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Brownlee on Conscientious Objection and Civil Disobedience

Kimberley Brownlee (Warwick U.) has posted Conscientious Objection and Civil Disobedience. The abstract follows.

This paper looks at two types of dissent that are generally described as conscientious, namely, civil disobedience and conscientious objection. Both practices raise pressing normative questions about the proper parameters of dissenters’ rights and duties in a reasonably good society. They also raise questions about both the scope of legitimate toleration of assertions of conscientiousness and the appropriate legal and political responses to conscientious disobedience. The paper gives a qualified endorsement of the moral justifiability of these two practices. It also explores their credentials as moral rights and their legal defensibility. The paper challenges the dominant liberal view that, in relation to both moral rights and legal defenses, a more compelling case can be made for private conscientious objection than for civil disobedience.

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Resnicoff on Extraordinary Sources of Jewish Law

Steven H. Resnicoff (DePaul U. College of Law) has posted Extraordinary Sources of Jewish Law: the Example of Capital Punishment. The abstract follows.

Most Jewish law scholarship, especially that which is published in English, focuses on only one of Jewish law’s criminal law enforcement systems, namely, the operation of the rabbinic court system pursuant to the rules set forth in the Pentateuch, as interpreted in the Babylonian Talmud. In fact, this literature usually fails even to acknowledge the existence of the two other law enforcement systems: (1) enforcement by rabbinic courts functioning under their “extraordinary powers”; and (2) and enforcement by a Jewish king. These two systems vary enormously as to the procedural protections they provide and as to their practical consequences. Failing to examine them causes one to very seriously misunderstand how Jewish law functioned throughout history and paints a rather “Pollyanna-like” portrait of Jewish law.

This submission constitutes Chapter 8 of my book, “Understanding Jewish Law,” published by LexisNexis in June 2012. It explains the dramatic differences among these three criminal law enforcement systems and documents the pragmatic steps taken by rabbinic authorities responsible for providing a safe and stable social environment.

Posted on by Marc O. DeGirolami

Cert. Denied in the Mt. Soledad Cross Case

The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego. 

Justice Alito issued a separate statement regarding the denial of cert.  Note that this is not a dissent from the denial of cert., but only a “statement.”  In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time.  The reason is the posture of the case.  In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed.  Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out.  Justice Alito wrote:

Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari.  Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.

(footnotes and citations omitted). 

I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out.  One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method.  Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!

Posted on by Marc O. DeGirolami

Wellman & Lombardi (eds.), Religion and Human Security

This collection of essays edited by James K. Wellman (Jackson School of International Studies) and Clark B. Lombardi (University of Washington), Religion and Human Security: A Global Perspective (OUP 2012), looks worth checking out, particularly for those who are interested in national security law and religion.  The publisher’s description follows.

Since the1950s the world has witnessed a period of extraordinary religious revival in which religious political parties and non-governmental organizations have gained power around the globe. At the same time, the international community has come to focus on the challenge of promoting global human security. This groundbreaking book explores how these trends are interacting. In theoretical essays and case studies from Turkey, Egypt, Pakistan, the Americas, Africa and Europe, the contributors address such crucial questions as: Under what circumstances do religiously motivated actors advance or harm human welfare? Do certain state policies tend to promote security-enhancing behavior among religious groups? The book concludes by providing important suggestions to policymakers about how to factor the influence of religion into their evaluation of a population’s human security and into programs designed to improve human security around the globe.

Posted on by Mark Movsesian

Annicchino on Religious Freedom in European Foreign Policy

Pasquale Annicchino (Robert Schuman Center for Advanced Studies) is doing interesting work on a new phenomenon, the promotion of religious freedom in the foreign policy of the EU. I heard him give a paper on the subject at the conference at Harvard earlier this month. Last week, he had an op-ed in La Stampa describing a proposed unit within the EU’s new diplomatic corps, the European External Relations Service, devoted to the protection of religious freedom abroad. This unit, which is modeled after the US Commission on International Religious Freedom, is perceived as especially important in the context of the Arab Spring. Annicchino argues that the unit must have power to impose sanctions for violations of religious freedom; economic agreements the EU has with third countries may provide a mechanism. Here’s the link (in Italian).