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Corbin on the Contraception Mandate

Caroline Mala Corbin (University of Miami School of Law) has posted The Contraception Mandate. The abstract follows.

Under the new health care regime, health insurance plans must cover contraception. While religious employers are exempt from this requirement, religiously affiliated employers are not. Several have sued, claiming that the “contraception mandate” violates the Free Exercise Clause, the Free Speech Clause, and the Religious Freedom Restoration Act. This essay explains why the contraception mandate violates none of them.

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O’Brien & Koons on A Hylomorphic Critique of the New Natural Law Theory

Matthew B. O’Brien (Rutgers U.) and Robert C. Koons (U. of Texas, Austin) have posted Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory. The abstract follows.

The “New Natural Law” Theory (NNL) of Grisez, Finnis, Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from the NNL’s planning theory of intention coupled with an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. Pace the NNL collaborators, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either essential to human nature or acquired through participation in social practices.

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Lewis on Religious Freedom, the Common Good and the Contraception Services Mandate

V. Bradley Lewis (Catholic U. of America) has posted Religious Freedom, the Good of Religion and the Common Good: The Challenges of Pluralism, Privilege and the Contraceptive Services Mandate. The abstract follows.

The right to religious freedom is properly grounded in religion’s status as a fundamental and irreducible human good, which is nevertheless related to other goods and social in character. Its protection for persons and groups is therefore also a component of the common good of political society. After arguing for these propositions on broadly Thomistic philosophical grounds, the article discuses and answers three recent challenges. The first is based on a perceived conflict between recognition of the good of religion and pluralism and I argue that this objection can be met by distinguishing between different kinds of pluralism, most of which pose no problem to the thesis. A second objection comes from those outside the Thomistic tradition, who either reject the status of religion as a good deserving of explicit legal recognition and protection or accept it on inadequate grounds. The objections, I argue, are based on accounts of religion that are inadequate to the role it plays in sound practical reason. Finally, I discuss an argument from those within the Thomistic tradition who accept some limitations on religious freedom in the name of the common good. This third challenge is linked to the current controversy over the application of the US federal government’s insurance mandate to religious organizations and the US Catholic bishops’ response to it as an issue of religious freedom. Here I argue that the objection is based on a misunderstanding and misapplication of Aquinas’s account.

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Awrey, Blair & Kershaw on Ethics in Financial Regulation

Dan Awrey (University of Oxford), William Blair, and David Kershaw (London School of Economics) have posted Between Law and Markets: Is There a Role for Culture and Ethics in Financial Regulation? The abstract follows.

The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings.

To many, this analysis may portend the end of the story. From our perspective, however, it represents a useful point of departure. While neither law nor markets may be particularly well suited to serving as “the conscience of the Square Mile,” it may nevertheless be possible to harness the power of these institutions to carve out a space within which culture and ethics – or, combining the two, a more ethical culture – can play a meaningful role in constraining socially undesirable behavior within the financial services industry. The objective of this article is to explore some of the ways which, in our view, this might be achieved.

This exploration takes place across two dimensions. In the first dimension, we hold constant the core internal governance arrangements – corporate objectives, directors’ duties, board composition, committee structures and remuneration policies – within financial institutions. Read more

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Inazu on the Future of Religious Liberty

John D. Inazu (Washington University School of Law) has posted The Four Freedoms and the Future of Religious Liberty. The abstract follows.

The First Amendment’s rights of speech, press, religion, and assembly were once “interwoven” but distinct. Together, these freedoms advanced a pluralist skepticism of state orthodoxy that protected religious and other forms of liberty. The connections among these rights were evident at the Framing. They were also prominent during the 1930s and 1940s, when legal and political rhetoric recognized the “preferred position” of the “Four Freedoms.” We have lost sight of the Four Freedoms, supplanting their unified distinctiveness with an undifferentiated free speech framework driven by unsatisfying concepts like content neutrality and public forum analysis. It did not have to be this way, and it may not be too late to change course. This Article seeks to renew the pluralist emphasis once represented by the Four Freedoms.

The consequences of losing the pluralist vision are nowhere more evident than in the diminishing constitutional protections for religious groups, which are paradigmatic of the expressive, dissenting, and culture-forming groups of civil society. The Four Freedoms remind us that the boundaries of religious liberty have never rested solely in the First Amendment’s free exercise clause — religious liberty is best strengthened by ensuring robust protections of more general forms of liberty. But the normative effort to reclaim pluralism is not without costs, and it confronts powerful objections from anti-discrimination norms pertaining to race, gender, and sexual orientation — objections that cannot go unanswered.

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Esbeck on Religion During the American Revolution

Carl H. Esbeck (University of Missouri School of Law) has posted Religion During the American Revolution and the Early Republic.  The abstract follows.

This paper is part of an anthology and will appear in volume one under the heading Historical Introduction to Law and Religion in the West. The editor requested an extended essay concerning religion and religious liberty in the American War of Independence and its aftermath. The paper is juxtaposed with another on the French Revolution, providing a comparison for the role religion played in these events that continue to shape the world. In addition to the War itself, which unfolded over 1775-1783, changes within American Protestantism had a leveling effect on society and, by the early years of the republic, the political and religious culture exalted liberty, individualism, and the voluntary church.

The Quebec Act of 1774 illustrates the degree to which American patriots reacted against Roman Catholicism. This act of Parliament preserved the established role of the Catholic Church in French Canada, including public funding and full sanction by the British government. British tolerance of the Catholic establishment drew harsh protests from Congress, even mention as a grievance in the Declaration of Independence. American sensitivity was to Old World political uses of religion. The patriots believed that a fully-empowered Catholic hierarchy to the north and west of them would bring Old World intrigues involving the Roman Church. To be an American was to be in sympathy with Protestantism, to be Protestant was to be republican, and to be republican was to oppose Catholic absolutism. Moreover, the British were departing from their constitutional commitment to representative government when they unilaterally imposed taxes and other oppressive acts on colonial subjects. This was seen as an offense to republicanism and each American’s inalienable rights. The breach of the Lockean social contract legitimated armed rebellion. Read more

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Hascall on Restorative Justice in Islam

Susan C. Hascall (Duquesne U. School of Law) has posted Restorative Justice in Islam: Should Qisas be Considered a Form of Restorative Justice?  The abstract follows.

The restorative justice movement challenges conventional approaches to sentencing and punishment by involving the victim, community, and perpetrator in sentencing. The movement is characterized by an emphasis on the restoration of relationships, healing and rehabilitation. Like the restorative justice movement, Islamic law embraces a conception of justice that involves healing relationships. Shari’ah, the religious law of Islam, is based on Islamic teachings on justice and divine revelation. In classical Shari’ah jurisprudence, crimes are divided into several categories, which do not easily correspond to the categories defined in modern Western law. One of these categories, the crimes of qisas, is distinctive in that it gives the victim and his/her family final decision making power in punishment for physical wounding and murder. Although the victim(s) may choose retaliation in kind, payment, or forgiveness, emphasis is placed on the latter. This paper explores whether (1) qisas is a form of restorative justice (2) whether restorative justice adherents should examine the qisas processes for inspiration or methodology.

This paper begins by discussing the ideology behind the restorative justice movement and then proceeds to describe the classical Islamic law of qisas. Subsequently, examples of modern codes incorporating the law of qisas are provided. One of these exemplars highlighted within the text, particularly demonstrative of the abovementioned amalgamation, is northern Nigeria. The article concludes by emphasizing that, irrespective of the option for retaliation in kind, enough similarities and goals in the approaches of classical qisas jurisprudence, as exemplified in the modern codes of northern Nigeria, restorative justice scholars should examine qisas. There is also a calling for further field research on the processes of qisas in modern Shari’ah-based criminal jurisprudence.

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Rivers on the Secularization of the British Constitution

Julian Rivers (U. of Bristol Law School) has posted The Secularisation of the British Constitution. The abstract follows.

In recent years, the relationship between law and religion has been subject to increased scholarly interest. In part this is the result of new laws protecting religious liberty and non-discrimination, and it may be that overall levels of litigation have increased as well. In all this activity, there are signs that the relationship between law and religion is changing. While unable to address every matter of detail, this article seeks to identify the underlying themes and trends. It starts by suggesting that the constitutional settlement achieved by the end of the nineteenth century has often been overlooked, religion only appearing in the guise of inadequately theorised commitments to individual liberty and equality. The article then considers the role of multiculturalism in promoting recent legal changes. However, the new commitment to multiculturalism cannot explain a number of features of the law: the minimal impact of the Human Rights Act 1998, the uncertain effect of equality legislation, an apparent rise in litigation in established areas of law and religion, and some striking cases in which acts have been found to be unlawful in surprising ways. In contrast, the article proposes a new secularisation thesis. The law is coming to treat religions as merely recreational and trivial. This has the effect of reducing the significance of religion as a matter of conscience, as legal system and as a context for public service. As a way of managing the ever-deepening forms of religious diversity present within the United Kingdom, such a secularisation strategy is implausible.

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Schragger & Schwartzman on Religious Institutionalism

Richard Schragger and Micah Schwartzman (both of University of Virginia School of Law) have posted Against Religious Institutionalism. The abstract follows.

The idea that religious institutions should play a central role in understanding the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of “freedom of the church,” which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.

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Michaelson on the Religious Roots of American Antinomianism

Jay Michaelson (Ph.D. student at Hebrew University) has posted Hating the Law for Christian Reasons: The Religious Roots of American Antinomianism.  The abstract follows.

Popular American law-talk is a religious discourse. While Americans routinely valorize the “rule of law” and “common sense,” they express hatred for lawyers and laws, which are supposedly drowning our country in a sea of regulation and litigation. What explains this curious ambivalence is a Protestant ethic, beginning with the Apostle Paul, who, in an explicit rejoinder against Judaism, denied that the law (which governs the body) is a path to salvation (which is a matter of the soul). The result is a philosophy of “law without laws,” a religious antinomianism that has shaped, explicitly and implicitly, such disparate phenomena as the jury system, debates over the common law, and contemporary jeremiads about litigation and regulation.

This article, forthcoming in the anthology “Jews and the Law,” edited by Suzanne Last Stone and Ari Mermelstein, traces this American antinomianism in secular and religious sources. It begins by analyzing three different moments in American popular legal history: the Clinton impeachment, the debates surrounding the adoption of the English common law in the early republic, and discourse about the value of the jury from the Colonial period. The paper then turns to the religious sources, chiefly Paul’s letters to the Romans and Corinthians, and later texts by Augustine, Aquinas, and Luther. It concludes by observing that the contemporary American mistrust of law is not a secular, civic, or jurisprudential ideology but a deep, religious conviction.