Posted on by Mark Movsesian

Saiman, “Halakhah”

9780691152110_0Ever since we started this center in 2010, one of our primary areas of focus has been comparative religious jurisprudence. It’s a fascinating subject, and one that draws little attention in the American legal academy, even in jurisprudence classes. Several years ago, a group of scholars tried to spark a Religious Legal Theory movement. Our center hosted one of the early conferences, in fact, which produced a number of excellent papers. But the movement seems to have fizzled out, sadly. The academy is a very secular place.

Still, comparative religious jurisprudence is an important object of study. Law figures, in some form, in every religion. But it plays very different roles. In Judaism and Islam, for example, law is the primary means for believers to interact with God–to learn and apply His will for humanity. In these religions, law plays the role that theology, properly understood, does in Christianity. Law is a vehicle for meditating on the divine.

I’m speaking in very broad terms; the subject is quite a bit more complicated. But I’m sure that the new book by our friend and colleague, Chaim Saiman (Villanova), will be a great and helpful addition to the literature in comparative religious jurisprudence. The book is Halakhah: The Rabbinic Idea of Law, from Princeton University Press. Here’s the description from the publisher’s website:

How the rabbis of the Talmud transformed everything into a legal question—and Jewish law into a way of thinking and talking about everything.

Though typically translated as “Jewish law,” the term halakhah is not an easy match for what is usually thought of as law. This is because the rabbinic legal system has rarely wielded the political power to enforce its many detailed rules, nor has it ever been the law of any state. Even more idiosyncratically, the talmudic rabbis claim that the study of halakhah is a holy endeavor that brings a person closer to God—a claim no country makes of its law.

In this panoramic book, Chaim Saiman traces how generations of rabbis have used concepts forged in talmudic disputation to do the work that other societies assign not only to philosophy, political theory, theology, and ethics but also to art, drama, and literature. In the multifaceted world of halakhah where everything is law, law is also everything, and even laws that serve no practical purpose can, when properly studied, provide surprising insights into timeless questions about the very nature of human existence.

What does it mean for legal analysis to connect humans to God? Can spiritual teachings remain meaningful and at the same time rigidly codified? Can a modern state be governed by such law? Guiding readers across two millennia of richly illuminating perspectives, this book shows how halakhah is not just “law” but an entire way of thinking, being, and knowing.

Posted on by Mark Movsesian

Winterer, “American Enlightenments”

f91c0ad896d2f4ffe39f2cfa7861d6ddIn yesterday’s book post, I noted that the American Revolution was more complicated and contingent an event than commonly understood. If one or two battles had gone differently, the Crown might well have prevailed, with all that implies for, among other things, church and state in America. And conventional wisdom errs in assuming that the Revolution was a straightforward project of the Enlightenment, and that the Enlightenment itself was a unified movement. A book released by Yale University Press last month, American Enlightenments: Pursuing Happiness in the Age of Reason, by Caroline Winterer (Stanford), argues that the Enlightenment had many different, competing, not always consistent streams. The author apparently thinks the Cold War is responsible for our exaggerated sense of the unity of our Revolution and its Enlightened character, which seems doubtful. But the main theme of the book looks very interesting. Here’s the description from the publisher’s website:

A provocative reassessment of the concept of an American golden age of European-born reason and intellectual curiosity in the years following the Revolutionary War

The accepted myth of the “American Enlightenment” suggests that the rejection of monarchy and establishment of a new republic in the United States in the eighteenth century was the realization of utopian philosophies born in the intellectual salons of Europe and radiating outward to the New World. In this revelatory work, Stanford historian Caroline Winterer argues that a national mythology of a unitary, patriotic era of enlightenment in America was created during the Cold War to act as a shield against the threat of totalitarianism, and that Americans followed many paths toward political, religious, scientific, and artistic enlightenment in the 1700s that were influenced by European models in more complex ways than commonly thought. Winterer’s book strips away our modern inventions of the American national past, exploring which of our ideas and ideals are truly rooted in the eighteenth century and which are inventions and mystifications of more recent times.

Posted on by Marc O. DeGirolami

First Things Supreme Court Roundup: “Kennedy’s Last Term”

Kevin Walsh and I have this year’s Supreme Court roundup at First Things: Kennedy’s Last Term. In the piece we cover some of the major decisions of the last term, including First Amendment cases (Masterpiece, NIFLA, Janus), cases concerning what we call “the influence of social, technological, and moral change on Supreme Court doctrine” (Wayfair, Carpenter, Murphy v. NCAA), and political gerrymandering/judicial limits cases (Gill, Benisek), as well as a short comment on Trump v. Hawaii. 

Something from the conclusion:

What, then, should we expect from the post-Kennedy Court? Perhaps more of the same. There was not a single 5–4 decision this term in which Justice Kennedy joined with the more liberal wing of the Court. That has never before happened on the Roberts Court. And there were fourteen 5–4 cases in which Kennedy joined with the four more conservative justices to form a majority, including First Amendment cases such as Janus and NIFLA, separation of powers cases like Trump v.Hawaii, political process cases involving political and racial gerrymandering, and a range of statutory interpretation and business cases. This record suggests that, should Judge Brett Kavanaugh be confirmed, we ought to expect a fair amount of continuity rather than radical change.

But in other major areas—areas that happen not to have been addressed this term—the change may be more substantial. Consider, for example, the constitutional law of abortion. Here, Kennedy’s replacement might make a difference, particularly if there is a possibility that a Justice Kavanaugh might join with four colleagues in ending the regime of constitutional abortion law initiated by Roe v. Wade.

Social conservatives have been disappointed before. The Court’s first major abortion case after Justice Kennedy joined the Court was the 1989 decision Webster v. Reproductive Health Services, where it seemed there might be five votes to overrule Roe. Chief Justice William Rehnquist wrote an opinion for four justices that purported to “modify and narrow” Roe, but Reagan-nominated Justice Sandra Day O’Connor went her own way, introducing the “undue burden” standard that has remained the law until today. Scalia, meanwhile, lamented that this missed opportunity to reverse Roe meant that “the mansion of constitutional abortion law, constructed overnight in Roe, must be disassembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be.” Scalia was farseeing. Four years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, Kennedy joined with O’Connor and Justice David Souter to preserve what they called “the central holding” of Roe.

We are guardedly optimistic that Kavanaugh’s confirmation will eventually result in the rejection of Roe v. Wade. But nobody should expect a quick or complete demolition of constitutional abortion rights. Caution is in order because of both internal Court dynamics and external pressure on the ­institution.

The shift on the new Court should be measured not by the distance between Kennedy and ­Kavanaugh, but between Kennedy and Roberts. On a multi-member Court, the views of the median justice matter most in the close cases implicating the culture wars. And Roberts cares deeply about public perceptions of the Court’s legitimacy. The same concerns that motivate Roberts to embrace minimalism more broadly, as in the cases this term about partisan gerry­mandering and sales taxes, will likely mean even greater caution in these hotter and angrier areas of constitutional law.

Neither should we forget that the result of overruling the Roe/Casey regime is no panacea. It would simply lift restrictions on state legislation. But that is hardly always desirable. We can surely expect some, perhaps many, states to follow the lead of Massachusetts, where legislators passed a NASTY (Negating Archaic Stereotypes Targeting Young) Women Act that repealed abortion restrictions that might in theory have come back into force if Roe/Casey were overturned. New York’s governor has made extensive abortion rights a rallying cry of his campaign for reelection.

Just as the damage done by Roe/Casey is not exclusively legal, neither will it be undone by legal means alone. The Court and dominant cultural opinion shape each other, and the arrow of influence runs in both directions. However much “the mansion of constitutional abortion law” may be dismantled, the constitutional rot at its foundation is the result of powerful cultural forces. Let us not put our trust in judges any more than princes, not only because they are fallible, but also because judges are meant to judge, not to save us from ourselves.

Posted on by Daniel Vitagliano

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Mark Movsesian

Frazer, “God against the Revolution”

9780700626960“Let tyrants shake their iron rod / And Slav’ry clank her galling chains / We fear them not, we trust in God / New England’s God Forever Reigns.” These words from a famous Revolutionary song reflect the Patriots’ belief that the Almighty was on their side in the struggle against the Crown and for independence from Great Britain. This belief carried forward after the war, so that, when Tocqueville visited in the 19th century, he observed that Americans so completely conflated Christianity and “freedom” that they could not conceive of one without the other. But there was another side in the Revolution. Like many colonial rebellions, the Revolution was in truth a civil war, and one with religious undertones. The Loyalists also thought God was on their side. But as Anglicans and conservatives, they thought He favored, not Republicanism, but Monarchy and the Established Church.

A new book from the University Press of Kansas, God against the Revolution, by historian Gregg L. Frazer (The Master’s University) evaluates the arguments of Loyalist clergy. It looks like a fascinating book. Perhaps, like Bernard Bailyn’s famous biography of Loyalist Governor Thomas Hutchinson, The Ordeal of Thomas Hutchinson, it will encourage some sympathy with the losers in our Revolution. Here’s the description from the publisher’s website:

Because, it’s said, history is written by the victors, we know plenty about the Patriots’ cause in the American Revolution. But what about the perhaps one-third of the population who opposed independence? They too were Americans who loved the land they lived in, but their position is largely missing from our understanding of Revolution-era American political thought. With God against the Revolution, the first comprehensive account of the political thought of the American Loyalists, Gregg L. Frazer seeks to close this gap.

Because the Loyalists’ position was most clearly expressed by clergymen, God against the Revolution investigates the biblical, philosophical, and legal arguments articulated in Loyalist ministers’ writings, pamphlets, and sermons. The Loyalist ministers Frazer consults were not blind apologists for Great Britain; they criticized British excesses. But they challenged the Patriots claiming rights as Englishmen to be subject to English law. This is one of the many instances identified by Frazer in which the Loyalist arguments mirrored or inverted those of the Patriots, who demanded natural and English rights while denying freedom of religion, expression, and assembly, and due process of law to those with opposing views. Similarly the Loyalist ministers’ biblical arguments against revolution and in favor of subjection to authority resonate oddly with still familiar notions of Bible-invoking patriotism.

For a revolution built on demands for liberty, equality, and fairness of representation, God against Revolution raises sobering questions—about whether the Patriots were rational, legitimate representatives of the people, working in the best interests of Americans. A critical amendment to the history of American political thought, the book also serves as a cautionary tale in the heated political atmosphere of our time.

Posted on by Marc O. DeGirolami

Margolis, “From Politics to the Pews”

When it comes to religion and politics, the arrow of influence is thought generally to Religion Politicsmove from the former to the latter. It may be part of the distinctively American sense of separation of church and state to believe that religious belief precedes, and is somehow entirely distinct from, political allegiance. But a new book argues that one’s politics just as often can influence one’s religious views, and that the process of “identity” formation in this respect is quite complicated. The book is From Politics to the Pews: How Partisanship and the Political Environment Shape Religious Identity (University of Chicago Press) by Michele F. Margolis.

One of the most substantial divides in American politics is the “God gap.” Religious voters tend to identify with and support the Republican Party, while secular voters generally support the Democratic Party. Conventional wisdom suggests that religious differences between Republicans and Democrats have produced this gap, with voters sorting themselves into the party that best represents their religious views.

Michele F. Margolis offers a bold challenge to the conventional wisdom, arguing that the relationship between religion and politics is far from a one-way street that starts in the church and ends at the ballot box. Margolis contends that political identity has a profound effect on social identity, including religion. Whether a person chooses to identify as religious and the extent of their involvement in a religious community are, in part, a response to political surroundings. In today’s climate of political polarization, partisan actors also help reinforce the relationship between religion and politics, as Democratic and Republican elites stake out divergent positions on moral issues and use religious faith to varying degrees when reaching out to voters.

Posted on by amnania

Around the Web

Here are some important law-and-religion news stories from around the web:

Posted on by Marc O. DeGirolami

“The Cambridge Companion to Medieval Ethics” (Williams, ed.)

In our colloquium in law and religion seminar this semester, Mark and I are lucky to Ethicshave a few historians of religion coming to speak to our students. And it has struck me that it would be helpful, especially for their presentations, but more generally, too, to have some broad background in medieval thought about the political and moral good in preparation for them. Here, for example, is a very useful looking new tour of the horizon of medieval ethics: The Cambridge Companion to Medieval Ethics (CUP), edited by Thomas Williams. With chapters on the thought of Augustine, Anselm, Aquinas, Islamic ethics, Jewish ethics, and more particular chapters on concepts like virtue, law, and the emotions.

Ethics was a central preoccupation of medieval philosophers, and medieval ethical thought is rich, diverse, and inventive. Yet standard histories of ethics often skip quickly over the medievals, and histories of medieval philosophy often fail to do justice to the centrality of ethical concerns in medieval thought. This volume presents the full range of medieval ethics in Christian, Islamic, and Jewish philosophy in a way that is accessible to a non-specialist and reveals the liveliness and sophistication of medieval ethical thought. In Part I there is a series of historical chapters presenting developmental and contextual accounts of Christian, Islamic, and Jewish ethics. Part II offers topical chapters on such central themes as happiness, virtue, law, and freedom, as well as on less-studied aspects of medieval ethics such as economic ethics, the ethical dimensions of mysticism, and sin and grace. This will be an important volume for students of ethics and medieval philosophy.

Posted on by Marc O. DeGirolami

Black, “English Nationalism”

Around the world, the role of nationalism and populism in political life has become a Englishsubject of relevance and study. In one of our upcoming conferences for the Tradition Project, we consider the relationship between traditionalism, nationalism, and populism in Europe and the United States. Here is a new book that studies these phenomena in historical perspective, English Nationalism: A Short History (OUP) by Jeremy Black.

Englishness is an idea, a consciousness and a proto-nationalism. There is no English state within the United Kingdom, no English passport, Parliament or currency, nor any immediate prospect of any. That does not mean that England lacks an identity, although English nationalism, or at least a distinctive nationalism, has been partly forced upon the English by the development in the British Isles of strident nationalisms that have contested Britishness, and with much success.

So what is happening to the United Kingdom, and, within that, to England? Jeremy Black looks to the past in order to understand the historical identity of England, and what it means for English nationalism today, in a post-Brexit world. The extent to which English nationalism has a “deep history” is a matter of controversy, although he seeks to demonstrate that it exists, from ‘the Old English State’ onwards, predating the Norman invasion.

He also questions whether the standard modern critique of politically partisan, or un-British, Englishness as “extreme” is merited? Indeed, is hostility to “England,” whatever that is supposed to mean, the principal driver of resurgent English nationalism?

The Brexit referendum of 2016 appeared to have cancelled out Scottish and other nationalisms as an issue, but, in practice, it made Englishness a topic of particular interest and urgency, as set out in this short history of its origins and evolution.

Posted on by Marc O. DeGirolami

Mahoney, “The Idol of Our Age”

One of the many things for which John Stuart Mill is famous is the development (in his Utilitarianism primarily, but also in Three Essays on Religion and in other work) of the concept of the “religion of humanity.” There is little doubt that Mill intended this religion eventually to supplant Christianity as the dominant socio-cultural force, though it is far less clear whether he thought that this entailed an immediate rejection of the teachings of Christianity. And it is helpful to read his other perhaps more famous work (especially On Liberty) in light of his commitment to the religion of humanity.

What was Mill’s religion of humanity? One thing that it wasn’t was supernaturally grounded. Mill believed that so long as a doctrine was taught, and taught uniformly, it could achieve the necessary power and influence (“Vast efficacy belongs naturally to any doctrine received with tolerable unanimity as true…” Three Essays on Religion). Nor did it depend upon acceptance as part of a long-standing tradition: rational people were always actively re-rationalizing it. Here is something of his description of the religion of humanity in Utilitarianism (Chapter 3):

Not only does all strengthening of all social ties, and all healthy growth of society, Millgive to each individual a stronger personal interest in practically consulting the welfare of others: it also leads him to identify his feelings more and more with their good….This mode of conceiving ourselves and human life, as civilisation goes on, is felt to be more and more natural. Every step in political improvement renders it more so, by removing the sources of opposition of interest, and leveling those inequalities of legal privilege between individuals or classes, owing to which there are large portions of mankind whose happiness it is still practicable to disregard. In an improving state of the human mind, the influences are constantly on the increase, which tend to generate in each individual a feeling of unity with the rest; which, if perfect, would make him never think of, or desire, any beneficial condition for himself, in the benefits of which they are not included.

If we now suppose this feeling of unity to be taught as a religion, and the whole force of education, of institutions, and of opinion, directed, as it once was in the case of religion, to make every person grow up from infancy surrounded on all sides both by the profession and the practice of it, I think that no one who can realise this conception, will feel any misgivings about the sufficiency of the ultimate sanction for the Happiness morality.

Though Mill is not specifically mentioned in the blurb, surely Mill’s view will be Mahoneydiscussed–critically, I suppose–in this new book: The Idol of Our Age: How the Religion of Humanity Subverts Christianity (Encounter Books) by Daniel J. Mahoney.

This book is a learned essay at the intersection of politics, philosophy, and religion. It is first and foremost a diagnosis and critique of the secular religion of our time, humanitarianism, or the “religion of humanity.” It argues that the humanitarian impulse to regard modern man as the measure of all things has begun to corrupt Christianity itself, reducing it to an inordinate concern for “social justice,” radical political change, and an increasingly fanatical egalitarianism. Christianity thus loses its transcendental reference points at the same time that it undermines balanced political judgment. Humanitarians, secular or religious, confuse peace with pacifism, equitable social arrangements with socialism, and moral judgment with utopianism and sentimentality.

With a foreword by the distinguished political philosopher Pierre Manent, Mahoney’s book follows Pope Emeritus Benedict XVI in affirming that Christianity is in no way reducible to a “humanitarian moral message.” In a pungent if respectful analysis, it demonstrates that Pope Francis has increasingly confused the Gospel with left-wing humanitarianism and egalitarianism that owes little to classical or Christian wisdom. It takes its bearings from a series of thinkers (Orestes Brownson, Aurel Kolnai, Vladimir Soloviev, and Aleksandr Solzhenitsyn) who have been instructive critics of the “religion of humanity.” These thinkers were men of peace who rejected ideological pacifism and never confused Christianity with unthinking sentimentality. The book ends by affirming the power of reason, informed by revealed faith, to provide a humanizing alternative to utopian illusions and nihilistic despair.