Posted on by

Haskell on the Evangelical Foundations of Modern Anglo-American Approaches to International Law

John D. Haskell (Int’l U. College of Turin, Durham Law School) has posted Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law (the full-text article may be behind a paywall). The abstract follows.

In this article, I hypothesize that against mainstream secularization accounts concerning the 19th-century development of modern international law, especially within the Anglo-American experience, the discipline was significantly influenced by liberal Protestantism. My argument is that a liberal Protestant cultural elite, to which the first generation of international jurists belonged, drew inspiration from the theological doctrine of divine immanence to solidify their socio-political authority against a diverse series of internal and external threats. In an attempt to demonstrate the evangelical foundations of modern international law and the importance played by Anglo-American legal scholars within the tradition, the article is organized into three sections. First, I examine traditional 19th-century narratives of international law, particularly in relation to Christianity. Second, I trace out how the doctrine of divine immanence was formulated in Liberal Protestant theology and how this influenced international legal scholarship within the period in relation to doctrines of the nation-state. Third, I examine how divine immanence shaped three anxieties shared by liberal Protestant theologians and international jurists, including former colonized people and institutions, Roman Catholic beliefs and immigrant populations, and the nascent industrial working-class and radical political ideologies. The article concludes with some brief reflections on the implications of this study and potential directions for future research in the field of religion and international legal history.

Posted on by

Wilson on The Calculus of Accommodation

Robin F. Wilson (Washington and Lee U. School of Law) has posted The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and other Clashes Between Religion and the State. The abstract follows.

This Article considers a burning issue in society today—
whether, and under what circumstances, religious groups and individuals should be exempted from the dictates of civil law. The “political
maelstrom” over the Obama administration’s sterilization and contraceptive coverage mandate is just one of many clashes between religion
and the state. Religious groups and individuals have also sought religious exemptions to the duty to assist with abortions or facilitate same-sex marriages. In all these contexts, religious objectors claim a special
right of entitlement to follow their religious tenets, in the face of equally compelling claims that religious accommodations threaten access and
may impose significant costs on others. Legislators and other policymakers have struggled with how to advance two compelling, and at
times conflicting, values—access and religious liberty. This Article examines, and responds to, a number of “sticking points” voiced by legislators
about a qualified exemption for religious objectors to the duty to facilitate same-sex marriages—concerns that bear an uncanny resemblance
to reasons why some believe the Obama administration should not yield
further on the contraception mandate. This Article maintains that religious accommodations qualified by hardship transform what could be a zero- sum proposition into one in which access and religious freedom can both be affirmed.

Posted on by

Balkaran & Dorn on Violence in the Vālmiki Rāmāyana

On September 3, the Journal of the American Academy of Religion published Violence in the Vālmı̄ki Rāmāyana : Just War Criteria in an Ancient Indian Epic by Raj Balkaran (University of Calgary) and A. Walter Dorn (Royal Military College of Canada and Canadian Forces College). The abstract follows.

When is armed force considered justified in Hinduism? How do Hindu legitimizations of warfare compare with those of other religions? The Just War framework, which evolved from Roman and early Christian thought, stipulates distinct criteria for sanctioning the use of force. Are those themes comparable to the discourse on violence of ancient India? This article examines the influential Sanskrit epic Vālmıki Rāmāyana in order to broach these questions. This analysis demonstrates the presence in the ancient work of all seven modern Just War criteria—namely (1) Just Cause, (2) Right Intent, (3) Net Benefit, (4) Legitimate Authority, (5) Last Resort, (6) Proportionality of Means, and (7) Right Conduct. This study also shows the extent to which the criteria and the larger discourse in the Vālmıki Rāmāyana are distinctly couched within Indic ethical parameters, drawing particularly upon the moral precept of ahimsā (nonviolence). This article identifies both similarities and differences between the epic’s criteria for warfare and those of the Just War framework. By comparing representations of violence in the Vālmıki Rāmāyana to modern Western legitimizations of force, this study advances the inclusion of Hindu thought into the global discourse on the ethics of war and peace.

Posted on by

Ferrari on a European Perspective of Law and Religion in a Secular Society

Silvio Ferrari (U. of Milan) has posted Law and Religion in a Secular World: A European Perspective. The abstract follows.

This article examines two interpretations of the process of secularisation that can be traced back through European legal and political thought, and a more recent trend that challenges both of them. It does this through the prism of the public sphere, because in today’s Europe one of the most debated issues is the place and role of religion in this sphere, understood as the space where decisions concerning questions of general interest are discussed. The article concludes, first, that the paradigm through which relations between the secular and the religious have been interpreted is shifting and, second, that this change is going to have an impact on the notion of religious freedom and, consequently, on the recognised position of religions in the public sphere.

Posted on by

Augustine on Environmental Justice and Eschatology in Revelation

Jonathan C. Augustine (Southern U. Law Center) has posted Environmental Justice and Eschatology in Revelation. The abstract follows.

The concept of environmental justice is not new. While some scholars and activists trace its origins as part of the ongoing American Civil Rights Movement—a movement which emerged within the interdisciplinary connection of law and religion—this Essay argues that the concept of environmental justice has deep origins in the Holy Bible. With a foundation in the Old Testament Hebrew scriptures, this Essay combines the disciplines of law and religion by arguing that the Book of Revelation should be read ecologically, as a clarion call to protect the environment in anticipation of the time the triune God will return to live on the planet earth, which will exist as a new heaven.

To support the thesis that the Book of Revelation calls members of Judeo-Christian faith traditions to be protective stewards of planet earth, this Essay is organized into five interconnected parts, undergirded by religious views on the environment and the concept of environmental justice. Part I is an introductory overview, which lays a foundation for the matters related to law, religion, and ecological eschatology detailed herein. Part II builds upon Part I by transitioning into a substantive analysis of environmental justice, as detailed by John in Revelation. Part III then moves in chronology from a time when Judeo-Christian morals influenced ecological eschatology, millennia before antiquity, by exploring the same influences on environmental justice in the post-modern era. Part IV outlines policy considerations related to the continuing environmental justice movement from a Judeo-Christian thought perspective. Finally, Part V of this Essay is a synthesis and conclusion, where the author attempts to harmonize the themes and theories detailed herein, all at the proverbial intersection of law and religion.

Posted on by Mark Movsesian

Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Read more

Posted on by · 1 Comment

Bell on The Status of the Roman Catholic Church and Canon Law in Singapore

Gary F. Bell  (Nat’l U. of Singapore Faculty of Law) has posted Religious Legal Pluralism Revisited – The Status of the Roman Catholic Church and Her Canon Law in Singapore. The abstract follows.

By religious legal pluralism we usually mean state-recognised legal pluralism, such as the kind of legal pluralism implemented in Singapore through the Administration of Muslim Law Act. But there is also religious legal pluralism outside State recognition and enforcement. Many religions have very long legal traditions which have survived, often without much support or official recognition by States (Jewish law, for example). In this paper we shall look at one such tradition, the canon law of the Latin Church of the Roman Catholic Church and its implementation by the Church in Singapore, including the establishment of very busy ecclesiastical tribunals in Singapore to administer disputes relating to the possible nullity of religious marriages, for example. The hope is that this example of Canon Law in Singapore will show that there can be very detailed and formal religious laws implemented by formal institutions such as tribunals outside the ambit of the State.

Posted on by

Carozza & Philpott on The Catholic Church, Human Rights, and Democracy

Paolo G. Carozza (Notre Dame Law School) Daniel Philpott (Notre Dame) have posted The Catholic Church, Human Rights, and Democracy: Convergence and Conflict with the Modern State. The abstract follows.

In Pope Benedict XVI’s address to the Roman Curia of December 22, 2006, he made reference to the Catholic Church’s own journey toward embracing human rights and religious freedom.1 Perhaps surprisingly to some, he gave credit for this development to the Enlightenment, which he said could count human rights and religious freedom as its “true conquests.” More predictably to most, he reiterated his longstanding criticism of the Enlightenment’s attempt to ground these principles on positivist and skeptical foundations. He argued rather that a constructive synergy of faith and reason was the best foundation for tolerance, human rights, and the preservation of religious freedom.

Benedict’s thesis points to an ambivalent historical relationship between the social teachings of the Catholic Church and modern political institutions based on human rights and democracy. It is in part a story of convergence. Gradually, over the course of the twentieth century, then far more rapidly beginning with the Second Vatican Council, following upon several centuries of consistent resistance to the momentum of European politics, the Church came to embrace norms of human rights and democracy reflective of those that appeared in international instruments like the UN Charter and the Universal Declaration of Human Rights as well as the constitutions of western democracies. As the term convergence—rather than accommodation or adaptation—suggests, the Church did not simply conform itself to what others had long before pioneered. True, as Benedict argues, a dialogue with the Enlightenment did beget Catholic evolution in certain dimensions of rights, especially religious freedom. But it is also the case, as we point out below, that the Church has articulated a tradition of rights since as early as the sixteenth century. Read more