Oman, “The Dignity of Commerce”

Here’s a fine new book from William & Mary Law professor Nate Oman (who, by the way, will be joining out Tradition Project this fall), The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press). The book argues that liberal markets are a mechanism for promoting pluralism and tolerance, including religious tolerance. As Nate knows, I’m a bit skeptical about parts of his argument and will be doing a fuller review later this summer. But the book shows tremendous learning and is very thought-provoking–a major contribution to the contracts literature. Here’s the description from the publisher’s website:

9780226415529Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society.

With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.

The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.

Tugendhat, “Liberty Intact”

As readers of this blog know, the Center is in the midst of a three-year research project, the Tradition Project, which examines the continuing relevance of tradition–the received wisdom of the past–for law, politics, and culture. At our first meeting last fall, we focused on tradition in law and, specifically, the traditionalism of the common law method. A new book by Sir Michael Tugendhat, a Judge of the High Court of England and Wales, Liberty Intact: Human Rights in English Law (Oxford) argues that contemporary human rights law derives from English common law antecedents. Several participants in the Tradition Project would no doubt agree. Here’s a description from the Oxford website:

9780198790990 (1)What are the connections between conceptions of rights found in English law and those found in bills of rights around the World? How has English Common Law influenced the Universal Declaration of Human Rights (UDHR) 1948 and the European Convention on Human Rights (ECHR) 1950? These questions and more are answered in Michael Tugendhat’s historical account of human rights from the eighteenth century to present day.

Focusing specifically on the first modern declarations of the rights of mankind- the ‘Virginian Declaration of Rights’, 1776, the French ‘Declaration of the Rights of Man and of the Citizen’, 1789, and the ‘United States Bill of Rights’, 1791- the book recognises that the human rights documented in these declarations of the eighteenth century were already enshrined in English common law, many originating from English law and politics of the fifteenth century. The influence of English Common Law , taken largely from Blackstone’s Commentaries on the Laws of England, can also be realised in the British revolutions of 1642 and 1688; the American and French Revolutions of 1776 and 1789 respectively; and through them, on the UDHR and ECHR. Moreover, Tugendhat argues that British law, in all but a few instances, either meets or exceeds human rights standards, and thus demonstrates that human rights law is British law and not a recent invention imported from abroad.

Structured in three sections, this volume (I) provides a brief history of human rights; (II) examines the rights found in the American and French declarations and demonstrates their ancestry with English law; and (III) discusses the functions of rights and how they have been, and are, put to use.

Jensen, “The Cross”

A few years ago, the European Court of Human Rights took up a case involving the display of the crucifix in Italian public school classrooms. A claimant argued that displaying a religious symbol in a public school interfered with her right, under the European Convention on Human Rights, to educate her children in accordance with her own, secular humanist beliefs. The Italian government argued, somewhat implausibly, that the crucifix was really a neutral symbol that reflected secular, cultural values. (Hey, that’s what the Italian national courts held). The Court sidestepped the issue of what, exactly, the crucifix represented, but held that, even if the crucifix were a sectarian symbol, its display was permissible under the Convention.

The meaning of the cross has thus been a matter of great controversy recently, a least in a legal sense. A interesting-looking new book from Notre Dame theology professor Robin Jensen, The Cross: History, Art, and Controversy (Harvard) addresses the various meanings of the cross throughout history and up to today. Here’s the description from the Harvard website:

9780674088801-lgThe cross stirs intense feelings among Christians as well as non-Christians. Robin Jensen takes readers on an intellectual and spiritual journey through the two-thousand-year evolution of the cross as an idea and an artifact, illuminating the controversies—along with the forms of devotion—this central symbol of Christianity inspires.

Jesus’s death on the cross posed a dilemma for Saint Paul and the early Church fathers. Crucifixion was a humiliating form of execution reserved for slaves and criminals. How could their messiah and savior have been subjected to such an ignominious death? Wrestling with this paradox, they reimagined the cross as a triumphant expression of Christ’s sacrificial love and miraculous resurrection. Over time, the symbol’s transformation raised myriad doctrinal questions, particularly about the crucifix—the cross with the figure of Christ—and whether it should emphasize Jesus’s suffering or his glorification. How should Jesus’s body be depicted: alive or dead, naked or dressed? Should it be shown at all?

Jensen’s wide-ranging study focuses on the cross in painting and literature, the quest for the “true cross” in Jerusalem, and the symbol’s role in conflicts from the Crusades to wars of colonial conquest. The Cross also reveals how Jews and Muslims viewed the most sacred of all Christian emblems and explains its role in public life in the West today.

Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

Classical liberalism was supposed to resolve religious conflict within a society, principally by making religion a private matter and, in compensation, allowing religious communities, within limits, to conduct themselves as they saw fit. Today, the classical liberal model is undergoing a lot of stress, as people, particularly on the left, increasingly question what those limits should be. Hans-Martien ten Napel (Leiden University), one of the most interesting scholars in comparative law and religion today, has a new book, Constitutionalism, Democracy and Religious Freedom: To Be Fully Human (Routledge), that addresses these questions. Here’s the description from the Routledge website:

9781138647152In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

Call for Papers: Student Writing Competition on Religious Liberty

For law students finishing up notes and term papers on religious liberty, here is a great way to publicize your work and win a prize to boot. The International Center for Law and Religion Studies at BYU is running the eighth annual Religious Liberty Student Writing Competition. The top prize is a $4000 cash award. Here are the details:

Purpose: To promote legal and academic studies in the field of religious liberty by law students and students pursuing related graduate studies. Students who have graduated from law school but who are not yet practicing law due to clerkships or other similar pursuits are also invited to submit papers.

Form: Scholarly paper relating to the topic of domestic or international religious liberty, broadly or narrowly construed, consisting of 9,000-13,000 words, including footnotes. Eligible papers must be typed, thoroughly cited and presented in a format suitable for publication, with no additional editing required. Papers must conform to Bluebook requirements and may include footnotes. Papers prepared for academic coursework are permitted.

Submission: All papers must be submitted on or before July 1, 2017. Papers should be submitted by e-mail to papers@ jrclsdc.org in pdf and/or docx formats. The cover email should note the word count of the paper being submitted. A current resume should also be included. You will receive e-mail confirmation of your submission. Questions regarding submission may be directed to papers@jrclsdc.org.

The deadline is July 1. Further information may be found here.

Bordewich, “The First Congress”

The Supreme Court has, on occasion, given the decisions of the First Congress great weight in interpreting the Establishment Clause. The Framers of the First Amendment sat in the First Congress, so it seems plausible to look to their decisions as indications of what the Amendment meant to people at the time. The Court has not strictly held to this approach–when it comes to the Establishment Clause, it doesn’t strictly hold to any approach–but it’s there in the cases.

A new book by author Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster), discusses the history. The publisher’s description follows.

the-first-congress-9781451692112_hrThis “fascinating” (Chicago Tribune), “lively” (The New York Times) history tells how the First Congress and the Washington administration created one of the most productive and far-reaching governments in American history—“gracefully written…and well worth reading” (The Wall Street Journal).

The First Congress may have been the most important in American history because it established how our government would work. The Constitution was a broad set of principles that left undefined the machinery of government. Fortunately, far-sighted, brilliant, and determined men such as Washington, Madison, Adams, Hamilton, and Jefferson (and others less well known today) labored to create a functioning government.

In The First Congress, award-winning author Fergus Bordewich brings to life the achievements of the First Congress: it debated and passed the first ten amendments to the Constitution, which we know as the Bill of Rights; admitted North Carolina and Rhode Island to the union when they belatedly ratified the Constitution, then admitted two new states, Kentucky and Vermont, establishing the procedure for admitting new states on equal terms with the original thirteen; chose the site of the national capital, a new city to be built on the Potomac; created a national bank to handle the infant republic’s finances; created the first cabinet positions and the federal court system; and many other achievements. But it avoided the subject of slavery, which was too contentious to resolve.

The First Congress takes us back to the days when the future of our country was by no means assured and makes “an intricate story clear and fascinating” (The Washington Post).

Halbertal & Holmes, “The Beginning of Politics”

“‘And after that he gave unto them judges about the space of four hundred and fifty years, until Samuel the prophet. And afterward they desired a king: and God gave unto them Saul the son of Cis.'” In the Book of Acts, the Apostle Paul thus abbreviates the transition, in ancient Israel, from rule by judges to rule by kings–a transition which, Bible readers will remember, did not work out entirely well, at least in the short term. A new book from Princeton University Press, The Beginning of Politics: Power in the Biblical Book of Samuel, by NYU Law professors Moshe Halbertal and Stephen Holmesdescribes the political themes in the Biblical story. The publisher’s description is below:

j10964New insights into how the Book of Samuel offers a timeless meditation on the dilemmas of statecraft

The Book of Samuel is universally acknowledged as one of the supreme achievements of biblical literature. Yet the book’s anonymous author was more than an inspired storyteller. The author was also an uncannily astute observer of political life and the moral compromises and contradictions that the struggle for power inevitably entails. The Beginning of Politics mines the story of Israel’s first two kings to unearth a natural history of power, providing a forceful new reading of what is arguably the first and greatest work of Western political thought.

Moshe Halbertal and Stephen Holmes show how the beautifully crafted narratives of Saul and David cut to the core of politics, exploring themes that resonate wherever political power is at stake. Through stories such as Saul’s madness, David’s murder of Uriah, the rape of Tamar, and the rebellion of Absalom, the book’s author deepens our understanding not only of the necessity of sovereign rule but also of its costs—to the people it is intended to protect and to those who wield it. What emerges from the meticulous analysis of these narratives includes such themes as the corrosive grip of power on those who hold and compete for power; the ways in which political violence unleashed by the sovereign on his own subjects is rooted in the paranoia of the isolated ruler and the deniability fostered by hierarchical action through proxies; and the intensity with which the tragic conflict between political loyalty and family loyalty explodes when the ruler’s bloodline is made into the guarantor of the all-important continuity of sovereign power.

The Beginning of Politics is a timely meditation on the dark side of sovereign power and the enduring dilemmas of statecraft.

 

Epstein, “The Classical Liberal Constitution”

Speaking of classical liberalism, here is a new book from the most prominent libertarian voice in the American legal academy, Richard Epstein, The Classical Liberal Constitution: the Uncertain Quest for Limited Government (Harvard). It certainly seems the case that many disputes over religious liberty today result from expanding governmental control over aspects of life the framers of the Free Exercise Clause could not have imagined — the Contraception Mandate, for example. Readers can decide whether that expansion, and the attendant conflicts over religious liberty, are the inevitable consequences of modernity or, as Epstein suggests, the result of an an unnecessary ideological project unwisely endorsed by the Supreme Court. The publisher’s description is below.

9780674975460American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard A. Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports.

Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.

Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.

 

Littlejohn, “The Peril and Promise of Christian Liberty”

If you want to understand the classical liberal approach to church and state, you will find yourself returning repeatedly to John Locke. And, in Locke, you’ll come across references to the Anglican thinker Richard Hooker. Learning more about Hooker and his approach to natural law is thus a very good idea. A new book from Eerdmans, The Peril and Promise of Christian Liberty: Richard Hooker, the Puritans, and Protestant Political Theology, by W. Bradford Littlejohn, seems a promising place to start. Here’s the publisher’s description:

9780802872562How do Christians determine when to obey God even if that means disobeying human authorities? In this book W. Bradford Littlejohn addresses that question, with particular attention to the magisterial political-theological work of Richard Hooker, a leading figure in the sixteenth-century English Reformation.

Littlejohn shows how Martin Luther and other Reformers considered Christian liberty to be compatible with considerable civil authority over the church, but he also analyzes the ambiguities and tensions of that relationship and how it helped provoke the Puritan movement. The heart of the book examines how, according to Richard Hooker, certain forms of Puritan legalism posed a greater threat to Christian liberty than did meddling monarchs. In expounding Hooker’s remarkable attempt to offer a balanced synthesis of liberty and authority in church, state, and conscience, Littlejohn draws out pertinent implications for Christian liberty and politics today.

Kirchik, “The End of Europe”

Well, this looks depressing. In a new release from Yale University Press, The End of Europe: Dictators, Demagogues, and the Coming Dark Age, author James Kirchik sees a dark time looming ahead for Europe, in which religious bigotry and nationalism will return to poison the good work of the post-war era. Liberalism is under a lot of stress in Europe right now, and liberalism’s inability to resolve religious tensions is one of the main reasons. Still, I don’t think it’s fair to link Brexit, which seemed more about national sovereignty than anything else, with rising anti-Semitism. Readers can judge for themselves. Here’s the description from the Yale website:

9f03ecba67f52d4bb0872ae9bfd38e40Once the world’s bastion of liberal, democratic values, Europe is now having to confront demons it thought it had laid to rest. The old pathologies of anti-Semitism, populist nationalism, and territorial aggression are threatening to tear the European postwar consensus apart. In riveting dispatches from this unfolding tragedy, James Kirchick shows us the shallow disingenuousness of the leaders who pushed for “Brexit;” examines how a vast migrant wave is exacerbating tensions between Europeans and their Muslim minorities; explores the rising anti-Semitism that causes Jewish schools and synagogues in France and Germany to resemble armed bunkers; and describes how Russian imperial ambitions are destabilizing nations from Estonia to Ukraine. With President Trump now threatening to abandon America’s traditional role as upholder of the liberal world order and guarantor of the continent’s security, Europe may be alone in dealing with these unprecedented challenges.

Based on extensive firsthand reporting, this book is a provocative, disturbing look at a continent in unexpected crisis.

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