I don’t know how many CLR Forum readers are following this story, but it’s a major news item in Russia and has drawn attention in the international human rights community as well. Last February, in a protest against Vladimir Putin, a Russian feminist punk band called “Pussy Riot” (above) stormed the altar at the Cathedral of Christ the Savior in Moscow and performed performed a”punk prayer” called “Mother of God, Cast Putin Out.” You can find the video on the internet; it’s pretty juvenile. Authorities arrested three members of the band for the crime of “hooliganism,” which carries a sentence of seven years. They have been in jail since March. A Russian court today extended their pretrial detention for another six months, to January 2013. The imprisonment and prosecution has become a cause célèbre in Russia, pitting the Orthodox Church hierarchy, which resents the cathedral protest as a sacrilege, against liberals, who resent the Orthodox Church’s support for Putin and see the threatened punishment as arbitrary and extreme. Amnesty International has declared the members of Pussy Riot “prisoners of conscience.” Russians themselves are divided about the case. In a recent poll of Muscovites, half said they opposed the prosecution, but 36% approved.
This is a very interesting column by Winnifred Fallers Sullivan which expresses succinctly her particular brand of anti-separationism with respect to the proper relationship of church and state. The column is rich with insights and repays close reading, even though I am in substantial disagreement with at least some parts of it. Specifically, I am far less skeptical than she is that certain (though not all) older understandings of separationism remain vitally important, and far less sanguine that doing away with those older understandings would be a healthy legal or political development, either for the sex abuse crisis that she describes or for many other controversies.
Over at our friend and former guest Kevin Walsh’s blog, one can see an absolutely extraordinary quote from ACLU president Nadine Strossen in the 1992 legislative history of the Religious Freedom Restoration Act, condemning Employment Division v. Smith for, in part, leading to a situation in which religious hospitals would be compelled “to provide abortion and contraceptive services.”
Take a look.
This is a short and highly accessible essay by the eminent John Finnis entitled, “What is the Philosophy of Law?” Readers of CLR Forum will know that Finnis is the author of one of the most important books of jurisprudence of the last century, Natural Law and Natural Rights, which represents the keystone in the revival of natural law thought in contemporary times.
In this short piece, Finnis explains in summary form what the philosophy of law (or jurisprudence — he believes the terms are synonymous, for reasons he discusses) is and what its tasks are to be. Why is this relevant to religion? Well, grossly oversimplifying (and I mean really grossly and highly incompletely), though it does not appear in this essay, one of the basic common goods described by Finnis in NLNR (see pp. 89-90 and 371-410) is the good of religion (obliquely adverted to in this essay at page 4 as one of the common goods “of other associations of society”). And inasmuch as a society provides for freedom of religion, the philosophy of law “consider[s] precisely how far choices made today for one’s political community should be determined or shaped by choices made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.”
Two little noteworthy items in Finnis’s new piece. First, Finnis gives a very clear and easily digested explanation for why the statement “an unjust law is no law” is true (he has done this before, and this essay does it succinctly). Again, I am oversimplifying, but the criticism has been: well of course an unjust law is a law — in fact, whether a law is really a law has nothing to do with its morality or ultimate justice. Finnis says:
Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense. Indeed, it is not unreasonable to see such a distinction at work in the famous tag — “An unjust law is not a law.” Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: “an insincere friend is not a friend”; “a logically invalid argument is no argument”; “a quack medicine is no medicine”… So too in the famous tag or theorem: “unjust law” (lex iniusta) here refers to an intra-systemically valid legal rule or order, and “not law” (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e., legitimacy) and thus, as such, lacks moral obligatoriness. (8-9) (footnotes omitted)
The second item to note is the conclusion, in which Finnis is discussing the philosophy of law’s tasks and its future. I was especially struck by Finnis’s emphasis of the importance of “common custom” in maintaining a healthy legal system.
On Wednesday, a federal district court in Tennessee ordered local officials to grant an occupancy permit to a controversial mosque in that state. Construction of the mosque, in the city of Murfreesboro in Rutherford County, has been tied up in litigation for years; some neighbors have been very hostile, to put it politely, to the presence of a mosque in their city. The mosque’s opponents won a victory last month, when a state court barred the issuance of an occupancy permit for the mosque, ruling that the Rutherford County zoning board that had approved construction had violated the state’s open meetings law. The mosque and DOJ then sued the county in federal court, arguing that denial of the permit violated both the Free Exercise Clause and RLUIPA. On Wednesday, in the DOJ lawsuit, the federal court issued a TRO requiring the county to grant the occupancy permit in time for the start of Ramadan yesterday. For a detailed account of the litigation, see this article in the New York Times. The case is US v. Rutherford County (M.D. Tenn., July 18, 2012) (H/T: Religion Clause).
This September, Cambridge University Press will publish The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition by Behnam Sadeghi (Stanford University). The publisher’s description follows.
This pioneering study examines the process of reasoning in Islamic law. Some of the key questions addressed here include whether sacred law operates differently from secular law, why laws change or stay the same, and how different cultural and historical settings impact the development of legal rulings. In order to explore these questions, the author examines the decisions of thirty jurists from the largest legal tradition in Islam: the Hanafi school of law. He traces their rulings on the question of women and communal prayer across a very broad period of time – from the eighth to the eighteenth century – to demonstrate how jurists interpreted the law and reconciled their decisions with the scripture and the sayings of the Prophet. The result is a fascinating overview of how Islamic law has evolved and the thinking behind individual rulings.
This November, Harvard University Press will publish First Amendment Institutions by Paul Horwitz (University of Alabama School of Law). The publisher’s description follows.
Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Read more