Egypt’s Draft Constitution

Obviously, Egypt’s version of the Constitutional Convention is not going as smoothly as everyone might have hoped. The plan was for a Constituent Assembly comprised of Islamists, Christians, and secular deputies to draft and vote on a consensus constitution sometime next January. Things haven’t worked out that way. Greatly outnumbered from the start, the Christians and secular deputies have all resigned in frustration. And, rather than wait till next year, the Assembly has just finished rushing though all 230 provisions of the constitution in a marathon, 16-hour session. The Assembly will present the document to President Morsi tomorrow, and he will then submit it to a national referendum. Why the rush? The Assembly and Morsi want to accomplish all this before the Supreme Constitutional Court has a chance to rule, perhaps as early as Sunday, on the legality of the constitution-drafting process. Meanwhile, pro- and anti-Morsi demonstrators are facing off on the streets of Egyptian cities. It all looks very unstable.

Given our own experience, observers in the US may see the struggle between Morsi and the SCC in terms of the rule of law: Morsi is just another strongman trying to stare down an independent judiciary. That’s true as far as it goes, but there’s an added issue people may miss. Article 2 of the draft constitution declares that Sharia is the principal source of legislation in Egypt. This is nothing new; the Mubarak-era constitution contained the same provision. Traditionally, the SCC has had authority to determine whether Egyptian laws comply with Sharia principles and, traditionally, it has adopted a flexible, non-fundamentalist approach to the question. In staring down the SCC now, Morsi and his allies in the Assembly may be laying down a marker for future conflicts with the SCC over Islamic law. The message seems to be this: power dynamics in Egypt have changed fundamentally, and the SCC had better get in line.

Pargeter, “The Muslim Brotherhood: From Opposition to Power”

mulsim-brotherhood51-217x333This February, Saqi Books will publish The Muslim Brotherhood: From Opposition to Power by Alison Pargeter (University of Cambridge). The publisher’s description follows.

In this authoritative analysis, Alison Pargeter follows the twists and turns of the Muslim Brotherhood as it battled through the years of oppression under authoritarian regimes to finally become a key and legitimate political actor.

From Egypt and Syria to Tunisia and Libya, the Brotherhood and its affiliates are now faced with the complex task of transforming themselves from semiclandestine opposition movements into legitimate political actors and, in some cases, into ruling powers.

Including new chapters on the Brotherhood in the wake of the Arab Spring, this updated edition is the essential guide to understanding the forces shaping the Arab world today.

Brownlee, “Conscience and Conviction: The Case for Civil Disobedience

conscienceconvictionThis December, Oxford University Press will publish Conscience and Conviction: The Case for Civil Disobedience by Kimberley Brownlee (University of Manchester). The publisher’s description follows.

Arguing for the moral and legal defensibility of conscientious disobedience, and particularly civil disobedience, this book first examines the morality of conscience and conscientiousness and then the legality of conscientious breach of law.

Part I focuses on the morality of conscience and conscientiousness. These are two comparatively neglected concepts in contemporary moral and legal theory, though they are central to practical debates about the ethics of war, healthcare, and political participation, among others. The book disambiguates the descriptive notion of conscientiousness as sincere conviction from the evaluative notion of conscience as genuine moral responsiveness. This gives rise to a communicative principle of conscientiousness (CPC), according to which sincere moral conviction requires not only that we act consistently with our beliefs and make universal moral judgements, but also that we not seek to evade the consequences of doing so and be willing to communicate our convictions to others.

The CPC informs the ensuing discussion of persons’ rights and duties within a liberal democracy. In contrast with standard liberal theorizing, the book shows that people who engage in the communicative practice of suitably constrained civil disobedience have a better claim to a moral right to conscientious action than do people who engage in non-communicative, private, or evasive ‘conscientious’ objection.

Part II argues that civil disobedience is generally more defensible than personal disobedience. The book explores two putative legal defences – a demands-of-conviction defence and a necessity defence – and argues that each applies more readily to civil disobedience than to personal disobedience. The book responds to concerns about strategic-action, democracy, competition of values, and proportionality, all of which disregard the communicative nature of sincere conviction and underestimate the capacity of democratic law to recognise the legitimacy and importance of values other than literal compliance with the law.

The book concludes by highlighting a parallel between the communicative aims of civil disobedience and the communicative aims of lawful punishment. Only the former may claim to have dialogue ambitions, which raises difficulties for the justifiability of punishing civil disobedience.

Gedicks on the Affordable Care Act’s Contraception Coverage Mandate

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.

 The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

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Van Wie Davis, “Ruling, Resources and Religion in China”

This October, Macmillan Publishing has published Ruling, Resources and Religion in China by Elizabeth Van Wie Davis (Colorado School of Mines). The publisher’s description follows.

 China is not an easy country to rule: it is experiencing rapid growth and with it rapid social change. Resources and religion are two of the most difficult of its challenges, and their combination with ethnicity is not unique to China. It may well be one of the major underlying currents of the 21st century, and is present throughout Asia—with the Baloch of Pakistan, the Kurds of Iraq and Turkey, and the Timorese of the former island of East Timor in Indonesia, now Timor-Lest. In all these nations, as in China, ethnic identity, often united with religious differences, is driven by the presence of valuable resources to create a nationalism with economic underpinnings. With China, however, the outcome is vital, as how it copes with the pressures for good governance with the Asian economic model, treats its ethnic minorities under scrutiny, and gathers resources to fuel its dynamic economy impacts us all.


Classic Revisited: Hamburger, John Stuart Mill on Liberty and Control

The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history.  My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar.  Fairly recently, I picked up Professor Hamburger’s book on John Stuart Mill: John Stuart Mill on Liberty and Control (1999).

The thesis of the book is that the strong and unqualified libertarian understanding of Mill — the view that Mill was an unadulterated champion of freedom for its own sake — is very much mistaken.  Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:

[A]n explanation of Mill’s overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions.  This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control  requires a different explanation.  It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform.  (18-19)

Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet).  He then spends several very interesting chapters discussing Mill’s aim to vanquish Christianity as the de facto social morality and replace it with a “religion of humanity” — the new moral system which would strike the balance between liberty and control properly:

The real task of religion was to direct emotions and desires away from low objects and to be “paramount over all selfish objects of desire.”  Moreover, it ought to make us disinterested: “It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake.”  Christianity, however, in Mill’s view, did anything but this:

The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person’s own posthumous interests; they tempt him to regard the performance of his duties to others mainly as  a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature.  (43, quoting “Utility of Religion”)

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Another Mandate Lawsuit Dismissed on Ripeness Grounds

The United States District Court for the Western District of Pennsylvania has dismissed without prejudice the complaint of the Diocese of Pittsburgh, Catholic Charities of the Diocese of Pittsburgh, and Catholic Cemeteries against the federal government related to the contraception mandate.  The Diocese of Pittsburgh operates several schools and other charitable institutions, and it self-insures its employees; some of its health plans were grandfathered in by the regulations, some were not.

The court held that the temporary safe harbor provision (which expires on January 1, 2014) and the Advanced Notice of Proposed Rulemaking filed by the federal government on March 21, 2012, which suggests that the government may be amenable to an emendation of the (now final) rule, both indicate that the case is unripe.  As my constitutional law students studying for their Tuesday examination will surely know, ripeness turns on the questions of “fitness” of the issue for adjudication and hardship to the parties of denying review.  The court held that even though the current law is final and has been formally promulgated, the noises made by the government about changing the regulations — in combination with the temporary safe harbor and the presumption that the government is acting in good faith — mean that the case is unripe.  The reasoning more or less follows the pattern set in the Belmont Abbey case (see prior posting).  For good measure, the court held that plaintiffs here had failed to allege standing as, in the court’s view, the injury alleged was too speculative.

The case is Zubik v. Sebelius, 2012 WL 5932977 (W.D. Pa. Nov. 27, 2012).

McDonough, Memon, & Mintz (eds.), “Discipline, Devotion, and Dissent”

This December, Wilfrid Laurier University Press will publish Discipline, Devotion, and Dissent: Jewish, Catholic, and Islamic Schooling in Canada edited by Graham P. McDonough (University of Victoria), Nadeem A. Memon (Islamic Teacher Education Program and Wilfrid Laurier University), and Avi I. Mintz (University of Tulsa). The publisher’s description follows.

The education provided by Canada’s faith-based schools is a subject of public, political, and scholarly controversy. As the population becomes more religiously diverse, the continued establishment and support of faith-based schools has reignited debates about whether they should be funded publicly and to what extent they threaten social cohesion.

These discussions tend to occur without considering a fundamental question: How do faith-based schools envision and enact their educational missions?Discipline, Devotion, and Dissent offers responses to that question by examining a selection of Canada’s Jewish, Catholic, and Islamic schools. The daily reality of these schools is illuminated through essays that address the aims and practices that characterize these schools, how they prepare their students to become citizens of a multicultural Canada, and how they respond to dissent in the classroom.

The essays in this book reveal that Canada’s faith-based schools sometimes succeed and sometimes struggle in bridging the demands of the faith and the need to create participating citizens of a multicultural society. Discussion surrounding faith-based schools in Canada would be enriched by a better understanding of the aims and practices of these schools, and this book provides a gateway to the subject.

Fadel on Church and State in Islam

Mohammad Fadel (University of Toronto Law) has posted Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na’im’s Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective. The abstract follows.

Professor ‘Abdallahi Na’im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na’im’s solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even one hundred years ago. More importantly, revealed religions such as Judaism, Christianity and Islam provide their adherents with their own conceptions of justice that sometimes do conflict with the results of secular lawmaking. I argue that instead of seeking a further separation of religion from the state, on the grounds that the former is irrelevant to the latter, it would be more useful to judge both the claims of religion and the claims of the state from the perspective of the normative concerns of justice. From this perspective, religion can serve as an important source of normative values that can criticize unjust political outcomes. At the same time, however, religion cannot claim for itself immunity from the claims of justice. Instead, a reflective equilibrium between the claims of religion and the claims of the state should be the goal. I conclude with a couple of examples from historical Islamic law illustrating both the resources that Islamic law provides in furthering a more just legal system, and interpretations of historical Islamic doctrines in a fashion that is consistent with the kind of reflective equilibrium that should be the goal of legal reflection in a politically liberal state.

Ahmed & Norton on Religious Tribunals in the United Kingdom

Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women.  The abstract follows.

For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.