Posted on by Mark Movsesian

Pussy Riot and WEIRD Values

Last week’s post about WEIRD values (that’s “Western, Educated, Industrialized, Rich, and Democratic”) drew a number of comments over at First Thoughts, where I cross-posted. Readers focused on the implications for the West’s relations with the Muslim world. It’s worth noting, though, that the clash is not limited to Muslim-majority societies. Most of the world is non-WEIRD. Events is Russia last week demonstrate what I mean.

By now, most readers are familiar with Pussy Riot, the feminist punk band that stormed the main altar of Moscow’s Christ the Savior Cathedral to protest collusion between the Russian Orthodox Church and President Vladimir Putin. Three members of the band were convicted of “hooliganism” and sentenced to two years in prison. Last week, authorities released one of the three on appeal, in response to evidence that she had not, in fact, participated in the cathedral protest. The other two band members continue to serve their sentences.

In the West, Pussy Riot has become a cause célèbre, with human rights groups protesting the authoritarianism in Putin’s Russia. This is not surprising. From a Western perspective, the band’s punishment seems unduly harsh. Yes, Pussy Riot insulted a place of worship – one with important, and sad, historical associations – but no one was harmed. At most, the members should have been fined for a misdemeanor and let go. Within Russia, however, support for Pussy Riot is remarkably low. Although some Russians believe the band members made a valid point about church corruption and have served enough time, the large majority of Russians apparently believes the sentences were appropriate, Read more

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Lewis on Religious Freedom, the Common Good and the Contraception Services Mandate

V. Bradley Lewis (Catholic U. of America) has posted Religious Freedom, the Good of Religion and the Common Good: The Challenges of Pluralism, Privilege and the Contraceptive Services Mandate. The abstract follows.

The right to religious freedom is properly grounded in religion’s status as a fundamental and irreducible human good, which is nevertheless related to other goods and social in character. Its protection for persons and groups is therefore also a component of the common good of political society. After arguing for these propositions on broadly Thomistic philosophical grounds, the article discuses and answers three recent challenges. The first is based on a perceived conflict between recognition of the good of religion and pluralism and I argue that this objection can be met by distinguishing between different kinds of pluralism, most of which pose no problem to the thesis. A second objection comes from those outside the Thomistic tradition, who either reject the status of religion as a good deserving of explicit legal recognition and protection or accept it on inadequate grounds. The objections, I argue, are based on accounts of religion that are inadequate to the role it plays in sound practical reason. Finally, I discuss an argument from those within the Thomistic tradition who accept some limitations on religious freedom in the name of the common good. This third challenge is linked to the current controversy over the application of the US federal government’s insurance mandate to religious organizations and the US Catholic bishops’ response to it as an issue of religious freedom. Here I argue that the objection is based on a misunderstanding and misapplication of Aquinas’s account.

Posted on by Marc O. DeGirolami

Lon Fuller on Negative and Positive Liberty

Here’s an interesting series of passages from a piece by the eminent law professor Lon Fuller: “Freedom — A Suggested Analysis,” 68 Harvard Law Review 1305 (1955).

The deterioration of the meaning of freedom has been caused in part by a shift of interest away from the notion of “freedom to” in favor of “freedom from.”  Let us for a moment indulge in a somewhat abstract analysis of the meaning of the phrase “is free from.” X, we say, is free from Y. What is asserted? We are saying that a something, X, is not subject to the influence of, or does not contain within itself, something called Y. We are verbally setting Y off from X, asserting that Y does not touch upon or enter into X . . . .

[S]ince “freedom from” is essentially a negation, we can, by substituting different nouns for the Y of our formula, make “freedom from” assume contradictory or mutually exclusive meanings. The objectives of the welfare state and of Buddhism can with equal facility be stated in terms of “freedom from,” the one promising freedom from poverty, the other freedom from the desire for worldly goods. We can praise knowledge as giving us freedom from the handicaps of ignorance and extol ignorance as conferring freedom from the discomforts and responsibilities of knowledge. If one writer recently set up “freedom from the forces of nature” as an objective of governmental policy, others of a different bent have been trying for ages to free us from the artificial restraints of society. Finally, there is, of course — in a perfectly meaningful sense — freedom from freedom.

Thus the concept of “freedom from” represents a turn of thought ready to fit almost any context and capable of conveying almost any meaning. It is no accident that such awkward totalitarian advances as have been made in the direction of the word “freedom” have been in terms of “freedom from,” as where it is asserted that the masses must be “freed from capitalist exploitation” or “from colonialism.” So far as I am aware, there is little inclination by the enemies of freedom to embrace, or to tamper with, the notion of “freedom to.”

Read more

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International Religious Liberty Award Dinner

On Thursday, I attended the International Religious Liberty Award Dinner in Washington D.C., hosted by the J. Reuben Clark Law Society and the International Center for Law and Religion Studies.  The event kicked off with a social hour and talk by Robert T. Smith, Managing Director of ICLRS. He spoke about the importance of properly defining “religious freedom” in the national and international arena. He contrasted “freedom from religion” with “freedom for religion.” In the end, Smith concluded that a better definition of religious freedom is found in James Madison’s “Memorial and Remonstrance.” Madison, Smith argues, expresses a more inclusive understanding of religious freedom which takes account of both concerns.

The night continued with dinner and the presentation of the student writing competition awards.  The keynote speech was given by Dr. Katrina Lantos Swett, Chair of the US Commission for International Religious Freedom and the President of the Lantos Foundation. She highlighted the work of both organizations as well as the status of religious freedom around the world.

The evening concluded with the presentation of the International Religious Liberty Award to Professor Douglas Laycock.  In his remarks, Professor Laycock began by listing recent court decisions involving religious freedom. He then offered this: overall, “the prospects for religious freedom is not good.”  The rights of believers to speak and teach the tenets of their faith will be tested. The right of believers to practice their religion is at risk, especially when religious freedom collides with other rights, as illustrated most clearly by the debates involving same-sex marriage as well as the contraceptive mandate. The source of this problem is result of a “long term change in the distribution of public opinion” about religion in the US, whose features include the decline in religious belief and the rise of rival conceptions of rights, such as gay rights. Today, continued Laycock, religious believers and gay rights advocates are locked in a zero-sum game where any gain by either side is a loss to the other.  In such a situation, any reconciliation between the two groups seems unlikely. But, as Laycock hinted in his conclusion, there may hope in the future. The struggle for religious freedom has often been characterized by such seemingly intractable problems. But who would have could have possibly conceived, during the height of the Catholic-Protestant conflicts of the previous centuries, that a comprise would eventually be forged and the two sides would even, at time, be united in common causes?

Posted on by Mark Movsesian

Religious Organizations and the Affirmative Action Case

In America this week, the big legal news was the Supreme Court’s oral argument in Fisher v. University of Texas at Austin, a case concerning the constitutionality of race-based affirmative action in higher education. This will be the second time in a decade that the Court has addressed this issue, and the case has potentially huge ramifications. It’s not surprising, therefore, that Fisher has drawn great interest. Hundreds (!) of amicus briefs were filed in the case, most of which will be read, if at all, only by hapless law clerks. Among these was a brief from about a dozen religious organizations and campus ministries, including the National Council of Churches, the United Methodists, the Presbyterian Church (USA), the United Church of Christ, the Progressive National Baptist Convention, and the African Methodist Episcopal Zion Church (USA). These organizations, the brief explains, support affirmative action partly for religious reasons: in order to affirm “all persons as equally valuable in the sight of God.” The organizations depend on racial diversity in universities, the brief continues, in order to “fulfill their own missions of helping their members grow in their faith, understanding and compassion; providing the tools their members will need to reach their full potential as individuals in our ever-changing pluralistic society; and cultivating leaders for the next generation.” Secularist organizations such as the Freedom from Religion Foundation and Americans United for the Separation of Church and State strongly protested, asserting that religious organizations had no right to interfere in a matter of public debate in order to advance a narrow sectarian position, or to rely on religious propositions inaccessible to non-believers.

Just kidding about that last part.

Posted on by JCPW

Awrey, Blair & Kershaw on Ethics in Financial Regulation

Dan Awrey (University of Oxford), William Blair, and David Kershaw (London School of Economics) have posted Between Law and Markets: Is There a Role for Culture and Ethics in Financial Regulation? The abstract follows.

The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings.

To many, this analysis may portend the end of the story. From our perspective, however, it represents a useful point of departure. While neither law nor markets may be particularly well suited to serving as “the conscience of the Square Mile,” it may nevertheless be possible to harness the power of these institutions to carve out a space within which culture and ethics – or, combining the two, a more ethical culture – can play a meaningful role in constraining socially undesirable behavior within the financial services industry. The objective of this article is to explore some of the ways which, in our view, this might be achieved.

This exploration takes place across two dimensions. In the first dimension, we hold constant the core internal governance arrangements – corporate objectives, directors’ duties, board composition, committee structures and remuneration policies – within financial institutions. Read more

Posted on by JCPW

Fagan, “Believing in Russia – Religious Policy After Communism”

This October, Routledge will publish Believing in Russia – Religious Policy After Communism by Geraldine Fagan (Moscow correspondent for Forum 18 News). The publisher’s description follows.

This book presents a comprehensive overview of religious policy in Russia since the end of the communist regime, exposing many of the ambiguities and uncertainties about the position of religion in Russian life. It reveals how religious freedom in Russia has, contrary to the widely held view, a long tradition, and how the leading religious institutions in Russia today, including especially the Russian Orthodox Church but also Muslim, Jewish and Buddhist establishments, owe a great deal of their special positions to the relationship they had with the former Soviet regime. It examines the resurgence of religious freedom in the years immediately after the end of the Soviet Union, showing how this was subsequently curtailed, but only partially, by the important law of 1997. It discusses the pursuit of privilege for the Russian Orthodox Church and other ‘traditional’ beliefs under presidents Putin and Medvedev, and assesses how far Russian Orthodox Christianity is related to Russian national culture, demonstrating the unresolved nature of the key question, ‘Is Russia to be an Orthodox country with religious minorities or a multi-confessional state?’ It concludes that Russian society’s continuing failure to reach a consensus on the role of religion in public life is destabilising the nation.

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Schmugge, “Marriage on Trial: Late Medieval German Couples at the Papal Court”

This November, The Catholic University of America Press will publish Marriage on Trial: Late Medieval German Couples at the Papal Court by Ludwig Schmugge (President, Scientific Committee of the German Historical Institute, Rome, Italy), translated by Atria A. Larson (The Catholic University of America). The publisher’s description follows.

In the first detailed study of papal penitentiary materials on marriage, renowned medieval historian Ludwig Schmugge tells the exciting stories of seduced maidens, too-closely-related husbands and wives, and thousands of couples who faced lawsuits–all of whom had transgressed marriage law on various grounds in the Middle Ages. This work vividly describes many of the individual cases and offers new insight into the social and legal pressures on marriage in the Middle Ages.

At a time when betrothal, marriage, and sexual morals were strictly subject to the church’s law, petitions from couples abounded. More than two hundred clerics of the penitentiary in the papal curia devoted their time and attention to these petitions alone. With exceptional thoroughness, Schmugge sifted through the thick volumes of registers in the Vatican Secret Archives for his research. Here he presents the exciting, almost unbelievable, and often scandalous fates of these late medieval men and women, while highlighting the important connection between the papal monarchy and the social history of the laity in the later Middle Ages.

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Deutscher, “Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara”

This December, University of Toronto Press, Scholarly Publishing Division will publish Punishment and Penance: Two Phases in the History of the Bishop’s Tribunal of Novara by Thomas B. Deutscher (St Thomas More College, University of Saskatchewan). The publisher’s description follows.

Punishment and Penance provides the first comprehensive study of an Italian bishop’s tribunal in criminal matters, such as violence, forbidden sexual activity, and offenses against the faith. Through numerous case studies, Thomas B. Deutscher investigates the scope and effectiveness of the early modern ecclesiastical legal system.

Deutscher examines the records of the bishop’s tribunal of the northern Italian diocese of Novara during two distinct periods: the ambitious decades following the Council of Trent (1563–1615), and the half-century leading up to the French invasions of 1790s. As the state’s power continued to rise during this second time span, the Church was often humbled and the tribunal’s activity was much reduced.

Enriched by stories drawn from the files, which often allowed the accused to speak in their own voices, Punishment and Penance provides a window into the workings of a tribunal in this period.

Posted on by Mark Movsesian

Lecture: “Beyond Political Islam”

The Foreign Policy Association is sponsoring a lecture by Tarek Masoud (Harvard), “Beyond Political Islam: The Muslim Brotherhood and the Future of the Middle East,” at NYU School of Law on November 1. Details are here.