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The Doctrine of Discovery: Ethnocentrism & Conquest in Western Colonialism

Professor Robert J. Miller of Lewis & Clark Law School has posted The International Law of Colonialism: A Comparative Analysis.  The paper explores the history of legitimizing the colonization of the non-European world—including American expansion following Independence—through the international legal precept of the “Doctrine of Discovery.”  Under the Doctrine of Discovery, conquering powers gain exclusive title to lands previously held by conquered nations—here, the native tribes of North and South America.  Professor Miller finds historical similarity in each nations’ use of the Doctrine of Discovery and urges all nations to repudiate it.

According to Miller, the Doctrine of Discovery contained two elements of ethnocentrism particularly relevant to the CLR Forum:  (1) Christianity, whereby non-Christian nations were deemed to lack the same rights of ownership, sovereignty, and self-determination as Christians.  (Indeed, in the fifteenth century, the Vatican issued papal bulls granting ownership to Portugal and Spain over inhabited South American land.)  And (2) Civilization, whereby European society was deemed superior to those of native, non-European cultures, thus engendering a divine mandate—and entitlement—to dominate and educate these non-“civilized” cultures in the customs of Christian society.  (For example, the Spanish crown ordered all conquistadors to bring clerics with them to convert indigenous peoples to the Catholic faith.  In the United States, conversion was often used as a pretext for trespass on native territory, and certain denominations were granted tribal lands; in addition, Native American traditions and religious beliefs were outlawed for over one-hundred years).

For more information on the Doctrine of Discovery’s continuing presence in American law, and Professor Miller’s abstract, please follow the jump.

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El-Bialy & Gouda on The Possible Role of Religion in Fighting Software Piracy

Nora El-Bialy and Moamen Gouda (University of Hamburg and Philipps University Marburg) has posted Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy. The abstract follows. – ARH

The existence of formal IPR laws can be considered a prerequisite for having efficient law enforcement but does not imply efficient enforcement in itself. A simple model is constructed to explain the interplay between the IPR law and human behavior within counterfeiting countries. It shows how a politically monitored IPR enforcement strategy is able to alter formal IPR laws or institutions but might not affect informal institutions, or human morals and behavior, to the same extent, hence barely affecting piracy situation. The model shows the essential role of informal institutions and its sanction mechanisms in the enforcement process. The main obstacle of IPR enforcement is that people are still not convinced that IPR violations are unethical. Religion can be considered an informal institution that might support or hinder formal laws issued with regards to IPR and hence influence de facto enforcement of laws,especially in countries with high piracy rate if a high adherence to religion is found. As the Religion-Loyalty Index (RLI) developed by this study shows, Muslim countries have the highest religiosity level among different religions. Consequently, an investigation of how Islamic jurisprudence views IPR piracy is conducted. As Islam generally prohibits IPR piracy, a set of policy recommendations based on new institutional perspective is presented that can effectively help in minimizing IPR piracy in developing countries in general and Muslim ones in specific.

Posted on by Marc O. DeGirolami

Campbell on 19th Century Approaches to Religious Exemptions

Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases.  The abstract follows.  — MOD

Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores.  Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.

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Shulman on History and Discerning the Content of the Religion Clauses

The Journal of Law and Religion (Vol. XXVII, Hamline University School of Law, St. Paul, MN.) will soon publish The Siren Song of History: Originalism and the Religion Clauses, by Jeffrey Shulman of the Georgetown Law Center.  The article surveys three recent historical studies of the constitutional framers and their religious convictions; based on the studies, Shulman argues that historical research fails to discern in the spirituality of the founders enough coherent, unitary content to formulate an adequate originalist  interpretation of constitutional religious freedom.

At the outset, Shulman asserts, “[W]e are all originalists now”—meaning, in his view, that originalism has become a keystone to litigating freedom of religion questions.  Through his reviews, Shulman seeks to call into question this perceived judicial susceptibility to originalist-historical interpretation of the First Amendment.  He does so by arguing that history does not disclose a thorough, consistent enough picture of the founders’ religiosity to endow the Religion Clauses with “something determinate enough to serve a heuristic purpose in legal controversy.”

To illustrate his argument,  Shulman reviews The Forgotten Founders on Religion and Public Life (Daniel L. Dreisbach et al. eds., Notre Dame 2009) (see Professor DeGirolami’s discussion here), a collection of biographical outlines of under-acknowledged “founders” and their views on the relationships between religion, law, and society.  Among those outlines, the collection sketches Thomas Paine’s deism; the “quirky individual religion” of Benjamin Rush, a Philadelphia physician; and the moderate Anglicanism of first attorney-general, Edmund Randolph.

For further discussion of  The Forgotten Founders and the other two books Shulman surveys in The Siren Song, please follow the jump. Read more

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Robinson on Rationalizing Religious Exemptions

Zoe Robinson (DePaul University College of Law) has posted Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion. The abstract follows. – ARH

This Article proposes a new theory of religious liberty in the United States: it hypothesizes that a person’s religious freedom is dependent on their political power. Following the Supreme Court’s 1990 decision of Employment Division v. Smith, the legislature has sole control over the enactment of accommodations and exemptions from laws of general application for religious adherents. This Article argues that post-Smith accounts of religious liberty and pluralism fail to systematically analyze the relationship between religious liberty and legislative exemptions. To this end, the Article proposes a unique public choice model that hypothesizes that legislative accommodations and exemptions may result from a complex process in which legislators weigh the gains derived from the prospective exemption or accommodation – in terms of constituent voting support – against the costs borne. By modeling legislative accommodations as the result of benefit-maximizing behavior, the Article is proposing a significant paradigm shift that postulates a new, and unasked, question: whether the legislature is overly responsive to majoritarian interests at the expense of minority religious liberty.

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Levine on Jewish Law and Tragic Choices in the Holocaust

Samuel J. Levine (Touro Law Center) has posted Jewish Law from Out of the Depths: Tragic Choices in the Holocaust. The abstract follows. – ARH

This article is from the author’s remarks at the Second Annual Holocaust Remembrance Lecture at Washington University. In the article, the author explores the phenomenon of fidelity to Jewish law and morality amidst the horrors of the Holocaust. History records some of the remarkable efforts of Jewish communities and individuals who, in the face of unimaginable conditions, in ghettos and concentration camps, continued to turn to the teachings of Jewish law and ethics for lessons and guidance. The questions and answers that were presented—a portion of which have survived in written form—span all areas of life: from ritual and holiday observance, to commercial law, to domestic relations, to—literally—daily questions of life and death.

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Weddle & New on Religious Conservative Opposition to Anti-Bullying Legislation

Daniel B. Weddle (University of Missouri – Kansas City School of Law) and Kathryn E. New (recent graduate of University of Missouri – Kansas City School of Law) have posted What Did Jesus Do?: Answering Religious Conservatives Who Oppose Bullying Prevention Legislation. The abstract follows.—YAH

Conservative Christian organizations assert that anti-bullying programs are a stealth effort by gay activists to introduce into American schools an aggressive lesbian, gay, bisexual, transgender (LGBT) agenda. They contend that legislation and bullying prevention programs that mention gays are an attempt to indoctrinate children to embrace homosexual lifestyles; tolerate homosexual behavior; and celebrate homosexuality, bisexuality, and transgender identity. These voices are having an impact on state legislatures and the damage is immense. Educational research has made clear the devastating effects of bullying upon children, and LGBT students are among the most often targeted and least protected students. Given that schools are already failing to address bullying effectively, efforts to thwart protection of any group of students — especially one that is routinely targeted — is unconscionable. Yet these devoted Christians zealously interfere with protection of LGBT students from abuse by their peers and believe wholeheartedly that they are doing children and Christ a great service. We believe they fundamentally misunderstand three things: the dynamics of bullying, the law pertaining to student-on-student abuse, and the example and teachings of Christ. This Article addresses these misunderstandings. We propose a response to the distortions that are used to promote what is an anti-gay agenda that represents neither the teachings of the Bible nor the position of most Christians and evangelicals, whom these organizations purport to represent. Our hope is that, once the distortions are debunked, thinking Christians will reject the misguided efforts of a relatively few but influential individuals and organizations. If new voices can confront the misleading claims of anti-gay zealots with informed educational, legal, and Biblical responses, perhaps the distortions will be seen for what they are by Christians and non-Christians alike.

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More on Lund and Anti-Catholicism Redux

As my colleague, Andrew Hamilton notes below, Christopher C. Lund of Wayne State University School of Law will soon publish The New Victims of the Old Anti-Catholicism in the Connecticut Law Review.  Having read Prof. Lund’s paper, I would like to complement Andrew’s post by detailing Lund’s claims.

Lund links the attitude underlying 21st-century, religious-freedom jurisprudence with the both popular and legal anti-Catholic prejudice that pervaded the United States in the 19th-century—yet he does so without examining any recent case brought by a Catholic.

Nevertheless, in the four cases Lund examines, the plaintiffs’ status as members of a religious minority—or an a-religious one—and their struggle for legal recognition bridge this apparent divide.  In other words, like 19th-century Catholics, all of the cases involve plaintiffs in a religious minority seeking recognition of their beliefs and practices as legal rights under the Free Exercise and Establishment clauses.  Thus, Lund connects a present-day American Wiccan, Muslim, Evangelical Protestant, and Atheist to Catholics in America one-hundred-fifty-years ago.  More poignantly, in each contemporary case the plaintiff lost—outcomes that erode the idealistic notion that American legal and popular tolerance of minority religions expands with time.

For a description of each of the four cases Lund examines—and their significance—please follow the jump. Read more

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Munir on Taliq and the Pakistani 1961 Family Law

Muhammad Munir (International Islamic University Islamabad) has posted Talaq and the Muslim Family Law Ordinance, 1961 in Pakistan: An Analysis. The abstract follows. – ARH

Divorcing one’s wife is considered as one of the most hated but legal acts by God, yet divorces do happen among married couples. Muslims attach tremendous significance to issues involving Talaq. Unfortunately, Pakistani law on Talaq is one of the most controversial and confusing and its interpretation by our superior judiciary has made it even more confusing. The current law is not only against the injunctions of Islam, it has also been misinterpreted by the judiciary.

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Lund on The New Victims of the Old Anti-Catholicism

Christopher C. Lund (Wayne State University Law School) has posted The New Victims of the Old Anti-Catholicism.  The abstract follows. – ARH

This short piece examines four modern church-state cases which span the First Amendment spectrum. The plaintiffs are religiously diverse — one is a Wiccan, one is a Muslim, one is an evangelical Protestant, and one is an atheist. Unsurprisingly, their claims find support in very different political communities. But the plaintiffs in these cases all have certain things in common. They are all, in their own ways, religious minorities. All of their legal cases were ultimately lost. And most importantly for our purposes, each of their cases connects deeply with the nineteenth century history of anti-Catholicism in this country.

In various ways, Catholics of that century were mistreated by the Protestant majority. The injustices they faced were sanctioned by courts as well as legislatures, and legal rules were created to render their injuries both judicially noncognizable and socially invisible. Our four modern plaintiffs are, in some ways, latter-day Catholics. They suffer some of the same injustices; indeed, they are often inhibited by the some of the very same legal doctrines created to repress the Catholic minority over a century ago. We can think of these four plaintiffs as the new Catholics — or, to put it more accurately, as the new victims of the old anti-Catholicism. As we struggle with our twenty-first century challenges of religious pluralism, it helps to realize how much our struggles have in common with earlier ones. Perhaps, armed with this knowledge, we can do a bit better now than our forefathers did then.