Liviatan on Abortion and Islam in Cultural Debates

Ofrit Liviatan (Harvard) has published an article, “From Abortion to Islam: The Changing Function of Law in Europe’s Cultural Debates,” in the current volume of the Fordham International Law Journal. Here’s the abstract:

The Article rethinks the law’s role in present-day European debates over Islam in light of its calming effects on the once fiercely-fought abortion reforms across Western Europe. Using examples from Germany, Italy, France, Belgium, Britain, the Netherlands and Switzerland the article demonstrates that the role of the legal process in each of these culture-based debates diverged along its two social functions. Reflecting growing public anxieties, legal actions concerning Muslims typically focused on generating social and cultural change, foreclosing the likelihood of political compromises. In contrast, at the time of abortion reform legal measures acted as mechanisms of social and cultural order, contributing to the pacification of the fierce public controversies even as moral disagreements over abortion endured. Drawing on this comparison, the article suggests that Europe’s constitutional review processes present a compromise-building path to deliberate contemporary conflicts over Islam.

The Article proceeds in three parts. Part II and III analyze the legal developments in the context of Islam and abortion across Western Europe, revealing a contrasting dynamics in the roles of the legal process in each of these debates. Part IV assesses the effects of the legal process in each of the debates and rules out alternative explanations for this divergence. It argues that the factor of time or European secularization cannot account for the current intensity-difference in each of these debates. The article concludes by proposing a path to launch the currently absent constitutional conversation over Islamic-based tensions in Western Europe. Modeled on abortion reform, constitutional courts should reach beyond proportional balancing and dictate policy frameworks addressing both the roots of Muslim disadvantages and the anxieties of the European public.

Drakeman on the Stock Market and the Humanities

Donald Drakeman, whom the Center for Law and Religion is honored to have on its Board of Advisers, has a very persuasive and sensible column over at the Chronicle of Higher Education on the relationship of the economy to education in the humanities. It seems to me that the column has direct relevance to the study of law and religion in universities and graduate schools. And Don himself is highly qualified to speak about these matters, given his extensive experience in both the humanistic and economic spheres (those familiar with Don’s work in the religion clauses will recognize the reference to George Bancroft below). A bit from the column:

The good news, for those of us who believe in the importance of the humanities, is that once the bread lines disappear, people realize that they cannot live by bread alone. The important questions addressed in religion, literature, the arts, and elsewhere in the humanities will always captivate us, and we will continue to return to them when we can.

It seems unlikely—at least to me, a businessman with a doctorate in religion—that an oversupply of people studying the humanities actually causes economic decline. But hard times will very likely—and predictably—drive students toward fields that seem more practical. When that happens, the humanities should not, as the politicians say, let a good crisis go to waste. We need to make better arguments for the benefits of studying the humanities, and, in doing so, we need to think more carefully about where the humanities and the “real world” intersect. It happens far more often than might be expected by either side.

Humanities scholars often cite the intrinsic value of studying the humanities—that it is good in and of itself, and requires no defense on the basis of pragmatism. That may well be true, but the humanities also have immense practical relevance to how we, as a society, make some of our most critical political and economic decisions, from the nature of our constitutional rights to the shape of our health-care system.

For example, the opinions in the Supreme Court’s recent decision on the right to bear arms read like a history of firearms in the 18th century, and we owe the idea of a wall of separation between church and state as much to the historian George Bancroft as to Thomas Jefferson. The Affordable Care Act has deeper roots in philosophical notions of distributive justice than in the latest advances in medical science.

Tadros, “Motherland Lost”

In his important new book, Motherland Lost: The Egyptian and Coptic Quest for Modernity, the Hudson Institute’s Samuel Tadros explores the crisis facing the Coptic Orthodox Church today. The Copts are the indigenous Christians of Egypt and one of the oldest Christian communions, dating back millennia. St. Anthony, the founder of monasticism, was a Copt, as was St. Athanasius, the great champion of Nicene Christianity. Coptic history is marked, in Tadros’s words, by a dual legacy of “decline and survival.” Persecuted by Byzantine Christians and Arab Muslims, Copts have endured tremendous hardship down the centuries. Periodically, their very existence has seemed in doubt. That, Tadros maintains, is the case today.

Tadros shows how the liberal nationalist movement in twentieth-century Egypt betrayed Coptic hopes. By encouraging Copts to seek legal equality and government attention to their grievances, the movement actually exposed Copts to a vicious backlash. (Much the same pattern occurred with respect to Armenian Christians in Ottoman Turkey, a matter I have discussed elsewhere). Demands for equality were interpreted as a threat to Muslim superiority and an attempt to embarrass the country abroad. In the name of national unity, Coptic demands for justice were ignored and the Coptic Church suppressed. The situation improved a bit under Nasser, but deteriorated under Sadat, who attempted to placate Islamist opposition by making life difficult for Copts–it didn’t work. Nonetheless, Tadros shows that the Church experienced a spiritual rebirth during the twentieth century, largely as a result of the lay-inspired Sunday School Movement. Monasteries were revived and Christian education improved. The Church has expanded abroad in recent decades–there is an increasing presence in the US–and has had missionary success in Africa, where, unlike other Christian communions, it is not weighed down by the legacy of colonialism.

The Arab Spring has been a disaster for Copts. Under the Muslim Brotherhood, violence against Copts increased dramatically. Tadros’s book predates the July 2013 revolution, but a reader can readily understand why the Church has taken a strong position in favor of the generals. History, Tadros writes, has taught Copts “the eternal lesson of survival.” A “persecuting dictator” is “always preferable to the mob,” since the dictator can “be bought off or persuaded to back off, or constrained by foreign powers.” With the mob, by contrast, one has “no chance.”

Tadros ends his book on a sad note. The prospects for Copts in Egypt, he says, are bleak: domination by a Muslim Brotherhood that seeks to return them to the status of dhimmis or a military dictatorship that could sacrifice them at any moment. The only option, for many, is escape to the West–an option that may end a Christian presence that has endured in Egypt since St. Mark the Evangelist arrived 2000 years ago. “The feeling of sadness and distress is impossible to overcome as I watch the faces of the new immigrants,” Tadros writes, describing his Coptic parish in Virginia. “A church that has withstood diverse and tremendous challenges is now threatened in its very existence.”

Pearson on Article 9 and the Eweida Judgment

From Oxford’s Human Rights Law Review, an essay by Megan Pearson (PhD Candidate, LSE) on Article 9 of the European Convention on Human Rights, particularly its prohibition on state interference with religious freedom:

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

Article 9 has therefore been of limited use to claimants. The first full case to be heard on it by the Court was not until 1993 as earlier cases were ruled inadmissible by the European Commission of Human Rights. However, the Court’s approach is currently in a state of flux, as demonstrated by Eweida v United Kingdom and is moving to a broader approach that correctly moves the attention to the justification stage.

This article focuses on Article 9(1) and the question of interference. It does not consider when interferences will be justified. The first part will consider various proposals for deciding ‘where rights begin’. It will then address specific questions arising from ECHR and English case law on the topic, considering in particular whether it should be possible to claim an interference where the conflict could be avoided by resigning from employment or taking other similar action. The third section will consider the change brought by Eweida and discuss some remaining issues that have not yet been resolved.

Tocqueville on Pantheism: Part I

We have seen that Tocqueville believes that the dominant American faith, Ralph Waldo EmersonProtestantism, will tend to decompose. The process of dissolution will occur in two phases. In the first, Protestantism (or more accurately, Calvinism) will tend to become a form of natural religion, such as he believed he had encountered in Unitarianism. This movement will take place chiefly among American élites; working class American Protestants, he believes, will be increasingly drawn to Catholicism. In the second phase, Unitarianism or natural religion will itself tend to become what he calls “pantheism.” These movements are traced out, albeit in very summary and schematic form, in Vol. II, Pt. I, chh. 6-7 of Democracy in America, dealing, respectively, with Catholicism and pantheism. In a powerful and illuminating study, Peter Lawlor has described these as two of the “least studied and strangest chapters” of Democracy in America. See Peter Augustine Lawlor, Tocqueville on Pantheism, Materialism, and Catholicism, 30 Perspectives on Political Science 218 (2001).

Tocqueville’s notions may seem very wayward and idiosyncratic to us. After Walt Whitmanall, contemporary America is neither predominantly Catholic nor predominantly pantheistic. Nonetheless, when examined more closely, Tocqueville’s analysis is full of interest and even, remarkably, of current applicability.

The “decline” of Protestantism

Since the 1960s, there has been vigorous and ongoing debate over whether American Protestantism – or at any rate “mainstream” Protestantism – is dead or dying. See, e.g., Stanley Hauerwas, The end of American Protestantism (July 2, 2013), available at Equally, the question whether American Catholicism has become, or is becoming, a form of Protestantism also provokes current controversy. (Tocqueville himself had noted the tendency of American Catholicism to be less dogmatic and less ritualized than French Catholicism.) Neither of these interesting issues can detain us here. What is more relevant to our purpose is why Tocqueville should have thought that Protestantism would decline, and whether the evidence from the period in which he wrote might have supported the prediction that it would turn into something radically different from traditional Christianity.


Tocqueville could certainly have derived his thesis from reading the work of the great eighteenth century French Catholic theologian, historian and apologist, Jacques-Bénigne Bossuet, the Bishop of Meaux and the tutor of Louis XIV’s eldest child, the Dauphin of France. Probably the greatest work by the prolific Bossuet was his History of the Variations of the Protestant Churches (1688; English trans. 1836). Bossuet’s History is a massively learned account of what the author sees as the steady fragmentation of the main branches of Protestantism into different and discordant sects. We know that Tocqueville had studied this work. In his letter of November 15, 1835 to Gustave Beaumont, he says that after finishing reading Machiavelli’s History of Florence, I turned to Bossuet’s Variations. Finding the “distance” between Machiavelli and Bossuet “great,” he writes that “I had never looked at [the Variations] so closely, and I cannot tell you how much I admired its content, and even more perhaps, its form. It is truly a magnificent and powerful arrangement.” Selected Letters 112. In thinking that Protestantism was bound to disintegrate, Tocqueville was very possibly adopting, if quietly, the polemical case that Bossuet had made for that proposition.

Tocqueville seems to have drawn on Bossuet in the places in Democracy in America in which he connects the growth of democracy with Divine Providence. For instance, in Vol. I, Pt. ii, ch. 17 of Democracy, entitled “A Few Sources of Poetry in Democratic Nations,” he writes that in egalitarian ages, as “each man . . . begins to perceive humanity itself, God reveals himself more and more to the human mind in his full and complete majesty . . . Observing the human race as a single entity, men find it easy to imagine that the same plan rules its destiny and they are inclined to perceive, in the actions of any individual, the trace of that universal and consistent design by which God guides our race.” Bevan trans. 563-64. Likewise, in his Introduction to Part I, Tocqueville speaks of the “gradual unfurling of equality in social conditions” as “a providential fact which reflects its principal characteristics: it is universal, it is lasting and it constantly eludes human interference; its development is served equally by every event and every human being.” Id. at 15. In such passages, Tocqueville is echoing another of Bossuet’s works, the Discourse on Universal History (1681), which he had also read. (For a fuller treatment of providentialism in Democracy, which downplays the influence of Bossuet, see David A. Selby, Tocqueville’s politics of providence: Pascal, Jansenism and the author’s introduction to Democracy in America, 33 The Tocqueville Review 167 (2012)).


It is also possible that Tocqueville formulated his thesis about Protestantism on the basis of reading Rousseau. After the publication of The Vicar of Savoy (on which see posting Tocqueville on Protestantism and Natural Religion: Part II), Rousseau was compelled to defend his views against the Protestant authorities of his native city of Geneva, who accused him of undermining the Reformed religion. Rousseau defended himself in a series of lengthy pieces called Letters Written from the Mountain (1764). In the second of these Letters, Rousseau identifies what he considers to be the “two fundamental points of the Reform,” and contends that his writings fully comply with both. Collected Writings of Rousseau, vol. 9 at 154. These two core principles are “to acknowledge the Bible as the rule of one’s belief, and not to admit any other interpreter of the Bible than oneself.” Id. To this he adds: “Combined, these two points form the principle on which the Reformed Christians separated from the Roman Church, and they could not do any less without falling into contradiction; for what interpretive authority could they have reserved to themselves, after having rejected that of the body of the Church?” Id.

To make the Bible the sole rule for deciding questions of faith and practice appears to be adopting a common standard of truth that transcends any individual opinion; but to take the principle of private judgment to mean that each believer is the final judge for himself or herself of the Bible’s meaning is to abandon the idea of a common authority.

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Howard, “Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education”

This June, Routledge published Law and the Wearing of Religious Symbols: 9780415602648European Bans on the Wearing of Religious Symbols in Education by Erica Howard (Middlesex University, UK). The publisher’s description follows.

Written in accessible language, Law and the Wearing of Religious Symbols is a comprehensive analysis of a topical subject that is being widely debated across Europe. The book provides an overview of emerging case law from the European Court of Human Rights as well as from national courts and equality bodies in European countries on the wearing of religious symbols in educational settings. The author persuasively argues that bans on the wearing of religious symbols in educational institutions in Europe constitutes a breach of an individual’s human rights and contravenes existing anti-discrimination legislation. The book offers a discussion of developments in Europe, including the French ban on Islamic head scarves which came into force in April 2011. In addition to an in depth examination of recent bans, the book also assess the arguments used for imposing them as well as the legal claims that can potentially be made to challenge their validity. In doing this, the book will go beyond merely analyzing the bans in place to suggest ways in which educational institutions can most fairly respond to requests for accommodation of the wearing of religious symbols and whether perhaps the adoption of other provisions or measures are necessary in order to improve the present situation.

This book will be of particular interest to students and academics in the disciplines of law, human rights, political science, sociology and education, but will also be of considerable value to policy makers and educators as well.

Alexander, “Gender and Timebound Commandments in Judaism”

This April, Cambridge University Press published Gender and Timebound Commandments in 9781107035560Judaism by Elizabeth Shanks Alexander (University of Virginia). The publisher’s description follows.

The rule that exempts women from rituals that need to be performed at specific times (so-called timebound, positive commandments) has served for centuries to stabilize Jewish gender. It has provided a rationale for women’s centrality at home and their absence from the synagogue. Departing from dominant popular and scholarly views, Elizabeth Shanks Alexander argues that the rule was not conceived to structure women’s religious lives, but rather became a tool for social engineering only after it underwent shifts in meaning during its transmission. Alexander narrates the rule’s complicated history, establishing the purposes for which it was initially formulated and the shifts in interpretation that led to its being perceived as a key marker of Jewish gender. At the end of her study, Alexander points to women’s exemption from particular rituals (Shema, tefillin, and Torah study), which, she argues, are better places to look for insight into rabbinic gender.