Posted on by Mark Movsesian · 1 Comment

A New Book on Orthodox Canons

In the debate–mostly friendly nowadays, thankfully–between the Orthodox and Catholic Churches, the importance of canon law has a major place. For the Orthodox, the idea of canon “law” is suspect, since it suggests legalism and an unfortunate focus on abstractions at the expense of economia and the life of the church. That’s why one typically refers to Orthodox “canons” as opposed to “canon law.” For Catholics, the failure to systematize things reflects an unfortunate lack of clarity and logic–and, therefore, a misunderstanding of the proper role of law in promoting justice in the church and in the state as well.

A new book out last month from one of the great figures of Orthodox scholarship, Lewis Patsavos (Holy Cross Greek Orthodox School of Theology), Introduction to Orthodox Canon Law, does use the phrase “canon law” to describe the East’s approach. I’m curious why. But I’m sure the book is worthwhile for anyone seeking to understand more of the Orthodox understanding of these matters. The publisher is Holy Cross Orthodox Press. Here’s its description of the book:

Based on course notes of forty years of teaching, this Introduction to Orthodox Canon Law is a foundational text for students. Chapters cover basic issues for anyone interested in canon law: its sources; the organization, structure, and governance of the Church; the qualifications for ordination, as well as its impediments; and issues of church membership, including reception of non-Orthodox and marriage. Throughout the Introduction, the canonical tradition is presented and thoroughly explained.

Posted on by Marc O. DeGirolami

Dissolving Liberal Democracy’s Substrata

The sociologist and cultural critic, James Davison Hunter, is well known for his discussion in the 1990s of the concept of “culture war.” Hunter is an astute and insightful diagnostician of the present political and social discontents. On a personal note, his work has influenced my own thinking and writing on many of the matters we often take up at the Forum.

I’m a little early to notice this new book (no cover quite yet), which comes out in February of next year, but here Hunter is with a new volume in the same vein, but which seems to make the point that liberal democracies depend for their survival on other, non-liberal premises and commitments, and these (so he argues) have now been dissolved so completely as to make the political project deeply unstable. The book is Democracy and Solidarity: On the Cultural Roots of America’s Political Crisis (Yale University Press). One to pre-order and to anticipate.

Liberal democracy in America has always contained contradictions—most notably, a noble but abstract commitment to freedom, justice, and equality that, tragically, has seldom been realized in practice. While these contradictions have caused dissent and even violence, there has always been an underlying and evolving solidarity drawn from the cultural resources of America’s “hybrid Enlightenment.”
 
James Davison Hunter, who introduced the concept of “culture wars” thirty years ago, tells us in this new book that the historic sources of national solidarity have largely dissolved. While a deepening political polarization is the most obvious sign of this, the true problem is not polarization per se but the absence of cultural resources to work through what divides us. All political regimes require some level of consensus. If it cannot be generated organically, it will be imposed coercively.
 
Can America’s political crisis be fixed? Can an Enlightenment-era institution—liberal democracy—survive and thrive in a post-Enlightenment world? If, for some, salvaging the older sources of national solidarity is neither possible sociologically, nor desirable politically or ethically, what cultural resources will fund liberal democracy going forward?

Posted on by Mark Movsesian

Japanese Integralism?

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There’s a lot of discussion in the American academy today about integralism. The word has various meanings, but the basic definition, as I understand it, is a melding of the spiritual and the political. That is, integralism opposes the Lockean separation of religion and state that has been an essential feature of classical liberalism.

A forthcoming book from Rowman and Littlefield, Religion, State, and Political Culture in Japan: Implications for the Post-Secular World, discusses the relationship of state and religion in Japan. Although it doesn’t use the word, it suggests that Japan has always been rather integralist, in that the country has never had socially influential religions that exist apart from the state. The author, Tokihisa Sumioto (Tokyo Institute for Global Peace and Humanity), appears to argue that Japan should chart a new path. Looks interesting. Here’s the publisher’s description:

Japan had developed a secular civilization long before going through its modern period, characterized by the officially-sanctioned unification of nationalism and state-worship that reached its apotheosis during World War II, followed by the economic growth-oriented post-war period. While the relationship between religion and state has varied significantly over time, what has been consistently observed throughout Japan’s history is the absence of religions that are socially influential but independent from the state, or the absence of a dualistic relationship between religion and state. The kind of political ethos that should underpin democratic principles such as the rule of law and human rights has remained underdeveloped. 

This book examines the concept of “reconstructive postmodernism,” a perspective that has emerged from a normative approach to international relations that emphasizes the need to democratize and humanize the secularistic civilizations based on the reconstruction of spirituality and religiosity. Using this concept, this book offers a number of implications of its findings to the case of Japan and for global governance in the post-secular age more broadly. 

Posted on by Mark Movsesian

Online Symposium: RFRA at 30 (Oct. 19, 2023)

I’m greatly looking forward to participating in an upcoming online symposium, “The Religious Freedom Restoration Act at 30,” sponsored by Emory’s Center for the Study of Law and Religion. I’ll present a paper on how the rise of the Nones will put pressure on the concept of religious exemptions. Details here. Register to listen in!

Posted on by Marc O. DeGirolami

“Establishment as Tradition”

I have posted a new essay, Establishment as Tradition, forthcoming in the Yale Law Journal Forum. It brings together two things I have been thinking about only separately to date: what binds a political community, and what fosters mutual trust and forbearance within it, in its “establishments,” apart from whatever “establishments of religion” may be forbidden in our polity; and traditionalism’s civic character-forming qualities. Comments from interested readers are welcome, as the piece is still a draft. Here is the abstract:

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?

On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some domains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion,” is immediately to be directed by the text not to an idea or an abstraction, but to something solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional, political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.

As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition, and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or instead at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a characterological or dispositional component that other approaches may lack and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases.

Posted on by Mark Movsesian

Finding Gold in the Dark

Had John Aroutiounian lived, he would have been a great political essayist. A graduate of Yale, where he was the speaker of the Yale Political Union (as a member of the Federalist Party), he was a student at Columbia Law School when he died of an aggressive cancer in 2019. The Abigail Adams Institute and Cluny Media have now published a posthumous collection of his writings, Finding Gold in the Dark: Reflections on Modern America, Virtue, and Faith, which display remarkable wit, insight, and eloquence, especially for so young a person. Worth reading. Here is the publisher’s description:

“A true citizen must always consider how he shall make the most of the existing materials of his country–each tradition is a potential treasure and the past is filled with gifts.”

These are not the words of some eminent statesman with the wisdom of years at his disposal; nay, they are the words of a young man but twenty-one years of age, given to a gathering at Yale University. For John Aroutiounian, fidelity to truth, elegance in style, and brilliance in wit and humor went hand in hand, as this collection of his writings so aptly shows. A prolific essayist, John wrote scores of pieces over the course of his life, engaging on matters of faith and culture, national identity and political discourse, societal disparity and religious persuasions—always, in sundry fashion, in light of the Armenian Orthodox and Roman Catholic traditions. Finding Gold in the Dark: Reflections on Modern America, Virtue, and Faith is a testament to this fact: the reflections of a conscientious, principled gentleman on the realities and aspirations of his time.

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Legal Spirits 053: Tom Berg on Religious Liberty in a Polarized Age

A protester calling for justice for Elijah McClain clashes with a member of the Proud Boys in Denver, Colorado, U.S., November 21, 2020. REUTERS/Kevin Mohatt

Welcome back! In our first Legal Spirits episode of the academic year, we interview our friend, law professor Tom Berg (University of St. Thomas) about his new book, Religious Liberty in a Polarized Age. We explore how fights about religious liberty both reflect and contribute to the deep social division in the US today–but also how a commitment to religious liberty might help ease that division. Listen in!

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Posted on by Mark Movsesian

Lugato on Tradition in Customary International Law

It’s not a law-and-religion piece, exactly, but I’d like to draw attention to a fantastic essay by our Tradition Project partner, Professor Monica Lugato of LUMSA, on the role of tradition in customary international law. This is a complicated subject, and Monica handles it masterfully. I highly recommend it. The essay appears in a new collection, Human Society and International Law: Reflections on the Present and Future of International Law, published last summer by Wolters Kluwer and edited by Carlo Focarelli at Roma Tre. Here’s the publisher’s description:

Where is international law headed for? Should it rather head elsewhere, and why? These are the questions that the ten contributors to this first Special Volume in the Series Convivenza umana e diritto internazionale – Human Society and International Law have been asked to address, each one within their main area of expertise. The ten topics elected by the authors – all members of the Editorial Board of the new Series – make the three parts of this Volume, respectively on the making of international law (with chapters on the sources of international law; the principle of acquiescence; the codification of the right to development; and the legal status and transformative potential of the SDGs); the implementation of international law (with chapters on international custom and the traditionality of international law; the localising of international law; and the constitutional im- port of the SDGs); and the analysis of international law (with chapters on populism and the integrity of international law; the past, present and future of international law’s teaching; and the demands placed on legal analysis by the present climate crisis). As the questions posed to the contributors and the Volume’s subtitle suggest, this work was designed to encourage a reflection, by prominent scholars, on the dynamics of international law across a sample of key topics, mindful of the legal framework as a whole, and its trajectories over time. The underlying assumption – and wish – is that the Volume’s attempt to encourage an overall vision of the discipline, its most recent trends, and its theoretical framework (including of change) will inspire new theses and book proposals for the Series.

Posted on by Marc O. DeGirolami

Prophecy and Politics

The strict separationist model of religion and politics that long has held sway in this country (or, at any rate, that was said to hold sway) often obscured the highly political qualities of religious belief and practice. Among these is certainly the power of prophetic witness, a mode of political engagement that is often uncompromising, idealistic, critical, and even apocalyptic. Professor Cathy Kaveny once called this style of politics “moral chemotherapy.” Indeed, it is an open question whether this mode of politics or its alternative (moderate, realistic, whiggish, pragmatic) is the more effective in implementing its respective vision. And this is one more area of overlap or interaction between law and religion that has been suppressed from view and study in the American liberal dispensation.

Here is a fascinating looking new book that helps to remedy this problem: The Third Sword: On the Political Role of Prophets (Cambridge University Press), by James Bernard Murphy (Dartmouth).

Prophets are wild cards in the game of politics, James Bernard Murphy writes in this startling new book. They risk their lives by calling out the abuses of political and religious leaders, forcing us to confront evils we would prefer to ignore. By setting moral limits on political leaders, prophets chasten our political pretensions and remind us there are values that transcend politics. They wield a third sword—distinct from the familiar swords of state and church power—their sword is the word of God. The Third Sword offers a new take on political history, illustrating a theory of prophetic politics through tales of political crises, interspersed with direct dialogue between the prophets and their persecutors. With chapters on Socrates, Jesus, Joan of Arc, Thomas More, and Martin Luther King, Murphy brings these prophets to life with storytelling that blends biography, history, and political theory.

Posted on by Mark Movsesian

Traditionalism?

As Forum readers know, tradition has been a focus of ours here at the Center. So it’s with interest that we saw a new book from Oxford on the subject, Traditionalism: The Radical Project for Restoring Sacred Order, by historian Mark Aarhus (Aarhus). It looks very interesting, indeed. But the description on the Oxford website is a bit puzzling in one respect. As examples of the major proponents of traditionalism it gives René Guénon, Julius Evola, and Frithjof Schuon, along with Steve Bannon. Burke? Oakeshott? Kirk? At least in the English-speaking world, those names are a lot more prominent. Maybe the book discusses them, too. Anyway, here’s the description:

From a leading expert comes an intellectual history and analysis of Traditionalism, one of the least known and most influential philosophies that continues to impact politics today

Traditionalism is a shadowy philosophy that has influenced much of the twentieth century and beyond: from the far-right to the environmental movement, from Sufi shaykhs and their followers to Trump advisor and right-wing provocateur Steve Bannon. It is a worldview that rejects modernity and instead turns to mystical truth and tradition as its guide.

Mark Sedgwick, one of the world’s leading scholars of Traditionalism, presents a major new analysis, pulling back the curtain on the foundations of Traditionalist philosophy, its major proponents–René Guénon, Julius Evola, and Frithjof Schuon–and their thought. One of Traditionalism’s fundamental pillars is perennialism, the idea that beneath all the different forms of religion there lies one single timeless and esoteric tradition. A second is the view that everything is getting worse, rather than better, over time, leading to the Traditionalist critique of modernity. Sedgwick details Traditionalism’s unique ideas about self-realization, religion, politics, and many other spheres.

Traditionalism provides an expansive guide to this important school of thought–one that is little-known and even less understood–and shows how pervasive these ideas have become.