Posted on by Marc O. DeGirolami

Morrow, “An Introduction to Biblical Law”

Continuing the theme of religious law that I had noted on Wednesday, here’s a new book, Biblical Law.jpegAn Introduction to Biblical Law, by William S. Morrow, that looks like a helpful volume for learning about law in the Pentateuch. The description by the publisher, Eerdmans, is below.

In this book William Morrow surveys four major law collections in Exodus–Deuteronomy and shows how they each enabled the people of Israel to create and sustain a community of faith.

Treating biblical law as dynamic systems of thought facilitating ancient Israel’s efforts at self-definition, Morrow describes four different social contexts that gave rise to biblical law: (1) Israel at the holy mountain (the Ten Commandments); (2) Israel in the village assembly (Exodus 20:22–23:19); (3) Israel in the courts of the Lord (priestly and holiness rules in Exodus, Leviticus, and Numbers); and (4) Israel in the city (Deuteronomy).

Including forthright discussion of such controversial subjects as slavery, revenge, gender inequality, religious intolerance, and contradictions between bodies of biblical law, Morrow’s study will help students and other serious readers make sense out of texts in the Pentateuch that are often seen as obscure.

Posted on by Marc O. DeGirolami

Zuckert, “The Spirit of Religion and the Spirit of Liberty”

In the fall of 2013, Professor Robert Delahunty wrote a wonderful blog series for us about Tocqueville’s view of religion in America (here is the first post). One of the conclusions Robert reached in that series was that Tocqueville believed the Protestantism of early America would eventually change into, first, a type of “natural religion” and, next, what he (Tocqueville) called “pantheism”–a kind of “cosmic egalitarianism” that becomes especially attractive in democratic societies:

Man is obsessed with the idea of unity. He seeks it in every direction; when he believes he has found it, he willingly rests in its arms. Not content with discovering that there is but one creation and one Creator in the world, he is still irritated by this primary division of things and he seeks to expand and simplify his thought by enclosing God and the universe in a single entity. If there is a philosophic system according to which things material and immaterial, visible and invisible within the world are to be considered only as the separate parts of an immense being who alone remains eternal in the continuous shift and constant change of everything which is within it, I shall have no difficulty reaching the conclusion that a similar system, although it destroys human individuality, or rather because it destroys it, will have secret attractions for men who live in a democracy.

Democracy in America, 521.

The eminent political theorist, Michael P. Zuckert, has a wonderful looking new book on Tocqueville.jpgTocqueville’s understanding of religion–specifically focusing, it seems from the description, on church-state matters: The Spirit of Religion and the Spirit of Liberty: The Tocqueville Thesis Revisited. The publisher is University of Chicago Press, and the description is below.

Tocqueville’s thesis on the relation between religion and liberty could hardly be timelier. From events in the Middle East and the spread of Islamist violence in the name of religion to the mandated coverage under the Affordable Care Act, the interaction between religion and politics has once again become central to political life. Tocqueville, facing the coming of a new social and political order within the traditional society that was France, faced this relation between politics and religion with freshness and relevance. He was particularly interested in reporting to his French compatriots on how the Americans had successfully resolved what, to many Frenchmen, looked to be an insuperable conflict. His surprising thesis was that the right kind of arrangement—a certain kind of separation of church and state that was not also a complete separation of religion and politics—could be seen in nineteenth century America to be beneficial to both liberty and religion. This volume investigates whether Tocqueville’s depiction was valid for the America he investigated in the 1830s and whether it remains valid today.

Posted on by Liam Ray

Around the Web

Some important law-and-religion stories from around the web:

 

Posted on by Marc O. DeGirolami

Bray & Hobbins, “Genesis 1-11”

One of the first conferences that Mark and I put together several years ago concerned Genesis“religious legal theory”–the nature of religious law and comparative approaches within and among religious traditions. The study of religious law remains a focus of our Center. Here’s a wonderful new translation of Genesis 1-11 authored in part by UCLA law professor Samuel Bray (a participant in the first leg of our Tradition Project last year) and Hebrew scholar John F. Hobbins, whose subtitle is “A New Old Translation for Readers, Scholars, and Translators.”

How does this new translation relate to law? Principally because law is all about words and their uses to convey meaning. But for more, you should check out Sam’s wonderfully interesting posts at the Volokh Conspiracy, which cover issues ranging from the Tower of Babel to those of “double translation” and its pitfalls. And the translation itself has something that should appeal to textualists–great faithfulness to the original. The publisher’s description is below.

This translation of Genesis 1-11 follows the Hebrew text closely and leaves in what many translations leave out: physicality, ambiguity, repetition, even puns. Bray and Hobbins also draw deeply from the long history of Jewish and Christian interpretation. Their translation and notes offer the reader wisdom and delight.

Posted on by Marc O. DeGirolami · 1 Comment

Bennett, “Defending Faith: The Politics of the Christian Conservative Legal Movement”

Conservative Christianity has been and continues to be an important movement in Defending FaithAmerican law. But it is difficult to read an even-handed account of it, since academic treatments tend to view it as a force of evil that must be identified, guarded against, and hopefully obliterated, and non-academic treatments are too often hagiographic in nature. Here’s an effort that appears to do better–political scientist Daniel Bennett’s new “Defending Faith: The Politics of the Christian Conservative Legal Movement,” which will be released by U. Kansas Press next month. Here’s the description.

When, in Obergefell v. Hodges, the US Supreme Court held that bans on same-sex marriage violate the Constitution, Christian conservative legal organizations (CCLOs) decried the ruling. Foreseeing an “assault against Christians,” Liberty Counsel president Mat Staver declared, “We are entering a cultural civil war.” Many would argue that a cultural war was already well underway; and yet, as this timely book makes clear, the stakes, the forces engaged, and the strategies employed have undergone profound changes in recent years.

In Defending Faith, Daniel Bennett shows how the Christian legal movement (CLM) and its affiliated organizations arrived at this moment in time. He explains how CCLOs advocate for issues central to Christian conservatives, highlights the influence of religious liberty on the CLM’s broader agenda, and reveals how the Christian Right has become accustomed to the courts as a field of battle in today’s culture wars. On one level a book about how the Christian Right mobilized and organized an effective presence on an unavoidable front in battles over social policy, the courtroom, Defending Faith is also a case study of interest groups pursuing common goals while maintaining unique identities. As different as these proliferating groups might be, they are alike in increasingly construing their efforts as a defense of religious freedom against hostile forces throughout American society—and thus as benefitting society as a whole rather than limiting the rights of certain groups. The first holistic, wide-angle picture of the Christian legal movement in the United States, Bennett’s work tells the story of the growth of a powerful legal community and of the development of legal advocacy as a tool of social and political engagement.

Posted on by Marc O. DeGirolami · 1 Comment

“Blaine Amendment” Case Decided, Without Reference to Blaine Amendments or Animus Inquiry

Trinity Lutheran Church has just come down, and Tom Berg has a nice summary and set of good comments on it at Mirror of Justice. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.

For now, here’s one thought: this case concerned Missouri’s Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine’s proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them–the “animus” in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on “neutral” grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments’ tainted genesis–their anti-Catholic animus–has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case that was challenged on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to “sectarian” schools is justified on Establishment Clause grounds as tainted by wicked animus:

Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow….Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, “animus” analysis (or even the word “animus”), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom’s point # 3 below. Indeed, the Chief’s opinion is taken to task by Justice Gorsuch for being insufficiently “principled.” Justice Gorsuch would have preferred a decision more maximal in nature.

But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.

Posted on by Liam Ray

Around the Web

Some important law-and-religion stories from around the web:

Posted on by Mark Movsesian

Doux Commerce?

At the Liberty Law site today, I have a review of Nate Oman’s important new book on markets and morals, The Dignity of Commerce. The book is a great contribution to contracts scholarship, thoughtful and beautifully written. Nate and I have a friendly disagreement, though, about the cause-and-effect relationship between markets and morals, so it’s no surprise that I find myself disagreeing with one of the book’s main claims:

Liberals maintain that markets create wealth, promote mutual gain, and unlock talents and resources in individuals and nations. And, they say, markets have political benefits. Since the Enlightenment, liberals have argued that markets promote civic pluralism by making people more reasonable and prudent; less given to political and, especially, religious enthusiasm; and eager to avoid divisive debates about deep commitments.

That markets have these advantages is known as the doux commerce thesis. (That’s doux as in soft, or having a softening effect.) The thesis is most closely associated with the Baron de Montesquieu and Voltaire, though David Hume and Adam Smith endorsed it, too. In a very fine new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law, contracts scholar Nathan B. Oman advances a version of the theory, updated to take account of current contract doctrine. Oman, a law professor at William and Mary Law School, combines immense learning and sophistication with a lightness of touch that makes his book a pleasure to read.

All of that said, I remain unpersuaded about doux commerce. Edmund Burke had it right, I think. Markets don’t inevitably lead to liberalism. Rather, the liberal tradition itself creates the sort of markets liberals admire.

You can read my full review here. For more information on Nate’s book, click here.

Posted on by Marc O. DeGirolami

Mullins, “Father of Liberty: Jonathan Mayhew and the Principles of the American Revolution”

Here’s an interesting new book by Marquette scholar J. Patrick Mullins on a figure of the MayhewAmerican founding that was not known to me: Jonathan Mayhew. Typical of the founding period, note the association of the natural rights thinking so foundational to the early Republic and the Congregationalism of that period. The publisher, University of Kansas Press, has the following description.

Dr. Jonathan Mayhew (1720–1766) was, according to John Adams, a “transcendental genius . . . who threw all the weight of his great fame into the scale of the country in 1761, and maintained it there with zeal and ardor till his death.” He was also, J. Patrick Mullins contends, the most politically influential clergyman in eighteenth-century America and the intellectual progenitor of the American Revolution in New England. Father of Liberty is the first book to fully explore Mayhew’s political thought and activism, understood within the context of his personal experiences and intellectual influences, and of the cultural developments and political events of his time. Analyzing and assessing his contributions to eighteenth-century New England political culture, the book demonstrates Mayhew’s critical contribution to the intellectual origins of the American Revolution.

As pastor of the Congregationalist West Church in Boston, Mayhew championed the principles of natural rights, constitutionalism, and resistance to tyranny in press and pulpit from 1750 to 1766. He did more than any other clergyman to prepare New England for disobedience to British authority in the 1760s—and should, Mullins argues, be counted alongside such framers and fomenters of revolutionary thought as James Otis, Patrick Henry, and Samuel Adams. Though many commentators from John Adams on down have acknowledged his importance as a popularizer of Whig political principles, Father of Liberty is the first extended, in-depth examination of Mayhew’s political writings, as well as the cultural process by which he engaged with the public and disseminated those principles. As such, even as the book restores a key figure to his place in American intellectual and political history, it illuminates the meaning of the Revolution as a political and constitutional conflict informed by the religious and political ideas of the British Enlightenment.

Posted on by Mark Movsesian

Call for Papers: Oxford Symposium on Religious Studies

The Oxford Symposium on Religious Studies has issued a call for papers for two symposia later this year:

The Oxford Symposium on Religious Studies is a forum for discourse and presentation of papers by scholars who have a particular interest in the study of religion. Canon Brian Mountford MBE, former Vicar of St Mary’s Church and Fellow of St Hilda’s College in the University of Oxford, will host the meeting.

You are invited to make a presentation and lead a discussion of a relevant aspect of religious studies, or you may wish to participate as a panel member or as an observer. Your disquisition must adhere to an abstract of about 300 words approved by the Programme Committee of the Symposium. You are, also, encouraged to submit a paper, in keeping with your abstract, which may be published in an appropriate journal, book of conference proceedings. All papers presented for publication or inclusion in books or sponsored journals will be subject to peer review by external readers.

Suggested topics include “Religion, Politics, and Public Discourse,” Separation of Church and State,” and “State Funding of Church Schools.” Further details can be found here.