Posted on by Marc O. DeGirolami

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

Posted on by Marc O. DeGirolami

My Visit to the Hertog Foundation

I spent a wonderful afternoon yesterday discussing religious freedom at the Hertog Foundation, as part of one of its excellent summer course series (which includes Classical Political Philosophy, Traditions of Freedom, American Political Thought, The Modern Conservative Movement, The Iranian Challenge, and others). Here is an interesting profile of Roger Hertog.

The course, Landmark Supreme Court Cases, was taught by Adam White and ran for a week, each day generally focusing on a different substantive area of constitutional law. My session focused on Employment Division v. Smith and the religion clauses. Previous sessions focused on other areas, with guests including Randy Barnett, Alan Gura, James Burnham, and Christopher Scalia.

The students, who were a mix of undergraduates and graduates, were engaged, smart, and prepared. The conversation developed in the direction of thinking about the legal definition of religion. Lots of fun, and no easy task. I enjoyed being there.

Posted on by Marc O. DeGirolami

Divine Rights and Human Rights

That’s the title of a short piece I have over at Law and Liberty, concerning the transformation of the concept of religious freedom from a hybrid divine/human right to an entirely human right. From the beginning (and do see the Mansfield essay, which is about a good deal more than my own):

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

“All pre-modern regimes,” said Mansfield, “are more or less based on divine right, on appeal to a principle that says men do not control themselves, that they are controlled by a higher power.”

The modern project, by contrast, is centrally concerned with liberation from that higher power:

“For if men cannot act effectively on their own, they will have to return to divine right, notwithstanding the objections that philosophers might propose. Liberation leads to reform. Liberation is not merely skeptical or negative; it is positive and progressive.”

One of the ways that modernity has answered this challenge is by appropriating “religion” and transforming it from a duty that one owes a creator to a duty that one owes to oneself. In law, one sees this transformation clearly in the standard that is conventionally applied by American courts to requests for religious exemptions from general laws, in which sincerity, individual commitment, or personal conviction are alone sufficient to bring a claim (though they are not sufficient to prevail).

That way of perceiving and understanding religion certainly mitigates certain dangers. It locates authority when it comes to religion solely in the individual, thereby removing all authority from the state. The state is disabled from judging in matters of religion both for epistemic and non-establishment reasons.

Furthermore, religion, as a legal category, becomes accessible to more and more Americans, irrespective of what they may believe. That is precisely what happened in the mid-20th century, as the “duty to the Creator” conception of religion was relaxed in favor of a conception locating all authority over religious questions in the individual conscience.

But this revision may also lead to problems, as religion steadily becomes dissociated from any power external to the individual believer. Law, of course, is responsive to and reflective of more general cultural movements, understandings, and programs, and a short post of this kind is no place to document those changes. But the transformation of religion from a divine phenomenon to a human one was brought home to me in reading the “Religion” section of the New York Times Book Review a few weeks ago. Four books about “religion” were reviewed—all favorably. Every one of them reflected this transformation.

Posted on by Jason Mansmann

Around the Web this Week

Here is a look at some of this week’s law and religion news around the Web:

Posted on by Jason Mansmann

al-Anani, “Inside the Muslim Brotherhood”

In October, Oxford University Press will release Inside the Muslim Brotherhood: Religion, Identity, and Politics by Khalil al-Anani (Doha Institute for Graduate Studies, Qatar). The publisher’s description follows:Inside the Muslim Brotherhood.png

Over the past three decades, through rises and falls in power, regime repression and exclusion, the Egyptian Muslim Brotherhood has endured, proving more resilient than any other Islamist movement in the world. In this book Khalil al-Anani explores the factors that have enabled the Brotherhood to survive so long within an ever-changing political landscape.

Inside the Muslim Brotherhood unpacks the principal factors that shape the movement’s identity, organization, and activism. Investigating the processes of socialization, indoctrination, recruitment, identification, networking, and mobilization that characterize the movement, al-Anani argues that the Brotherhood is not merely a political actor seeking power but an identity-maker that aims to change societal values, norms, and morals to line up with its ideology and worldview. The Brotherhood is involved in an intensive process of meaning construction and symbolic production that shapes individuals’ identity and gives sense to their lives. The result is a distinctive code of identity that binds members together, maintains their activism, and guides their behavior in everyday life. Al-Anani attributes the Brotherhood’s longevity to its tight-knit structure coupled with a complex membership system that has helped them resist regime penetration. The book also explores the divisions and differences within the movement and how these affect its strategy and decisions.

The culmination of over a decade of research and interviews with leaders and members of the movement, this book challenges the dominant narratives about Islamists and Islamism as a whole.

 

Posted on by Christina Vlahos

“Religion, State and the United Nations” (Stensvold, ed.)

In August, Routledge will release “Religion, State and the United Nations: Value Politics,” edited by Anne Stensvold (University of Oslo).  The publisher’s description follows:

This volume approaches the UN as a laboratory of religio-political value politics. Over the last two decades religion has acquired increasing influence in international 9781138938656politics, and religious violence and terrorism has attracted much scholarly attention. But there is another parallel development which has gone largely unnoticed, namely the increasing political impact of peaceful religious actors.

With several religious actors in one place and interacting under the same conditions, the UN is as a multi-religious society writ small. The contributors to this book analyse the most influential religious actors at the UN (including The Roman Catholic Church; The Organisation of Islamic Countries; the Russian Orthodox Church). Mapping the peaceful political engagements of religious actors; who they are and how they collaborate with each other – whether on an ad hoc basis or by forming more permanent networks – throwing light at the modus operandi of religious actors at the UN; their strategies and motivations. The chapters are closely interrelated through the shared focus on the UN and common theoretical perspectives, and pursue two intertwined aspects of religious value politics, namely the whys and hows of cross-religious cooperation on the one hand, and the interaction between religious actors and states on the other.

Drawing together a broad range of experts on religious actors, this work will be of great interest to students and scholars of Religion and Politics, International Relations and the UN.

Posted on by Liam Ray

“Marmaduke Pickthall” (Nash, ed.)

In October, Brill Publishers will release “Marmaduke Pickthall: Islam and the Modern World,” edited by Geoffrey P. Nash (University of Sutherland). The publisher’s description follows:

Brill_logoThis new volume of essays marks eighty years since the death of Marmaduke Pickthall. His various roles as translator of the Qurʾan, traveller to the Near East, political journalist writing on behalf of Muslim Turkey, and creator of the Muslim novel are discussed.

In later life Pickthall became a prominent member of the British Muslim community in London and Woking, co-worker with Muslims in the Indian subcontinent, supporter of the Khilafat movement, and editor of the journal Islamic Culture under the patronage of the Nizam of Hyderabad.
Marmaduke Pickthall: Islam and the Modern World makes an important contribution to the field of Muslims in Europe in the first half of the twentieth century.

Posted on by Christina Vlahos

Gerrard, “The Church at War”

In September, Routledge will release “The Church at War: The Military Activities of Bishops, Abbots and Other Clergy in England, c. 900–1200,” by Daniel M.G. Gerrard (Oxford Brookes University). The publisher’s description follows:

The fighting bishop or abbot is a familiar figure to medievalists and much of what is known of the military organization of England in this period is based on ecclesiastical logo-rt-cevidence. Unfortunately the fighting cleric has generally been regarded as merely a baron in clerical dress and has consequently fallen into the gap between military and ecclesiastical history. This study addresses three main areas: which clergy engaged in military activity in England, why and when? By what means did they do so? And how did others understand and react to these activities? The book shows that, however vivid such characters as Odo of Bayeux might be in the historical imagination, there was no archetypal militant prelate. There was enormous variation in the character of the clergy that became involved in warfare, their circumstances, the means by which they pursued their military objectives and the way in which they were treated by contemporaries and described by chroniclers. An appreciation of the individual fighting cleric must be both thematically broad and keenly aware of his context. Such individuals cannot therefore be simply slotted into easy categories, even (or perhaps especially) when those categories are informed by contemporary polemic. The implications of this study for our understanding of clerical identity are considerable, as the easy distinction between clerics acting in a secular or ecclesiastical capacity almost entirely breaks down and the legal structures of the period are shown to be almost as equivocal and idiosyncratic as the literary depictions. The implications for military history are equally striking as organisational structures are shown to be more temporary, fluid and ’political’ than had previously been understood.

Posted on by Jason Mansmann

“Contemporary Israel” (Greenspahn, ed.)

In August, New York University Press will release Contemporary Israel: New Insights and Scholarship edited by Frederick E. Greenspahn (Florida Atlantic University). The publisher’s description follows:Contemporary Israel

For a country smaller than Vermont, with roughly the same population as Honduras, modern Israel receives a remarkable amount of attention. For supporters, it is a unique bastion of democracy in the Middle East, while detractors view it as a racist outpost of Western colonialism. The romanticization of Israel became particularly prominent in 1967, when its military prowess shocked a Jewish world still reeling from the sense of powerlessness dramatized by the Holocaust. That imagery has grown ever more visible, with Israel’s supporters idealizing its technological achievements and its opponents attributing almost every problem in the region, if not beyond, to its imperialistic aspirations.
The contradictions and competing views of modern Israel are the subject of this book.  There is much to consider about modern Israel besides the Middle East conflict. Over the past generation, a substantial body of scholarship has explored numerous aspects of the country, including its approaches to citizenship and immigration, the arts, the women’s movement, religious fundamentalism, and language; but much of that work has to date been confined within the walls of the academy. This book does not seek not to resolve either the country’s internal debates or its struggle with the Arab world, but to present a sample of contemporary scholars’ discoveries and discussions about modern Israel in an accessible way. In each of the areas discussed, competing narratives grapple for prominence, and it is these which are highlighted in this volume.
Posted on by Liam Ray

Event at the Newseum, “Islamophobia in Focus” (Sept. 22)

On September 22, the Newseum’s Religious Freedom Center will host a conference entitled “Islamophobia in Focus: Muslims & the Media.” Panelists at the conference will include Dr. John Esposito (Georgetown University), Ayman Mohyeldin (NBC News), and Dalia Mogahed (Institute for Social Policy and Understanding). The Religious Freedom Center’s description of the event follows:

Research shows that 9 in 10 of all news reports about Muslims, Islam, and Islamic organizations are related to violence – war or terrorism. In fact, most Muslim newsmakers are warlords or terrorists. Alarmingly, media representations of Islam were worse in 2015 than any other time since 9/11. Are such portrayals representative of today’s global realities? Are Muslims simply over-sensitive? Are concerns with media depictions of Muslims and Islam in the West reflective of a liberal culture obsessed with political correctness? If not, are there opportunities for change?