Posted on by JCPW

Barzilai on Law, Politics, and the Adjudication of Religious Issues

Gad Barzilai (University of Washington – Henry M. Jackson School of International Studies) has posted Law is Politics. The abstract follows.

In his essay, “Law or Politics: Israeli Constitutional Adjudication as a Case Study,” Gideon Sapir is coping with some problems concerning adjudication of religious issues. He presumes that there is a certain dichotomy that differentiates “law” from “politics,” since the first deals with norms and the second with regulating and balancing political branches. Sapir’s article, in my opinion, proves that law is politics in a sense that law generates and embodies political and socioeconomic interests, identities, and consciousness. I argue below that politics cannot be differentiated from law, and therefore cannot respond to Sapir’s aspiration to de-politicize adjudication and to monitor and hamper the effects of personal backgrounds and worldviews on judicial rulings. I analyze some of Sapir’s findings and arguments from a critical perspective that law is politics.

The subject matter of religious justices in supreme courts are particularly relevant in countries where almost no institutional and constitutional separation between state and religion prevails. In countries like Israel that have not separated state from religion, and have used religion as part of state nationality and legal ideology, the background of the justices and their basic worldviews will most often be a reflection and articulation of interactions between religion, state power foci, and state ideology. The Israeli Jewish political elite has used Orthodox religion to legitimize the state, and hence has used the non-separation of nationality and religion embedded in Zionism, for political purposes.

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Kopel on Evolving Christian Attitudes Towards Personal and National Self-Defense

David B. Kopel (Denver University – Sturm College of Law) has posted Evolving Christian Attitudes Towards Personal and National Self-Defense. The abstract follows.

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual’s duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War One turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a Read more

Posted on by Mark Movsesian

Lecture on Laïcité and Changes in French Society (Feb. 25)

NYU’s Maison Française will host a lecture by French historian Jean Baubérot (École Pratique des Hautes Études), “La Laïcité face aux mutations de la société française,” on February 25. Baubérot is identified with laïcité en mouvement, a school that represents a middle ground between the laïcité positive of former French President Nicolas Sarkozy, with its less hostile view of  religion, and the more militantly secular laïcité de combat. Details are here. 

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Brownson, “Bible, Gender, Sexuality”

Bible, Gender, SexualityThis month, Wm. B. Eerdmans Publishing Company published Bible, Gender, Sexuality by James V. Bownson (Western Theological Seminary). The publisher’s description follows.

In Bible, Gender, Sexuality James Brownson argues that Christians should reconsider whether or not the biblical strictures against same-sex relations as defined in the ancient world should apply to contemporary, committed same-sex relationships. Presenting two sides in the debate — “traditionalist” and “revisionist” — Brownson carefully analyzes each of the seven main texts that appear to address intimate same-sex relations. In the process, he explores key concepts that inform our understanding of the biblical texts, including patriarchy, complementarity, purity and impurity, honor and shame. Central to his argument is the need to uncover the moral logic behind the biblical text. Written in order to serve and inform the ongoing debate in many denominations over the questions of homosexuality, Brownson’s in-depth study will prove a useful resource for Christians who want to form a considered opinion on this important issue.

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Resnicoff on Religion and Unethical Business Practices

Steven H. Resnicoff (DePaul University College of Law) has posted The Causes and Cures of Unethical Business Practices – A Jewish Perspective. The abstract follows.

The workplace seems increasingly characterized by unethical practices between and among employers, employees, customers, competitors and others, despite the fact that most leading religious traditions proscribe such conduct and many of the actors self-identify as religious. This paper examines this phenomenon through the prism of Jewish tradition. It identifies specific Jewish teachings that explain many types of misconduct and, where appropriate, it cites modern secular experiments that confirm these Judaic insights. Based on these teachings, the paper prescribes a series of steps that, if implemented, could enhance the integrity of business and financial actors. This is a working paper in connection with the Henry Kaufman Forum on Religious Traditions and Business Behavior sponsored by the Robert H. Smith School of Business at the University of Maryland.

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Datla, “The Language of Secular Islam”

Last month, the University of Hawaii Press published The Language of Secular Islam: Urdu Nationalism and Colonial India by Kavita Datla (Mount Holyoke College). The publisher’s description follows.The Language of Secular Islam

During the turbulent period prior to colonial India’s partition and independence, Muslim intellectuals in Hyderabad sought to secularize and reformulate their linguistic, historical, religious, and literary traditions for the sake of a newly conceived national public. Responding to the model of secular education introduced to South Asia by the British, Indian academics launched a spirited debate about the reform of Islamic education, the importance of education in the spoken languages of the country, the shape of Urdu and its past, and the significance of the histories of Islam and India for their present.

The Language of Secular Islam pursues an alternative account of the political disagreements between Hindus and Muslims in South Asia, conflicts too often described as the product of primordial and unchanging attachments to religion. The author suggests that the political struggles of India in the 1930s, the very decade in which the demand for Pakistan began to be articulated, should not be understood as the product of an inadequate or incomplete secularism, but as the clashing of competing secular agendas. Her work explores negotiations over language, education, and religion at Osmania University, the first university in India to use a modern Indian language (Urdu) as its medium of instruction, and sheds light on questions of colonial displacement and national belonging.

Grounded in close attention to historical evidence, The Language of Secular Islam has broad ramifications for some of the most difficult issues currently debated in the humanities and social sciences: the significance and legacies of European colonialism, the inclusions and exclusions enacted by nationalist projects, the place of minorities in the forging of nationalism, and the relationship between religion and modern politics. It will be of interest to historians of colonial India, scholars of Islam, and anyone who follows the politics of Urdu.

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Domingo on A New Paradigm for Religious Freedom

Rafael Domingo (University of Navarra) has posted A New Paradigm for Religious Freedom. The abstract follows.

This article articulates and defends a global normative paradigm of religious freedom: a minimum standard of respect for religious freedom that is rooted in human dignity and consistent with a variety of cultural and constitutional frameworks. This paradigm is fleshed out in three arguments: an argument about transcendence; an argument for a certain dualism about religion and politics, and an argument regarding regulation. The first focuses on the concept of religion; the second, on that of freedom; and the third, on rights. The first shows that, though the concept of religious freedom has rightly been expanded to protect nonbelievers as well as believers, all legal systems and constitutional frameworks should be open to the idea of transcendence as such, in order to protect the transcendent dimension of the human person. The argument for dualism calls for an interdependent dualistic structure that guarantees autonomy for both political and religious communities while imposing limits on the principle of laïcité and to theocratic impulses. Finally, the argument for regulation defends the power of political communities to regulate specifically those religious matters which affect the public sphere.

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McCrudden on Legal and Roman Catholic Conceptions of Human Rights

Christopher McCrudden (Queen’s University School of Law & Michigan Law School) has posted Legal and Roman Catholic Conceptions of Human Rights: Convergence, Divergence, and Dialogue? The abstract follows.

This article explores the extent to which there is an overlapping consensus between the Roman Catholic and the legal traditions of human rights. In comparing both traditions, an understanding of what these two traditions mean by “human rights” is gleaned from some authoritative texts of these traditions. In the case of the Roman Catholic tradition, emphasis is given to the post-Vatican II encyclicals (without intending to be comprehensive), and in the case of the legal tradition, from domestic Bills of Rights, human rights treaties, and relevant judicial interpretations of those texts.

Posted on by Marc O. DeGirolami

Conversations: Paul Horwitz

I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a Paul Horwitzcouple of  weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books.  I will post the podcast of that interview when it is ready.  But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.

Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view.  You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives.  Why are institutions particularly important phenomena to study when it comes to the First Amendment?  After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions.  Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.

A: I don’t think they’re uniquely important phenomena to study when it First Amendment Institutionscomes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.

Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism.  You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making.  Judges think about the cases that come before them in distinctively legal categories.  Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI?  More than this, can you explain why it is an inapt way to think about such cases?

A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.

Q: A different question about acontextuality.  Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones.  For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might.  But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors.  Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.

A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.

Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories?  It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position.  Is there a necessary connection between a focus on institutions and a contextual method?

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