Posted on by Mark Movsesian

Stern, “The Genius”

From Yale historian Eliyahu Stern, a new monograph on Rabbi Elijah of Vilna, the eighteenth-century Jewish law scholar and opponent of Hasidism, whose understanding of Jewish customs, or minhag, continues to have influence today: The Genius: Elijah of Vilna and the Making of Modern Judaism (Yale 2012). The publisher’s description follows:

Elijah ben Solomon, the “Genius of Vilna,” was perhaps the best-known and most understudied figure in modern Jewish history. This book offers a new narrative of Jewish modernity based on Elijah’s life and influence.

While the experience of Jews in modernity has often been described as a process of Western European secularization—with Jews becoming citizens of Western nation-states, congregants of reformed synagogues, and assimilated members of society—Stern uses Elijah’s story to highlight a different theory of modernization for European life. Religious movements such as Hasidism and anti-secular institutions such as the yeshiva emerged from the same democratization of knowledge and privatization of religion that gave rise to secular and universal movements and institutions. Claimed by traditionalists, enlighteners, Zionists, and the Orthodox, Elijah’s genius and its afterlife capture an all-embracing interpretation of the modern Jewish experience. Through the story of the “Vilna Gaon,” Stern presents a new model for understanding modern Jewish history and more generally the place of traditionalism and religious radicalism in modern Western life and thought.

Posted on by Mark Movsesian

Nadeau, “Rebirth of the Sacred”

I wouldn’t be the first to point out that popular environmentalism has a lot in common with pantheism. But one doesn’t have to make environmentalism a religion in order to see that the movement shares concerns with traditional religious worldviews. For example, the present Ecumenical Patriarch of the Orthodox Church, Bartholomew, has earned the nickname “the Green Patriarch” for his efforts in encouraging Christian stewardship of the world’s resources. Oxford has released a new book by Robert Nadeau, Rebirth of the Sacred: Science, Religion, and the New Environmental Ethos (2012), that explores the relationship between spirituality and environmentalism. The publisher’s description follows.

There is also a large and growing consensus in the scientific community that resolving the environmental crisis will require massive changes in our political and economic institutions and new standards for moral and ethical behavior. In this groundbreaking book, Robert Nadeau makes a convincing case that these remarkable developments could occur if sufficient numbers of environmentally concerned people participate in the new dialogue between the truths of science and religion.

Those who enter this dialogue will discover that the most fundamental scientific truths in contemporary physics and biology are analogous to and fully compatible with the most profound spiritual truths in all of the great religious traditions of the world. They will learn that recent scientific Read more

Posted on by Marc O. DeGirolami

Richard Hooker on Law, the Ancient, and the Good

Richard Hooker was a sixteenth-century Anglican churchman whose Of the LawsRIchard Hooker of Ecclesiastical Polity (1594-1597) is both a masterpiece of Anglican theology and a work of extraordinary stylistic elegance and force.  It was written primarily as a defense of the Church of England against the Puritan challenge, but Hooker ranges over many subjects of more general interest related to law, authority, custom, change, and tradition.  Over the last couple of days, on the recommendation of a friend, I’ve been reading fragments of the Laws here and there (you can access the whole thing for free at the link above).  I cannot recommend it more highly.

Here is my favorite passage (so far!) — from Book V, Chapter 7.  It relates closely to some of the things we think about on CLR Forum, from time to time.  Merry Christmas to those of our readers who are celebrating the holiday.

VII. Neither may we in this case lightly esteem what hath been allowed as fit in the judgment of antiquity, and by the long continued practice of the whole Church; from which unnecessarily to swerve, experience hath never as yet found it safe. For wisdom’s sake we reverence them no less that are young, or not much less, than if they were stricken in years. And therefore of such it is rightly said that their ripeness of understanding is “grey hair,” and their virtues “old age.” But because wisdom and youth are seldom joined in one, and the ordinary course of the world is more according to Job’s observation, who giveth men advice to seek “wisdom amongst the ancient, and in the length of days, understanding;” therefore if the comparison do stand between man and man, which shall hearken unto other; sith the aged for the most part are best experienced, least subject to rash and unadvised passions, it hath been ever judged reasonable that their sentence in matter of counsel should be better trusted, and more relied upon than other men’s. The goodness of God having furnished man with two chief instruments both necessary for this life, hands to execute and a mind to devise great things; the one is not profitable longer than the vigour of youth doth strengthen it, nor the other greatly till age and experience have brought it to perfection. In whom therefore time hath not perfected knowledge, such must be contented to follow them in whom it hath. For this cause none is more attentively heard than they whose speeches are as David’s were, “I have been young and now am old,” much I have seen and observed in the world. Sharp and subtile discourses of wit procure many times very great applause, but being laid in the balance with that which the habit of sound experience plainly delivereth, they are overweighed. God may endue men extraordinarily with understanding as it pleaseth him. But let no man presuming thereupon neglect the instructions, or despise the ordinances of his elders, sith He whose gift wisdom is hath said, “Ask thy father and he will shew thee; thine ancients and they shall tell thee.”

[2.]It is therefore the voice both of God and nature, not of learning only, that especially in matters of action and policy, “The sentences and judgments of men experienced, aged and wise, yea though they speak without any proof or demonstration, are no less to be hearkened unto, than as being demonstrations in themselves; because such men’s long observation is as an eye, wherewith they presently and plainly behold those principles which sway over all actions.” Whereby we are taught both the cause wherefore wise men’s judgments should be credited, and the mean how to use their judgments to the increase of our own wisdom. That which sheweth them to be wise, is the gathering of principles out of their own particular experiments. And the framing of our particular experiments according to the rule of their principles shall make us such as they are.

[3.]If therefore even at the first so great account should be made of wise men’s counsels touching things that are publicly done, as time shall add thereunto continuance and approbation of succeeding ages, their credit and authority must needs be greater. They which do nothing but that which men of account did before them, are, although they do amiss, yet the less faulty, because they are not the authors of harm. And doing well, their actions are freed from prejudice of novelty. To the best and wisest , while they live, the world is continually a froward opposite, a curious observer of their defects and imperfections; their virtues it afterwards as much admireth. And for this cause many times that which most deserveth approbation would hardly be able to find favour, if they which propose it were not content to profess themselves therein scholars and followers of the ancient. For the world will not endure to hear that we are wiser than any have been which went before. In which consideration there is cause why we should be slow and unwilling to change, without very urgent necessity, the ancient ordinances, rites, and long approved customs, of our venerable predecessors. The love of things ancient doth argue stayedness, but levity and want of experience maketh apt unto innovations. That which wisdom did first begin, and hath been with good men long continued, challengeth allowance of them that succeed, although it plead for itself nothing. That which is new, if it promise not much, doth fear condemnation before trial; till trial, no man doth acquit or trust it, what good soever it pretend and promise. So that in this kind there are few things known to be good, till such time as they grow to be ancient. The vain pretence of those glorious names, where they could not be with any truth, neither in reason ought to have been so much alleged, hath wrought such a prejudice against them in the minds of the common sort, as if they had utterly no force at all; whereas (especially for these observances which concern our present question) antiquity, custom, and consent in the Church of God, making with that which law doth establish, are themselves most sufficient reasons to uphold the same, unless some notable public inconvenience enforce the contrary. For a small thing in the eye of law is as nothing.

[4.]We are therefore bold to make our second petition this, That in things the fitness whereof is not of itself apparent, nor easy to be made sufficiently manifest unto all, yet the judgment of antiquity concurring with that which is received may induce them to think it not unfit, who are not able to allege any known weighty inconvenience which it hath, or to take any strong exception against it.

Posted on by Mark Movsesian

Shopping on Sunday

Every year, it seems, Christmas becomes more commercialized. In NYC this year, we started seeing Christmas decorations in stores in October. In October. Christmas is starting to lap Halloween.

I was thinking about this when I read that the Catholic Church in Italy is working to repeal that country’s new Sunday shopping law. Earlier this year, in an effort to stimulate the Italian economy, the Monti government enacted a law allowing shops across the country to open on Sundays. The new law is opposed by a coalition including the Vatican, small shop owners, and some secularists who argue that a nationwide day of rest is in everyone’s interest. The Italian campaign is part of a larger movement called the European Sunday Alliance, a network of “trade unions, civil society organizations and religious communities committed to raise awareness of the unique value of synchronized free time for our European societies.”

The Sunday Alliance is not at heart religious . Sure, some Christians argue that Sunday shopping violates the Sabbath, but mostly the movement has secular goals, such as working less, putting a brake on commercialism, and spending time with family and friends. To be sure, small shop owners have an economic interest in ending Sunday shopping, since the practice disproportionately favors big-box retailers. But it’s not like the big-box retailers who favor Sunday shopping are being altruistic. They’re only advancing their economic interests.

The arguments for allowing Sunday shopping are pretty straightforward. Increased commercial activity means more wealth and greater tax revenues. More people will be able to find employment. And there is the matter of consumer choice. If Read more

Posted on by Marc O. DeGirolami

Missouri Federal District Court Enjoins HHS Mandate

The momentum in the HHS mandate cases seems to be moving against the federal government.  The more time that goes by, the weaker the standing and ripeness objections become, and the more likely that courts will begin to turn their attention to the merits.  The legal argument for the mandate seems to be flagging even in those cases where it seemed (at least to me) that the government’s case was comparatively stronger.

On Thursday, the United States District Court for the Western District of Missouri issued a preliminary injunction against the government from enforcing the mandate against a private company, American Pulverizer Co., whose owners are Evangelical Christians who believe that the use of contraception is contrary to their religious beliefs.  Plaintiffs’ companies employ about 150 people, and the current plans cover contraceptive services (perhaps a notable feature of the plans, in my opinion, insofar as the “substantial burden” prong of the RFRA standard is concerned, though the court did not discuss it in reaching its decision).  But plaintiffs wish to change the plans to exclude contraceptive coverage.

As in the O’Brien case referenced by the court (and in which the Eighth Circuit essentially granted the claimant’s motion for preliminary injunction pending appeal), the plaintiffs do not qualify for any exemption or safe harbor from enforcement — they are not religious employers under the terms of the ACA, the don’t qualify for the safe harbor available to non-profits, and they don’t qualify for grandfathered status.  That means the regulation would be enforced against them at the beginning of the new year.

In granting the preliminary injunction against the government, the court essentially punted on the question of whether a corporation can exercise religion, ruling that because the issue demands further “deliberate investigation,” an injunction was warranted.  And it further held that indirect impositions on religious beliefs can constitute substantial burdens.  Finally, the court held that the government could not satisfy its burden to demonstrate that it is advancing a compelling state interest in imposing the mandate, in light of the numerous exceptions contained in the law: “these exemptions undermine any compelling interest in applying the preventative coverage mandate to Plaintiffs.”

The case is American Pulverizer Co. et al. v. U.S. Department of Health and Human Services, No. 12-3459-CV-S-RED (W.D. Mo. Dec. 20, 2012).

Posted on by Mark Movsesian

Katz, “Prayer in Islamic Thought and Practice”

NYU’s Marion Holmes Katz has written a new monograph on the understanding of prayer in Islamic law and mysticism, Prayer in Islamic Thought and Practice (Cambridge 2013). The publisher’s description follows:

The five daily prayers (ṣalāt) that constitute the second pillar of Islam deeply pervade the everyday life of observant Muslims. Until now, however, no general study has analyzed the rules governing ṣalāt, the historical dimensions of its practice, and the rich variety of ways that it has been interpreted within the Islamic tradition. Marion Holmes Katz’s richly textured book offers a broad historical survey of the rules, values, and interpretations relating to ṣalāt. This innovative study on the subject examines the different ways in which prayer has been understood in Islamic law, Sufi mysticism, and Islamic philosophy. Katz’s book also goes beyond the spiritual realm to analyze the political dimensions of prayer, including scholars’ concerns about the righteousness and piety of rulers. The last chapter raises significant issues around gender roles, including the question of women’s participating in and leading public worship. Katz persuasively describes ṣalāt as both an egalitarian practice and one that can lead to extraordinary religious experience and spiritual distinction. This book will resonate with students of Islamic history and comparative religion.

Posted on by Mark Movsesian

McMahon, “Slavery and Emancipation in Islamic East Africa”

From Cambridge University Press, a new monograph on the abolition of slavery in Africa 100 years ago, Slavery and Emancipation in Islamic East Africa (2013), by Tulane professor Elizabeth McMahon. The publisher’s description follows:

Examining the process of abolition on the island of Pemba off the East African coast in the late nineteenth and early twentieth centuries, this book demonstrates the links between emancipation and the redefinition of honor among all classes of people on the island. By examining the social vulnerability of ex-slaves and the former slave-owning elite caused by the Abolition order of 1897, this study argues that moments of resistance on Pemba reflected an effort to mitigate vulnerability rather than resist the hegemonic power of elites or the colonial state. As the meanings of the Swahili word heshima shifted from honor to respectability, individuals’ reputations came under scrutiny and the Islamic kadhi and colonial courts became an integral location for interrogating reputations in the community. This study illustrates the ways in which former slaves used piety, reputation, gossip, education, kinship, and witchcraft to negotiate the gap between emancipation and local notions of belonging.

Posted on by Marc O. DeGirolami

A Little Mood Music

From Richard Posner’s The Problematics of Moral and Legal Theory (1999), pp. 67-68:

Every academic moralist believes implicitly that his is the right approach and everyone should follow it….But given the variety of necessary roles in a complex society, it is not a safe idea to have a morally uniform population.  On the one hand, we need soldiers, police, jailers, judges, spies, and other operators of society’s security apparatus; also politicians, entrepreneurs, managers of huge enterprises, and administrators of lunatic asylums.  On the other hand we need mothers, nurses, forest rangers, kindergarten teachers, zookeepers, and ministers of religion.  We need gentle, kind, and sensitive people, but we also need people who are willing to employ force, to lie, to posture, to break rules, to enforce rules, to rank people . . . . We need people who are empathetic and sympathetic but also people who are brave, tough, callous, and obedient–and others who are brave, tough, callous, and defiant . . . .

A related point, one that can be tied back to moralists’ inability to resolve moral dilemmas in a convincing fashion, is that they disvalue conflict and hence tragedy . . . . The law has to deal with these tragic situations somehow, but it does not have to yield to the moralist who believes that no moral dilemma is beyond the power of moral reasoning to resolve.  It is better for the law to adapt to the elements of ineradicable conflict in modern social life than to submerge them under a factitious intellectual harmony.

Posted on by Mark Movsesian

Religion in the National Intelligence Council Report

One often hears that America’s foreign policy elites don’t understand religion. Mostly secular themselves, they dismiss religion as a factor in world events; at most, they believe, religion operates as a pretext for other, deeper motivations, like politics and economics. This attitude can blind policymakers to reality. Even after 9/11, some foreign policy experts continue to minimize the religious roots of Islamism.

Some of this attitude is on display in the most recent National Intelligence Council Report, Global Trends 2030: Alternative Worlds, released earlier this month. The report, prepared every four years for the incoming administration, is meant to highlight medium and long-term trends in world affairs. Global Trends 2030 has received a lot of attention, primarily for its prediction of a decline in American power and a shift to a multipolar world. The report is also noteworthy, though, for the way it downplays religion’s role in shaping events.

It’s not that Global Trends 2030 completely ignores religion. The report discusses political Islam — we’re now paying attention to that phenomenon, at least — though some of the analysis might strike readers as optimistic, for example, the assertion that the protesters of the Arab Spring “acted in the name of democratic values, not in the name of religion.” (Apparently the report was prepared before recent events in Egypt). The problem is that the report minimizes religion. In 140 pages, Read more

Posted on by Mark Movsesian

Wheeler, “How Sex Became a Civil Liberty”

In America, sex has been constitutionalized. In a series  of opinions over several decades, the Supreme Court has held that the Constitution protects sexually explicit speech, contraception, abortion, and, latterly, homosexual conduct. The Court may be about to declare same-sex marriage a constitutional right. All this has put significant pressure upon traditionalist religions. More and more, fights about religious liberty involve the right to dissent — and to act in ways that reflect that dissent — from the legal consensus on sexuality.

How did this conflict develop? A new book from Oxford University Press, How Sex Became a Civil Liberty (2012), traces the role of one particular organization, the American Civil Liberties Union. Leigh Ann Wheeler (Binghamton University) argues that “creative individuals” at the ACLU “wrote sexual rights into the U.S. Constitution, a document that made no mention of them,” and helped change American culture. She does not simply celebrate these developments, however; she “shows how hard-won rights for some often impinged upon freedoms held dear by others.” Here’s the publisher’s description of the book:

How Sex Became a Civil Liberty is the first book to show how and why we have come to see sexual expression, sexual practice, and sexual privacy as fundamental rights. Using rich archival sources and oral interviews, historian Leigh Ann Wheeler shows how the private lives of women and men in the American Civil Liberties Union shaped their understanding of sexual rights as they built the constitutional foundation for the twentieth-century’s sexual revolutions.

Wheeler introduces readers to a number of fascinating figures, including ACLU founders Crystal Eastman and Roger Baldwin; nudists, victims of involuntary sterilization, and others who appealed to the organization for help; as well as attorneys like Read more