From the St. John’s Law School webpage, here’s a nice writeup of Tuesday’s event on religious liberty in Supreme Court jurisprudence. Thanks to Board member Richard Sullivan for participating and Board member Mary Kay Vyskocil for hosting. And to everyone who attended!
Holidays of Forgetting
This article is another installment in the ongoing holidays wars. As I have previously noted, how and what we celebrate has reached a tipping point, due to two competing and perhaps ultimately irreconcilable trends. Our calendar, which marks out sacred space as “holidays,” either civil or in recognition of some religious tradition, is being pummeled between secularization on the one hand, but also a blossoming pluralism on the other.
There are still the annual Christmas wars, where fidgety towns debate how many reindeer can neutralize a crèche, or where to place the menorah in relation to the Christmas tree. The Supreme Court jurisprudence on this point is a hopeless morass, and so many places have tried simply to ignore it, one town famously referring to this time of year as “the sparkly season.”
The Christmas wars were largely a debate between those who think the Constitution enacts some impenetrable boundary between religion and government, and those who did not. Most of the former were generally, but not always, antipathetic specifically to the background Christian culture of the United States. To impose a secularist view would by definition, make the culture less Christian and also less religious. But the more current controversies are adding a new wrinkle.
The underlying theory of the Connecticut schools profiled in the article seems to be that one cannot publicly observe a holiday where some people feel “excluded” or “offended.” Such a position runs against the equally strong current in public schools of multiculturalism. Even if some people don’t like Halloween, shouldn’t the traditions of all people be reflected and invited to understand those holidays? On the other hand, some evangelical Christians also do not like Halloween, so it is easy to understand a decision to ban the holiday by your average school administrator.
Other school systems are taking exactly the opposite tack , and designating more holidays, across a number of traditions, such as Muslim holidays and the Chinese New Year, to accommodate the various traditions present. The logical conclusion of this reasoning is of course, to have no holidays at all, except perhaps secular ones (though some, like Columbus Day are also under attack).
As Paul Connerton writes in his book, How Societies Remember, holidays and the rites associated with them, “have as one of their defining features the explicit claim to” commemorate continuity with the past. It makes a difference therefore whether Halloween is meant to claim continuity with some pagan past, real or imagined, or whether it looks forward to All Saints’ Day. But the real trouble Halloween, as well as other holidays, may have is that it is emptied of memory. In a secular culture, such holidays express nothing but themselves and the passing moment. And that ritualized forgetting may be the real lasting danger to how we celebrate.
Moyn, Christian Human Rights
I want to call special notice to Professor Samuel Moyn’s very interesting and 
elegantly executed new book, Christian Human Rights (2015), which traces the specifically 20th century Christian roots of contemporary (secular?) human rights. Moyn begins really in 1937 and devotes special attention to Pope Pius XII’s 1942 Christmas message, “The Internal Order of States and People,” in which Pius announced both the “dignity of the human person” and that man “should uphold respect for and the practical realization of…fundamental personal rights.”
I’ve just started to dig in to the book, but I wanted to highlight a few passages from the introduction to illustrate some of the accents and grace notes of the book. There is, for example, this line: “The trouble, after all, is not so much that Christianity accounts for nothing, as that it accounts for everything.” (6) Part of Moyn’s project is remedial with respect both to those “secular historians” who have “nervously bypassed” “the Christian incarnation of human rights, which interferes with their preferred understandings of today’s highest principles” and those other scholars, “overwhelmingly Christians themselves,” who go about defending the Christian tradition of human rights “in a highly abstract way” and by recourse to “long ago events” stretching to the very beginnings of Christianity.
There is also this, on the idea of tradition (admittedly, a subject of some interest to me):
No one could plausibly claim–and no one ever has–that the history of human rights is one of wholly discontinuous novelty….But radical departures nonetheless occurred very late in Christian history, even if they were unfailingly represented as consistent with what came before: this is how “the invention of tradition” most frequently works. (5)
The citation is to Hobsbawm’s essay (in his collected volume) on The Invention of Tradition (in which Hugh Trevor Roper’s typically and enjoyably acid essay on Scottish tartans is one of my very favorites in the ‘tradition-as-fraud’ genre). Yet I hope it is not too tart of me to wonder whether this might just as easily be called “the invention of novelty,” novelties being, of course, the stuff on which scholars make their living. Perhaps a little of both?
More seriously, perhaps what these lines in Moyn’s fine and insightful book really suggest is that what is really most needful is a true and clear-eyed account of the idea of tradition and its importance for law and legal institutions generally, one that is neither committed to its lionization nor demonization.
The Unwritten Laws of Greece
The Spectacle of Death
Ancient Greek cities were frequently at war with each other, and death took its toll. Male citizens must often have been battle-hardened veterans, accustomed to the spectacle of battlefield carnage. Families and near relatives, who took part in washing the corpses and readying them for burial, must also have become sickeningly familiar with the look of violent death. The Greek preoccupation with the honorable interment of the combat-dead may have stemmed from a desire to hold the horror of such spectacles at a certain remove. It must surely have been hard to forget such sights as those that the First World War poet Siegfried Sassoon described in his Counter-Attack:
The place was rotten with dead; green clumsy legs
High-booted, sprawled and groveled along the saps
And trunks, face downward, in the sucking mud,
Wallowed like trodden sand-bags loosely filled;
And naked sodden buttocks, mats of hair,
Bulged, clotted heads slept in the plastering slime.
And then the rain began, — the jolly old rain!
The Fifth Century: Sophocles
By the fifth century, the Greeks had come to conclude that an enemy’s battle-dead were entitled to respect and should not be mistreated. In Miasma (1983), an important work on Greek religion, the Oxford classicist Robert Parker summarized the outcome that had been reached by the fifth century:
The individual’s right to receive burial was, of course, supported by powerful social and supernatural sanctions. The ‘common law of the Greeks’ agreed with the ‘unwritten, unshakeable laws of the gods’ in insisting that even the body of an enemy should be given up after battle for burial.
The “Antigone”
The “unwritten, unshakeable laws of the gods” to which Parker alludes are those expounded in the great speech of Antigone, in the play of that name by the fifth century Athenian tragic poet Sophocles. (Sophocles’ Antigone is fashioned from the same body of mythic material as Euripides’ Suppliants.) Antigone, daughter of King Oedipus of Thebes and sister of his son Prince Polynices, wishes to bury her brother’s remains after he has died at the hands of their brother Eteocles, whom Polynices has himself killed in their battle at one of the seven gates of Thebes. While Creon, Eteocles’ successor as King of Thebes, gives honors to Eteocles’ remains, he refuses to allow Polynices to be buried. Antigone defies Creon’s orders and attempts to bury Polynices. Challenged by Creon as to whether she had disobeyed him, she replies:
Of course I did. It wasn’t Zeus, not in the least,
Who made this proclamation—not to me.
Nor did that Justice, dwelling with the gods
Beneath the earth, ordain such laws for men.
Nor did I think your edict had such force
That you, a mere mortal, could override the gods,
The great, unwritten, unshakable traditions.
They are alive, not just today or yesterday:
They live forever, from the first of time,
And no one knows when they first saw the light.
Antigone, ll. 499-508 (Robert Fagles trans.).
Bear in mind that Polynices was not merely a fallen enemy warrior but also (in Creon’s view) a rebel, a regicide and a fratricide, a leader in an invading foreign army and a pretender to the crown of Thebes. Refusing him burial might therefore arguably be seen as a permissible exception to the obligation to grant burial which, as Parker notes, was “never absolute,” and which allowed Greek cities to cast away the bodies of at least some criminals. The city’s treatment of corpses, as Parker shows, was “one of the means by which men could hurt, humiliate, or honour one another, express contempt or respect;” hence, “the theme could be of central importance in great works of literature.”
In the Antigone, as Hegel famously argued (Aesthetics: Lectures on Fine Art, Pt. II, sec. 2, c. 1), Sophocles revealed the very essence of tragedy, which arises when “the ethical substance” is “divided against itself,” or in other words when there is an irreconcilable collision between two valid and compelling norms: here, the right of the family to bury its dead as against the State’s prerogative to punish those who disloyally take up arms against it. Antigone argues: “Death longs for the same rites for all;” and Creon answers, “Never the same for the patriot and the traitor” (ll. 384-85).
As legal scholar Martha Nussbaum (following Hegel) has pointed out, both major protagonists in The Antigone have unduly narrow and unreflective moral views. Surely the claims of the city do not always count for more than those of the family; for what is a city but an association of families? On the other hand, is not Creon right to say that our country is our safety (l. 211)? See The Costs of Tragedy: Some Moral Limits of Cost-Benefit Analysis (2000),
In the end, however, it is Antigone, not Creon, whose claim prevails in Sophocles’ drama: Creon’s treatment of Polynices’ brings pollution and plague to Thebes. Nature itself rises up against the violation of the unwritten and unshakeable laws. The blind prophet Tiresias tells Creon that the birds of the sanctuary where he sits, which used to hover at his hands, began to scream madly and to rip each other apart with flashing talons. The fires over which the sacrifices were offered would not light; the birds, gorged with blood and fat, drop scraps of Polynices’ body on the altar. Prophecy becomes impossible; the city’s link to the gods is entirely severed. And the fault, Tiresias tells him, is Creon’s:
And it is you—
Your high resolve that sets this plague on Thebes.
The public altars and sacred hearths are fouled,
One and all, by the birds and dogs with carrion
Torn from the corpse, the doomstruck son of Oedipus!
And so the gods are deaf to our prayers, they spurn
The offerings in our hands, the flame of holy flesh.
No birds cry out an omen clear and true-
They’re gorged with the murdered victim’s blood and fat.
Take these things to heart, my son, I warn you. . .
Where’s the glory, killing the dead twice over?
Antigone ll. 1123-40.
Readers of J.R.R. Tolkien’s The Two Towers may recall the last march of the Ents, an ancient race of tall, human-like trees, against the fortress of Saruman at Isengard, which they destroy. There too, nature itself rises up against the unholy forces that would violate it.
Oedipus the King
Sophocles also addresses the subject of the “unwritten” and “unshakeable” laws of the gods in a Chorus in Oedipus the King. (Rémi Brague suggest that Sophocles is writing here in response to the Sophists who had attacked the divine origin of those laws. See The Law of God: The Philosophical History of an Idea (English trans. 2007 (2005)). Although the context here is that of Oedipus’ violations – parricide and incest – not that of burial, the lines reinforce the action and speeches of the Antigone:
Great laws tower above us, reared on high
Born for the brilliant vault of heaven—
Olympian Sky their only father,
Nothing mortal, no man gave them birth,
Their memory deathless, never lost in sleep:
Within them lives a mighty god, the god does not grow old. . .
God, my champion, I will never let you go.
Oedipus the King, ll. 957-971 (Robert Fagles trans.).
What were these laws, variously called “unwritten laws,” “common laws” or laws “of the gods”? Edith Hall of King’s College, London, finds that they “constituted simultaneously an expression of the most fundamental and ancient taboos, and a didactic charter of ‘decent’ behavior which was invested at times with a sanctity far greater than the strict observance of ritual. . . [T]hese laws seem to have enshrined such integral taboos as the killing of guest or host, family member or suppliant, incest, and the failure to bury the dead.” See Inventing the Barbarian: Greek Self-Definition through Tragedy (1989).
In grasping that the norm forbidding the non-burial of the dead was, for the Greeks, of the same magnitude as the prohibition on incest, we can understand Euripides’ Suppliants more deeply. The cause that drove King Theseus and Athens to war against Thebes touched a matter of the utmost sensitivity for the Athenian audiences that watch Euripides’ drama.
Divine law or human law?
The questions whether the laws in question were divine (without beginning or end) or human (customary), and whether they applied universally or only to the Greeks, were debated in fifth and fourth century Athens. In the Rhetoric (though not elsewhere), Aristotle drew this distinction, and in a passage that refers to the Antigone, see Rhetoric 1373b, places on one side the law that is proper to a particular city (which may or may not be written) and the universal law, which is according to nature (“kata phusin”).
We see signs of both views in The Suppliants, and perhaps they had not yet been fully distinguished. (Indeed, they are arguably not distinguishable when fully thought through.) King Theseus describes the norm about burial as “the law of all Hellas” (Philip Vellacott trans.)), but he also speaks of it as “this ancient, divine ordinance.” Aethra, Theseus’ mother, at first characterizes them as “the gods’ law,” but later calls them “the established laws/Of all Hellas.” Other Euripidean dramas also leave the question in some doubt. In The Hecuba (l. 1247 (E.P. Coleridge trans.)), the Greek King Agamemnon says to the Thracian Polymester, “Perhaps among you it is a light thing to murder guests, but with us in Hellas it is a disgrace,” implying that the norms surrounding guest-friendship are characteristic of (a higher) Greek civilization, but are not universal. The latter view – if indeed it is Euripides’ – would seem to resemble the post-Enlightenment non-foundationalism of the late Richard Rorty.
So much for the treatment of the warrior burial norm in Sophocles. In the next installment, we shall consider evidence of that norm in the historians Herodotus and Thucydides.
Ruotsila, “Fighting Fundamentalist”
In November, the Oxford University Press will release “Fighting Fundamentalist: Carl McIntire and the Politicization of American Fundamentalism,” by Markku Ruotsila (University of Helsinki). The publisher’s description follows:
For most of his sixty-year career, the Reverend Carl McIntire was at the center of controversy. The best-known and most influential of the fundamentalist radio broadcasters and anticommunists of the Cold War era, his many enemies depicted him as a dangerous far rightist, a racist, or a “McCarthyite” opportunist engaged in red-baiting for personal profit. Despised and hounded by liberals, revered by fundamentalists, and distrusted by the center, he became a lightning rod in the early days of America’s culture wars.
Markku Ruotsila’s Fighting Fundamentalist, the first scholarly biography of McIntire, peels off the accumulated layers of caricature and makes a case for restoring McIntire to his place as one of the most consequential religious leaders in the twentieth-century United States. Ruotsila traces McIntire’s life from his early twentieth-century childhood in Oklahoma to his death in 2002. From his discipleship under J. Gresham Machen during the fundamentalist-modernist controversy, through his fifty-year pastorate in Collingswood, New Jersey, and his presidency of the International Council of Christian Churches, McIntire, Ruotsila shows, stands out as the most important fundamentalist of his time. Drawing on exhaustive research in fifty-two archival collections-including the recently opened collection of the Carl McIntire papers and never-before-seen FBI files-Ruotsila looks beyond the McIntire of legend to discover a serious theological, political, and economic combatant, a tireless organizer who pioneered the public theologies, inter-faith alliances, and political methods that would give birth to the Christian Right.
The moral values agenda of the 1970s and after would not have existed, Ruotsila shows, without the anti-communist and anti-New Deal activism that McIntire inaugurated. Indeed, twentieth-century American religious and political history were profoundly shaped by forces McIntire set in motion. Fighting Fundamentalist tells the overlooked story of McIntire and the movement he inspired.
Provost-Smith, “Holy War, Just War”
This month, I.B.Tauris releases “Holy War, Just War: Early Modern Christianity, Religious Ethics and the Rhetoric of Empire” by Patrick Provost-Smith (Harvard University). The publisher’s description follows:
The catastrophe of Iraq has forced us to revisit the validity of what constitutes a supposedly ‘just war’. In such critical circumstances, a 
sustained re-examination of the basis for contemporary just war theory is desperately urgent and required. This is what precisely Patrick Provost-Smith offers in this powerful and original re-evaluation of the topic. The author recognises that a coherent account of the ethics of modern warfare can only begin with history. He therefore explores the great sixteenth century debates about the nature of conflict, focusing on the Spanish conquistadors and their evangelisation of Mexico and Peru.He then shows how these debates were later appropriated by Spanish missionaries in the Philippines with a view to the conquest of China. In assessing previous discussions over ‘just wars’, and the shifting sands of the various logics that were applied to such conflicts, Provost-Smith puts a wholly new complexion on how current moral theory about war might be understood.
This is history in the best sense: the book makes a decisive contribution to current affairs through a profound grasp of how past ideas and rhetorics about conquest have shaped ongoing notions of western Christian superiority. It will be essential reading for all serious students of religious ethics, the history of ideas, and the history of politics and empire.