Saccenti, “Debating Medieval Natural Law”

In October, the University of Notre Dame Press will release Debating Medieval Natural Law: A Survey by Riccardo Saccenti (University of Bologna). The publisher’s description follows:

debating-medieval-natural-lawIn Debating Medieval Natural Law: A Survey, Riccardo Saccenti examines and evaluates the major lines of interpretation of the medieval concepts of natural rights and natural law within the twentieth and early twenty-first centuries and explains how the major historiographical interpretations of ius naturale and lex naturalis have changed. His bibliographical survey analyzes not only the chronological evolution of various interpretations of natural law but also how they differ, in an effort to shed light on the historical debate and on the medieval roots of modern human rights theories.

Saccenti critically examines the historical analyses of the major historians of medieval political and legal thought while addressing how to further research on the subject. His perspective interlaces different disciplinary points of view: history of philosophy, as well as history of canon and civil law and history of theology. By focusing on a variety of disciplines, Saccenti creates an opportunity to evaluate each interpretation of medieval lex naturalis in terms of the area it enlightens and within specific cultural contexts. His survey is a basis for future studies concerning this topic and will be of interest to scholars of the history of law and, more generally, of the history of ideas in the twentieth century.

Salomon, “For Love of the Prophet”

In October, Princeton University Press will release For Love of the Prophet: An Ethnography of Sudan’s Islamic State by Noah Salomon (Carleton College). The publisher’s description follows:

For some, the idea of an Islamic state serves to fulfill aspirations for cultural sovereignty and new forms of ethical political practice. For others, it violates the properfor-love-of-the-prophet domains of both religion and politics. Yet, while there has been much discussion of the idea and ideals of the Islamic state, its possibilities and impossibilities, surprisingly little has been written about how this political formation is lived. For Love of the Prophet looks at the Republic of Sudan’s twenty-five-year experiment with Islamic statehood. Focusing not on state institutions, but rather on the daily life that goes on in their shadows, Noah Salomon’s careful ethnography examines the lasting effects of state Islamization on Sudanese society through a study of the individuals and organizations working in its midst.

Salomon investigates Sudan at a crucial moment in its history—balanced between unity and partition, secular and religious politics, peace and war—when those who desired an Islamic state were rethinking the political form under which they had lived for nearly a generation. Countering the dominant discourse, Salomon depicts contemporary Islamic politics not as a response to secularism and Westernization but as a node in a much longer conversation within Islamic thought, augmented and reappropriated, as state projects of Islamic reform became objects of debate and controversy.

Among the first books to delve into the making of the modern Islamic state, For Love of the Prophet reveals both novel political ideals and new articulations of Islam as it is rethought through the lens of the nation.

DeGirolami, “Religious Accommodation, Religious Tradition, and Political Polarization”

I have posted a new paper, Religious Accommodation, Religious Tradition, and Political Polarization (UPDATE: link fixed). Though my subject is not the same as Professor Muñoz’s, the two are related in several ways, and I’ll have a post or two about the connections soon. Here’s the abstract:

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant’s belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on the burden question; and (2) courts have anti-establishment reasons for doing so. Courts, it is said, do not decide about the quality of religious burdens. Claimants do that. Courts defer so as to reduce the political polarization that might result if some should perceive that their religious beliefs and practices are comparatively powerless to obtain exemptions. Deference on the burden question preserves the religious neutrality of courts and mitigates the politically polarizing dangers of accommodation.

This essay contests that view. It argues that this approach to religious accommodation has generated considerable difficulties of its own that have aggravated the political polarization they were intended to reduce. Political polarization is now a pervasive feature of religious accommodation, but this essay focuses on only some explanations for this unfortunate state of affairs—those that relate to the antagonistic relationship between religious accommodation and established religious groups and traditions.

First, hyper-deference as to the burden on religion systematically undermines the view that religions are institutional phenomena with established, stable, and longstanding traditions. In doing so, it damages the argument that courts are institutionally incompetent to evaluate religious ideas. Claims about the institutional incompetence of the judiciary to inquire into religious burdens proceed on the assumption that there is something unique—and intelligibly unique—about religious beliefs and practices that make them different from, say, individual foibles, fraudulent schemes, flights of fancy, or private predilections. Arguments about the judiciary’s institutional incompetence as to religious questions contemplate the existence of other institutions that are competent as to those questions. Lacking such other institutions, the institutional competence of courts to evaluate religious claims is greatly strengthened. Courts are perfectly competent to evaluate fraud, idiosyncrasy, gibberish, and personal preference. Yet when courts are disabled from evaluating some varieties of idiosyncratic eccentricity (denominated “religious”) but not others (not so denominated), then “religion,” and therefore religious accommodation, is bound to be politically polarizing. The category of religion, having been stripped of its institutional character for legal purposes, designates nothing coherent at all. And people begin to suspect with some justice that decisions about accommodation are being made on the basis of other reasons altogether.

Second, the hyper-deferential approach to religious accommodation assumes and promotes a particular and decidedly non-neutral view of religion as irrational and utterly incomprehensible to anybody other than an individual believer. Accommodation is not for established religious groups or traditions—groups that are organized, enduring, and that might offer substantial resistance to prevailing political and cultural orthodoxies. Accommodation is for the exotic, the personal, the unthreatening, and the peculiar. That view is part of the heritage of the highly individualized, subjective approach to religion steadily constitutionalized by the Supreme Court since the mid-twentieth century, and that now seems to be the foundation of one powerful strain of the contemporary cultural understanding of religion in America. It is a view whose promotion in law has profoundly entangled the state with religion. The refusal of courts to make any serious inquiry into the nature of the asserted religious burden has encouraged increasingly aggressive, self-indulgent, and ephemeral assertions of religious freedom. It will—and indeed, it already has—promoted unserious religion. Small wonder that religion as a legal category is in such disreputable odor. Small wonder that religious accommodation is increasingly perceived in politically partisan terms.