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Hughes, “Religion, Law, and the Present Water Crisis”

Hughes_DD_Hardcover:AUS dd.qxd.qxdThis past December, Peter Lang Publishing published Religion, Law, and the Present Water Crisis by Richard A. Hughes (Lycoming College). The publisher’s description follows.

Religion, Law, and the Present Water Crisis documents current and impending global water shortages and opposes policies of commodification and privatization of water ownership by multinational water corporations. On the basis of the religions of the world, Richard A. Hughes appeals to pure, running water as a symbol of the sacred. Furthermore, he argues that all bodies of freshwater are commons and that they should be protected by the public trust doctrine. In addition, he contends that there is a right to water and that this right is independent, free-standing, and the prerequisite of other human rights, applying to all states and occupied territories. The increasing acidification of the oceans makes it mandatory to protect them under the reserved water right doctrine and to designate them as national parks of the seas.

More generally, this book presents a synthesis of water studies and encompasses the religions of the world, theologies of baptism, American water law doctrines, public trust doctrine with special attention to Islamic water law, and international water law treaties. Clean water is a necessity of life. Therefore, it is compelling to recognize the urgency of water scarcity and the need to guarantee the purity of and accessibility to water for all people.

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Kabala, “Church-State Relations in the Early American Republic”

This month, Pickering and Chatto Publishers will publish Church-State Relations in the Early American Republic, 1787-1846 by James S. Kabala (Rhode Island College). The renowned historian Gordon Wood has this to say about Kabala’s superb looking book: “This superb account of church-state relations during the most tumultuous years of American Christendom reveals that our present disputes over the separation of church and state are nothing new. Kabala’s deeply researched book contains the fullest and clearest summary that we have of the bitter struggles during the six decades following 1780 that led to the Protestant non-sectarian consensus of the 1840s.”  The publisher’s description follows.Church-State Relations in the Early American Republic

Americans of the Early Republic devoted close attention to the question of what should be the proper relationship between church and state. This issue engaged participants from all religions, denominations and party affiliations. Kabala examines this debate across six decades and shows that an understanding of this period is not possible without appreciating the key role religion played in the formation of the nation.

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Hamoudi on Religious Minorities and Shari’a in Iraqi Courts

Haider Ala Hamoudi (University of Pittsburgh Law) has posted Religious Minorities and Shari’a in Iraqi Courts. The abstract follows.

There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arab world. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.

In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near Read more

Posted on by Mark Movsesian

European Court’s Judgment in UK Religious Freedom Cases: A First Read

Today, a chamber of the European Court of Human Rights announced its decision in the highly-anticipated Eweida and Others v. United Kingdom, a group of four consolidated cases brought by British Christians who alleged that the UK had violated their religious freedom under the European Convention on Human Rights. From the claimants’ perspective, the outcome was, at best, mixed: the chamber ruled in favor of only one of the four claimants. With respect to the other three, the chamber accepted the government’s argument that important countervailing interests, including the protection of gay rights, outweighed concerns about religious freedom.

The claimants alleged that their employers had violated their religious freedom by disciplining them for manifesting their Christian beliefs. Nadia Eweida, a British Airways employee, and Shirley Chaplain, a hospital nurse, complained that their employers had forbidden them from wearing cross necklaces at work. Lillian Ladele, a public registrar, lost her job when she declined, out of religious conviction, to officiate at civil partnership ceremonies for same-sex couples. Gary McFarlane, a psychotherapist, was fired by a sex counseling service because of his objections to providing sexual advice to same-sex couples. British courts had ruled against all four claimants, who then applied to the European Court for relief.

I won’t get into the details of the analysis here, but, briefly, the European Convention provides that individuals have the right to manifest their religious beliefs, but that governments may limit that right if necessary to protect important countervailing interests, such as public health and “the protection of the rights and freedoms of others.” With respect to the first two claimants, the chamber held that Read more

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Levis on Changes in the Church of England from 1660-1760

The Oxford Journal of Church and State has posted The Pragmatic Pulpit: Politics and Changes in Preaching Styles in the Church of England, 1660–1760 by R. Barry Levis (Rollins College).  An extract of the piece follows.

Victorian evangelicals and Tractarians shared a negative assessment of the eighteenth-century church. E. B. Pusey, for instance, saw the deficiencies of his contemporary church stretching back to the previous century. Pusey, as well as the other Tractarians, maintained that the eighteenth-century church had “suffered deeply, both in lukewarmness of life and degeneracy of faith, until the horrors of the French Revolution awoke us as out of a death-sleep.” In another context, he noted with disdain that “the eighteenth century was comparatively a stagnant period of the Church,—in England, owing to the violent revolution, whereby so many of her best members, the Non-juring Clergy, were ejected, and that, at one time, the State set itself to corrupt and degrade her, and her writers looked for strength in foreign alliances;—abroad, through the development of the principles of the ultra-reformation, and the influence of degraded England and corrupted France.” Instead, Pusey looked with particular nostalgia toward the seventeenth-century divines.

Many in the eighteenth century would have concurred with this judgment that the Church of England suffered from decay in both discipline and doctrine. Fiction writers portrayed its clergy as incompetent buffoons. Henry Fielding famously depicted Parson Trulliber in Joseph Andrews as more at home in the pig sty, “but two steps from his parlour-window,” than the pulpit. Trulliber had a special gift to arouse female members of his congregation with his preaching. One overly stimulated congregant who “to say the truth, the parson had exercised her ways than one; … , resolved to receive the bad things of this world together with the good.” Jane Austen painted an obsequious Mr. Collins in Pride and Prejudice. Likewise, William Hogarth produced several satirical etchings skewering the clergy.

Posted on by Mark Movsesian

Queens Congresswoman Calls for FEMA Funds for Churches Damaged by Hurricane Sandy

Here’s some local law-and-religion news from around CLR headquarters. Congresswoman Grace Meng (D-NY), who represents the congressional district adjacent to St. John’s, is calling for federal funds for houses of worship damaged in Hurricane Sandy last fall. Under present law, houses of worship are not eligible for FEMA assistance, presumably because of Establishment Clause concerns. Meng says she will attempt to amend pending federal disaster legislation to allow FEMA to make grants to houses of worship. She points out that “many churches, synagogues, mosques and temples are ‘pillars of their communities’ that provide essential services – such as employment, child care and food pantries – to local residents.”

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Amara, Abu-Saad & Yiftachel (eds.), “Indigenous (In)Justice”

Next month, Harvard University Press will publish Indigenous (In)Justice: Human Rights Law and Bedouin Arabs in the Naqab/Negev edited by Ahmad Amara (PhD Candidate, NYU), Ismael Abu-Saad (Ben-Gurion University of the Negev), Oren Yiftachel (Ben-Gurion University of the Negev).  The publisher’s description follows.Indigenous (In)Justice

The indigenous Bedouin Arab population in the Naqab/Negev desert in Israel has experienced a history of displacement, intense political conflict, and cultural disruption, along with recent rapid modernization, forced urbanization, and migration. This volume of essays highlights international, national, and comparative law perspectives and explores the legal and human rights dimensions of land, planning, and housing issues, as well as the economic, social, and cultural rights of indigenous peoples. Within this context, the essays examine the various dimensions of the “negotiations” between the Bedouin Arab population and the State of Israel.

Indigenous (In)Justice locates the discussion of the Naqab/Negev question within the broader Israeli-Palestinian conflict and within key international debates among legal scholars and human rights advocates, including the application of the Declaration on the Rights of Indigenous Peoples, the formalization of traditional property rights, and the utility of restorative and reparative justice approaches. Leading international scholars and professionals, including the current United Nations Special Rapporteur on Violence against Women and the former United Nations Special Rapporteur on the Rights of Indigenous Peoples, are among the contributors to this volume.

Posted on by Marc O. DeGirolami

Law as Tradition: Law’s Presence

Professor Martin Krygier’s description and argument for “Law as Tradition” began with a claim about law’s pastness, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all.  The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness).  For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.”  (248)  This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:

In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:

what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.

Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ‘an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and “their historians”]. When it comes to thinking about the past, one characteristic of ‘thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ‘the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’.  What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.

When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality].  All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition.

Posted on by Mark Movsesian

ECtHR to Issue Ruling in UK Religious Freedom Cases Tomorrow

Tomorrow, a chamber of the ECtHR will release its judgment in Eweida and Others v. United Kingdom. As we explained back in September, when the cases were argued, the ECtHR’s ruling could have a major impact on religious freedom jurisprudence under the European Convention on Human Rights:

The applicants in these cases argue that UK courts failed to protect their Article 9 and Article 14 rights by allowing their employers to discipline them for practicing Christianity. Chaplin, a nurse, and Eweida, a British Airways employee, were forbidden by their employers from wearing cross necklaces at work. Ladele, a public registrar, lost her job when she declined, on the ground of religious conviction, to register same-sex civil partnerships. McFarlane, a psychotherapist, lost his job when he expressed doubts as a Christian about the morality of homosexual conduct.

CLR Forum will have an analysis of the judgment later this week.

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Vega on Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank

Matt A. Vega (Thomas Goode Jones School of Law, Faulkner U.) has posted Beyond Incentives: Making Corporate Whistleblowing Moral in the New Era of Dodd-Frank Act “Bounty Hunting”. The abstract follows.

If you can imagine Wall Street as the American Old West and the Securities and Exchange Commission (“SEC”) as the local sheriff, then the SEC’s new bounty program is the equivalent of nailing up reward signs all over town that read: “Wanted: Dead or Alive.”  The agency is looking for information regarding publicly traded companies, financial services institutions, and other covered entities who may have violated U.S. securities laws, and it is willing, more than ever, to pay a premium for the information.

On July 21, 2010, President Obama signed into law the Dodd-Frank Act that, among other things, amends the Securities Exchange Act of 1934 by adding Section 21F “Securities Whistleblower Incentives and Protection.”  This obscure and little debated section offers whistleblowers multi-million dollar “bounties” for reporting suspected securities law violations directly to the SEC.  Under the program, which went into effect last year, the SEC is required to pay as a bounty to whistleblowers who voluntarily provide the agency with “original information” an amount equal to 10% to 30% of any monetary sanctions exceeding $1 million dollars.  When the average SEC settlement is over $18.3 million dollars, whistleblowers can expect the average bounty to be well in the range of $2 million to $5 million dollars.

This new program is fundamentally flawed because it attempts to combat corporate opportunism by encouraging employee opportunism.  To solve systemic problems like securities fraud and foreign bribery, the SEC needs to look beyond financial incentives.  It needs to take a step back and consider the basic moral principles of mutual self-interest and subsidiarity. These normative arguments were sorely missing in the debates leading up to the final rules implementing the bounty program.  These principles make clear that what is missing from Congress’s latest effort is mandatory internal reporting.

This Article endorses the Whistleblower Improvement Act of 2011, H.R. 2483, which was introduced by Congressman Michael Grimm in the first session of the 112th Congress and would require internal reporting as a condition for money benefits under the SEC’s new bounty program.  This amendment is needed not just to make corporate compliance programs work in the new era of SEC bounty hunting, but to make whistleblowing morally upright.