Papal Resignation: The Canon Law

It just shows you. Even an institution as ancient and traditional as the papacy still retains the ability to shock. Pope Benedict’s announcement today that he will resign for health reasons, effective February 28, seems to have taken everyone, including Vatican insiders, by surprise. It is the first papal resignation since the year 1415.

Canon law on papal resignation is surprisingly – or, come to think of it, unsurprisingly – brief. Canon 332(2) of the current Code of Canon Law provides simply that ” If it happens that the Roman Pontiff resigns his office, it is required for validity that the resignation is made freely and properly manifested but not that it is accepted by anyone.” A leading commentary notes that Canon 332(2) does not specify the person or persons to whom a pope must manifest his resignation. Some scholars argue that the college of cardinals, as the body that elects the pope, is the proper recipient. But that’s not entirely clear; anyway, in Catholic understanding, the pope has authority to determine such matters for himself. Most likely, today’s announcement at a consistory, in which the Pope stressed that he was taking this step voluntarily and in full recognition of its gravity, will suffice. Anyway, the college of cardinals will no doubt have a chance to receive the resignation, if that action is required, before it elects Pope Benedict’s successor, most likely next month.

The Top Five New Law & Religion Papers on SSRN

From SSRN’s list of most frequently downloaded law and religion papers posted in the last 60 days, here are the current top five:

1. Toleration: Is There a Paradox? by Jeremy Waldron (N.Y.U. School of Law) [158 downloads]

2. Queering Schools, GSAs and the Law: Taking on God, by Donn Short (U. of Manitoba Faculty of Law) [110 downloads]

3. Constitutionalism: East Asian Antecedents, by Tom Ginsburg (U. of Chicago Law School) [77 downloads] 

4. The Firearm and the ‘Culture of Death’: Foundational Presuppositions and Fundamental Questions, by Kevin P. Lee (Campbell U. Law School) [68 downloads]

5. The Causes and Cures of Unethical Business Practices – A Jewish Perspective, by Steven H. Resnicoff  (DePaul U. College of Law) [66 downloads]

McCrea on The Veil Ban and European Law

Ronan McCrea (University College London) has posted The Ban on the Veil and European Law. The abstract follows. NB: The full text is behind a paywall.

This article argues that the fate of veil bans under European law is uncertain. It shows that European commitments to free speech and freedom of religion cannot accommodate an absolute ban justified solely on grounds of the offensiveness of the veil. However, a ban that applies to public face-covering in general (rather than a ban that only targets the veil), that relates to the specific (though admittedly broad) context of social life and that provides some exceptions allowing the veil to be worn in specific religious or expressive contexts, has a reasonable chance of being upheld by European courts despite the significant infringement of personal autonomy it would involve.

Hill on Theism, Naturalism, and Liberalism

John Lawrence Hill (Indiana U., Robert H. McKinney School of Law) has posted Theism, Naturalism, and Liberalism: John Stuart Mill and the “Final Inexplicability” of the Self. The abstract follows.

The purpose of this essay is to explore what often is overlooked in political and constitutional discussions of the relationship between law and religion. Law and religion are not natural adversaries. They are thought to conflict today not simply because secular law must create a space for competing religious viewpoints. The source of the conflict runs much deeper. It is nothing if not metaphysical–a conflict of worldviews.

This essay explores the metaphysical conflicts between the religious and the secular-naturalist worldviews by examining the philosophy of John Stuart Mill. I chose Mill not only because he is arguably the most important liberal philosopher of all time, the thinker who transformed liberalism from the older, classical to the modern, progressive ideal, but because he also had a well-developed metaphysical conception of human nature which is so strikingly in tension with his political liberalism. Mill’s “harm principle,” developed in On Liberty, is the true philosophical source of the modern right of privacy. And his overarching justification for liberty as a means of self-individuation is the dominant idea of freedom today. Yet Mill was a deeply conflicted thinker–a utilitarian who was drawn to romanticism, a political libertarian and a metaphysical determinist, a naturalist who rejected God, soul, and self, who nevertheless made self-individuation the real animating justification for political liberty.

The contradictions within Mill’s thought are the contradictions of liberalism itself. They are ultimately our contradictions–and they derive from our own ambivalent attachments to theism and naturalism.