Posted on by Christina Vlahos

“Religion, Politics, and Values in Poland” (eds. Borowik and Ramet)

This month, Springer Press releases “Religion, Politics, and Values in Poland: Community and Change Since 1989” edited by Irena Borowik (Jagiellonian University) and Sabrina P. Ramet (Norwegian University of Science and Technology).  The publisher’s description follows:

1989 brought a tectonic shift in Central and Southeastern Europe as Communism springer-logo-logotype-1024x768imploded and alternative political parties emerged. In Poland, religious institutions looked to take advantage of the new situation, as they were the countervailing force against Communist rule. This dynamic helped shape Polish culture for years and decades to come.

Posted on by Christina Vlahos

Hussin, “The Politics of Islamic Law”

In March, the University of Chicago Press will release “The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State,” by Iza R. Hussin (University of Cambridge).  The publisher’s description follows:

In The Politics of Islamic Law, Iza Hussin compares India, Malaya, and upso_ucplogoEgypt during the British colonial period in order to trace the making and
transformation of the contemporary category of ‘Islamic law.’ She demonstrates that not only is Islamic law not the shari’ah, its present institutional forms, substantive content, symbolic vocabulary, and relationship to state and society—in short, its politics—are built upon foundations laid during the colonial encounter.

Drawing on extensive archival work in English, Arabic, and Malay—from court records to colonial and local papers to private letters and visual material—Hussin offers a view of politics in the colonial period as an iterative series of negotiations between local and colonial powers in multiple locations. She shows how this resulted in a paradox, centralizing Islamic law at the same time that it limited its reach to family and ritual matters, and produced a transformation in the Muslim state, providing the frame within which Islam is articulated today, setting the agenda for ongoing legislation and policy, and defining the limits of change. Combining a genealogy of law with a political analysis of its institutional dynamics, this book offers an up-close look at the ways in which global transformations are realized at the local level.

Posted on by Marc O. DeGirolami

“Tradition and the Judicial Talent”

Playing on TS Eliot’s famous essay, that is the title of the third entry in my Law and TP BannerTradition series at the Liberty Fund’s blog. In the post, I discuss the very interesting plurality opinion in Burhnam v. Superior Court, one of the Court’s highly traditionalist opinions (and one perhaps not so commonly known outside civil procedure circles).

From the end:

Burnham involved the…question whether the state of California could assert personal jurisdiction in a divorce action over a defendant who was physically present within the state. The defendant had entered California on business and to visit his children, and he claimed that the more flexible approach for defendants without physical presence should apply in his case as well. The Court disagreed:

The distinction between what is needed to support novel procedures and what is needed to sustain traditional ones is fundamental….The short of the matter is that jurisdiction based on physical presence alone constitutes due process because it is one of the continuing traditions of our legal system that define the due process standard of “traditional notions of fair play and substantial justice.” That standard was developed by analogy to “physical presence,” and it would be perverse to say it could now be turned against that touchstone of jurisdiction.

In so holding, the Burnham plurality denied that a state’s exercise of personal jurisdiction over a defendant depends solely on measuring the extent of his contacts with the state against abstract, evolving, and ultimately subjective tests of fairness or justice.

The plurality also noted that its methodology differed significantly from Shaffer v. Heitner, in which the Court had stated that “traditional notions of fair play and substantial justice” may be “readily offended by the perpetuation of ancient forms that are no longer justified.” Justice Brennan’s concurrence in Burnham likewise urged the Court to apply “contemporary notions of due process.”

The Burnham plurality responded that it was doing just that, for “contemporary notions of due process” just exactly are the “traditional notions of fair play and substantial justice” that “are applied and have always been applied in the United States.” These notions are not the playthings of the justices. They are not judicially evolving notions. Neither are they merely historical notions. They are traditional notions. Personal jurisdiction over a defendant physically present within a state may be reformulated as “fair” (as Justice Brennan urged) because the defendant could “reasonably” have expected it. But his expectation would have been reasonable only because personal jurisdiction in such circumstances is traditional: “fairness,” the plurality said, “exists here because there is a continuing tradition.” The tradition can change, of course, if a state wishes to change it. But the overwhelming majority of states had not, and it was not the justices’ proper role to do so.

The plurality opinion in Burnham is, in sum, one of the Court’s most traditional decisions. And in its response to Justice Brennan’s progressive understanding of the judicial role, one is reminded of Eliot’s famous essay, Tradition and the Individual Talent: “Someone said: ‘The dead writers are remote from us because we know so much more than they did.’ Precisely, and they are that which we know.”

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Griffin, “Islamic State: Rewriting History”

In November, the University of Chicago Press released “Islamic State: Rewriting History” by Michael Griffin (journalist). The publisher’s description follows:

When the attacks of September 11 sent Westerners in search of reliable information about Al Qaida, Michael Griffin was there: his book Reaping the Whirlwind quickly became the go-to resource for the media, political figures, and ordinary citizens alike.

Now, as Islamic State (also known as ISIS) is moving to take over broad swathes of territory throughout the Middle East, Griffin is back once again, ready to offer nuanced insight, analysis, history, and context for readers looking to understand this new and frightening threat.

An experienced journalist, Griffin tells the story of the development of the Islamic State in his usual fast-paced, narrative driven style, helping us to understand the long roots of the Islamic State in Iraq, their quiet involvement in the Arab Spring, and their rapid rise amid the chaos generated by the Syrian war. He clearly and carefully presents the interlocking web of influence, arms, and money from Saudi Arabia, Qatar, Turkey, and Iraq that have fuelled the rise of Islamic State, and highlights the importance of the uprising against Assad in Syria and the West’s relative inability to influence or support it. Ultimately, Griffin offers a portrait of a complicated, multivalent movement, one with roots in numerous real or perceived grievances and historical mistakes and one with the potential to foment unrest and violence throughout the Middle East for some time to come.

 

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Shahpari & Hojjat, “Islamic Economy and Social Mobility: Cultural and Religious Considerations”

In February, IGI Global will release “Islamic Economy and Social Mobility: Cultural and Religious Considerations” by Hasan Shahpari (Community College of Philadelphia) and Tahereh Alavi Hojjat (DeSales University). The publisher’s description follows:

In an era of globalization and cross-cultural awareness, an interest in the relationship between economics and religion, politics, and social behavior is alive and well. In particular, the Islamic economy has become a focal point of interest for economists and government leaders around the world interested in understanding the relationship between religion and economics among primarily Islamic regions.

Islamic Economy and Social Mobility: Cultural and Religious Considerations analyzes the social, cultural, religious, and political implications of the Islamic economy at the global level. Highlighting the foundations upon which Islamic ideology is formed and how it impacts socio-cultural and economic systems both within and outside of primarily Islamic regions, this publication is an ideal reference source for economists, sociologists, international relations professionals, researchers, academics, and graduate-level students.

Posted on by Marc O. DeGirolami

“The Social Equality of Religion or Belief” (Alan Carling, ed.)

I’m pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in SEROBMarch by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, “The Bloating of the Constitution: Equality and the U.S. Establishment Clause,” which, it is probably fair to say, falls on the skeptical side of the book’s contributions. Here are the first few lines of my chapter:

The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.

I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.

This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.

The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.

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Around the Web This Week

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

Posted on by Christina Vlahos

Heilo, “Eastern Rome and the Rise of Islam”

In December, Routledge released “Eastern Rome and the Rise of Islam: History and Prophecy,” by Olof Heilo (Center for Middle Eastern Studies in Lund).  The publisher’s description follows:

The emergence of Islam in the seventh century AD still polarises scholars who seek to separate religious truth from the historical reality with which it is associated. However, history and prophecy are not solely defined by positive evidence or apocalyptic truth, but by human subjects, who consider them to convey distinct messages and in turn make these messages meaningful to others. These messages are mutually interdependent, and analysed together provide new insights into history.

It is by way of this concept that Olof Heilo presents the decline of the Eastern Roman Empire as a key to understanding the rise of Islam; two historical processes often perceived as distinct from one another. Eastern Rome and the Rise of Islam highlights significant convergences between Early Islam and the Late Ancient world. It suggests that Islam’s rise is a feature of a common process during which tensions between imperial ambitions and apocalyptic beliefs in Europe and the Middle East cut straight across today’s theological and political definitions. The conquests of Islam, the emergence of the caliphate, and the transformation of the Roman and Christian world are approached from both prophetic anticipations in the Ancient and Late Ancient world, and from the Medieval and Modern receptions of history. In the shadow of their narratives it becomes possible to trace the outline of a shared history of Christianity and Islam. The “Dark Ages” thus emerge not merely as a tale of sound and fury, but as an era of openness, diversity and unexpected possibilities.

Approaching the rise of Islam as a historical phenomenon, this book opens new perspectives in the study of early religion and philosophy, as well as providing a valuable resource for students and scholars of Islamic Studies.

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Marx-Wolf, “Spiritual Taxonomies and Ritual Authority”

This month, the University of Pennsylvania Press releases “Spiritual Taxonomies and Ritual Authority: Platonists, Priests, and Gnostics in the Third Century C.E.” by Heidi Marx-Wolf (University of Manitoba). The publisher’s description follows:

The people of the late ancient Mediterranean world thought about and encountered gods, angels, demons, heroes, and other spirits on a regular basis. These figures were diverse, ambiguous, and unclassified and were not ascribed any clear or stable moral valence. Whether or not they were helpful or harmful under specific circumstances determined if and what virtues were attributed to them. That all changed in the third century C.E., when a handful of Platonist philosophers—Plotinus, Origen, Porphyry, and Iamblichus—began to produce competing systematic discourses that ordered the realm of spirits in moral and ontological terms.

In Spiritual Taxonomies and Ritual Authority, Heidi Marx-Wolf recounts how these Platonist philosophers organized the spirit world into hierarchies, or “spiritual taxonomies,” positioning themselves as the high priests of the highest gods in the process. By establishing themselves as experts on sacred, ritual, and doctrinal matters, they were able to fortify their authority, prestige, and reputation. The Platonists were not alone in this enterprise, and it brought them into competition with rivals to their new authority: priests of traditional polytheistic religions and gnostics. Members of these rival groups were also involved in identifying and ordering the realm of spirits and in providing the ritual means for dealing with that realm. Using her lens of spiritual taxonomy to look at these various groups in tandem, Marx-Wolf demonstrates that Platonist philosophers, Christian and non-Christian priests, and gnostics were more interconnected socially, educationally, and intellectually than previously recognized.

 

Posted on by Marc O. DeGirolami

Third Biennial Colloquium in Law and Religion Kicks off February 1

Mark and I are excited for the start of our third biennial Colloquium in Lawclr-logo1 and Religion in Spring 2016. This seminar invites leading law and religion scholars to make presentations to a small audience of students and faculty. The following speakers will be presenting:

February 1: Brett G. Scharffs (Brigham Young University School of Law)

February 16: Robin Fretwell Wilson (University of Illinois School of Law)

February 29: Robert P. George (Princeton University)

March 14: Mark Tushnet (Harvard Law School)

April 4: Justice Samuel A. Alito (United States Supreme Court)

April 18: Elizabeth H. Prodromou (Tufts University Fletcher School of Law and Diplomacy)

We will announce topics as sessions occur. To read more about past colloquia, please see these links:

For more information about the Spring 2016 colloquium, please contact me at degirolm@stjohns.edu or Mark at movsesim@stjohns.edu.