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Kopel on Evolving Christian Attitudes Towards Personal and National Self-Defense

David B. Kopel (Denver University – Sturm College of Law) has posted Evolving Christian Attitudes Towards Personal and National Self-Defense. The abstract follows.

This Article analyzes the changes in orthodox Christian attitudes towards defensive violence. While the article begins in the 19th century and ends in the 21st, most of the Article is about the 20th century. The article focuses on American Catholicism and on the Vatican, although there is some discussion of American Protestantism.

In the nineteenth and early in the twentieth centuries, the traditional Christian concepts of Just War and of the individual’s duty to use force to defend himself and his family remained uncontroversial, as they had been for centuries. Disillusionment over World War One turned many Catholics and Protestants towards pacifism. Without necessarily adopting pacifism as a Read more

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Resnicoff on Religion and Unethical Business Practices

Steven H. Resnicoff (DePaul University College of Law) has posted The Causes and Cures of Unethical Business Practices – A Jewish Perspective. The abstract follows.

The workplace seems increasingly characterized by unethical practices between and among employers, employees, customers, competitors and others, despite the fact that most leading religious traditions proscribe such conduct and many of the actors self-identify as religious. This paper examines this phenomenon through the prism of Jewish tradition. It identifies specific Jewish teachings that explain many types of misconduct and, where appropriate, it cites modern secular experiments that confirm these Judaic insights. Based on these teachings, the paper prescribes a series of steps that, if implemented, could enhance the integrity of business and financial actors. This is a working paper in connection with the Henry Kaufman Forum on Religious Traditions and Business Behavior sponsored by the Robert H. Smith School of Business at the University of Maryland.

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Domingo on A New Paradigm for Religious Freedom

Rafael Domingo (University of Navarra) has posted A New Paradigm for Religious Freedom. The abstract follows.

This article articulates and defends a global normative paradigm of religious freedom: a minimum standard of respect for religious freedom that is rooted in human dignity and consistent with a variety of cultural and constitutional frameworks. This paradigm is fleshed out in three arguments: an argument about transcendence; an argument for a certain dualism about religion and politics, and an argument regarding regulation. The first focuses on the concept of religion; the second, on that of freedom; and the third, on rights. The first shows that, though the concept of religious freedom has rightly been expanded to protect nonbelievers as well as believers, all legal systems and constitutional frameworks should be open to the idea of transcendence as such, in order to protect the transcendent dimension of the human person. The argument for dualism calls for an interdependent dualistic structure that guarantees autonomy for both political and religious communities while imposing limits on the principle of laïcité and to theocratic impulses. Finally, the argument for regulation defends the power of political communities to regulate specifically those religious matters which affect the public sphere.

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McCrudden on Legal and Roman Catholic Conceptions of Human Rights

Christopher McCrudden (Queen’s University School of Law & Michigan Law School) has posted Legal and Roman Catholic Conceptions of Human Rights: Convergence, Divergence, and Dialogue? The abstract follows.

This article explores the extent to which there is an overlapping consensus between the Roman Catholic and the legal traditions of human rights. In comparing both traditions, an understanding of what these two traditions mean by “human rights” is gleaned from some authoritative texts of these traditions. In the case of the Roman Catholic tradition, emphasis is given to the post-Vatican II encyclicals (without intending to be comprehensive), and in the case of the legal tradition, from domestic Bills of Rights, human rights treaties, and relevant judicial interpretations of those texts.

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Stabile on NLRB Jurisdiction over Religious Universities

Susan J. Stabile (U. of St. Thomas School of Law) has posted Blame It on Catholic Bishop: The Question of NLRB Jurisdiction over Religious Colleges and Universities.  The abstract follows.

My focus in this Article is on how the National Labor Relations Board (the NLRB or the Board) determines whether to exercise jurisdiction over religious colleges and universities, subjecting them to the collective bargaining requirements of the National Labor Relations Act (the NLRA). The NLRB’s current approach is to examine whether the educational institution has a “substantial religious character,” in the absence of which it will exercise jurisdiction. As evidenced by two recent decisions by NLRB regional directors in cases involving efforts by adjunct faculty to form unions—one involving Saint Xavier College and one involving Manhattan College and both of which are currently on appeal to the full Board—the substantial religious character test is an unnecessarily intrusive one that substitutes the government’s views about what it means to be religious for the views of the institution and the religious community with which it is affiliated.

Section II of this Article gives a brief history of the NLRB’s approach to the exercise of jurisdiction over religious colleges and universities. Section III addresses the weakness of the NLRB’s substantial religious character test. Section IV addresses the central question of whether and under what circumstances the exercise of jurisdiction by NLRB over religious colleges and universities would create a risk of substantial entanglement. Finally, drawing from the conclusions of Section IV, Section V lays out some considerations to guide the NLRB in determining when it should exercise jurisdiction when employees of religious colleges and universities seek to unionize. Because both the Supreme Court guidance on this issue and the recent NLRB decisions have involved Catholic colleges and universities, they are the primary focus of this analysis. The analysis and conclusions, however, are intended to guide the NLRB’s approach to the exercise of jurisdiction over other religious colleges and universities as well.

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Zawati on Just War, Peace and Human Rights Under Islamic and International Law

Hilmi M. Zawati (McGill University) has posted Just War, Peace and Human Rights Under Islamic and International Law. The abstract follows.

The present thesis attempts a critical examination of the theory of war under Islamic and public international law, in an effort to demonstrate that jihad is a just, defensive, and exceptional form of warfare, geared to the maintenance of peace, and the protection of human rights for all people, whether those rights be exercised alone or in association with others, without distinction as to race, sex, language or religious belief. Through an examination of the norms of Islamic and public international law on armed conflict, this thesis argues that Islamic law, which governs the doctrine of jihad, is realistic and practical. Further, it made a great contribution to international humanitarian law more than a millennium before the codification of the four Geneva Conventions of 1949, and eight centuries before the appearance of Hugo Grotius treatise De jure belli ac pacis libri tres in 1625.

Furthermore, this comparative study reveals that the word jihad might be one of the most misunderstood terms in the history of Islamic legal discourse. This analysis also claims that the division of the world into dar al-Islam (territory of Islam) and dar al-harb (territory of war), which is not predicated on a state of mutual hostility, was dictated by particular events, and was not imposed by scripture. Moreover, this discussion provides that Islamic humanitarian law regulates conduct during a jihad on the basis of certain humane principles, compatible with those upon which modern international conventions are based. Finally, this thesis concludes that there is a unique relationship between jihad and the notion of just war, a matter which qualifies it as the bellum justum of Islam.

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Sezgin on the Role of Alternative Legalities

Yuksel Sezgin (CUNY John Jay) has posted The Role of Alternative Legalities in Bringing About Socio-Legal Change in Religious Systems. The abstract follows.

Do women have equal rights under Islamic, Jewish or Hindu laws? As far as the actual practice is concerned, the answer is not an affirmative one, as most religious traditions have historically discriminated against women particularly in familial relations. Moreover, in most religious traditions human agency is usually prohibited from interfering with ‘divine’ law that is assumed to represent the ‘God’s’ will and commands. Then, how can gender equality or uplifting of women be achieved under religio-legal systems? If ‘sacred’ laws cannot be amended, does it mean that religio-legal systems are constantly stagnated or frozen in time? Are women eternally doomed to suffer under patriarchal and discriminatory religious laws? The answer is simply ‘no’. For instance, Sisters in Islam, a Muslim feminist organization in Malaysia holds the view that it is not Qur’an or Islam that oppresses women but it is the male-centric and repressive legality built around the originally emancipatory message and word of God that came to discriminate against women. In this regard, they argue that what needs to be changed to improve the status of women is not the law or the text itself but the legality built around it. In fact, all over the world women are contesting legality of customary and religious laws and rendering a more egalitarian and emancipatory understanding of the texts and traditions without necessarily contesting their legitimacy, source or originality.

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Bhuta on Religious Freedom in the European Court of Human Rights

Nehal Bhuta (European University Institute) has posted Two Concepts of Religious Freedom in the European Court of Human Rights. The abstract follows.

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.

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Flanders on Koppelman and Religious Neutrality

Chad Flanders (Saint Louis University School of Law) has posted Can We Please Stop Talking About Neutrality?: Koppelman Between Scalia and Rawls. The abstract follows.

In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in much the same conceptual space as Laycock, I think he makes (and would probably admit to making) a version of the “Puritan mistake.” Koppelman says that he is interested in avoiding the extreme of radical secularism that favors “the complete eradication of religion from public life” but also the extreme of religious traditionalism, which sees nothing wrong with “frank endorsement of religious propositions.”

Koppelman, like Laycock, wants to find a way between these two extremes. But instead of rejecting the traditionalist view outright, Koppelman instead insists that religion is a good thing (this is the Puritan mistake), but — partly in a bid to appease the secularists — that religion ought to be defined at a very high level of abstraction. Read more

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Annicchino on Freedom of Religion in the European Union’s Foreign Policy

Pasquale Annicchino (European University Institute – Robert Schuman Centre for Advanced Studies) has posted Freedom of Religion or Belief in the Foreign Policy of the European Union: Much Ado About Nothing? The abstract follows.

Part One of this article introduces the new European External Action Service. Part Two focuses especially on the recent policies undertaken by the European Union to include the protection of religious freedom or belief in its external action. Part Three compares the action undertaken by EU institutions with the model that served as its source of inspiration, namely the U.S. Commission on International Religious Freedom. Part Four offers some tentative conclusions. I will argue that thus far, analyzing the concrete measures approved by EU institutions in the field, the enthusiasm or early critics is not justified. The EU guidelines on freedom of religion or belief will probably only constitute a first minimal step, but more time will be needed to assess the real policy intentions in the field in concreto.