Posted on by Mark Movsesian

SSRN Selects Movsesian Essay on Armenian Genocide As a Weekly Top Five Paper

I’m delighted to note that the Social Science Research Network has selected my essay, “Elusive Equality: The Armenian Genocide and the Failure of Ottoman Legal Reform,” as one of its Weekly Top Five Papers this week. The SSRN archive contains approximately 425,000 papers from scholars around the world; roughly 66,000 are added each year. So being named one of the weekly top five papers is great news, indeed. Thanks to SSRN!

As I told SSRN,

I wrote this essay for a symposium on legal issues surrounding the Armenian Genocide of 1915. In part, it is an essay in legal history. It describes how reforms in Ottoman law, designed to benefit religious minorities like Armenian Christians, perversely led to a backlash against those very minorities.

The essay also contributes to the emerging field of comparative law and religion. Comparative L&R explores how different legal regimes reflect, and influence, the relationships religious communities have with the state and with each other. Here, I discuss the treatment of Christians in classical Islamic law and show why the transition to a secular, egalitarian regime proved so difficult and had such dire consequences for vulnerable communities.

You can download the paper here. (Why not download more than once?).

Posted on by Mark Movsesian

The Ukrainian Protests and the Orthodox Church(es)

Even casual observers know that Orthodox Churches traditionally have close ties with the state. So many in the West don’t know what to make of the fact that, in the current conflict in Ukraine, the Ukrainian Orthodox Church appears to be siding with the protesters. The New York Times, for example, reports that protesters running from riot police in Kiev take refuge in a historic Orthodox monastery, and that the Church’s patriarch, Filaret (above), strongly opposes the government. Filaret has stated that Ukraine should look West and join the European Union, and that President Victor Yanukovich, who recently announced that Ukraine would not agree to a long-anticipated trade deal with the EU, should resign.

To understand what’s going on, one has to know a little about the divisions within Orthodoxy in Ukraine. Patriarch Filaret is the leader of the Ukrainian Orthodox Church-Kyvian Patriarchate. The Kyvian Patriarchate is in schism from the main body of Orthodoxy in Ukraine, the Ukrainian Orthodox Church-Moscow Patriarchate, which, as its name suggests, is under the jurisdiction of the Russian Orthodox Church in Moscow. The Moscow Patriarchate does not recognize the canonical status of the Kyvian Patriarchate; indeed, no Orthodox Church  in the world does. (To make things even more confusing, the Ukrainian Orthodox Church of the USA is under the jurisdiction of neither the Kyvian or Moscow Patriarchates, but the Ecumenical Patriarchate of Constantinople).

It’s not at all surprising, therefore, that Patriarch Filaret would support closer ties with Europe and a weakening of Russian influence in Ukraine. He and his flock are likely to have more status and independence in a Ukraine that looks toward the West. This is just another example of how religious and political interests often converge. As Daniel Larison writes, it will be interesting to see if there is now a pro-Russian pushback from those Ukrainians loyal to the Moscow Patriarchate.

Posted on by Marc O. DeGirolami · 1 Comment

Bartrum on Religion and the Restatements

Here’s a very interesting piece by Ian Bartrum (UNLV) on the ways in which the Restatements of Law (assembled by the American Law Institute, the Restatements aim to condense and synthesize bodies of law) incorporate or otherwise treat religion, and how they might do so more effectively. Because the abstract is very short, but because there is a request not to cite from the paper, I’ll just say quickly that Ian divides up the treatment of religion into two components which correspond roughly to the two guarantees of religious freedom under the religion clauses. There are provisions in various Restatements that approach religion as a matter of “natural” or fundamental right (as in the Restatement of Foreign Relations and in the Restatement of Servitudes [who knew that there was a Restatement of Servitudes!?]). But there are other provisions that seek to avoid judicial entanglement in issues of personal or institutional autonomy–such as in the “Principles of the Law of Family Dissolution” involving the religion of children of divorced couples and the extent to which courts should involve themselves in making comparative judgments about religions–reflecting familiar establishmentarian concerns.

After considering several examples where the Restatements seem to evince cross-cutting views about religion, Prof. Bartrum notes a few places where the Restatements might give greater (or even some) attention to religion. The Restatement of Torts, for example, might attend to some of the recent issues involving church autonomy and the ministerial exception. And the Restatement of the Conflict of Laws might consider some of the recent issues involving the enforceability of arbitration decisions in religious contexts. I hope these suggestions are adopted by the American Law Institute.

Posted on by Marc O. DeGirolami

Berger on Kemalism Here and Abroad

Peter Berger has an interesting column this week, well worth reading in full, about the display of religious symbols by the government and the culture war features of legal disagreement. The legal cases he discusses are not new–the Utah public highway cross case (Davenport v. American Atheists) which the Supreme Court declined to hear and the Lautsi case. Professor Berger might have noted that in declining to hear the case, the Supreme Court left intact the Tenth Circuit’s ruling striking the crosses down as an Establishment Clause violation.

But that’s largely irrelevant, for the insights of the column lie in his comparative cultural analysis:

Why the recent flurry of church/state issues? In America it is part of the politics surrounding the so-called “culture wars”:  The rising influence of conservative Protestants in the Republican party has mobilized liberals against any political role of organized religion—especially since conservative Catholics have been allied with conservative Protestants on most of the issues “south of the navel” (issues, that is, that liberals are personally anxious about). The politics in Europe is different: Conservative Christianity (Protestant or Catholic) is not very significant politically, but the perceived threat of militant Islam has made secularism (such as French laicite) appear as a defense of European values against theocracy.

I think there is also the factor of lawyers looking for business, and then the professional deformation of this group comes into play. Lawyers live, literally and emotionally, on the making of fine distinctions. Thus the distinctions made in American courts, on where a particular instance violates or does not violate the First Amendment, are veritably scholastic (or, if you will, Talmudic). These considerations tend to be sovereignly free of common sense. . . . Am I exaggerating? Of course I am. But I do so for a reason: I am applying the old casuistic method of reductio ad absurdum. 

Let me “reduce” some more: The Kemalist assault on religion in public space is related to an old progressive notion, the abolition of history. It goes back to the Enlightenment and particularly to its political expression in the French Revolution. It was not for nothing that the latter abolished the old calendar and substituted a new one (with months like brumaire and thermidor). That particular exercise did not last long, but the underlying progressive idea persisted: By the very notion of progress, the present is further on the march toward the glorious future than anything in the past. It affected America too: see the motto about the “new order of the ages” emblazoned on the Grand Seal of the United States (and on the dollar bills in your wallet). But in this country these utopian fantasies have often been modified by common sense and by Protestant suspicions about human nature. Be this as it may, the abolition of history continues to be a dream that haunts the progressive imagination . . . .

As I write this, we are on the eve of the Christmas season (the ADL guide would surely prefer just plain “holiday season”). There is the usual orgy of shopping, the favored season for shopkeepers to be merry. Christmas carols blare through the PA systems, jolly Santa Clauses (fully evolved from their saintly ancestor, St. Nicholas) listen to the wishes of small children perched on their knees, everyone smiles with good will. This synthesis of religion and secularity is regularly criticized from opposite sides. The secularists don’t like the religious part. They can’t do much about the shopping malls, but they can surely agitate and litigate against any trace of Christianity in the holiday season insofar as it is acknowledged on government property—maybe crèches can be allowed, but without baby Jesus or any other New Testament characters. If any values are to be celebrated, they are family ties, the happiness of children and general good will. And on the other side are those who want to “bring Christ back into Christmas”, doing away with all the supposedly fake jolliness and commercial exploitation, instead restore the original religious character of this holy-day. I think that both criticisms are misguided. There is nothing fake about the secular cheer of the season, nor about the expressions of general amiability – and there is nothing wrong about the fact that some people are making money out of it. Those who want to focus on the birth of Christ the savior, are free to do so. Let me admit it: I do celebrate the birth of Christ at Christmas. I also like the secular cheer that is also celebrated. I even like the commercialism—it is a source of happiness for many people, especially children.