Posted on by JCPW

Devji, “Muslim Zion”

Muslim_ZionIn August, Harvard University Press will publish Muslim Zion: Pakistan as a Political Idea by Faisal Devji (Univ. of Oxford). The publisher’s description follows.

Pakistan, founded less than a decade after a homeland for India’s Muslims was proposed, is both the embodiment of national ambitions fulfilled and, in the eyes of many observers, a failed state. Muslim Zion cuts to the core of the geopolitical paradoxes entangling Pakistan to argue that India’s rival has never been a nation-state in the conventional sense. Pakistan is instead a distinct type of political geography, ungrounded in the historic connections of lands and peoples, whose context is provided by the settler states of the New World but whose closest ideological parallel is the state of Israel.

A year before the 1948 establishment of Israel, Pakistan was founded on a philosophy that accords with Zionism in surprising ways. Faisal Devji understands Zion as a political form rather than a holy land, one that rejects hereditary linkages between ethnicity and soil in favor of membership based on nothing but an idea of belonging. Like Israel, Pakistan came into being through the migration of a minority population, inhabiting a vast subcontinent, who abandoned old lands in which they feared persecution to settle in a new homeland. Just as Israel is the world’s sole Jewish state, Pakistan is the only country to be established in the name of Islam.

Revealing how Pakistan’s troubled present continues to be shaped by its past, Muslim Zion is a penetrating critique of what comes of founding a country on an unresolved desire both to join and reject the world of modern nation-states.

Posted on by Mark Movsesian

Shalev, “American Zion”

From the beginning, America identified strongly with Israel. I don’t mean the 9780300186925modern state–although America identifies with that, too–but with the Israel of the Old Testament. Americans of the founding period certainly saw things this way. Just think of all those Old Testament names on Puritan gravestones in New England. Even Thomas Jefferson, no orthodox believer, looked to the Old Testament in designing a  Great Seal of the United States. Jefferson’s proposal, never adopted, was for a depiction of the “children of Israel in the wilderness, led by a could by day and a pillar of fire by night.” 

A recent book by Haifa University historian Eran Shalev, American Zion: The Old Testament as a Political Text from the Revolution to the Civil War (Yale 2013) discusses this history, which continues to have ramifications today. The publisher’s description follows:

The Bible has always been an integral part of American political culture. Yet in the years before the Civil War, it was the Old Testament, not the New Testament, that pervaded political rhetoric. From Revolutionary times through about 1830, numerous American politicians, commentators, ministers, and laymen depicted their young nation as a new, God-chosen Israel and relied on the Old Testament for political guidance.

In this original book, historian Eran Shalev closely examines how this powerful predilection for Old Testament narratives and rhetoric in early America shaped a wide range of debates and cultural discussions—from republican ideology, constitutional interpretation, southern slavery, and more generally the meaning of American nationalism to speculations on the origins of American Indians and to the emergence of Mormonism. Shalev argues that the effort to shape the United States as a biblical nation reflected conflicting attitudes within the culture—proudly boastful on the one hand but uncertain about its abilities and ultimate destiny on the other. With great nuance, American Zion explores for the first time the meaning and lasting effects of the idea of the United States as a new Israel and sheds new light on our understanding of the nation’s origins and culture during the founding and antebellum decades.

 

Posted on by Marc O. DeGirolami

Non sum Oedipus, sed Morus

I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center.  But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (one of the conference’s conveners) of Travis Curtwright’s recently published The One Thomas More (2012).  Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting.  One issue I’ve always wanted to learn more about–and have thought might be rightly considered in a legal ethics course–is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.

A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career.  Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia.  More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.

Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence.  By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform.  More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law.  For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.

The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s.  As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86).  Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.”  As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99).  This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7).  Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism:  “The Cure for the greatest part of human Miseries is not radical, but palliative.”  (The Rambler, No. 32, July 7, 1750.)

Posted on by Mark Movsesian

UK Supreme Court Decides Important Ministerial Employment Case

Yesterday, the UK’s Supreme Court decided an important ministerial employment case, President of the Methodist Conference v. Preston. In many respects, Preston tracks the US Supreme Court’s recent ministerial exception case, Hosanna-Tabor, though the British case does not refer to Hosanna-Tabor and doesn’t explicitly address church autonomy concerns.

In Preston, a Methodist minister sought relief under UK employment law for unfair dismissal. The question turned on whether Preston was an “employee” for purposes of the law, which, in turn, depended on whether she worked for the church under a “contract of employment.”  By a 4-1 vote, the Supreme Court held that she did not.

In the past, Lord Sumption’s opinion explained, UK cases drew a bright line between clergy, who were understood to hold offices of an essentially spiritual nature, and mere employees. But these rulings depended on “social instincts” that do not obtain in today’s more “secular and regulated context.” Today, the question turns on the precise terms that govern a minister’s employment. In other words, the UK courts must apply what Americans would recognize as a “neutral principles of law” approach. Courts must look at the terms of a minister’s employment in light of the surrounding circumstances to see what the parties reasonably intended.

Here, Lord Sumption wrote, the context made plain that Methodist ministers like Preston are not contractual employees. Preston had no contract with the church; her employment was governed completely by the church’s constitution. Her ordination, conferred by the laying on of hands, was understood to be a lifelong covenant. Her stipend was not seen as consideration for her work, but as a subsidy to allow her to serve the Lord. In short, by its terms, ministry in the Methodist Church was “a vocation, by which candidates submit themselves to the discipline of the church for life.” No special circumstances in Preston’s case altered this conclusion.

In its insistence on looking to the particular circumstances of a plaintiff’s employment, Preston echoes the flexible approach to the definition of minister that one sees in Hosanna-Tabor. Unlike the American court, though, the British court didn’t much address the underlying church autonomy values that ministerial exceptions serve. In large part, this reticence results from the different texts the courts were construing. Preston is a straightforward statutory question without constitutional implications; Hosanna-Tabor, by contrast, depends on an understanding of the Free Exercise and Establishment Clauses of the First Amendment.

(H/t: Law & Religion UK).

Posted on by Marc O. DeGirolami

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted on by Marc O. DeGirolami

Vauchez, “Francis of Assisi: The Life and Afterlife of a Medieval Saint”

Francis of Assisi is (by saintly standards) much in the news of late. It is thereforeFrancis of Assisi lucky that what looks like a magisterial treatment of St. Francis was recently translated for English-speaking audiences–one which explores not only his own ideas but how those ideas influenced subsequent generations of political actors, religious leaders, and intellectuals to the present day. The book is Francis of Assisi: The Life and Afterlife of a Medieval Saint (Yale University Press 2012, but only just released in the more affordable paperback) by the eminent medieval historian André Vauchez (University of Paris X) (translated by Michael Cusato). The publisher’s description follows.

In this towering work, André Vauchez draws on the vast body of scholarship on Francis of Assisi produced over the past forty years as well on as his own expertise in medieval hagiography to tell the most comprehensive and authoritative version of Francis’s life and afterlife published in the past half century.

After a detailed and yet engaging reconstruction of Francis’s life and work, Vauchez focuses on the myriad texts—hagiographies, chronicles, sermons, personal testimonies, etc.—of writers who recorded aspects of Francis’s life and movement as they remembered them, and used those remembrances to construct a portrait of Francis relevant to their concerns. We see varying versions of his life reflected in the work of Machiavelli, Luther, Voltaire, German and English romantics, pre-Raphaelites, Italian nationalists, and Mussolini, and discover how peace activists, ecologists, or interreligious dialogists have used his example to promote their various causes. Particularly noteworthy is the attention Vauchez pays to Francis’s own writings, which strangely enough have been largely overlooked by later interpreters.

The product of a lifetime of study, this book reveals a historian at the height of his powers.

Posted on by Marc O. DeGirolami

Leon, “An Image of God: The Catholic Struggle With Eugenics”

One of the most disquieting cases (in a rather rich field) for my students inAn Image of God constitutional law is Buck v. Bell (1927), in which Justice Oliver Wendell Holmes, Jr., writing for the Court, upheld Virginia’s forced sterilization law for mentally retarded persons against a 14th Amendment challenge. The influence of eugenics was powerful in the early twentieth century and that influence is reflected in perhaps the best-known line of the case: “Three generations of imbeciles are enough.” Here is a new book that discusses eugenics and Catholic resistance to it, An Image of God: The Catholic Struggle with Eugenics (University of Chicago Press 2013) by Sharon M. Leon. The publisher’s description follows.

During the first half of the twentieth century, supporters of the eugenics movement offered an image of a racially transformed America by curtailing the reproduction of “unfit” members of society. Through institutionalization, compulsory sterilization, the restriction of immigration and marriages, and other methods, eugenicists promised to improve the population—a policy agenda that was embraced by many leading intellectuals and public figures. But Catholic activists and thinkers across the United States opposed many of these measures, asserting that “every man, even a lunatic, is an image of God, not a mere animal.”

In An Image of God, Sharon Leon examines the efforts of American Catholics to thwart eugenic policies, illuminating the ways in which Catholic thought transformed the public conversation about individual rights, the role of the state, and the intersections of race, community, and family. Through an examination of the broader questions raised in this debate, Leon casts new light on major issues that remain central in American political life today: the institution of marriage, the role of government, and the separation of church and state. This is essential reading in the history of religion, science, politics, and human rights.

Posted on by Dan Crane · 3 Comments

Religious Literacy Training for Law Students?

When law professors grouse behind closed doors, one of their favorite topics is how law students lack fundamental knowledge and skills they were supposed to get in high school and college.  According to prevailing wisdom, law students don’t know how to write a proper sentence, are ignorant of the most basic historical facts, have no concept of economics, and couldn’t construct a syllogism to save their lives.

Much of this is curmudgeonly hazing of the young by the old that is a regularized and institutionalized rite of one’s transition from youth to age.  “In the good old days, we actually learned things in school.”  Having passed the forty-year mark and hence being an official curmudgeon, I shall indulge in a little whining of my own.  My complaint is the lack of basic religious literacy among law students.

To be fair, this is not just a phenomenon of law students or the young more generally. A 2010 Pew survey found an appalling lack of religious knowledge in the United States, which is by many measures a highly religious country. More than half of Protestants could not identify Martin Luther as a leader of the Protestant Reformation. And about four in 10 Jews didn’t know that Maimonides was Jewish.  Forty-five percent of Roman Catholics didn’t know that, according to church teaching, the bread and wine used in the Eucharist becomes the body and blood of Christ.  (Interestingly, atheists and agnostics scored higher than religious adherents in the survey).

It’s my sense that the mainstream of the American educational system eschews teaching about religion, not necessarily out of hostility, but out of a fear that religion is too hot and divisive a topic to handle in polite company.  The demise of universal Sunday School or Read more

Posted on by Marc O. DeGirolami

Ledewitz on “Pro-Religion Equality”

Here’s an interesting paper by Professor Bruce Ledewitz (Duquesne) which engages with some of the recent ‘is-it-special?’ scholarship about religion and connects to the ‘hallowed secularism‘ themes that Bruce has been developing for several years in other work: The Vietnam Draft Cases and the Pro-Religion Equality Project. The abstract follows:

There is currently unfolding among secularists and liberal religious believers an equality project that argues that secular commitments of conscience are as worthy of protection as are the commitments of traditional religion. This movement is symbolized by Brian Leiter’s recent book, “Why Tolerate Religion?” but it has many other adherents today as well. This movement seeks either to substitute conscience provisions for existing religious exemptions from law or at least to add conscience exemptions to them. As religious believers have pointed out, the likely consequence, and perhaps even the goal, of this effort is the weakening of exemptions for religion rather than the strengthening of conscience exemptions for all. That is why I call this movement the Anti-Religion Equality Project. The State is the ultimate beneficiary of the Anti-Religion Equality Project.

This paper proposes an opposing equality project, the Pro-Religion Equality Project, which would expand the meaning of religion in existing religious exemptions to include many, and certainly the most passionately held, commitments of secular conscience. There is nothing new in this Pro-Religion Equality Project. The Supreme Court already expanded religious exemptions in the Vietnam draft cases, Seeger, Welsh, and Gillette, which held that conscience commitments occupying a place in the life of the nonbeliever parallel to the place of God for the traditional religious believer deserve exemption from law as religious. While Leiter aims to subsume religion under the mantle of conscience, the Pro-Religion Equality Project subsumes conscience under the rubric of religion.

Expansively interpreting religion exemptions is a better path than creating conscience provisions for a number of reasons. Because conscience is so easily invoked, conscience protection can only be weakly enforced, thus undercutting liberty for all. That result not only fails to protect religious liberty, it understates the significance of conscience claims that share the depth and breadth of traditional religious commitments and are of equal significance. Such secular conscience claims should be robustly protected and including them in existing religious exemptions helps ensure that result. In contrast, conscience claims that are idiosyncratic and lightly held should be excluded from exemptions from general law altogether and the expansion of religion exemptions tends to accomplish that.

As in the Vietnam era, nonreligious exemption claimants today will resist inclusion in religious exemptions because they do not consider themselves to be religious. But even this objection shows the advantage of the Pro-Religion Equality Project over its competitor. For conscience is understood to be an individual judgment and the promotion of conscience exemptions supports the view that deeply held moral commitments are personal and subjective. In contrast, religion sounds in truth and the expansion of religious exemptions will ignite a needed societal debate about religion, reason, relativism and nihilism.