This theorization relies heavily on what can be learned about ‘the rule of law’ — including whatever exists of it in the United States — from the experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a non-state ‘shari‘a court’ (specifically, a ‘dar ul qaza’) in Delhi to exercise her Indian Islamic divorce rights. I recently interviewed Ayesha at length as part of a larger project on liberalism and Islamophobia.

Barnett & Stein (eds.), “Sacred Aid: Faith and Humanitarianism”

Here’s an interesting collection of essays about the increasing religious inspiration and commitment of contemporary human rights organizations, Sacred Aid: Faith and Humanitarianism (OUP 2012), edited by Michael Barnett (GW) and Janice Gross Stein (Toronto).  The publisher’s description follows.

The global humanitarian movement, which originated within Western religious organizations in the early nineteenth century, has been one of the most important forces in world politics in advancing both human rights and human welfare. While the religious groups that founded the movement originally focused on conversion, in time more secular concerns came to dominate. By the end of the nineteenth century, increasingly professionalized yet nominally religious organization shifted from reliance on the good book to the public health manual. Over the course of the twentieth century, the secularization of humanitarianism only increased, and by the 1970s the movement’s religious inspiration, generally speaking, was marginal to its agenda. However, beginning in the 1980s, religiously inspired humanitarian movements experienced a major revival, and today they are virtual equals of their secular brethren.

From church-sponsored AIDS prevention campaigns in Africa to Muslim charity efforts in flood-stricken Pakistan to Hindu charities in India, religious groups have altered the character of the global humanitarian movement. Moreover, even secular groups now gesture toward religious inspiration in their work. Clearly, the broad, inexorable march toward secularism predicted by so many Westerners has halted, which is especially intriguing with regard to humanitarianism. Not only was it a highly secularized movement just forty years ago, but its principles were based on those we associate with “rational” modernity: cosmopolitan one-worldism and material (as opposed to spiritual) progress. How and why did this happen, and what does it mean for humanitarianism writ large? That is the question that the eminent scholars Michael Barnett and Janice Stein pose in Sacred Aid, and for answers they have gathered chapters from leading scholars that focus on the relationship between secularism and religion in contemporary humanitarianism throughout the developing world. Collectively, the chapters in this volume comprise an original and authoritative account of religion has reshaped the global humanitarian movement in recent times.

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge “built on air.”  Actually, it is built on the Constitution and a federal statute, and we’ll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate — and not the putative change in plans alluded to by the President in February — is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: “In 1993, Congress required government actions that “substantially burden a person’s exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy.”  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.