They have been working hard on the blog and the podcasts since the summer, but now that the term has begun, I’d like to formally welcome our Mattone Center Student Fellows for 2024-2025: Noa Cadet ‘3L, Riki Markowitz ‘2L, Kalina Mesrobian ‘2L, and Panayiotis Xenakis ‘3L. You can read more about them in the Law School’s press release, here. Welcome aboard, gang!
Even people who know little about Islamic law know it forbids the lending of money at interest. A new book from Princeton, The Paradox of Islamic Finance: How Shariah Scholars Reconcile Religion and Capitalism, shows, perhaps surprisingly, that the ban on interest has not created obstacles for contemporary finance, as scholars have developed alternative ways for observant Muslims to participate in the global economy. How religious law adapts to modernity is always a fascinating topic. The author is sociologist Ryan Calder (Johns Hopkins). Here’s the description from the publisher’s website:
In just fifty years, Islamic finance has grown from a tiny experiment operated from a Volkswagen van to a thriving global industry worth more than the entire financial sector of India, South America, or Eastern Europe. You can now shop with an Islamic credit card, invest in Islamic bonds, and buy Islamic derivatives. But how has this spectacular growth been possible, given Islam’s strictures against interest? In The Paradox of Islamic Finance, Ryan Calder examines the Islamic finance boom, arguing that shariah scholars—experts in Islamic law who certify financial products as truly Islamic—have made the industry a profitable, if controversial, hybrid of religion and markets.
Critics say Islamic finance merely reproduces conventional interest-based finance, with the shariah scholars’ blessing. From an economic perspective, they are right: the most popular Islamic products act like conventional interest-bearing ones, earning healthy profits for Islamic banks and global financial heavyweights like Deutsche Bank and Goldman Sachs. Yet as Calder shows by delving into the shariah scholars’ day-to-day work, what seem like high-tech work-arounds to outsiders carry deep and nuanced meaning to the scholars—and to the hundreds of millions of Muslims who respect their expertise. He argues that Shariah scholars’ conception of Islamic finance is perfectly suited to the age of financialization and the global efflorescence of shariah-minded Islam.
For people who are interested, over at Law & Liberty, I have an essay on the 60th anniversary of Gore Vidal’s classic film on presidential nominating conventions, 1964’s “The Best Man.” I’ve always loved the film, which captures some of the fun and banality of democratic politics–as well as its deeply cynical, even nihilistic side. Very relevant this election year. Here’s an excerpt:
This year marks the 60th anniversary of perhaps the greatest political film of all time, 1964’s The Best Man. Based on a play of the same name by Gore Vidal, who also wrote the screenplay, The Best Man tells the story of a deadlocked political convention at which two candidates vie for their party’s presidential nomination. Sixty years on, the film remains tremendously entertaining: clever, suspenseful, with an exceptional cast. The dialogue is outstanding. Considering what we have witnessed in the current presidential campaign—and it’s only August—Americans might again find interest in Vidal’s depiction of the backroom intrigue that determines a nomination.
The Best Man holds up for its mordant but profound observations about American democracy. There’s not much idealism here. The film’s most principled character has flaws that make him unfit to lead and the ultimate nominee is a “nobody” whose lack of record is his best quality. But there are important lessons about the sort of person who seeks high office in a democracy—and the sort of person high office requires. Perhaps surprisingly, given that Vidal was a man of the Left and had a rather acid personality, The Best Man offers a basically fair, even forgiving, depiction of progressives and conservatives. Neither are wholly good nor wholly bad, just human.
You can read the whole essay here.
If Western philosophy consists of a series of footnotes to Plato, American sociology consists of a series of footnotes to Tocqueville. Again and again one finds, in researching religion or democracy in the US, that contemporary scholars repeat or develop observations that appear first in Democracy in America. Like the Simpsons, Tocqueville already did it.
Last month, Regnery released a new edition of Democracy in America, edited by law professor Bruce Frohnen (Ohio Northern). Here’s the description of the new edition from the publisher’s website:
This classic analysis of America’s unique political character is quoted heavily by politicians and perennially pops up on history professors’ reading lists.
The enduring appeal of Democracy in America lies in the eloquent, prophetic voice of Alexis de Tocqueville (1805–1859), a French aristocrat who visited the United States in 1831. A thoughtful young man in a still-young country, he succeeded in penning this penetrating study of America’s people, culture, history, geography, politics, legal system, and economy.
Tocqueville asserts, “I confess that in America I saw more than America; I sought the image of democracy itself, with its inclinations, its character, its prejudices, and its passions, in order to learn what we have to fear or hope from its progress.”
As Bruce Frohnen notes in his introduction to this edition, this republication of Henry Reeve’s “important translation” beautifully showcases “one of the world’s greatest achievements in political philosophy.”
This summer, Scholarship Roundup has focused on the revival (if that is the right word) of natural law thinking in American jurisprudence. That revival features especially prominently in scholarship in the Catholic tradition, and one of its leading figures is Russell Hittinger (University of Tulsa). This fall, Catholic University of America Press will publish a new volume of essays by Hittinger, On the Dignity of Society: Catholic Social Teaching and Natural Law. Here’s the description from the publisher’s website:
In this collection of essays, Francis Russell Hittinger shows that Catholic social teaching is not only an articulate defense of the dignity of the human person, but perhaps more fundamentally an elucidation of the dignity of society. Indeed, Hittinger enables us to see that one cannot properly defend the dignity of the person without also showing the dignity of societies in which human persons – as naturally familial, political, and ecclesial animals – seek their own perfection in communion with others. Hittinger has been a renowned scholar of Catholic social doctrine for some time now, and the essays presented here are the fruit of his mature thinking on the topic over the course of many years. As each chapter shows, Hittinger’s historically important body of work on Catholic moral and social philosophy and theology is rooted in natural law theory and Thomistic philosophy, but also animated by St. Augustine’s thought and thus consistently sensitive to historical contexts and arenas for moral and theological disputation. These magisterial essays therefore integrate historical studies of the development of Catholic social teaching with systematic exposition of the theological coherence of that tradition, while also articulating the essential role of philosophy and natural law within both.
The volume is divided into three parts. The first part is comprised of six essays on Catholic social teaching, the second part is made up of six essays on natural law and its role in social doctrine, and the third part includes two essays discussing the first principles of the Church’s teaching on social issues. This collection will no doubt become a standard in the field of scholarship on Catholic social teaching.
Here is another new book, this one from the University of Notre Dame Press, that reflects the academy’s growing interest in natural law: The Nature of Law: Authority, Obligation, and the Common Good, by political scientist Daniel Mark (Villanova). Mark argues that law should be understood as a set of commands oriented to the common good–which, of course, is the heart of Aquinas’s famous definition of law. Why scholars should be turning to natural law at this particular moment, when positivist theories like originalism and textualism have triumphed in the courts, is an interesting question. But the trend seems clear. Here’s a description of the book from the Notre Dame website:
Challenging the prevailing understanding of the authority of law, Daniel Mark offers a theory of moral obligation that is rooted both in command and in the law’s orientation to the common good.
When and why do we have an obligation to obey the law? Prevailing theories in the philosophy of law, starting with the work of H. L. A. Hart and Joseph Raz, fail to provide definitive answers regarding the nature of legal obligation. In this highly original and effective new work, Daniel Mark argues that there is a prima facie moral obligation to obey the law simply because it is the law. In Mark’s view, the best concept of law—one that allows for the possibility of justified authority and obligation—defines law as a set of commands oriented to the common good. Legal obligation, he proposes, shares defining features with moral obligation and with religious obligation while aligning wholly with neither.
This philosophically coherent view of legal obligation offers a viable framework for analyzing important and seemingly paradoxical puzzles about the law, such as why civil disobedience is punished as lawbreaking or why war-crimes trials for legal but immoral acts present a moral quandary.
By reconciling the concept of law as command with the role of law in promoting the common good, The Nature of Law provides an original and important scholarly contribution to the fields of legal philosophy and political thought.
As readers of our weekly Scholarship Roundup know, natural law is making a comeback in certain quarters of the American legal academy–a comeback that reflects concerns about the positivism that underlies prevailing theories like originalism and textualism. For most American law professors, natural law means Aquinas. But medieval jurisprudence isn’t the only natural-law game in town. A new book from Georgetown University Press discusses the work of a leading figure of the so-called “second scholasticism” at the time of the Counter Reformation, the Spanish Jesuit Francisco Suarez. The book is Law from Below: How the Thought of Francisco Suarez, S.J., Can Renew Contemporary Legal Engagement, by scholar Elizabeth Rain Kincaid (Loyola University New Orleans). Here’s the description from the Georgetown website:
The current political atmosphere would suggest that law is imposed only from above, specifically by the chief executive acting upon some sort of perceived populist mandate.
In Law from Below, Elisabeth Rain Kincaid argues that the theology of the early modern legal theorist and theologian, Francisco Suárez, SJ may be successfully retrieved to provide a constructive model of legal engagement for Christians today. Suárez’s theology was developed to combat an authoritarian view of law, suggesting that communities may work to change law from the ground up as they function within the legal system, not just outside it. Law from Below suggests that Suárez’s theory of law provides a theologically robust way to mount a counter-narrative to contemporary authoritarian theories of law, while still acknowledging the good in the rule of law and its imposition by a legislative authority. Suárez acknowledges the crucial contribution of citizens to improving law’s moral content, without removing the importance of law’s own authority or the role of the lawgiver.
Law from Below argues that the dialogue between legislators and the community provides Christian activists with a range of options for constructively engaging with law in order to have a positive impact on society.
There’s an old joke about legal systems, which I’ve heard a few different ways, but which goes basically like this: in France, everything is permitted, except that which is expressly forbidden; in Germany, everything is forbidden, except that which is expressly permitted; and in Italy, everything is permitted, including that which is expressly forbidden. I thought of the joke when I saw the announcement for this fun-looking book forthcoming from Harvard this fall, Feeding the Eternal City: Jewish and Christian Butchers in the Eternal City, by historian Kenneth Stow (Haifa). The book explores the way Jewish and Christian butchers in the Papal States evaded legal restrictions and (mostly) cooperated to sell meat at good prices, to the economic benefit of both. Doux commerce! Here’s the description from the Harvard website:
A surprising history of interfaith collaboration in the Roman Ghetto, where for three centuries Jewish and Christian butchers worked together to provision the city despite the proscriptions of Church law.
For Rome’s Jewish population, confined to a ghetto between 1555 and 1870, efforts to secure kosher meat were fraught with challenges. The city’s papal authorities viewed kashrut—the Jewish dietary laws—with suspicion, and it was widely believed that kosher meat would contaminate any Christian who consumed it. Supplying kosher provisions entailed circumventing canon law and the institutions that regulated the butchering and sale of meat throughout the city.
Kenneth Stow finds that Jewish butchers collaborated extensively with their Christian counterparts to ensure a supply of kosher meat, regardless of the laws that prohibited such interactions. Jewish butchers sold nonkosher portions of slaughtered animals daily to Christians outside the ghetto, which in turn ensured the affordability of kosher meat. At the same time, Christian butchers also found it profitable to work with Jews, as this enabled them to sell good meat otherwise unavailable at attractive prices. These relationships could be warm and almost intimate, but they could also be rife with anger, deception, and even litigation. Nonetheless, without this close cooperation—and the willingness of authorities to turn a blind eye to it—meat-eating in the ghetto would have been nearly impossible. Only the rise of the secular state in the late nineteenth century brought fundamental change, putting an end to canon law and allowing the kosher meat market to flourish.
A rich social history of food in early modern Rome, Feeding the Eternal City is also a compelling narrative of Jewish life and religious acculturation in the capital of Catholicism.
In the law-and-religion world, former Justice Stephen Breyer is most famous for a phrase in a concurrence in one of the 10 Commandments cases from about 20 years ago (yikes, has it been that long?). In his concurring opinion in Van Orden v. Perry, which ruled in favor of a 10 Commandments monument on the Texas state capitol grounds, Breyer explained that bright-line tests are inadvisable in such cases: “there is no test-related substitute for the exercise of legal judgment.” Legal judgment, he continued, did not mean subjectivity, but a consideration of the purposes of a constitutional text, the historical and social context, and practical consequences. The older I get, the more I see the wisdom of this approach, even though most of my academic colleagues, on the right and the left, find it maddeningly vague and under-theorized. In law, it seems to me, including constitutional law, there’s really no escaping the sort of judgment Breyer describes. That’s why we call them judges.
I’m sure Justice Breyer discusses all this in a his new book–which I’m a little late to get to–Reading the Constitution: Why I Choose Pragmatism, Not Textualism. The publisher is Simon & Schuster. Here’s the description from the publisher’s website:
The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.
This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.
Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.
Before states established religious freedom as a constitutional principle, they saw it as a matter of diplomacy and national security. “Cuius regio eius religio” was meant to keep peace among nations, not so much within them. And religious freedom continues to figure in international relations today–though, sadly, religious freedom is often honored more in words than deeds. A new collection of essays from Routledge, Security, Religion, and the Rule of Law: International Perspectives, argues that national security depends on states’ honoring the religious freedom of their own citizens. The editors are Tania Pagotto (University of Milan-Bicocca), Joshua Roose (Deakin University) and G.P. Marcar (University of Otago). Here’s the description from the publisher’s website:
Security, Religion, and the Rule of Law argues that true, substantive, and sustainable national security is only possible through respect for the rule of law, human rights, and religious freedom.
Despite the emphasis on national security and the war on terror that has preoccupied governments for over two decades, nations – and the world – seem to be more divided than ever, with a concomitant impact of increasing the risk of terrorism and religious and political violence. The national security paradigm, previously reserved primarily for foreign threats, has been turned increasingly inwards, focusing on a state’s own citizens as potential threats. This is often along religious lines, threatening fundamental human freedoms. This book provides a series of critical engagements on some of the most pressing issues at the interface of religion and security today, including proposing a deeper engagement with theology when dealing with freedom of religious belief, exploring a better understanding between domestic peace and international relations, abiding by the rule of law while countering terrorism, and developing a broader understanding of identities and of the nature of citizenship. It provides the resources to further reflect upon and address these topics, as well as stimulate further discussions on religion and security matters across a range of different disciplines. Wide-ranging case studies consider Australia, China, Europe, the Kurdish people, Nigeria, Russia, Ukraine, the United Nations, and the United States.
This book will appeal to students and scholars across a range of disciplines, including international relations, law, philosophy, political science, religious studies, security studies, and theology. It will also appeal to human rights lawyers, judges, NGO researchers, governmental agency specialists, and policy makers.