Posted on by Marc O. DeGirolami

The ‘now that’s real religious persecution’ argument

Here’s an argument that I have seen repeatedly and that I have some trouble understanding.  It goes something like this: currently in the United States, one is hearing lots of nattering and complaining from various quarters that religious liberty is threatened.  But if you look at other parts of the world, that’s where you will really see grave threats to religious liberty — people’s churches being burned to the ground, people facing prison time for speaking their mind about religion, people being beaten and compelled to sign statements renouncing their religious beliefs, and many other horrors.  That’s “what a real war on religion looks like,” in the words of the latest exponent of this style of argument, Amy Sullivan, in this TNR column, which references something that John Allen wrote. 

The people making this kind of argument might be saying that those who champion religious liberty ought to be focusing on very grave threats to it.  That is undeniably true.  It is extremely important that we all do so, exactly because those sorts of threats are often far away and therefore less immediate for us.  But they might also be saying that the best measure of the condition of religious liberty in the United States is by comparison with its worst violations abroad.  We shouldn’t worry about religious liberty here, because after all, look at how bad things are out there. 

If that is the claim, it strikes me as unpersuasive.

ADDENDUM: A commenter over at Mirror of Justice points out that nobody would make similar sorts of comparative claims about other areas of the law where the legal protection abroad is substantially less than in the US.  This is an interesting point.  It might be that religious liberty is susceptible of this sort of comparative claim in the United States for a variety of reasons.  Possibilities: (1) the belief, at least in some parts, that claims of threats of religious liberty are being asserted in a partisan or selfish or unfair way (it is much less common to hear this claim made about, e.g., the 4th Amendment); or (2) the (growing?) belief that religious liberty — unlike, say, the right against unreasonable searches and seizures by the government — is not (or is no longer) as independently powerful a right as other fundamental rights.  Feedback loop to posts by Steve Smith.

Posted on by Mark Movsesian

Munir on Jihad

Muhammad Munir (International Islamic University Islamabad) has posted a new article, Who Can Declare Jihad: The Head of a Muslim State or a Jihadi Group or Groups Within a Muslim State?, on SSRN. The abstract follows.

Non-state Islamic actors are engaged in their war against the West, Muslim states, and in some cases against their own states. Among the propaganda campaign raised by these Jihadis for winning support of fellow Muslims is that jihad can be declared by any jihadi group within a Muslim state and there is no need for the head of such a Muslim state for such a declaration. How does Islamic law look at the complex relations between jihadis operating from within a Muslim state and whether the state might be blamed for their attacks and other activities outside such a state? This paper explains relationship between jihadi groups inside a Muslim state which has necessary military and political authority but which has not given any explicit permission to such groups to operate. It is concluded that classical Islamic law does not authorize the operations of jihadi groups without the permission of the Imam. In addition, under Islamic law such a state is responsible for the acts of jihadi groups operating from its territory.

 

Posted on by Mark Movsesian

March and Modirzadeh on the Islamic Law of War

Andrew March (Yale) and Naz Modirzadeh (Harvard) have posted Ambivalent Universalism? Jus ad bellum in Modern Islamic Legal Discourse, on SSRN. The abstract follows.

In this paper, we discuss the trajectory of modern Islamic legal discourse on jus ad bellum questions, challenging the ideas that the choice is between either a defensive or an aggressive jihad doctrine, and that declaring and waging war is regarded in Islamic law as properly a matter to be monopolized by legitimate state authorities.

Posted on by Mark Movsesian

Tuck on LGBT Equality

Ryan Tuck has posted Parting the Red Sea: The Religious Case for LGBT Equality, on SSRN. The abstract follows.

Much of the LGBT legal equality movement has focused on non-religious arguments. While that has netted gains in a purely legal sense, the broader – and more desirable – goal of social equality will remain elusive if the LGBT movement does not turn the religious argument around. In other words, LGBT proponents need to understand how to utilize religion to forward their causes, rather than ignore how opponents use it on the other side.

Posted on by Marc O. DeGirolami

Garry, “Limited Government and the Bill of Rights”

Something that looks closely related to the recent exchange between Mark and Steve about the justification of religious liberty as obstructive of the government’s power — Limited Government and the Bill of Rights (University of Missouri Press 2012), by Patrick M. Garry (University of South Dakota).  The publisher’s description follows.

What was the intended purpose and function of the Bill of Rights? Is the modern understanding of the Bill of Rights the same as that which prevailed when the document was ratified? In Limited Government and the Bill of Rights, Patrick Garry addresses these questions. Under the popular modern view, the Bill of Rights focuses primarily on protecting individual autonomy interests, making it all about the individual. But in Garry’s novel approach, one that tries to address the criticisms of judicial activism that have resulted from the Supreme Court’s contemporary individual rights jurisprudence, the Bill of Rights is all about government—about limiting the power of government. In this respect, the Bill of Rights is consistent with the overall scheme of the original Constitution, insofar as it sought to define and limit the power of the newly created federal government.
 
Garry recognizes the desire of the constitutional framers to protect individual liberties and natural rights, indeed, a recognition of such rights had formed the basis of the American campaign for independence from Britain. However, because the constitutional framers did not have a clear idea of how to define natural rights, much less incorporate them into a written constitution for enforcement, they framed the Bill of Rights as limited government provisions rather than as individual autonomy provisions. To the framers, limited government was the constitutional path to the maintenance of liberty. Moreover, crafting the Bill of Rights as limited government provisions would not give the judiciary the kind of wide-ranging power needed to define and enforce individual autonomy.
 
With respect to the application of this limited government model, Garry focuses specifically on the First Amendment and examines how the courts in many respects have already used a limited government model in their First Amendment decision-making. Read more
Posted on by rbonham1 · 1 Comment

Religious Freedom and the Church

We’ve been discussing on this blog the prospects for religious freedom, and factors that may affect those prospects.  Here’s one factor that we haven’t really mentioned, but that I think will be crucial: the church.  The fortunes of religious freedom, I would argue, have always been connected in close if complicated ways to the fortunes of the church.  And this connection is likely to continue.

So ultimately, if the church continues to be (or, some might say, if it becomes) a vibrant and vital institution in society, religious freedom will probably be okay.  Conversely, if the church declines, religious freedom (and, I fear, much else) is likely to go down with it.

Which may seem to be a gloomy observation, because the church may seem to be in poor shape these days.  For one thing, someone might say, “the church” (in the singular) doesn’t exist anymore; instead we have a proliferating multiplicity of independent and sometimes mutually antagonistic churches and faiths.  For another, some of the major churches have been conspicuously afflicted with scandal and internal dissension.  And then there’s the perennial streak of anticlericalism– or suspicion of “organized religion”– that even religious believers often display.  And the increase in the percentage of “nones.”  And . . . .

So then, is the situation hopeless?  I don’t think so, and I’ll offer just two quick observations in support of my customary (long-term) optimism.  First, history doesn’t unfold in linear ways.  So if you take current trends and project forward, you’ll nearly always be wrong.  This is true in particular of the church (and, more generally, of religion).  Who would have predicted in the year 100, or 200, or even 300, that Christianity would become the official religion of the Empire?  Who would have predicted the papal revolution from the midst of the scandalous “dark century” that preceded it?  In 1787, who could have foreseen the flourishing of faiths and churches in new American forms that would unfold in the nineteenth century?  Through the nineteenth century and as late as the 1960s, how many social scientists anticipated that not only Christianity but other faiths would be as vibrant as they are today, problems notwithstanding?

This first observation is in a sense defensive: it counsels believers not to get discouraged by present apparent trends and conditions.  My second observation is a bit more positive.  At least in the view of believers, the fortunes of the church will not be determined by merely human agency anyway.  “The wind (spirit) bloweth where it listeth . . . .”

Nonbelievers will find this to be a fool’s hope, or gamble.  They will think the believers are deluded.  But then again . . . if the believers are deluded, does all of this really matter much?

— Steve Smith