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 Since last week, Helen Alvare has been replaced by Perry Dane at #1, Dwight Newman has moved up t0 #2, replacing Michael Perry, Douglas Laycock joins the list at #3, Elizabeth Sepper remains at #4, and Richard Garnett joins the list at #5 replacing Steven Smith & Caroline Corbin’s exchange.
As a complement to Robert’s ongoing series of learnedposts on Tocqueville and religion, do see this decidedly mixed review (which I am late in noting) by eminent political theorist (and Tocqueville translator) Harvey Mansfield, “The Aristocracy in Democracy,” of Lucien Jaume’s Tocqueville: The Aristocratic Sources of Liberty (2013). The subject of the book, according to Mansfield: “Can a democracy sustain itself without the help of its rival, apparently its enemy, aristocracy?” And here is an interesting bit:
Yet democracy in America has certain features that date from aristocracy but are now democratized: the notion of rights that originated in the willingness of feudal nobles to stand up against the monarchy; juries of one’s peers, once fellow nobles, now fellow citizens; democratic associations that arise through the “art of association” rather than, but in imitation of, the feudal responsibilities of a single aristocrat; the devotion of lawyers to the traditions of the law; religion that restrains human excess while connecting heaven and earth. Moreover, these inheritances from aristocracy are grounded in the intractable nature of democratic peoples that makes them desire to rule themselves rather than be ruled by others. This is an assertive impulse contrary to aristocracy that resembles the very desire to rule that constitutes an aristocracy. Intractability is the untaught basis on which democrats build the constructions of self-government—in America ranging from the spontaneous cooperation of the township to the theoretical artifices of the American Constitution (whose Federalist framers Tocqueville praised as a party of aristocrats) . . . .
M. Jaume refers to Tocqueville’s use of classical style in writing as opposed to democratic floridity, but he does not discuss the two most prominent themes in Democracy in America: political liberty (or self-government) and greatness. Tocqueville ends his book by looking at politics from the standpoint of God, in which democracy and aristocracy appear as two aspects of one whole. This standpoint is available at least dimly to a legislator or political scientist like Tocqueville, because it uncovers God’s intellect rather than piously accepting God’s mysteries (for Tocqueville, God’s providence in bringing democracy is not hidden, as M. Jaume has it, but apparent in history). But God’s standpoint is not available to most human beings, because their partisanship prevents them from seeing the whole impartially, thus forcing them to construct their own partial wholes, typically democracy and aristocracy as Tocqueville contrasts them. That is why he says that there are almost—don’t forget the “almost”—two humanities in the two regimes and that a mixed regime is a chimera—though a necessary one in his own mind! Paradoxically, the desire of partisans to make their favorite part, the few or the many, into a whole makes compromise with the opposing part seem unnecessary as well as unwelcome.
Last month, a California state court ruled that including yoga in an elementary school phys ed program does not violate the Establishment Clause. The program was funded by a half-million dollar grant from the Jois Foundation, a private organization that promotes the form of yoga known as Ashtanga. The court ruled that the Encinitas Union School District had scrubbed religious references from the classes, so that what remained was simply a fitness and stress reduction program for kids. To use the language of the so-called “endorsement test,” the court concluded that a reasonable observer would not believe the school district had impermissibly endorsed a religion–in this case, Hinduism.
This week, the Oxford University Press blog published an interesting interview with Candy Gunther Brown, an Indiana University religious studies professor who served as an expert witness for the plaintiffs in the case. Brown argues convincingly that Ashtanga yoga is in fact deeply religious. “Ashtanga,” she says, “emphasizes postures and breathing on the premise that these practices will ‘automatically’ lead practitioners to … ‘become one with God’… ‘whether they want it or not'”:
Although EUSD officials reacted to parent complaints by modifying some practices, EUSD classes still always begin with “Opening Sequence” (Surya Namaskara) [a prayer to the sun god] and end with “lotuses” and “resting” (aka shavasana or “corpse”—which encourages reflection on one’s death to inspire virtuous living), and teach symbolic gestures such as “praying hands” (anjalimudra) and “wisdom gesture” (jnanamudra), which in Ashtanga yoga symbolize union with the divine and instill religious feelings.
It’s quite possible for people, especially kids, to be influenced by these religious messages, she says:
Scientific research shows that practicing yoga can lead to religious transformations. For example, Kristin is a Catholic who started Ashtanga for the stretching; she now prefers Ashtanga’s “eight limbs” to the “Ten Commandments.” Kids who learn yoga in public schools may also be learning religion.
Perhaps Brown overstates the difficulty of separating religious and non-religious elements in yoga, I don’t know. After reading her interview, though, the question I have is this. How could anyone not think Ashtanga yoga is religious, and that by sponsoring this class–especially with funding from an organization that promotes Ashtanga’s religious message–the school district has endorsed religion in a manner that current law forbids?
Perhaps, with our deeply Protestant religious culture, Americans simply dismiss the notion that physical practices can be genuinely “religious.” Religion is a matter of mind and spirit, not body; stretching is purely physical, just a nice way to relax. Stretching isn’t prayer, after all. Brown’s point, however–and it is a very important one–is that these practices are a kind of prayer. Ashtanga yoga purports to instill religious feelings and lead one to God, whether one intends it or not. (In fact, Hindus might find the claim that yoga is just a stretching exercise rather insulting). And the school district has students participate in these prayers, not just learn about them from a book. The Supreme Court has said the Constitution forbids even displaying the Ten Commandments inside a public school classroom, lest students feel pressured to read and meditate on them. But this is OK?
Let’s try a thought experiment. Orthodox Christianity has a tradition known as hesychasm, in which hermits discipline themselves to meditate, shut out the world, and experience God inside them. It’s a very difficult mystical practice, not for everyone–though some people like to dabble. Apparently it gives great inner peace. The key element is repetition of the Jesus Prayer: “Lord Jesus Christ, Son of God, Have Mercy on Me, a Sinner.” Suppose some enterprising Orthodox Christian foundation adapted these practices, put the Jesus Prayer in an esoteric language, and proffered the package to a public school district as a stress-reduction program for kids. Would anyone think such a program constitutional under present law?
The plaintiffs in the case have indicated they plan to appeal. I hope they do, because this could turn out to be be a very significant case. As Eastern religious practices continue to seep into mainstream culture, situations like this are bound to recur. They may lead to a change in the way Americans understand religion.
Behind the walls of a church, Liliana and her baby eat, sleep, and wait. Outside, protestors shout ”Go back to Mexico!” and ”Tax this political church!” They demand that the U.S. government deport Liliana, which would separate her from her husband and children. Is Liliana a criminal or a hero? And why does the church protect her?
Grace Yukich draws on extensive field observation and interviews to reveal how immigration is changing religious activism in the U.S. In the face of nationwide immigration raids and public hostility toward ”illegal” immigration, the New Sanctuary Movement emerged in 2007 as a religious force seeking to humanize the image of undocumented immigrants like Liliana. Building coalitions between religious and ethnic groups that had rarely worked together in the past, activists revived and adapted ”sanctuary,” the tradition of providing shelter for fugitives in houses of worship. Through sanctuary, they called on Americans to support legislation that would keep immigrant families together. But they sought more than political change: they also pursued religious transformation, challenging the religious nationalism in America’s faith communities by portraying undocumented immigrants as fellow children of God.
Yukich shows progressive religious activists struggling with the competing goals of newly diverse coalitions, fighting to expand the meaning of ”family values” in a globalizing nation. Through these struggles, the activists both challenged the public dominance of the religious right and created conflicts that could doom their chances of impacting immigration reform.
Next month, Palgrave Macmillan will publish The Right to Wear Religious Symbols by Daniel J. Hill (University of Liverpool) and Daniel Whistler (University of Liverpool). The publisher’s description follows.
Few issues concerning religious freedom provoke so much controversy and debate as the extent to which religious symbols should be protected in the public sphere and the workplace. This book provides the first sustained philosophical analysis of the concepts at issue in this debate, as well as covering all the major recent cases brought under Article 9 of the European Convention of Human Rights, including the landmark judgment Eweida v UK. In particular, it gives a clear presentation of the current state of the case-law, grounding it, in a unique contribution to the debate, in an investigation of its philosophical underpinnings. Particular attention is paid to different functions of the symbol and their theoretical background, with new emphasis on the role of the symbol in bearing witness to faith. This book will open up new vistas for philosophers of religion and legal theorists alike.
This month, Palgrave Macmillan releases Religious Conversions in the Mediterranean World, edited by Nadia Marzouki (European University Institute, Italy) and Oliver Roy (Ecole des Hautes Etudes en Sciences Sociales). The publisher’s description follows.
While globalization and the European construction increasingly undermine the model of the nation-state in the Mediterranean world, conversions reveal the capacity of religion to disrupt, and unsettle previous understandings of political and social relations. Converts’ claims and practice are often met with the hostility of the state and the public while converts can often be perceived either as traitors or as unconscious and weak tools of foreign manipulation.
Based on first-hand ethnographical research from several countries throughout the Mediterranean region, this book is the first of its kind in studying and analyzing contemporary conversions and their impact on recasting ideas of nationalism and citizenship. In doing so, this interdisciplinary study confronts historical, anthropological, political science and sociological approaches which offers an insight into the national, legal and political challenges of legislating for religious minorities that arise from conversions. Moreover, the specific examination of contemporary religious conversion contributes more widely to debates about the delinking of religion and culture, globalization, and secularism.
The Dark Side of Church/State Separation analyzes the Enlightenment’s attack upon the Judeo-Christian tradition and its impact upon the development of secular regimes in France, Germany, and Russia. Such regimes followed the anti-Semitic/anti-Christian agenda of the French Enlightenment in blaming the Judeo-Christian tradition for all the ills of European society and believing that human beings can develop their own set of values and purposes through rational means, apart from any revelation from God or Scripture.
Stephen Strehle’s analysis extends our understanding of church/state relations and its history. He confirms the spiritual roots of modern anti-Semitism within the ideology of the Enlightenment and recognizes the intimate relationship between anti-Semitism and anti-Christianity. Strehle questions the absolute doctrine of church/state separation, given its background in the bigotries of the philosophes. He notes the nefarious motives of subsequent regimes, which used the French doctrine to replace the religious community with the state and its secular ideology.
This detailed historical analysis of original sources and secondary literature is woven together with special appreciation for the philosophical and theological ideas that contributed to the emergence of political institutions. Readers will gain an understanding of the most influential ideas shaping the modern world and present-day culture.
Next month, Ashgate will publish a new volume of Freedom of Religion and Belief by Silvio Ferrari (University of Milan) and Rinaldo Cristofori (University of Milan). The publisher’s description follows.
The essays and articles selected for this volume analyze what is generally understood by freedom of religion and belief in today’s world. The different aspects of this fundamental right are considered from the contents of freedom of religion, to the possible limitations of this freedom; and from the freedom of, or freedom from, conundrum to the question of the collective or individual right. This volume reflects legal, philosophical and international perspectives, addresses numerous unanswered questions and offers an effective overview of the current literature and debate in this aspect of the discipline of law and religion.
This month, Cambridge University Press releases a new, paperback edition of The Spirit of Hindu Law by Donald R. Davis Jr. (University of Wisconsin-Madison). The publishers description follows.
Law is too often perceived solely as state-based rules and institutions that provide a rational alternative to religious rites and ancestral customs. The Spirit of Hindu Law, first published in 2010, uses the Hindu legal tradition as a heuristic tool to question this view and reveal the close linkage between law and religion. Emphasizing the household, the family, and everyday relationships as additional social locations of law, it contends that law itself can be understood as a theology of ordinary life. An introduction to traditional Hindu law and jurisprudence, this book is structured around key legal concepts such as the sources of law and authority, the laws of persons and things, procedure, punishment and legal practice. It combines investigation of key themes from Sanskrit legal texts with discussion of Hindu theology and ethics, as well as thorough examination of broader comparative issues in law and religion.
Mediterranean World
Separation: The French Revolution, Nazi Germany, and International Communism
