Posted on by Marc O. DeGirolami · 1 Comment

Reflections from the City of God: On the Dilemmas of the Judge

This week’s selection from the City of God comes again from Book XIX, this City of Mentime from Chapter 6. The context is the broad theme elaborated in Chapter 4–that though the virtues of this life are “its best and most useful possessions,” they are in the end only constant reminders of the miseries of this life and cannot be the final good: “Salvation, such as it shall be in the world to come, shall itself be our final happiness.” The immediate chapters that follow Chapter 4 represent particular ruminations on and applications of the theme. Chapter 6 considers “the error of human judgments when the truth is hidden.”

The problem for judges in the earthly city is that they are required to pass judgment but that they “cannot discern the consciences of those at their bar.” Their judgments are therefore “melancholy and lamentable.” All the more so because judges are driven to use coercive methods to compensate for their ignorance of the truth, which in turn drives the innocent to confess falsely, “[a]nd when he has been condemned and put to death the judge is still in ignorance whether he has put to death an innocent or a guilty person….[C]onsequently he has both tortured an innocent man to discover his innocence, and has put him to death without discovering it.” Augustine paints a dark picture of justice in the earthly city in this chapter.

The problem, moreover, is not one of the specific coercive methods used by the judicial systems in particular earthly cities (though several sources note Augustine’s opposition in several letters to torture and capital punishment). As Oliver O’Donovan puts it: “We shall miss the point of this if we confine ourselves to observations about the barbarous laws of evidence which obtained in the late empire….For [Augustine] it is a universal problem about judicial process everywhere. It is a guess as to which party is lying and which telling the truth, and any inquisitorial process adopted to reduce the element of hazard may backfire and defeat its own ends.” Oliver O’Donovan, “The Political Thought of City of God 19,” in Bonds of Imperfection: Christian Politics, Past and Present 70 (2003).  An interesting feature of Augustine’s discussion about torture in this context is that it emphasizes consequentialist considerations–the trouble with torture that Augustine targets here is that it does not assist, and in fact may be counterproductive, in ascertaining the truth. See Henry Chadwick, Augustine of Hippo: A Life 140 (2009). And yet, the problem of the elusiveness of truth is not resolved by a refusal to give judgment. Thus arises the dilemma: the necessity to give judgement in the earthly city together with the knowledge that ignorance of the truth will infect the judgment.

I was especially struck by Augustine’s focus in the very last part of this selection not on the substance of the judgment, or on the methods to be used in judging, but on the mood or cast of mind that the dilemmas of the judge ought to inspire in him (“wise” is not an honorific here). Augustine is interested in what the miseries of judgment do for the character of the judge–and what they ought to do–as he contemplates the fulfillment of his duties in the earthly city:

If such darkness shrouds social life, will a wise judge take his seat on the bench or no? Beyond question he will. For human society, which he thinks it a wickedness to abandon, constrains him and compels him to this duty. And he thinks it no wickedness that innocent witnesses are tortured regarding the crimes of which other men are accused; or that the accused are put to the torture, so that they are often overcome with anguish, and, though innocent, make false confessions regarding themselves, and are punished; or that, though they be not condemned to die, they often die during, or in consequence of, the torture; or that sometimes the accusers, who perhaps have been prompted by a desire to benefit society by bringing criminals to justice, are themselves condemned through the ignorance of the judge, because they are unable to prove the truth of their accusations though they are true, and because the witnesses lie, and the accused endures the torture without being moved to confession. These numerous and important evils he does not consider sins; for the wise judge does these things, not with any intention of doing harm, but because his ignorance compels him, and because human society claims him as a judge. But though we therefore acquit the judge of malice, we must nonetheless condemn human life as miserable. And if he is compelled to torture and punish the innocent because his office and his ignorance constrain him, is he a happy as well as a guiltless man? Surely it were proof of more profound considerateness and finer feeling were he to recognize the misery of these necessities, and shrink from his own implication in that misery; and had he any piety about him, he would cry to God: “From my necessities deliver Thou me.”

Posted on by Mark Movsesian · 2 Comments

The Abercrombie Look

Staff at Abercrombie & Fitch Store, London (BBC)

Here’s an interesting case that reveals much about the way American mass marketers view religion and “diversity.” This week, a federal district court in California ruled in favor of Umme-Hani Khan, a Muslim teenager who sued her employer, the retailer Abercrombie & Fitch, for religious discrimination. A&F fired Khan, whose job required her to restock clothes on the sales floor of an A&F store in San Mateo, because she insisted on wearing a Muslim headscarf, or hijab, on the job. The headscarf, A&F told her, was inconsistent with the firm’s “Look Policy,” a set of grooming and clothing requirements for employees.

The Look Policy is meant to project a consistent A&F identity to consumers who favor the brand–mostly kids between 18-22. You can see an illustration in the photo above, from A&F’s London store. Head coverings are out; shirts, apparently, are optional. A&F occasionally grants exemptions from the policy to employees who wish to wear religious garb or symbols, but only if the garb or symbols are not visible to others. Just judging by the outfits in the photo, that can’t be the case very often.

But back to Ms. Khan. A&F obviously fired Khan because of her attempt to exercise her religion. Under federal and state employment laws, though, a firm can fire an employee if accommodating the employee’s religious practice would create an undue burden for the firm. Here, A&F argued, allowing Khan to wear her headscarf would create such a burden. Allowing departures from the Look Policy would confuse customers and detract from their in-store experience. And consumer confusion would injure A&F’s brand identity and detract from sales. Simply put, allowing Khan to wear the headscarf would cost A&F money.

The problem was that A&F didn’t show that it had lost any sales because of Khan’s hijab. A&F speculated that consumers would be confused or irritated by the sight of Khan in a headscarf, but could point to no actual incidents. Nor did A&F offer convincing evidence about the negative effect employee headscarves had on sales at other clothing firms. On the record presented, the court ruled, there was no reason to believe that allowing Khan to wear her headscarf would pose an undue hardship for A&F . So Khan prevailed on her claim.

All this is straightforward employment discrimination law. What makes the case interesting is what it reveals about the mindset of mass-market retailers like A&F. Like many such retailers, A&F makes a big deal about its commitment to “diversity,” including religious diversity. According to its website, A&F recognizes the “25 different dimensions of diversity that make up who we are” (only 25?), such as “race, gender, family, sexual orientation, work experience, physical ability, and religion.” So it’s a little strange that A&F would fire a teenage stocking clerk who did nothing more offensive than wear a headscarf to work for religious reasons, and compound the PR mistake by litigating the case in federal court. What gives?

I can think of three possibilities. First, the people at A&F are clueless. Other recent PR disasters for A&F–like the suggestion that the firm doesn’t want heavy women wearing its clothes–render this explanation somewhat plausible, but I doubt it. You don’t become a successful retailer by being clueless. Second, the people at A&F are hypocrites. They talk a good game about tolerance and diversity, but are secretly bigots. This explanation is more plausible than the first, but still unsatisfying. I expect the people at A&F, especially the marketers steeped in our media culture, have internalized the diversity imperative. They really do wish to be “inclusive” and would be shocked to find out they’re not.

So here’s a third explanation. In our mass-market culture, “diversity” means something very specific: the right to purchase and wear (but principally purchase) the same products as everybody else. Wherever you come from, whoever your parents are, whichever God you pray to–whatever the precise mixture of those “25 different dimensions of diversity” that make you who you are–you have a right to the Abercrombie Look. To hold that diversity means something more than that, that it might require people to tolerate religious garb and symbols in the workplace, could be divisive and bad for business. And who knows where it would lead? Someone might actually try to wear a visible cross to work.  

The case is Khan v. Abercrombie & Fitch, 2013 WL 4726137 (N.D.Cal. 2013)).

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Around The Web This Week

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

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Allen, “The Global War on Christians”

9780770437350This October, Random House will publish The Global War on Christians: Dispatches from the Front Lines of Anti-Christian Persecution by John L. Allen Jr. (Vatican correspondent for the National Catholic Reporter and Vatican analyst for CNN and NPR). The publisher’s description follows.

One of the most respected journalists in the United States and the bestselling author of The Future Church uses his unparalleled knowledge of world affairs and religious insight to investigate the troubling worldwide persecution of Christians.

From Iraq and Egypt to Sudan and Nigeria, from Indonesia to the Indian subcontinent, Christians in the early 21st century are the world’s most persecuted religious group. According to the secular International Society for Human Rights, 80 percent of violations of religious freedom in the world today are directed against Christians. In effect, our era is witnessing the rise of a new generation of martyrs. Underlying the global war on Christians is the demographic reality that more than two-thirds of the world’s 2.3 billion Christians now live outside the West, often as a beleaguered minority up against a hostile majority– whether it’s Islamic fundamentalism in the Middle East and parts of Africa and Asia, Hindu radicalism in India, or state-imposed atheism in China and North Korea. In Europe and North America, Christians face political and legal challenges to religious freedom. Allen exposes the deadly threats and offers investigative insight into what is and can be done to stop these atrocities.

“This book is about the most dramatic religion story of the early 21st century, yet one that most people in the West have little idea is even happening: The global war on Christians,” writes John Allen. “We’re not talking about a metaphorical ‘war on religion’ in Europe and the United States, fought on symbolic terrain such as whether it’s okay to erect a nativity set on the courthouse steps, but a rising tide of legal oppression, social harassment and direct physical violence, with Christians as its leading victims. However counter-intuitive it may seem in light of popular stereotypes of Christianity as a powerful and sometimes oppressive social force, Christians today indisputably form the most persecuted religious body on the planet, and too often its new martyrs suffer in silence.”

This book looks to shatter that silence.

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Regan, “The American Constitution and Religion

51oQdDf7byL__SY346_This November, The Catholic University of America Press will publish The American Constitution and Religion by Richard J. Regan. The publisher’s description follows.

The Supreme Court’s decisions concerning the first amendment are hotly debated, and the controversy shows no signs of abating as additional cases come before the court. Adding much-needed historical and philosophical background to the discussion, Richard J. Regan reconsiders some of the most important Supreme Court cases regarding the establishment clause and the free exercise of religion. Governmental aid to church-affiliated elementary schools and colleges; state-sponsored prayer and Bible reading; curriculum that includes creationism; tax exemption of church property; publicly sponsored Christmas displays—these and other notable cases are discussed in Regan’s chapters on the religious establishment clause. On the topic of the free-exercise clause, Regan considers such subjects as the value of religious freedom, as well as the place of religious beliefs in public schooling and government affairs. Important cases concerning conscientious objection to war, regulation of religious organizations and personnel, and western traditions of conscience are also examined. This book, written for students of law, political science, and religion, presents the relevant case law in chronological order. The addition of the historical context and Regan’s philosophical discussion enhances our understanding of these influential cases.

Posted on by Marc O. DeGirolami

Law, Religion, and Putin’s Times Op-Ed

Law and religion is not at the very forefront of the rapidly changeable geo-political situation regarding Syria (though, as we have noted here, it is certainly in the immediate background). But somehow, some way, law and religion managed to make its way into Russian President Vladimir Putin’s New York Times editorial (which the Times decided to title, “A Plea for Caution From Russia“), printed on no less exceptional a date than September 11. After condemning “the language of force” (at least when used by the United States) and praising the newly emergent “growing trust” that marks his “working and personal relationship with President Obama,” Putin saw fit to throw a final rhetorical body-blow against American exceptionalism by deploying the language of law and religion:

I carefully studied [Obama’s] address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” It is extremely dangerous to encourage people to see themselves as exceptional, whatever the motivation. There are big countries and small countries, rich and poor, those with long democratic traditions and those still finding their way to democracy. Their policies differ, too. We are all different, but when we ask for the Lord’s blessings, we must not forget that God created us equal.

Posted on by Robert J. Delahunty

Tocqueville and Gobineau

It is fitting to end this series with a study of the exchanges between GobineauTocqueville and his younger friend and assistant, Arthur de Gobineau. For if Tocqueville was the explorer of the new age of democracy, Gobineau was the herald of a return to an age of aristocracy, if in an untraditional and modernized form.

Though little remembered now, Gobineau was a prolific and assiduous writer, known chiefly for his defense of racism, the Essai sur l’inégalité des races humaines (1853-55) (“Essay on the Inequality of the Human Races”). Eleven years younger than Tocqueville and, like him, the Essaiscion of a noble family (if a lesser one), Gobineau was probably introduced to Tocqueville by royalist friends of both. Whether or not they had met previously, the two men began a correspondence in 1843. The exchange resulted from an invitation the Académie des sciences morales et politiques had extended to Tocqueville in that year, to prepare a study on modern moral doctrines in order to establish what, if anything, was novel in them. Tocqueville sought to enlist the young Gobineau’s assistance in the project. The ensuing correspondence took, for Tocqueville, a surprising turn, as he found his deepest beliefs about the relationship of Christianity to modern society sharply challenged. Tocqueville abandoned the study in 1848, probably owing to the revolution of that year.

A second major round of correspondence took place beginning about a decade later, around the time of the appearance of Gobineau’s book on racial inequality. This new, illiberal orientation in Gobineau’s thought deeply disturbed Tocqueville, who told Gobineau frankly that he objected to its “fatalism” and its “materialism.” To other correspondents, Tocqueville complained that Gobineau’s “stud farm philosophy” expounded “dangerous thoughts . . . in a journalistic style.” See Françoise Mélonio, Tocqueville and the French 129 (Beth Raps trans. 1998). For his part, Gobineau exulted that the book had “struck the nerve of liberal ideas at its core.” Id.

Despite their basic differences, Tocqueville befriended Gobineau, launching him on a diplomatic career when Tocqueville became France’s Foreign Minister in 1849. Gobineau did not repay Tocqueville’s kindness: in his 1874 novel Les Pléiades, his used the character of Genevilliers to mock and satirize his benefactor. Mélonio at 128-30.

The interest and importance of the Tocqueville-Gobineau correspondence has been rightly emphasized by several scholars. See especially Aristide Tessitore, “Tocqueville and Gobineau on the Nature of Modern Politics,” 67 Review of Politics 631 (2005); see also Christian Bégin, “Tocqueville et la fracture religieuse,” 32 The Tocqueville Review/La Revue Tocqueville 167 (2011); Larry Siedentop, Tocqueville 96-106; 126-30 (1994); William A. Galston, “Tocqueville on Liberalism and Religion,” 54 Social Research 499 (1987). The historian John Lukacs has edited and translated most – though unfortunately not all – of the correspondence, and I shall use this translation. Alexis de Tocqueville, “The European Revolution” & Correspondence with Gobineau (John Lukacs ed. & trans. 1968).

The ultimate issues

The confrontation between Tocqueville and Gobineau was played out on at least two levels.

First, as of 1843, Gobineau “might best be described as a radical partisan of the Enlightenment project.” Tessitore at 632. Throughout his career, however, Tocqueville had argued that modern Western society was indebted to both the Enlightenment and Christianity, that the central doctrines of both movements were compatible, and that the tension between them was fruitful and beneficent, each correcting the flaws and excesses of the other. See id. at 639; 652; Galston at 502-04. The core principles of the Enlightenment, such as “the natural equality of men,” were also part of the patrimony of Christianity. See Alexis de Tocqueville, The Ancien Régime and the Revolution 21 (Bevan trans. 2008).

For Gobineau, the Enlightenment marks a revolutionary transformation in the West, ushering in a post-Christian era in which morality has come to rest on a wholly naturalistic foundation. See Tessitore at 641. For Tocqueville, by contrast, the coming of Christianity is the only true revolution that the West has yet seen, or may ever see. (The same thesis has been defended at length, but without reference to Tocqueville, in David Bentley Hart’s brilliant Atheist Delusions, cited earlier in this series.). There is, indeed, a radical discontinuity in the dominant ethos of the West; but this is the rupture between classical antiquity and the rise of Christianity, not between the Christian ages and the aftermath of the Enlightenment. True, the morality of the nineteenth century differs significantly from that of the pre-Enlightenment period, notably with regard to the importance of political action and the recognition of life’s material needs. But these changes, Tocqueville insists, merely reflect the development of Christian morality over long stretches of time and its adaptation to new circumstances. They do not constitute evidence of the dominance of a radically de-christianized ethos. See Tessitore at 636; 644-45; 648; Galston at 505-08.

Second, Gobineau’s view of modern morality in the early 1840s laid the foundation for his later teaching about human inequality.

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“Law and the Bible: Justice, Mercy and Legal Institutions,” Cochran and VanDrumen (eds.)

This October, InterVarsity Press will publish Law and the Bible: Justice, Mercy and2573 Legal Institutions edited by Robert F. Cochran (Pepperdine University) and David VanDrunen (Westminster Seminary California). The publisher’s description follows.

The Bible is full of law.

Yet too often, Christians either pick and choose verses out of context to bolster existing positions, or assume that any moral judgment the Bible expresses should become the law of the land. Law and the Bible asks: What inspired light does the Bible shed on Christians’ participation in contemporary legal systems? It concludes that more often than not the Bible overturns our faulty assumptions and skewed commitments rather than bolsters them. In the process, God gives us greater insight into what all of life, including law, should be.

Each chapter is cowritten by a legal professional and a theologian, and focuses on a key aspect of the biblical witness concerning civil or positive law–that is, law that human societies create to order their communities, implementing and enforcing it through civil government. A foundational text for legal professionals, law and prelaw students, and all who want to think in a faithfully Christian way about law and their relationship to it.

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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, Douglas Laycock remains at #1, Perry Dane remains at #2, Elizabeth Sepper has moved up to #3 replacing Dwight Newman, Richard Garnett has moved up to #4, and Patrick McKinley Brennan has joined the list at #5.

1. Religious Liberty and the Culture Wars  by Douglas Laycock (U. of Virginia, School of Law) [254 downloads]

2. Doctrine and Deep Structure in the Contraception Mandate Debate by Perry Dane (Rutgers, School of Law) [231 downloads]

3. Contraception and the Birth of Corporate Conscience  by Elizabeth Sepper (Washington U., School of Law [148 downloads]

4. ‘The Freedom of the Church’: (Towards) an Exposition, Translation, and Defense by Richard W. Garnett (Notre Dame Law School)  [134 downloads]

5. ‘The Pursuit of Happiness’ Comes Home to Roost? Same-Sex Union, the Summum Bonum, and Equality by Patrick McKinley Brennan (Villanova U., School of Law) [76 downloads]

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Sharpe & Nickelson (eds.), “Secularisations and Their Debates: Perspectives on the Return of Religion in the Contemporary West”

Next month, Springer will publish Secularisations and Their Debates: Perspectives on the Return of Religion in the Contemporary West, edited by Mathew Sharpe (Deakin University) and Dylan Nickelson (Deakin University). The publisher’s description follows.

Secularisations and Their Debates This volume explores timely topics in contemporary political and social debates, including: the new atheisms, the debate between Habermas and the Pope on the fate of modernity, and the impact of new scientific developments on traditional religions.

This book collects articles first presented at the Deakin University “World in Crisis” workshop, held November 2010 by leading Australasian philosophers and theologians. It addresses questions raised by the recent, much-touted return to religion, including possible reasons for the return and its practical, political, and intellectual prospects.

Secularisation and Their Debates is not afraid to provide answers to such questions as:

    • Is religion only ever a force of political reaction in modernity, or are there resources in it which progressive, even secular social movements, could engage with or adopt?
    • Are the new atheisms, or on the opposite side, the new fundamentalisms, really novel phenomena, or has religion only ever been artificially sidelined in the modern Western states?
    • Has modern liberalism only really been kidding itself about its non-doctrinal neutrality between different faiths, and if so, what should follow?