This new collection of essays from Cambridge, Law as Religion, Religion as Law, looks interesting. The basic thrust of the volume is that the demands of law and religion do not oppose one another but, in fact, overlap and complement one another. That’s certainly true sometimes! The editors are scholars David Flatto and Benjamin Porat, both of Hebrew University. The publisher’s description follows:
The conventional approach to law and religion assumes that these are competing domains, which raises questions about the freedom of, and from, religion; alternate commitments of religion and human rights; and respective jurisdictions of civil and religious courts. This volume moves beyond this competitive paradigm to consider law and religion as overlapping and interrelated frameworks that structure the social order, arguing that law and religion share similar properties and have a symbiotic relationship. Moreover, many legal systems exhibit religious characteristics, informing their notions of authority, precedent, rituals and canonical texts, and most religions invoke legal concepts or terminology. The contributors address this blurring of law and religion in the contexts of political theology, secularism, church-state conflicts, and the foundational idea of divine law. This title is also available as Open Access on Cambridge Core.
One of my summer projects–still hatching–concerns the idea of “drift” in what is regarded as prototypically “public” and “private” law. That is, the tendency of what was regarded as public law to be privatized, and the tendency of private law to become a matter of public concern. For example, law and religion is traditionally understood as public law in its constitutional dimensions–the law that concerns the state’s relationship to the citizenry respecting religious questions. But there are also features of law and religion that may be considered private law: contractual arrangements based on religious law, for example, and others. Of course, the categories of public and private have been famously attacked by legal realists and their descendants as empty formalisms. In more recent years, however, scholars coming from a variety of perspectives have revived and defended the distinction. In tort law, for example, John Goldberg and Benjamin Zipursky have done so in their book (and prior work), Recognizing Wrongs, and others as well in what is called the “new private law” perspective.
From his own distinctive, Kantian perspective, so has the eminent private law theorist Ernest J. Weinrib. Here is an important new book on themes he has been developing for many years, and which go very much to the private/public division: Reciprocal Freedom: Private Law and Public Right (OUP).
Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.
The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.
The Ja’fari School represents the principal method of jurisprudence in Shi’a Islam and the official source of Islamic law under the Iranian Constitution. It is comparatively less well known among students of Islamic law in the West, who tend to focus on the four Sunni schools of fiqh. A new book from Harvard, Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law, offers an intellectual history of the school’s founder, the eighth century scholar Jaʿfar al-Ṣādiq. The author is Near Eastern Studies Professor Hossein Modarressi (Princeton). Here is the description from the publisher’s website:
Text and Interpretation: Imam Jaʿfar al-Ṣādiq and His Legacy in Islamic Law examines the main characteristics of the legal thought of Imam Jaʿfar al-Ṣādiq, a preeminent religious scholar jurist of Medina in the first half of the second century of the Muslim calendar (mid-eighth century CE). Numerous works in different languages have appeared over the past half century to introduce this school of Islamic law and its history, legal theory, and substance in contexts of Shīʿī law.
While previous literature has focused on the current status of the school in its developed and expanded form, this book presents an intellectual history of how the school began. The Jaʿfarī school emerged within the general legal discourse of the late Umayyad and early Abbasid periods, but was known to differ in certain approaches from the other main legal schools of this time. Namely, the Jaʿfarī school expanded the tools for legal interpretation generally and contracts specifically, to a degree unmatched by any of its counterparts in the Muslim legal tradition. In addition to sketching the origins of the school, the book examines Jaʿfar al-Ṣādiq’s interpretive approach through detailing his position on a number of specific questions, as well as the legal canons, presumptions, and other interpretive tools he adopted.
The British Commonwealth is an association of countries that share a connection to the British Empire, often as former colonies. The common law of these countries all has this common root or family resemblance, and is therefore in many ways similar, notwithstanding specific national differences that have developed with independence from the Empire. Here is a new book concerning the law and religion doctrine of these nations: Law and Religion in the Commonwealth: The Evolution of Caselaw (Bloomsbury), edited by Renae Barker, Paul Babie, and Neil Foster.
This book examines law and religion from the perspective of its case law.
Each chapter focuses on a specific case from a Commonwealth jurisdiction, examining the history and impact of the case, both within the originating jurisdiction and its wider global context.
The book contains chapters from leading and emerging scholars from across the Commonwealth, including from the United Kingdom, Canada, Australia, Pakistan, Malaysia, India and Nigeria.
The cases are divided into four sections covering: – Foundational Questions in Law and Religion – Freedom of Religion around the Commonwealth – Religion and state relations around the Commonwealth – Rights, Relationships and Religion around the Commonwealth.
Like religion itself, the case law covers a wide spectrum of life. This diversity is reflected in the cases covered in this book, which include: – Titular Roman Catholic Archbishop of Kuala Lumpur v Home Minister on the use of the Muslim name for God by non-Muslims in Malaysia – The Church of the New Faith v Commissioner of Pay-roll Tax (Vic) which determined the meaning of religion in Australia – Eweida v UK which clarified the application of Article 9 of the European Convention on Human Rights – R v Big M Drug Mart on the individual protections of religious freedom under the Canadian Charter of Rights.
The book examines how legal disputes involving religion are among the most contested in the courts and shows that in these cases, passions run high and the outcomes can have significant consequences for all involved.
This month, the University of Chicago Press releases a new book by our friend, Vincent Phillip Munoz (Notre Dame), Religious Liberty and the American Founding. A few years ago, we hosted an online symposium on Phillip’s work on the Founder’s understanding of the natural right of religious liberty–what the right entailed and what it did not entail–and his new book continues to address that subject. Looks very interesting. The publisher’s description is below. Congrats, Phillip!
An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.
The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.
Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.
I recently had occasion to speak with the curator of an art museum at a university, who told me that her job has become a good deal more complicated by fundamental questions about the nature and function of museums in our world. Should museums exist any longer? By what right do museums continue to hold the artifacts that they do, seeing as many now argue that they hoard ill-gotten gains–the products of unjust exchanges, exploitative deals, or worse. Should museums divest themselves of their collections and send their inventory back to the rightful possessors. But who are the rightful possessors? How does one distinguish between situations like the Elgin Marbles, which many say should be returned to Greece, and other art that is now housed at The British Museum, most of which has no connection at all with Great Britain? Selling off these holdings won’t help, since the art will then sit in a private collector’s property. Don’t the people have a right to see and enjoy the great glories of civilization? But why the people of privileged nations that had the political and power and wherewithal to create institutions for that purpose, and the military and cultural power to take what they wanted? Would it solve things to turn museums into centers for perpetual temporary displays, as artwork moves nomadically here and there, from place to place, so that more of humanity can see it than now does?
There is an obvious relationship with the various problems of the legitimacy of property more generally, but I was thinking about the institution of the museum as a metaphor for the new questions that now confront other institutions. Institutions like museums are custodians of traditions of excellence, beauty, knowledge, and truth. Other institutions (including the institutions of law) have a similar custodial role. What happens when the fundamental premises of those institutions comes into question–when their very existence is attacked as illegitimate? How should they respond–and in particular, what should they aim to be the steward of (i.e., what should they want to conserve for posterity), and for whom? For what sort of shared culture do they continue to be institutions?
Here is a new book making what looks like an elegant pitch for the continuing relevance of the museum as institutional marker of a shared culture: Why the Museum Matters (Yale University Press) by Daniel H. Weiss, the President and CEO of the Met.
A powerful reflection on the universal art museum, considering the values critical to its history and anticipating its evolving place in our cultural future
Art museums have played a vital role in our culture, drawing on Enlightenment ideals in shaping ideas, advancing learning, fostering community, and providing spaces of beauty and permanence. In this thoughtful and often personal volume, Daniel H. Weiss contemplates the idea of the universal art museum alongside broad considerations about the role of art in society and what defines a cultural experience. The future of art museums is far from secure, and Weiss reflects on many of the difficulties these institutions face, from their financial health to their collecting practices to the audiences they engage to ensuring freedom of expression on the part of artists and curators.
In grappling with these challenges, Weiss sees a solution in shared governance. His tone is one of optimism as he looks to a future where the museum will serve a greater public while continuing to be a steward of culture and a place of discovery, discourse, inspiration, and pleasure. This poignant questioning and affirmation of the museum explores our enduring values while embracing the need for change in a rapidly evolving world.
Ten years ago, in Hosanna-Tabor, the U.S. Supreme Court ruled that the First Amendment’s Religion Clauses prohibit the state from interfering with the decisions of religious organizations with respect to the employment of “ministers.” In two more recent cases, Our Lady of Guadalupe School and Biel, the Court returned to the question of which employees, exactly, qualify as ministers, but did not announce a clear test. The debate about how far the exception extends thus seems certain to continue. A forthcoming book from Routledge, The Church and Employment Law, by John Duddington (Cardiff), considers the question and takes a comparative approach to the subject. The book is the latest in the valuable ICLARS Series on Law and Religion. Here is the description from Routledge:
This book examines the current law on the employment status of ministers of religion and suggests reforms in this area of the law to meet the need for ministers to be given a degree of employment protection. The work considers the constant theme in Christian history that the clergy should not be subject to the ordinary courts and asks whether this is justified with the growth of areas such as employment law. The work questions whether it is possible to arrive at a satisfactory definition of who is a minister of religion and, along with this, who would be the employer of the minister if there was a contract of employment. Taking a comparative perspective, it evaluates the case law on the employment status of Christian and non-Christian clergy and assesses whether this shows any coherent theme or line of development. The work also considers the issue of ministerial employment status against the background of the autonomy of churches and other religious bodies from the State, together with their ecclesiology. The book will be of interest to academics and researchers working in the areas of law and religion, employment law and religious studies, together with both legal practitioners and human resources practitioners in these areas.
The idea of tradition and traditions has been a major and ongoing scholarly interest of our Center over the years, particularly in our Tradition Project, its conferences, and its scholarly output. And we have some new projects cooking that will extend the Project in new directions. Here is a new book that appears to involve some of the themes we also have considered: Confusion in the West: Retrieving Tradition in the Modern and Post-Modern World (Cambridge UP) by historians Anna Rist and John Rist.
In their trenchant panoramic overview – ranging from antiquity to the present-day – John and Anna Rist write with authority and ennui about nothing less than the loss of the foundational culture of the West. The authors characterize this culture as the ‘original tradition’, viewing its erosion as one which has led to anxiety about the entire value of Western thought. The causes of the disintegration are discussed with an intensity rare in academe. Critics of modernity ordinarily concentrate on the Enlightenment and the book certainly offers deep analysis of Enlightenment thought. But it goes further. Thus the cruelty of modern totalitarianism is now depicted as in the spirit of the French Revolution and its implacable hostility to a vanished primordial heritage, while scientism, bureaucracy and consumerism appear as the only rivals to a threatening nihilism. The book argues that Western thought has created a set of conflicting moral and spiritual customs: to the detriment of coherence, in individual minds as in society and culture.
Back in 2017, we were fortunate enough to host Sir Roger Scruton here at the Center, when he delivered the keynote address and participated in workshops at the second meeting of the Tradition Project, on culture and citizenship. (A video of Sir Roger’s remarks is available here). Later this year, Palgrave Macmillan will release Politics and Art in Roger Scruton’s Conservative Philosophy, a new study of Sir Roger’s philosophical legacy, covering subjects as diverse as politics, art, music, and religion–all of which Sir Roger discussed that night in 2017, as I remember. The author is philosopher Ferenc Horcher (Hungarian Academy of Sciences). Here’s the publisher’s description:
This book covers the field of and points to the intersections between politics, art and philosophy. Its hero, the late Sir Roger Scruton had a longstanding interested in all fields, acquiring professional knowledge in both the practice and theory of politics, art and philosophy. The claim of the book is, therefore, that contrary to a superficial prejudice, it is possible to address the philosophical issues of art and politics in the same oeuvre, as the example of this Cambridge-educated analytical philosopher proves.
Accordingly, the book has a bold thesis on the general, theoretical level, mapping the connections between politics, art and philosophy. However, it also has a pioneering commitment on the level of the particular, offering the first full-length study into the philosophical legacy of Roger Scruton, probably the most important British conservative philosopher of the late 20th and the first decades of the 21st century. It also allows reader to look into the philosopher’s fascination with Central European art and culture. Finally, it also provides a daring analysis of the late Scruton’s metaphysical inspirations, connecting the arts, and especially music, with religion and the bonds of love.
Over the summer, I’ve been reading a good deal of Alasdair MacIntyre’s work for a project on the moral authority of practices. Here is a new translation (by our friend, Nathan J. Pinkoski, with a foreword by Pierre Manent) of the brilliant French political theorist Émile Perreau-Saussine’s biography of MacIntyre. I’m sure it has lots to offer on both MacIntyre and Perreau-Saussine, a wonderful thinker in his own right who was taken from us too soon. The book is Alasdair MacIntyre: An Intellectual Biography (Notre Dame Press).
This award-winning biography, now available for the first time in English, presents an illuminating introduction to Alasdair MacIntyre and locates his thinking in the intellectual milieu of twentieth-century philosophy.
Winner of the prestigious 2005 Philippe Habert Prize, the late Émile Perreau-Saussine’s Alasdair MacIntyre: Une biographie intellectuelle stands as a definitive introduction to the life and work of one of today’s leading moral philosophers. With Nathan J. Pinkoski’s translation, this long-awaited, critical examination of MacIntyre’s thought is now available to English readers for the first time, including a foreword by renowned philosopher Pierre Manent.
Amid the confusions and contradictions of our present philosophical landscape, few have provided the clarity of thought and shrewdness of diagnosis as Alasdair MacIntyre. In this study, Perreau-Saussine guides his readers through MacIntyre’s lifelong project by tracking his responses to liberalism’s limitations in light of the human search for what is good and true in politics, philosophy, and theology. The portrait that emerges is one of an intellectual giant who comes to oppose modern liberal individualism’s arguably singular focus on averting evil at the expense of a concerted pursuit of human goods founded upon moral and practical reasoning. Although throughout his career MacIntyre would engage with a number of theoretical and practical standpoints in service of his critique of liberalism, not the least of which was his early and later abandoned dalliance with Marxism, Perreau-Saussine convincingly shows how the Scottish philosopher came to hold that Aristotelian Thomism provides the best resources to counter what he perceives as the failure of the liberal project. Readers of MacIntyre’s works, as well as scholars and students of moral philosophy, the history of philosophy, and theology, will find this translation to be an essential addition to their collection.
