Law and Religion in Judaism and Christianity

Jews and Christians–or, more correctly, Judaism and Christianity–have been contesting the place and purpose of law for two thousand years. It’s a debate that never exhausts itself, because each religion has defined itself largely as against the other, and law has been one of the central points of controversy. This month, the British publisher, James Clarke & Co., releases an addition to the debate, Law and Religion: Essays on the Place of the Law in Israel and Early Christianity, edited by the late Biblical scholar Barnabas Lindars of the University of Manchester. The book’s introduction indicates that most of the papers date from decades ago, so I’m not sure why the collection is appearing only now. Anyway, the table of contents looks very interesting. Here’s the publisher’s description:

The place of the Law and its relationship to religious observance and faith is a contested topic in the study of both the Old and New Testament. In Law and Religion, members of the Erhardt Seminar group provide an insight into the debate, probing key topics and offering new contributions to the subject. Their essays are grouped into three sections, focusing in turn on the Law’s place in Israelite religion, in the Jesus tradition, and in Paul and the Apostolic tradition.

Thus, the foundation of the connection between law and religion in ancient Israel is explored, along with the decisive influence of the Deuteronomic reform and the radical new understanding now emerging of the later development in Judaism of the New Testament Period. So, also, the contemporary challenge to the conventional picture of Jesus and the Law is addressed, the attitude of Paul is shown in new light, and post-Pauline developments are examined. Readers will find in this symposium a refreshing breadth of opinion on a debate that spans the gamut of disciplines within Biblical studies.

Scruton & Manent on Politics & Religion

I’m now reading Daniel J. Mahoney’s short book on the political thought of the late Sir Roger Scruton (whom Mark and I had the honor of hosting for the second leg of the Tradition Project–see below for his talk) and Pierre Manent. Dan argues that these philosophers share a common project to “recover the meaning of politics, civilization, and the soul” from the depredations of various “late modern dogmas.” He is aware of their differences but he focuses in these essays on their many affinities, including their similar views of secularism and the modern state (in my office, I have a signed copy of Scruton’s The Soul of the World, where he takes on some of these matters with great sensitivity and depth). Dan’s book is Recovering Politics, Civilization, and the Soul: Essays on Pierre Manent and Roger Scruton (St. Augustine Press).

The Western inheritance is under sustained theoretical and practical assault. Legitimate self-criticism has given way to nihilistic self-loathing and cultural, moral, and political repudiation is the order of the day. Yet, as Daniel J. Mahoney shows in this learned, eloquent, and provocative set of essays, two contemporary philosophic thinkers, Roger Scruton and Pierre Manent, have––separately and together––traced a path for the renewal of politics and practical reason, our civilized inheritance, the natural moral law, and the soul as the enduring site of self-conscious reflection, moral and civic agency, and mutual accountability.

Both Scruton and Manent have repudiated the fashionable nihilism associated with the “thought of 1968” and the “Parisian nonsense machine,” and have shown that gratitude is the proper response of the human person to the “givenness of things.” Both defend the self-governing nation against reckless nationalism and the even more reckless temptation of supranational governance and post-political  democracy, what Manent suggestively calls a “kratos” without a “demos.” Both defend the secular state while taking aim at a radical secularism that rejects “the Christian mark” that is at the heart of our inheritance and that sustains the rich and necessary interpenetration of truth and liberty. Scruton’s more “cultural” perspective is indebted to Burke and Kant; Manent’s more political perspective draws on Aristotle, St. Thomas, Tocqueville, and Raymond Aron, among others. By highlighting their affinities, and reflecting on their instructive differences, Mahoney shows how, together, the English man of letters Scruton, and the French political philosopher Manent, guide us to the recovery of a horizon of thought and action animated by practical reason and the wellsprings of the human soul. They show us the humanizing path forward, but first we must make the necessary spiritual decision to repudiate repudiation once and for all.

A New Study of Fatwas in Islamic Law

Even people who know little about Islamic law have heard of the fatwa: an opinion, issued by a qualified scholar, or mufti, on a question of Islamic law. In classical thought, a fatwa is not binding in itself; its authority is persuasive and dependent largely on the learning and reputation of the mufti who issues it. The relationship in Islamic law between fatwas and court judgments, which are binding, is a fascinating one and worthy of sustained study.

A new book from Cambridge, Fatwa and the Making and Renewal of Islamic Law
From the Classical Period to the Present
, explores the history of the practice. The author is Omer Awass (American Islamic College). Here’s the publisher’s description:

In this book, Omer Awass examines the formation, history, and transformation of the Islamic legal discourse and institutions through the lens of a particular legal practice: the issuance of fatwas (legal opinions). Tracing the growth of Islamic law over a vast geographical expanse -from Andalusia to India – and a long temporal span – from the 7th to the 21st century, he conceptualizes fatwas as the ‘atomic units’ of Islamic law. Awass argues that they have been a crucial element in the establishment of an Islamic legal tradition. He also provides numerous case studies that touch on economic, social, political, and religious topics. Written in an accessible style, this volume is the first to offer a comprehensive investigation of fatwas within such a broad spatio-temporal scope. It demonstrates how instrumental fatwas have been to the formation of Islamic legal traditions and institutions, as well as their unique forms of reasoning.

The Catholic (or catholic?) and the Common Law traditions

Taking a break from the regular book posts to flag a very interesting article by Professor Samuel Bray (Notre Dame Law School). The piece is The Influence of the Catholic Tradition on the Common Law, and it discusses three ways in which Catholic thought shaped the common law tradition. One of the difficulties in such a project, Sam says, is that the common law tradition is largely a post-16th century English phenomenon, when the role of Catholicism was, shall we say, diminished. Here is the abstract of the piece, followed by a few little reflections:

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term “Catholic intellectual tradition” is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor’s conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan’s opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

The piece is short, sweet, and full of great learning and insight. I highly recommend it. One rapid thought on the “anachronistic narrowness” point quoted above in the abstract. On what he calls the “generative” influence of Catholic thought on the common law, Sam argues very interestingly that the division of Catholic Intellectual Tradition from Protestant thought is likely of relatively recent vintage (say, the 19th century or so, especially in the resistance of the Church to modernity during that period), and that the common lawyers of the early period of the common law did think of themselves as working from (and perhaps even within) the Catholic Intellectual Tradition. One might call it instead the catholic intellectual tradition that is, Sam suggests, the tradition that had influence on the early common law–the Western Christian or Christian apostolic tradition unbound by today’s anachronistic divisions.

There are some comparatively small questions I had about some of Sam’s more specific claims. He says, for example, that each “side”–“Roman” and “non-Roman”–argued in “Newmanesque” fashion that “whoever did not change or augment the deposit of faith was the truly catholic side.” But is this really a full description of the disagreements that were themselves generated in and just after the period Sam surveys? There are not too many people in this world who would like more to believe that everybody is actually, deep down, a traditionalist. But disagreements about tradition and development (a/k/a change), it seems to me, eventually led to Cardinal Newman’s own position, decisions, and intellectual contribution. I wonder whether they materialized quite as late as Sam suggests.

Nevertheless, in highlighting one of Sam’s perhaps more controversial points above, I want to emphasize that Sam seems to me quite correct on all three influences with respect to the thought of learned commentators such as Coke, Hale, St. German, and others (perhaps even as late as Mansfield and Blackstone, for example), as well as judges such as the one who wrote the lead opinion in cases like Thomas v. Sorrell (1673/4). “[G]iven the cross-confessional argument and pollination in the early modern period across the republic of letters,” Sam contends, “it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time.” As I say, just when that “later time” began is difficult to determine, as Sam properly acknowledges (the 19th century seems quite late, indeed), but at least as to the earlier common law writers, his view seems (to this admitted non-expert in English legal history) persuasive.

At any rate, check out this very fine piece.

On the Autonomy of Religious Communities

Marc has written before about the rise of what he calls the “Australian School” in law and religion, a group of scholars, many fairly young, which “offers justifications for religious freedom rooted in theological considerations.” Marc identifies Alex Deagon (Queensland University of Technology) as a member of this school. Earlier this year, Bloombsury published Deagon’s latest work, A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, which takes a comparative perspective and argues for “a peaceful coexistence of difference which supports both religious freedom and equality.” Here’s the description from the publisher’s website:

This book engages in a theological critique of the legal frameworks and theoretical approaches of Australia, the US and England to create a peaceful coexistence of difference which supports both religious freedom and equality.

It develops a new framework for reconciling religious freedom and discrimination in Western liberal democracies and presents a unique approach to practically supporting both religious freedom and equality as fundamentally important objectives which promote more compassionate and cohesive communities.

The book applies the idea of peaceful coexistence of difference by assuming the dignity and goodwill of different people and perspectives, and proceeds upon shared virtues such as love which are affirmed by all.

Turning and turning in the widening gyre…

It is nothing new to observe that the center of American political and cultural life is having difficulty, as Yeats once put it, “holding.” It is instead increasingly extremes of various kinds that are gaining greater traction. “Extreme” carries a negative rhetorical charge, of course. One might say instead that Americans are coming to see the attraction of values long alien to their own largely optimistic, pragmatic, and open tradition–the values of commitment, hierarchy, tragedy, identity, and others–values that have their own claims on human hopes and fears. Some believe this to be a change from America of the past–a deeply and widely divided America has some precedents, but it is perhaps not the main stream–and one interesting question is just why the change has come upon us with such force today.

A new book out this fall makes the case for a return to balance: Why Not Moderation? Letters to Young Radicals (Cambridge University Press) by Aurelian Craiutu. Worth checking out, especially by those of us who might react with some (moderate) skepticism to its claims.

Moderation is often presented as a simple virtue for lukewarm and indecisive minds, searching for a fuzzy center between the extremes. Not surprisingly, many politicians do not want to be labelled ‘moderates’ for fear of losing elections. Why Not Moderation? challenges this conventional image and shows that moderation is a complex virtue with a rich tradition and unexplored radical sides. Through a series of imaginary letters between a passionate moderate and two young radicals, the book outlines the distinctive political vision undergirding moderation and makes a case for why we need this virtue today in America. Drawing on clearly written and compelling sources, Craiutu offers an opportunity to rethink moderation and participate in the important public debate on what kind of society we want to live in. His book reminds us that we cannot afford to bargain away the liberal civilization and open society we have inherited from our forefathers.

Kronman on Disbelief

“I have seen the burden God has laid on the human race,” the author of Ecclesiastes writes. “He has made everything beautiful in its time. He has also set eternity in the human heart; yet no one can fathom what God has done from beginning to end.” Yale law professor Anthony Kronman takes on this burden in a recent book, After Disbelief, which Yale releases in paperback form this month. The book tries to make sense of the essential human wish to understand eternity in a disenchanted world. Here’s the publisher’s description:

Many people of faith believe the meaning of life depends on our connection to an eternal order of some kind. Atheists deride this belief as a childish superstition.

In this wise and profound book, Anthony Kronman offers an alternative to these two entrenched positions, arguing that neither addresses the complexities of the human condition. We can never reach God, as religion promises, but cannot give up the longing to do so either. We are condemned by our nature to set goals we can neither abandon nor fulfill, yet paradoxically are able to approach more closely if we try. The human condition is one of inevitable disappointment tempered by moments of joy.

Resolutely humanistic and theologically inspired, this moving book offers a rational path to the love of God amidst the disenchantments of our time.

The Forgotten Revolutions of 1848

To say “nationalism” today is generally thought to sound a politically conservative note. Contemporary nationalists are generally thought to be for what the liberal theorist Karl Popper once criticized as the “closed society.” But the claims of nationalism can be liberal, even radical, and they have been in the past. After the defeat of Napoleon, attempts were made to return to the ancien régime in the Restoration, but these failed and the so-called “Revolutions of 1848” were their terminus. The Revolutions were a cluster of uprisings that swept across European nations simultaneously. The respective peoples of each nation demanded the repudiation of the old forms of governance and social structure precisely in favor of what were then thought to be the democratic, liberal politics guaranteed by the nation. In the Catholic Church, as Russell Hittinger has observed, it was the claims of nationalism that, in part, provoked Pope Pius IX’s Syllabus of Errors. The politics of nationalism are not fixed, but historically contingent.

I’m slightly late to noticing this interesting new book on the understudied Revolutions of 1848: Revolutionary Spring: Europe Aflame and the Fight for a New World, 1848-1849 (Penguin RandomHouse), by Christopher Clark.

As history, the uprisings of 1848 have long been overshadowed by the French Revolution of 1789 and the Russian revolutions of the early twentieth century. And yet in 1848 nearly all of Europe was aflame with conflict. Parallel political tumults spread like brush fire across the entire continent, leading to significant changes that continue to shape our world today. These battles for the future were fought with one eye kept squarely on the past: The men and women of 1848 saw the urgent challenges of their world as shaped profoundly by the past, and saw themselves as inheritors of a revolutionary tradition.

Celebrated Cambridge historian Christopher Clark describes 1848 as “the particle collision chamber at the center of the European nineteenth century,” a moment when political movements and ideas—from socialism and democratic radicalism to liberalism, nationalism, corporatism, and conservatism—were tested and transformed. The insurgents asked questions that sound modern to our ears: What happens when demands for political or economic liberty conflict with demands for social rights? How do we reconcile representative and direct forms of democracy? How is capitalism connected to social inequality? The revolutions of 1848 were short-lived, but their impact on public life and political thought throughout Europe and beyond has been profound.

Meticulously researched, elegantly written, and filled with a cast of charismatic figures, including the social theorist Alexis de Tocqueville, the writer George Sand, and the troubled priest Félicité de Lamennais, who struggled to reconcile his faith with politics, Revolutionary Spring offers a new understanding of 1848 that suggests chilling parallels to our present moment. “Looking back at the revolutions from the end of the first quarter of the twenty-first century, it is impossible not to be struck by the resonances,” Clark writes. “If a revolution is coming for us, it may look something like 1848.”

Decline and Fall

Gibbon, among others, famously argued that the rise of Christianity contributed to the fall of the Roman Empire, in the West, anyway: In the East, the Empire lasted another 1000 years, which is a long time to fall by any standards. A new book from Harvard University Press, The Tragedy of Empire: From Constantine to the Destruction of Roman Italy, discusses the establishment of Christianity in the Empire, among other topics, in its account of the last two centuries of the Empire in the West. The author is historian and classicist Michael Kulikowsi (Penn State). Here’s the publisher’s description:

A sweeping political history of the turbulent two centuries that led to the demise of the Roman Empire.

The Tragedy of Empire begins in the late fourth century with the reign of Julian, the last non-Christian Roman emperor, and takes readers to the final years of the Western Roman Empire at the end of the sixth century. One hundred years before Julian’s rule, Emperor Diocletian had resolved that an empire stretching from the Atlantic to the Euphrates, and from the Rhine and Tyne to the Sahara, could not effectively be governed by one man. He had devised a system of governance, called the tetrarchy by modern scholars, to respond to the vastness of the empire, its new rivals, and the changing face of its citizenry. Powerful enemies like the barbarian coalitions of the Franks and the Alamanni threatened the imperial frontiers. The new Sasanian dynasty had come into power in Persia. This was the political climate of the Roman world that Julian inherited.

International Moot Court Competition in Law and Religion

Here’s an announcement for a very worthwhile moot court competition in comparative law and religion in Milan this fall. I’ve had the honor of judging the competition in past years and can attest that it’s a unique and fun event for everyone concerned. Law students who are interested in the topic should seriously consider fielding a team! For more info, follow the links — MLM

After many successful editions, the International Moot Court Competition in Law and Religion is moving this year to Milan, Italy!

The Seventh Edition of the Program will run from September 18 to September 19, 2023, in Milan, Italy.

Teams from, within, and outside Europe will argue a case before the European Court of Human Rights and the Supreme Court of the United States. Pre-eminent scholars and actual judges from the two jurisdictions will sit as judges of the two Courts.

Have a look here, for a glimpse of the past editions, where Teams from the United States, Russia, the UK, and Italy gathered together and plead before prominent Judges.

The new case and all the details on the Competition will available soon for download at https://mootcourtmilano2023.wordpress.com/.

Stay tuned and do not miss a terrific opportunity to engage in a global conversation on Law and Religion!

Teams and individuals willing to participate in the program should email mcmilano2023@gmail.com