Posted on by Mark Movsesian

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

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Wasserstein, “The Ambiguity of Virtue”

This month, Harvard University Press published The Ambiguity of Virtue: Gertrude van Tijn and the Fate of the Dutch Jews by Bernard Wasserstein the ambiguity of virtue(University of Chicago).  The publisher’s description follows.

In May 1941, Gertrude van Tijn arrived in Lisbon on a mission of mercy from German-occupied Amsterdam. She came with Nazi approval to the capital of neutral Portugal to negotiate the departure from Hitler’s Europe of thousands of German and Dutch Jews. Was this middle-aged Jewish woman, burdened with such a terrible responsibility, merely a pawn of the Nazis, or was her journey a genuine opportunity to save large numbers of Jews from the gas chambers? In such impossible circumstances, what is just action, and what is complicity?

A moving account of courage and of all-too-human failings in the face of extraordinary moral challenges, The Ambiguity of Virtue tells the story of Van Tijn’s work on behalf of her fellow Jews as the avenues that might save them were closed off. Between 1933 and 1940 Van Tijn helped organize Jewish emigration from Germany. After the Germans occupied Holland, she worked for the Nazi‐appointed Jewish Council in Amsterdam and enabled many Jews to escape. Some later called her a heroine for the choices she made; others denounced her as a collaborator.

 

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Cammett, “Compassionate Communalism”

Next month, Cornell University Press will publish Compassionate Communalism: Welfare and Sectarianism in Lebanon by Melani Cammett (Brown University).  The Compassionate Communalismpublisher’s description follows.

In Lebanon, religious parties such as Hezbollah play a critical role in providing health care, food, poverty relief, and other social welfare services alongside or in the absence of government efforts. Some parties distribute goods and services broadly, even to members of other parties or other faiths, while others allocate services more narrowly to their own base. In Compassionate Communalism, Melani Cammett analyzes the political logics of sectarianism through the lens of social welfare. On the basis of years of research into the varying welfare distribution strategies of Christian, Shia Muslim, and Sunni Muslim political parties in Lebanon, Cammett shows how and why sectarian groups deploy welfare benefits for such varied goals as attracting marginal voters, solidifying intraconfessional support, mobilizing mass support, and supporting militia fighters.

Cammett then extends her arguments with novel evidence from the Sadrist movement in post-Saddam Iraq and the Bharatiya Janata Party in contemporary India, other places where religious and ethnic organizations provide welfare as part of their efforts to build political support. Nonstate welfare performs a critical function in the absence of capable state institutions, Cammett finds, but it comes at a price: creating or deepening social divisions, sustaining rival visions of the polity, or introducing new levels of social inequality.

Compassionate Communalism is informed by Cammett’s use of many methods of data collection and analysis, including Geographic Information Systems (GIS) analysis of the location of hospitals and of religious communities; a large national survey of Lebanese citizens regarding access to social welfare; standardized open-ended interviews with representatives from political parties, religious charities, NGOs, and government ministries, as well as local academics and journalists; large-scale proxy interviewing of welfare beneficiaries conducted by trained Lebanese graduate students matched with coreligionist respondents; archival research; and field visits to schools, hospitals, clinics, and other social assistance programs as well as political party offices throughout the country.

Posted on by Marc O. DeGirolami

Toobin: Hobby Lobby Challenge is About Hurting Poor People

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here’s his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation–and not a statute–that decides how the subsidy will be financed. And I’m sure Hobby Lobby will be surprised to learn that it doesn’t care about poor people–say, the poorer of its own employees for whom it provides health plans–health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger’s latest column: “I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods.”

Posted on by JCPW

Around the Web

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

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Barry & Abo-Zena (eds.), “Emerging Adults’ Religiousness and Spirituality”

9780199959181This April, Oxford University Press will publish Emerging Adults’ Religiousness and Spirituality: Meaning-Making in an Age of Transition edited by Carolyn McNamara Barry (Loyola University Maryland) and Mona M. Abo-Zena (Brown University). The publisher’s description follows.

Although most American children are raised in a faith tradition, by the time they reach their early twenties their outward religious expression declines significantly, with many leaving the faith in which they were raised in favor of another faith or none at all, though many still claim that religion and spirituality are important. Reasons for this change in religious behavior include adolescents’ forging their own identities, increased immersion in contexts beyond the family, and exposure to media. As emerging adults encounter events such as attending university, breaking up with a romantic partner, and traveling, they are likely to make sense out of them, a process known as meaning-making. Thus, coming into one’s own takes on great prominence during the years of emerging adulthood (18-29), making it ripe for religious and spiritual development.

Emerging Adults’ Religiousness and Spirituality seeks to understand how the developmental process of meaning-making encompasses American emerging adults’ religiousness and spirituality. This volume does not focus on disentangling religion and spirituality conceptually, but rather emphasizes their centrality in the psychology of human development. It highlights the range of experiences and perspectives of emerging adults in the U.S. grounded in social context, social position, and religious or spiritual identification. Chapters are written by an interdisciplinary group of authors and explore topics such as the benefits and detriments of religiousness and spirituality to emerging adults; contexts and socializing agents such as parents and peers, the media, religious communities, and universities; and variations of religiousness and spirituality concerning gender, sexuality, culture, and social position. Using a developmental lens and focusing on a significant period within the lifespan, this volume embodies the key aspects of a developmental perspective by highlighting specific domains of development while considering themes of continuity and discontinuity across the lifespan.

Posted on by JCPW

Dixon & Ginsburg (eds.), “Comparative Constitutional Law in Asia”

comparative-constitutional-lawThis April, Edward Elgar Publishing will publish Comparative Constitutional Law in Asia edited by Rosalind Dixon (University of New South Wales, Australia) and Tom Ginsburg (University of Chicago). The publisher’s description follows.

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions. The authors – leading comparativists from around the world – illuminate material from Asian jurisdictions on matters such as freedom of religion, constitutional courts, property rights, emergency regimes and the drafting process of constitutions. Together they present a picture of a region that is grappling with complex constitutional issues and is engaged with developments in the rest of the world, while at the same time pursuing distinctive local solutions that deserve close attention. This unique scholarly study will prove an important research tool for Asian scholars, constitutional lawyers within Asia and comparative constitutional scholars around the world.

Posted on by Mark Movsesian

Panel: The Coptic Question (April 10)

Fordham’s Institute on Religion, Law & Lawyer’s Work will host a panel discussion, “The Coptic Question: Protecting Minorities During Periods of Upheaval,” in New York on April 10:

Coptic Christians, who make up more than 10% of the Egyptian population, were partners with their Muslim fellow citizens in Tahrir Square and Arab Spring. However, since 2011, scores of Coptic churches, monasteries, shops, schools, clubs and orphanages had been plundered and burned, and over the past year more than 100,000 Christians have fled Egypt with their families, leaving everything they know behind.

This program will explore the experience of the Coptic Christians as religious minority in Egypt and consider the potential for protecting Christian minorities in majority Muslim countries.

Details are here.

Posted on by Mark Movsesian

President Obama and Pope Francis on Mideast Christians

In the Boston Globe, the always worthwhile John Allen analyzes today’s meeting between President Obama and Pope Francis. Although the two men will agree on issues like economic inequality, Allen says, they will likely differ on others, including, notably, Mideast policy.

Pope Francis often highlights the crisis Mideast Christians face; President Obama, not so much. “Few on the Catholic side are inclined to see the Obama administration as a great defender of those Christians at risk,” Allen writes, “while standing up against violent anti-Christian persecution is emerging as a cornerstone of Francis’ social and political agenda”:

On Egypt, Obama took a “pox on both your houses” stance last summer with regard to the Muslim Brotherhood and the army after a military council declared controversial President Mohamed Morsi deposed. The Vatican was more favorable to the military intervention, inclined to see it less as a coup and more as a reflection of popular will.

In Syria, the Obama administration has made the removal of President Bashar al-Assad a precondition for any negotiated end to that country’s civil war, while the Vatican is more skeptical about regime change, in part out of concern that whatever follows Assad might actually be worse.

Underlying these contrasts is that the Vatican’s reading of the Middle East is heavily conditioned by the perceptions of the Christian minorities in these countries, who generally see either a powerful military or strong-arm rulers as a buffer between themselves and Islamic radicalism. They often point to Iraq, where a once-thriving Christian community has been gutted in the chaos that followed the collapse of Saddam Hussein.

You can read the full article here.

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Oldfield, “Sanctity and Pilgrimage in Medieval Southern Italy, 1000–1200”

Next month, Cambridge will publish Sanctity and Pilgrimage in Medieval9781107000285 Southern Italy, 1000–1200, by Paul Oldfield (University of Manchester). The publisher’s description follows.

Southern Italy’s strategic location at the crossroads of the Mediterranean gave it a unique position as a frontier for the major religious faiths of the medieval world, where Latin Christian, Greek Christian and Muslim communities coexisted. In this study, the first to offer a comprehensive analysis of sanctity and pilgrimage in Southern Italy between 1000 and 1200, Paul Oldfield presents a fascinating picture of a politically and culturally fragmented land which, as well as hosting its own important relics as important pilgrimage centres, was a transit point for pilgrims and commercial traffic.

Drawing on a diverse range of sources from hagiographical material to calendars, martyrologies, charters and pilgrim travel guides, the book examines how sanctity functioned at this key cultural crossroads and, by integrating the analysis of sanctity with that of pilgrimage, offers important new insights into society, cross-cultural interaction and faith in the region and across the medieval world.