Posted on by Marc O. DeGirolami

Levinson on Law and Tradition (a Skeptical View)

Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It’s a pleasure and an honor to be in conversation with him. I’m already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson’s essay:

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument….

Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline.  So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.

Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:

Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)

Posted on by Jason Mansmann

Around the Web

Here is a look at some law and religion news stories from around the web:

Posted on by Jason Mansmann

Ali, “Modern Challenges to Islamic Law”

In October, Cambridge University Press will release Modern Challenges to Islamic Law by Shaheen Sardar Ali (University of Warwick). The publisher’s description follows:Modern Challenges to Islamic Law.png

The diversity of interpretation within Islamic legal traditions can be challenging for those working within this field of study. Using a distinctly contextual approach, this book addresses such challenges by combining theoretical perspectives on Islamic law with insight into how local understandings impact on the application of law in Muslim daily life. Engaging with topics as diverse as Islamic constitutionalism, Islamic finance, human rights and internet fatawa, Shaheen Sardar Ali provides an invaluable resource for scholars, students and practitioners alike by exploring exactly constitutes Islamic law in the contemporary world. Useful examples, case studies, a glossary of terms and the author’s personal reflections accompany traditional academic critique, and together offer the reader a unique and discerning discussion of Islamic law in practice.

Posted on by Jason Mansmann

Norton, “The Freedom of Religious Organizations”

In October, Oxford University Press will release The Freedom of Religious Organizations by Jane Calderwood Norton (University of Auckland). The publisher’s description follows:The Freedom of Religious Organizations

Religious freedom is now widely accepted as fundamental to any liberal democracy. It is recognized in domestic, regional, and international human rights instruments and its importance is lauded by philosophers, lawyers, judges, clergy, and even politicians. While it is easy to support religious freedom in the abstract, tensions can arise between the activities of religious organizations and the law that challenge this general commitment to religious freedom. Should religious organizations be permitted to discriminate against women or gay people in their employment practices, when admitting members, or in providing goods and services? Should the courts interfere in these organizations to protect the interests of a disaffected member or to resolve internal property disputes? Should the state allow religious tribunals to determine or advise on family matters?

While much has been written about religious individuals and the law, there has been a discernible lack of literature on organizations and the law. Jane Norton fills this gap with The Freedom of Religious Organizations. By exploring potential conflicts between the law and religious organizations, and examining whether the current British response to such conflicts is justified, this book will consider when English law ought to apply to religious organizations and how these conflicts should be dealt with.