Posted on by JCPW

Frick & Müller (eds.), “Islam and International Law”

53565This July, Martinus Nijhoff Publishers will publish Islam and International Law: Engaging Self-Centrism from a Plurality of Perspectives edited by Marie-Luisa Frick (University of Innsbruck) and Andreas Th. Müller (University of Innsbruck). The publisher’s description follows.

Islam and International Law explores the complex and multi-faceted relationship of international law and Islam both as a religion and a legal order. Current debates on Sharia, Islam and the “West” often suffer from prejudice, platitudes, and stereotypes on both sides. The present book seeks to engage such self-centrism by providing a plurality of perspectives, both in terms of interdisciplinary research and geographic backgrounds. The volume thus brings together 20 contributions from scholars who cover pressing issues in fields such as the use of force in Islamic international law, Islam’s contribution to the development of diplomacy and the rule of law, controversies as to the role of the individual, human rights and international criminal law, as well as Islamic visions of world order in a globalizing world.

Posted on by Marc O. DeGirolami

Ignorance, Faith Healing, and Murder

There is an awful and very difficult criminal case proceeding in Philadelphia involving parents who failed to obtain emergency medical care for their 7 month-old child. The child died of bacterial pneumonia and dehydration. The parents have been charged with third degree murder as well as involuntary manslaughter.

In this post, I want to focus on the murder charge. Pennsylvania uses the common law term, “malice,” to describe this type of murder. In Pennsylvania, murder in the first degree is done with the specific intent to kill; murder in the second degree is felony murder; and murder in the third degree is a catchall category for all other murders done with malice. In Commonwealth v. Overby, 836 A.2d 20 (Pa. 2003), the Pennsylvania Supreme Court affirmed the following jury instruction involving the charge of murder in the third degree: “Malice in Pennsylvania has a special meaning. It does not mean simple ill will. Malice is a shorthand way of referring to the three different mental states that the law requires as being bad enough to make a killing murder. Thus, a killing is with malice if the killer acted, first, with an intent to kill, or second, an intent to inflict serious bodily harm, or third, a wickedness of disposition, hardness of heart, cruelty, recklessness of consequence, and a mind regardless of social duty indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. A conscious disregard of an unjustified and extremely high risk that his action might cause death or serious bodily harm.” In New York, the equivalent of Pennsylvania’s third category of malice goes by the name, “depraved indifference” murder (that is, implied malice murder), which I’ve talked a little bit about before.  The parents face up to 40 years in prison if convicted of third degree murder.

In the report noted above, there seem to be two different defenses offered by the parents. But the defenses are conflated in the story in a way that makes it confusing to understand what seems to be the key issue with respect to the murder charge–the parents’ mens rea.

The first defense is that they “did not know their baby was sick enough to die.” This is a defense that sounds in ignorance. The idea is that if someone lacks sufficient education or background knowledge to form the requisite state of mind, he cannot be charged with a malicious intent. Though the parents may have been negligent in the ordinary tort law sense of the phrase, that negligence does not rise to the level of the sort of wanton, ‘don’t-give-a-damn’ recklessness that is necessary to sustain a charge of murder. One highly problematic factual issue with respect to the ignorance defense in this case seems to be that this has happened before. The story reports that four years ago, the parents’ two year-old child also died of bacterial pneumonia. Given this history, the defense of sheer ignorance becomes much less plausible, and the charge of wanton recklessness more plausible. If the defense is simply lack of knowledge, then there is a case to be made that when the very same disease afflicts a second child, it becomes more difficult to argue that the parents were not consciously disregarding a very high risk of death or serious bodily harm to the child in a way manifesting extreme indifference to the value of human life.

But things might be different with respect to the second defense: that they believed and trusted that God would heal their child. Here the idea would be that notwithstanding what had happened in the past, they continued to believe that God would intervene to stop death. And the reason that they failed to report on the child’s condition to state authorities was not that they were unaware that the child’s condition was mortal, but that the power of God’s “cure” would be compromised if they reported. (Incidentally, some people have argued that exempting parents from the full arsenal of criminal liability will make it more likely that parents will fail to report. But I’d like to see the statistics supporting those claims: as a matter of intuition–I have not studied the matter–it’s not clear to me that the incidence of failure to report will increase unless the full range of criminal liability is brought to bear).

One might argue that the charge of third degree murder based on extreme indifference to the value of human life is equally applicable here. But I am not so sure. If the defense is accurate, then it seems to me that what the parents manifest is not indifference, but true (from their perspective) concern. There may be exceptional cases of course–parents who truly do desire the death of their children. But as a general matter, from the parents’ perspective, they are not consciously disregarding an unjustifiable risk in a way that manifested their extreme indifference to the value of human life. They were consciously doing what they believed was in the best interests of their child. When the defense is ignorance of the danger of a particular disease, though the defense might work in the case of the first child, that ignorance becomes much more difficult to claim in the case of a second child suffering from precisely the same medical condition as the first. But when the defense is belief in the power of faith healing, it does not seem to me that the same mens rea progression is at work. In fact, the parents may believe that the risk to their children is not great, but very small, just in virtue of their belief that though things may look bad, God will intervene. The fact that God did not intervene last time does not vitiate the chances that he will probably intervene this time.

In sum: (1) the faith healing defense seems to me stronger in this case than the defense of ignorance; (2) it does not seem to me that, if one accepts the faith-healing defense, the parents are in the same category as other people who act with wanton disregard for the value of human life; and (3) the truly tough question is whether these parents are different from other parents whose gross neglect results in their children’s death.

Posted on by Marc O. DeGirolami

Ray, “After Expulsion”

Here’s an interesting looking book about the construction of Sephardic Jewish After Expulsionidentity in the centuries following the edict of Ferdinand and Isabella expelling hundreds of thousands of Jews from Spain: After Expulsion: 1492 and the Making of Sephardic Jewry (NYU Press 2013) by Jonathan Ray (Georgetown). The publisher’s description follows.

On August 3, 1492, the same day that Columbus set sail from Spain, the long and glorious history of that nation’s Jewish community officially came to a close. The expulsion of Europe’s last major Jewish community ended more than a thousand years of unparalleled prosperity, cultural vitality and intellectual productivity. Yet, the crisis of 1492 also gave rise to a dynamic and resilient diaspora society spanning East and West.

After Expulsion traces the various paths of migration and resettlement of Sephardic Jews and Conversos over the course of the tumultuous sixteenth century. Pivotally, the volume argues that the exiles did not become “Sephardic Jews” overnight. Only in the second and third generation did these disparate groups coalesce and adopt a “Sephardic Jewish” identity.

After Expulsion presents a new and fascinating portrait of Jewish society in transition from the medieval to the early modern period, a portrait that challenges many longstanding assumptions about the differences between Europe and the Middle East.

Posted on by Mark Movsesian

Raphael Lemkin Was a Remarkable Man

When he died, roughly 50 years ago at the age of 59, Raphael Lemkin was impoverished and embittered, an unnoticed man. Only 7 people attended his funeral. Yet he was one of the most influential international human rights lawyers of the twentieth century. Lemkin, whom Jay Winter describes in a recent piece as a “one-man NGO,” coined the word “genocide” for the destruction of a national, ethnic, racial or religious group, and was the driving force behind adoption of the UN Genocide Convention of 1948.

He came up with the term “genocide” in reflecting on the massacres of Armenian Christians in Ottoman Turkey during World War I–events we now know as the Armenian Genocide–but he had an example closer to home as well. A Polish Jew, he lost about 50 relatives in the Holocaust, and himself escaped the Nazis only after taking a bullet in the hip. He made his way to America, where he joined the law faculty at Duke, wrote his most important book, Axis Rule in Occupied Europe, and worked, successfully, for adoption of the UN Convention.

What explains his bitterness and isolation at the end? Lemkin was a loner and a difficult man; that was part of it, no doubt. And he could surely see, as Winter writes, that naming a crime, even legislating against a crime, does not necessarily reduce its frequency. It’s hard to argue that the Genocide Convention has been a great success. Still, Lemkin’s career had a public impact which most of us, especially in the legal academy, would be proud to claim.

I reflect on all this because, this month, Yale University Press releases Lemkin’s unfinished autobiography, Totally Unofficial: The Autobiography of Raphael Lemkin, edited by historian Donna-Lee Frieze. It looks very interesting. Here’s the publisher’s description:

Among the greatest intellectual heroes of modern times, Raphael Lemkin lived an extraordinary life of struggle and hardship, yet altered international law and redefined the world’s understanding of group rights. He invented the concept and word “genocide” and propelled the idea into international legal status. An uncommonly creative pioneer in ethical thought, he twice was nominated for the Nobel Peace Prize. Although Lemkin died alone and in poverty, he left behind a model for a life of activism, a legacy of major contributions to international law, and—not least—an unpublished autobiography. Presented here for the first time is his own account of his life, from his boyhood on a small farm in Poland with his Jewish parents, to his perilous escape from Nazi Europe, through his arrival in the United States and rise to influence as an academic, thinker, and revered lawyer of international criminal law.

Posted on by Mark Movsesian

“Orthodox Christianity and Human Rights” (Bruning & van der Zweerde, eds.)

We’re a little late getting to this, but last year Peeters published an interesting looking collection on the conception of human rights in Orthodox Christianity, particularly in nations from the former Soviet Union: Orthodox Christianity and Human Rights (Bruning & van der Zweerde, eds.). As the Pussy Riot trial showed, the view of human rights in those nations sometime diverges from the Western consensus in a way that leaves everyone a bit confused. This book may help resolve some of that confusion. Here’s the publisher’s summary:

Orthodox theology and the Orthodox Churches had, and continue to have an ambiguous relationship towards the concept of Human Rights: principal approval often stands alongside serious criticism. This is especially true for those Orthodox Churches which have their centre in a country of the former Soviet sphere. On the one hand, especially since the fall of Communism they enjoy religious freedom that forms a central element within the framework of Human Rights. On the other hand, the transformation process of the 1990s and the challenge of pluralism and globalization have all confronted them with aspects of freedom that could not but affect their stance towards the Human Rights concept in general. This also means, that doubts and reservations related to this concept came to the fore again, which had yet existed already decades before. These reservations focused on such issues as Church and secular society, Church and state, furthermore on the understanding of central terms such as “freedom”, “dignity”, “rights” – central also for an Orthodox anthropology, that needs to be reconciled with the partly differing approaches behind the Human Rights concept.

The chapters of this volume try and explore as much the philosophical and theological as the social, historical and practical aspects of this complex relationship. Based either on the discussion of differing theological concepts, or on empirical and concrete case studies respectively, they clearly show the tensions and fractures that do exist. On the other hand, in this way they also hint at possibilities to overcome these tensions, to continue a dialogue that already has begun, and to avoid the numerous misunderstandings between East and West which currently tend to form a hindrance to this dialogue at various points.

H/T: Eastern Christian Books

Posted on by Mark Movsesian · 2 Comments

State Religious Neutrality and the Point of Departure

A quick followup on Claudia’s very interesting post on state religious neutrality. As Claudia suggests, pretty much every Western democracy nowadays accepts the notion that the state must be “neutral” with respect to religion. But, as Claudia points out, the fact that everyone uses the same word obscures underlying disagreements. In the US, for example, neutrality means that the state may not display sectarian symbols, at least in a manner that seems to endorse the sectarian message. Not so in Europe. There, the ECtHR has made plain, a state may display sectarian symbols as long as the state does not engage in active proselytizing. Thus, according to the recent Lautsi decision, European states may display crucifixes in public school classrooms, conduct that would be unthinkable in the US under current Supreme Court jurisprudence.

In trying to understand the different meanings the same word has in different systems, it’s useful to consider what Tocqueville referred to as a nation’s “point of departure.” Every legal system is embedded in a particular culture with a particular history. In Europe, where links between church and state are traditionally very strong, certain state actions, like placing sectarian symbols in the public space, are simply part of the background, something most people take for granted. In the US, however, a society with a much stronger separationist tradition, such actions are not seen as neutral and innocuous. I explain this all in more depth in a recent article on the Italian crucifix case, “Crosses and Culture: State-Sponsored Religious Displays in the US and Europe,” in the Oxford Journal of Law and Religion. Interested readers can find the article on the journal’s website, here.

Posted on by

Rosenberg, “Critical Enthusiasm: Capital Accumulation and the Transformation of Religious Passion”

imageIn August, Oxford University Press will publish Critical Enthusiasm: Capital Accumulation and the Transformation of Religious Passion by Jordana Rosenberg (U. Mass.).  The publisher’s description follows.

The Atlantic world of the long eighteenth century was characterized by two major, interrelated phenomena: the onset of capital accumulation and the infusion of traditions of radical religious rapture into Enlightenment discourses. In exploring these cross-pollinations, Critical Enthusiasm shows that debates around religious radicalism are bound to the advent of capitalism at its very root: as legal precedent, as financial rhetoric, and as aesthetic form. To understand the period thus requires that we not only contextualize histories of religion in terms of the economic landscape of early modernity, but also recast the question of secularization in terms of the contradictions of capitalism.

Posted on by

Sullivan & Beaman, “Religious Freedom and Varieties of Establishment”

This July, Ashgate will publish Varieties of Religious Establishment edited by Winnifred Fallers Sullivan (SUNY Buffalo) and Lori G. Beaman (University of Ottawa). The publisher’s description follows.

During the past decade attention to the topic of religious freedom has grown exponentially. Examining the various forms religious establishment takes globally, from both theoretical and practical perspectives, this book argues that legal protections for religious freedom only make sense in a context of socially and culturally specific constraints. Leading international scholars from a diverse range of disciplines explore how countries today manage religious diversity.  Rather than adopting the common assumption that religious freedom is incompletely realized, the authors argue that the starting point should be what has historically been seen in the United States as freedom‘s evil twin – religious establishment. In the hyper-globalized world of the politics of religious freedom today, a focus on establishment brings into view background cultural assumptions, cosmologies, anthropologies, and institutions which are used to manage religion, as well as internal and external religious diversity. Establishment further reveals the limitations of universal, multicultural, and interfaith models. Disestablishment is impossible, as is religious freedom.

Posted on by

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. Since last week, all articles have remained in the same slots:

1. ‘The Divine Institution of Marriage’: An Overview of LDS Involvement in the Proposition 8 Campaign by Kaimipono David Wenger (Thomas Jefferson School of Law) [529 downloads]

2. Must We Be Faithful to Original Meaning?  by Jack M. Balkin (Yale  U. – Law School) [229 downloads]

3. Protecting Same-Sex Marriage and Religious Liberty by Douglas Laycock (U. of Virginia School of Law) and Thomas C. Berg (U. of St. Thomas School of Law) [200 downloads]

4. Taxes and Religion: The Hobby Lobby Contraceptive Cases  by Steven J. Willis (U. of Florida) [131 downloads]

5. Do For-Profit Businesses Have Free Exercise Rights? by Robert K. Vischer (U. of St. Thomas) [108 downloads]

Posted on by JCPW

Around the Web This Week

Some interesting law & religion stories from around the web this week: