Law as Tradition: Law’s Pastness

This is perhaps not directly connected to religion, but — indirectly — the connection could not be much closer.

One of the happy byproducts of a recent exchange with my friend John Inazu was his reference to an essay by Martin Krygier from nearly thirty years ago, Law as Tradition, 5 Law & Philosophy 237 (1986).  Because the essay is not publicly available, and at the risk of provoking the copyright goddess, I thought to post a few portions of it in this and subsequent posts.  The essay is well worth reading in full.  Krygier identifies and discusses three special features of law as tradition: law’s pastness, law’s authoritative presence, and law’s transmission or continuity from past to present.

Here’s the sense of Professor Krygier’s discussion of law’s pastness.  As in every tradition, law records, preserves, and ‘hands down’ across the generations a composite of opinions and values.  But unlike in other traditions, in law the maintenance and transmission of the past is itself institutionalized.  And that institutionalization gives the past a particular kind of power, though the power is of course far from absolute (in part this is because the tradition itself is variegated and not univocal).

Judging, he writes,

that activity so favoured with jurisprudential attention and writings, is an archetypally traditional and tradition-referring practice. For however innovative judges are, their modes of justifying decisions, and therefore the sorts of arguments which must be addressed to them, in fact or hypothetically, differ systematically from those of other decision-makers such as, say, engineers or entrepreneurs, or workers in less self-consciously authority-filled traditions, such as novelists, artists or scientists, who themselves are in no way free from the traditions of their calling. Judging is a specific and characteristic mode of making and justifying practical decisions: a judicial decision is one which is justified publicly by reference to authorized institutional tradition. In those hard cases that lawyers and legal theorists so enjoy to contemplate, the need publicly to justify one’s decision in terms of interpretations of the legal past which seem plausible to experts, remains important long after simple rule-application has ceased to be possible. Doing this involves neither application of a clear unequivocal rule, as in the perhaps mythical easy cases, nor invention ex nihilo, but inescapably (though not only) inter-pretation of authorized institutional tradition. (245)

Ten Napel on An Alternative Approach to Limiting Government Religious Displays in the Public Workplace

Hans-Martien Ten Napel (Leiden Law School) has posted Beyond Lautsi: An Alternative Approach to Limiting the Government’s Ability to Display Religious Symbols in the Public Workplace. The abstract follows.

One of the central ideas underlying the chapter is that the questions regarding the limits of the government’s ability to display religious symbols in the public sphere, and how judges should deal with the manifestation by citizens of religious symbols in public institutions, are closely interrelated.

First, the Chamber and Grand Chamber judgments in the Lautsi case and several related cases in the Italian context will be discussed. Next, two prototypical reactions will be described: one (Mancini’s) agreeing with the Chamber judgment; the other (Weiler’s) agreeing with the Grand Chamber judgment. Finally, after a brief comparison with U.S. case law, an alternative approach inspired by the concept of positive secularism is sketched as a possible way out of this deadlock. This concept has recently been defended in the report of The Consultation Commission on Accommodation Practices Related to Cultural Differences (CCPARDC), which was responsible for analyzing the challenges posed by a new migratory situation in Québec, Canada, among others. The chapter ends with a conclusion.

Moseley, “Nations and Nationalism in the Theology of Karl Barth”

51G+ef0ZdGL._SS500_In March, Oxford University Press will publish Nations and Nationalism in the Theology of Karl Barth by Carys Moseley (University of Edinburgh). The publisher’s description follows.

Karl Barth was well-known for his criticism of German nationalism as a corrupting influence on the German protestant churches in the Nazi era. Defining and recognising nationhood as distinct from the state is an important though underappreciated task in Barth’s theology. It flows out of his deep concern for the capacity for nationalist dogma – that every nation must have its own state – to promote warfare. The problem motivated him to make his famous break with German liberal protestant theology.

In this book, Carys Moseley traces how Barth reconceived nationhood in the light of a lifelong interest in the exegesis and preaching of the Pentecost narrative in Acts 2. She shows how his responsibilities as a pastor of the Swiss Reformed Church required preaching on this text as part of the church calendar, and thus how his defence of the inclusion of the filioque clause in the Niceno-Constantinopolitan Creed stemmed from his ministry, homiletics and implicit missiology.

The concern to deny that nations exist primordially in creation was a crucial reason for Barth’s dissent from his contemporaries over the orders of creation, and that his polemic against ‘natural theology’ was largely driven by rejection of the German liberal idea that the rise and fall of nations is part of a cycle of nature which simply reflect divine action. Against this conceit, Barth advanced his famous doctrine of the election of Israel as part of the election of the community of the people of God. This is the way into understanding the division of the world into nations, and the divine recognition of all nations as communities wherein people are meant to seek God.

Coming Economic Crisis in Egypt?

Here at CLR Forum, we’ve been thinking about the role of Islamic law in Egypt’s new constitution, which voters approved last month. The new constitution represents a significant victory for Morsi’s Muslim Brotherhood. But, as Walter Russell Mead points out on his blog today, the Brotherhood still faces major problems. Egypt is on the brink of an economic crisis that the Morsi government seems unable to handle.

Since the Arab Spring, foreign investors and tourists have fled Egypt and the country’s currency has plummeted. Regional allies like Turkey and Qatar have lent Egypt billions of dollars, but the IMF, which has the real money, is refusing to advance roughly $5 billion until the Morsi government implements an austerity package. This would mean political disaster for Morsi, since many Egyptians depend on government food subsidies to survive. So things are in a holding pattern. Meanwhile, the bad economy is creating a security crisis. Egyptians complain about a lack of basic safety.

It’s hard to know what will come next. Perhaps frustrated Egyptians will decide that the problem is that the Muslim Brotherhood is not Islamist enough and turn to the even more radical Salafis. I can’t imagine the Salafis would have a better relationship with the IMF, though. Or perhaps a military strongman who mouths the correct pieties will take charge. Anyway, it’s hard to imagine a situation in which Egyptians turn to the secular liberals whom the West hoped would run Egypt after the fall of Mubarak.

Esposito, “The Future of Islam”

0195165217This March, Oxford University Press will publish The Future of Islam by John L. Esposito (Georgetown University). The publisher’s description follows.

John L. Esposito is one of America’s leading authorities on Islam. Now, in this brilliant portrait of Islam today–and tomorrow–he draws on a lifetime of thought and research to sweep away the negative stereotypes and provide an accurate, richly nuanced, and revelatory account of the fastest growing religion in the world.

Here Esposito explores the major questions and issues that face Islam in the 21st century and that will deeply affect global politics. Are Islam and the West locked in a deadly clash of civilizations? Is Islam compatible with democracy and human rights? Will religious fundamentalism block the development of modern societies in the Islamic world? Will Islam overwhelm the Western societies in which so many Muslim immigrants now reside? Will Europe become Eurabia or will the Muslims assimilate? Which Muslim thinkers will be most influential in the years to come? To answer this last question he introduces the reader to a new generation of Muslim thinkers–Tariq Ramadan, Timothy Winter, Mustafa Ceric, Amina Wadud, and others–a diverse collection of Muslim men and women, both the “Martin Luthers” and the “Billy Grahams” of Islam. We meet religious leaders who condemn suicide bombing and who see the killing of unarmed men, women, and children as “worse than murder,” who preach toleration and pluralism, who advocate for women’s rights. The book often underscores the unexpected similarities between the Islamic world and the West and at times turns the mirror on the US, revealing how we appear to Muslims, all to highlight the crucial point that there is nothing exceptional about the Muslim faith.

Recent decades have brought extraordinary changes in the Muslim world, and in addressing all of these issues, Esposito paints a complex picture of Islam in all its diversity–a picture of urgent importance as we face the challenges of the coming century.