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.”