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Sepper on Taking Conscience Seriously

Elizabeth Sepper (Washington U. School of Law) has posted Taking Conscience Seriously. The abstract follows.

For too long, the conventional account of morality in medicine has placed conscience firmly on one side of the moral divide. The archetypal doctor who refuses to participate in controversial treatments—most commonly end-of-life care, abortion, sterilization, and contraception—has been the lodestar of legislative efforts and scholarly accounts. In the name of institutional conscience, healthcare facilities have also been permitted to assert moral or religious objections to care and impose them on employees and affiliates of all beliefs and backgrounds. Doctors, nurses, and institutions that are willing to deliver controversial care have been virtually absent from discussions.

This Article aims to reframe the debate by taking conscience seriously. Through engagement with the moral philosophical literature, it makes two inter-related arguments. First, conscience equally may compel a doctor or nurse to deliver a controversial treatment to a patient in need. Yet legislation meant to protect conscience, paradoxically, has undermined the consciences of these doctors and nurses. Second, endowing healthcare institutions with conscience via legislation is theoretically and practically problematic. By privileging the institutions’ rights to refuse to provide certain treatments, legislation impinges on the rights of individual providers to provide care they feel obligated by conscience to deliver. Ultimately, if legislation is to protect conscience, it must negotiate between competing claims of conscience of health providers and the facilities in which they work—regardless of whether they refuse or are willing to provide controversial care. This Article introduces a new framework for achieving a better balance between the interests of institutions, individual doctors and nurses, and the patients who depend on them for care.

Posted on by Mark Movsesian

Ross on Mosaic Law in Early Protestant Jurisprudence

From the beginning, Christian jurisprudence has tried to distinguish the “moral” elements of the Mosaic Law, which continue to bind Christians, from the “ceremonial,” which do not. Richard Ross (University of Illinois) has written what looks to be a fascinating essay, Distinguishing Eternal from Transient Law: Natural Law and the Judicial Law of Moses,  on the efforts of Protestants in early modern Europe and New England to grapple with this distinction. He ties their work  to similar efforts by natural law theorists of the period to differentiate between eternal and merely local principles. The abstract follows.

This essay examines two interlinked efforts in early modern Europe and New England to distinguish legal provisions valid across different societies and time periods from those that were local and transitory and therefore not compulsory in the present. Consider, first, the judicial laws of Moses. A minority of Protestants, whom I will call the “Mosaic legalists,” tried to ascertain which Old Testament judicial ordinances were no longer obligatory because they were particular to the Jewish commonwealth, and which were eternally-valid “appendices” to the natural law and Decalogue. The challenge of differentiating the perpetual from the local also occupied early modern students of the law of nature. Whether one believed that God impressed natural law upon the world or that people deduced natural law Read more

Posted on by Marc O. DeGirolami

Meyerson on the Founders’ “Spiritual Public Vocabulary”

The last little period of lack of light has brought with it the consolation of catching up on some overdue reading.  One of the books I’ve been enjoying, and learning from, is Michael Meyerson’s recent book, Endowed by Our Creator: The Birth of Religious Freedom in America (2012).  Professor Meyerson focuses in large measure on Establishment Clause-related questions.  Here is an interesting passage toward the end:

…Washington was not content to use religious speech merely because it “was recognized across . . . a broad and diverse range of the population.”  His vision for the nation was far more inclusive.  “The bosom of America is open,” he wrote, “to receive the oppressed and persecuted of all nations and religions; whom we shall welcome to a participation of all our rights and privileges, if by decency and propriety of conduct, they appear to merit the enjoyment.”

Nevertheless, it would be a mistake to treat the religious language employed by Washington, Jefferson, and Madison as empty formality.  Their words were carefully chosen to be devout as well as inclusive.  Those in the framing generation were not trying to establish a ‘civil religion.’ . . . . Certainly, the framers never evinced a desire to construct a public religion that was distinct from traditional religions.  They were trying to create a spiritual public vocabulary that could be appreciated by the full range of individuals in a diverse population.  Those from orthodox religions could hear this language not merely as consistent with their prayers but as part of them.  They could recite the official religious language along with that of their own faith and not feel as if they had left their religion behind.

But the framers’ language was expansive enough to permit those who belonged to minority religions, along with those outside the mainstream of religious belief, to join in the experience of a conscientious communion with the rest of their nation.  Some will always decline this invitation, and that is their right.  But the framers’ language was designed to communicate to all, including the Deistic, agnostic, and atheistic, that they were valued members of the political community.  (269-70)

It’s a well-done passage, I thought, inasmuch as it tries to describe accurately the nuances in play in the historical use of religious language and symbolism in the American public context.

Posted on by JCPW

Reid, “Ritual Piety in Medieval Islamic Law”

This March, Cambridge University Press will publish Ritual Piety in Medieval Islamic Law by Megan H. Reid (University of Southern California). The publisher’s description follows.

The Ayyubid and Mamluk periods were some of the most intellectually fecund in Islamic history. Megan Reid’s book, which traverses three centuries from 1170 to 1500, recovers the stories of medieval men and women who were renowned not only for their intellectual prowess but also for their devotional piety. Through these stories, the book examines trends in voluntary religious practice that have been largely overlooked in modern scholarship. This type of piety was distinguished by the pursuit of God’s favor through additional rituals, which emphasized the body as an instrument of worship and the rejection of the temptation of worldly pleasures and even society itself. Using an array of sources including manuals of law, fatwa collections, chronicles and obituaries, the book shows what it meant to be a good Muslim in the medieval period and how Islamic law defined holy behavior. In its concentration on personal piety, ritual and religious practice the book offers an intimate perspective on early Islamic society.

Posted on by Mark Movsesian

10 Commandments Judge to Return to Alabama Supreme Court

The Mojave Desert cross is not the only Establishment Clause icon to make a comeback this week. Roy Moore, the former Chief Judge of the Alabama Supreme Court, who famously defied a federal court order to remove a Ten Commandments monument from the state courthouse, has won election to his old job. In 2003, a state judicial ethics panel removed Moore from office for failing to comply with the federal court order. This week, the voters of Alabama sent Moore back to his former position. Moore told his supporters that he would continue “to stand for the acknowledgment of God,” but has promised not to try to restore the monument.

Posted on by JCPW

Fitzpatrick, “Strange Gods: Legal Theology in a Modern Age”

This July, Routledge-Cavendish will publish Strange Gods: Legal Theology in a Modern Age by Peter Fitzpatrick (Birkbeck College, University of London). The publisher’s description follows.

Legal Theology provides a genealogy of modern law as a secular theology, calling into question the received ideas that modern law is radically different from its religious antecedents, and that modernity involved a repudiation of theological concepts. Peter Fitzpatrick charts the lineage of this secular theology through three ‘historicities’: the creation of the world’s imperium, of the modern world-system, in the sixteenth century; the time of revolutions of the seventeenth and eighteenth centuries; and the high modernism of the nineteenth and twentieth centuries. Respectively condensed here in the writings of Vitoria, Hobbes and Nietzsche, Fitzpatrick documents the substitution of a monotheistic God by successive articulations of a persistently ‘deific’ law. Legal Theology thus questions the story of secularism’s triumph, by eliciting the essentially religious force of modern law: a force that is, moreover, recognisable in secularism’s contemporary imperial mission.

Posted on by Marc O. DeGirolami

Mojave Desert Cross to Return on Veteran’s Day

The cross at one time placed on “Sunrise Rock” in the Mojave Desert and which formed the basis of the law suit in Salazar v. Buono is slated to be displayed again on Veteran’s Day.  Originally, the cross was displayed in 1934 by World War I veterans to honor veterans of that war; it now commemorates veterans of all wars.  The land swap organized by Congress some years ago, in which the property on which the cross stands was transferred to private hands (to the Veterans of Foreign Wars), was approved and the ACLU’s Establishment Clause objection seems for now to have been rejected by the district court.

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McAleese, “Quo Vadis? Collegiality in the Code of Canon Law”

This January, Columba Press will publish Quo Vadis? Collegiality in the Code of Canon Law by Mary McAleese (former President of Ireland). The publisher’s description follows.

 In her first book since leaving Aras An Uachtarain, Mary McAleese has produced a masterful and highly accessible study of how Vatican II’s teachings on collegiality, or how power and responsibility were to be shared between the Pope and the college of bishops within the Catholic Church, have either been sidetracked or not yet come to fruition, depending on how you interpret the events which followed the Council up to the present day.

Vatican II embraced a fresh new vision of the Church as the People of God, turning away from the rigidly hierarchic structure of the past. It left a clear picture of the Church as communio or community but no clear road-map of how to get there. While it sowed seeds of confusion it also infused into the Church an expectation of broader ecclesial participation and co-responsibility which has impacted in many different ways. Read more

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Botham, “Almighty God Created the Races: Christianity, Interracial Marriage, and American Law”

This February, the University of North Carolina Press will publish a paperback edition of Almighty God Created the Races: Christianity, Interracial Marriage, and American Law by Fay Botham (visiting assistant professor at Hobart and William and Smith Colleges). The publisher’s description follows.

 In this fascinating cultural history of interracial marriage and its legal regulation in the United States, Fay Botham argues that religion–specifically, Protestant and Catholic beliefs about marriage and race–had a significant effect on legal decisions concerning miscegenation and marriage in the century following the Civil War. She contends that the white southern Protestant notion that God “dispersed” the races and the American Catholic emphasis on human unity and common origins point to ways that religion influenced the course of litigation and illuminate the religious bases for Christian racist and antiracist movements.

Posted on by Marc O. DeGirolami

DeGirolami, “The Punishment Jurist”

I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment.  It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period.  The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.

In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.”  And one of the matters he takes up is the crime of witchcraft.  I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.

Comments are welcome.