A Collection of Essays on Law, Religion, and Tradition

9783319967486Here at the Center, we’re very interested in the relationship among law, religion, and tradition. In fact, exploring that relationship is the mission of the Tradition Project, which we started three years ago. So it’s good to see others writing in the area as well. A new collection of essays from Springer, Law, Religion and Tradition (Giles et al., eds) looks very interesting. One of the book’s editors is Tradition Project member Andrea Pin. Here’s the description from the Springer website:

This book explores different theories of law, religion, and tradition, from both a secular and a religious perspective. It reflects on how tradition and change can affect religious and secular legal reasoning, identifying the patterns of legal evolution within religious and secular traditions. It is often taken for granted that, even in law, change corresponds and correlates to progress – that things ought to be changed and they will necessarily get better. There is no doubt that legal changes over the centuries have made it possible to enhance the protection of individual rights and to somewhat contain the possibility of tyranny and despotism. But progress is not everything in law: stability and certainty lie at the core of the rule of law. Similarly, religions and religious laws could not survive without traditions; and yet, they still evolve, and their evolution is often intermingled with secular law. The book asks (and in some ways answers) the questions: What is the role of tradition within religions and religious laws? What is the impact of religious traditions on secular laws, and vice-versa? How are the elements of tradition to be identified? Are they the same within the secular and the religious realm? Do secular law and religious law follow comparable patterns of change? Do their levels of resilience differ significantly? How does the history of religion and law affect changes within religious traditions and legal systems? The overall focus of the book addresses the extent to which tradition plays a role in shaping and re-shaping secular and religious laws, as well as their mutual boundaries.

Osiel on Law and Morality

9780674368255-lgIn my comparative law class recently, we were discussing Western positivism, particularly the idea that law is autonomous–something that exists independently from morality, or religion, or politics. As law professor Mark Osiel (Iowa) explains in a new book from Harvard, The Right to Do Wrong: Morality and the Limits of Law, the autonomy of law depends on the existence of other ways of enforcing social values, and we do have lots of those. Perhaps it’s better to rely on these non-legal enforcement mechanisms than on the legal system–too much law can lead to tyranny. On the other hand, recent episodes show us that non-legal enforcement mechanisms bring their own dangers. Social media offers ways of policing society that most totalitarians in history could only imagine. Anyway, the book looks very interesting. Here’s the description from the Harvard website:

Much of what we could do, we shouldn’t—and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows.

Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms.

Social norms can be indefensible, Osiel recognizes. But the alternative—more repressive law—is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.

Amin Saikal on Iran

9780691175478_2This looks very interesting. Princeton University Press has just released Iran Rising: The Survival and Future of the Islamic Republic, by political scientist Amin Saikal (Australian National Assembly). Saikal explains how the Islamic Republic has survived numerous political, economic, and military crises since its founding 40 years ago–through, he says, the regime’s combination of religious fervor and hardball geopolitics. In the West, we tend of think of religious regimes like Iran’s as anachronisms that hold on, somehow, precariously, notwithstanding the march of liberalism. Perhaps they aren’t so precarious after all. Here’s the description from the Princeton website:

When Iranians overthrew their monarchy, rejecting a pro-Western shah in favor of an Islamic regime, many observers predicted that revolutionary turmoil would paralyze the country for decades to come. Yet forty years after the 1978–79 revolution, Iran has emerged as a critical player in the Middle East and the wider world, as demonstrated in part by the 2015 international nuclear agreement. In Iran Rising, renowned Iran specialist Amin Saikal describes how the country has managed to survive despite ongoing domestic struggles, Western sanctions, and countless other serious challenges.

Saikal explores Iran’s recent history, beginning with the revolution, which set in motion a number of developments, including war with Iraq, precarious relations with Arab neighbors, and hostilities with Israel and the United States. He highlights the regime’s agility as it navigated a complex relationship with Afghanistan during the Soviet invasion, survived the Gulf wars, and handled fallout from the Iraqi and Syrian crises. Such success, Saikal maintains, stems from a distinctive political order, comprising both a supreme Islamic leader and an elected president and national assembly, which can fuse religious and nationalist assertiveness with pragmatic policy actions at home and abroad.

But Iran’s accomplishments, including its nuclear development and ability to fight ISIS, have cost its people, who are desperately pressuring the ruling clerics for economic and social reforms—changes that might in turn influence the country’s foreign policy. Amid heightened global anxiety over alliances, terrorism, and nuclear threats, Iran Rising offers essential reading for understanding a country that, more than ever, is a force to watch.

My review of Richard Brookhiser’s Biography of John Marshall

I have a review of Richard Brookhiser’s recent John Marshall: The Man Who Made the Supreme Court, at the Liberty Fund site. A bit:

“[T]here is an ambiguity in the book’s subtitle. “The man who made the Supreme Court” might signal Marshall’s outsized role in fashioning the Supreme Court in his own self-image. There are some biographies, as Kevin Walsh has noted in his review in these pages of another recent Marshall book, that read Marshall as a kind of Romantic hero—the American Werther or Cagliostro of the judiciary. But there is another, and perhaps better, interpretation of the subtitle: that distinctive features of Marshall’s character as a man subtly but powerfully influenced the Court’s development under his stewardship.”

Steven Green on the History of Disestablishment in America

9780190908140Many people don’t realize it, but for most of our history the Establishment Clause didn’t figure prominently in Supreme Court litigation. In fact, the Court’s first major Establishment Clause case, Everson v. Board of Education, didn’t come until 1947. That’s not to say that Americans didn’t think much about the Clause before that time–obviously, they did. But the Court didn’t seriously consider the meaning of the Clause until after the Second World War. Why did it take so long, and why did it happen then? Could have been many reasons, I suppose: the decline of the Protestant cultural ascendancy; the maturing of minority religious communities in American society; the beginnings of secularism as an important fact in American life. Anyway, it’s a fact that the Court was a relative latecomer to debates about church-and-state in America.

A new book from Willamette University Law Professor Steven K. Green documents the history of church-state relations in the generation after Everson. The book is The Third Disestablishment: Church, State, and American Culture, 1940-1975. The publisher is Oxford University Press. Here’s the description from the Oxford website:

In 1947, the Supreme Court embraced the concept of church-state separation as shorthand for the meaning of the Establishment Clause of the First Amendment. The concept became embedded in Court’s jurisprudence and remains so today. Yet separation of church and state is not just a legal construct; it is embedded in the culture. Church-state separation was a popular cultural ideal, chiefly for Protestants and secularists, long before the Supreme Court adopted it as a constitutional principle. While the Court’s church-state decisions have impacted public attitudes–particularly those controversial holdings regarding prayer and Bible reading in public schools–the idea of church-state separation has remained relatively popular; recent studies indicate that approximately two-thirds of Americans support the concept, even though they disagree over how to apply it.

In the follow up to his 2010 book The Second Disestablishment, Steven K. Green sets out to do examine the development of modern separationism from a legal and cultural perspective. The Third Disestablishment examines the dominant religious-cultural conflicts of the 1930s-1950s between Protestants and Catholics, but it also shows how other trends and controversies during mid-century impacted both judicial and popular attitudes toward church-state separation: the Jehovah’s Witnesses’ cases of the late-30s and early-40’s, Cold War anti-communism, the religious revival and the rise of civil religion, the advent of ecumenism, and the presidential campaign of 1960. The book then examines how events of the 1960s-the school prayer decisions, the reforms of Vatican II, and the enactment of comprehensive federal education legislation providing assistance to religious schools-produced a rupture in the Protestant consensus over church-state separation, causing both evangelicals and religious progressives to rethink their commitment to that principle. Green concludes by examining a series of church-state cases in the late-60s and early-70s where the justices applied notions of church-state separation at the same time they were reevaluating that concept.

Ignatieff’s Book on What Global Virtues Might Be

For our latest Tradition Project conference, I led a workshop on the theme of liberalism, populism, and nationalism, one of whose readings was an exchange between Michael Ignatieff and Mark Lilla on the nature of the “open society” and contemporary challenges to and criticisms of it. Mark and I talked a bit about these issues in this Legal Spirits podcast, for those with an interest. What was interesting from my perspective is that both Ignatieff and Lilla are quite clearly liberal-progressive thinkers, yet they show an awareness of the power of some objections to the positions they favor and think through them in useful ways.

So I’m interested to read this book by Ignatieff: The Ordinary Virtues: Moral Order in a Divided World (Harvard University Press), in which Ignatieff explores (perhaps with zoological overtones that are a bit too strong to suit me, but so be it) the ways in which different cultural communities think about morality. His claims seem to set up a conflict between the anti-theoretical, local, and traditional, on the one hand, and the abstract, universal, and progressive, on the other.

“What moral values do human beings hold in common? As globalization draws us together economically, are our values converging or diverging? In particular, are human rights becoming a global ethic? These were the questions that led Michael Ignatieff to embark on a three-year, eight-nation journey in search of answers. The Ordinary Virtues presents Ignatieff’s discoveries and his interpretation of what globalization—and resistance to it—is doing to our conscience and our moral understanding.

Through dialogues with favela dwellers in Brazil, South Africans and Zimbabweans living in shacks, Japanese farmers, gang leaders in Los Angeles, and monks in Myanmar, Ignatieff found that while human rights may be the language of states and liberal elites, the moral language that resonates with most people is that of everyday virtues: tolerance, forgiveness, trust, and resilience. These ordinary virtues are the moral operating system in global cities and obscure shantytowns alike, the glue that makes the multicultural experiment work. Ignatieff seeks to understand the moral structure and psychology of these core values, which privilege the local over the universal, and citizens’ claims over those of strangers.

Ordinary virtues, he concludes, are antitheoretical and anti-ideological. They can be cheerfully inconsistent. When order breaks down and conflicts break out, they are easily exploited for a politics of fear and exclusion—reserved for one’s own group and denied to others. But they are also the key to healing, reconciliation, and solidarity on both a local and a global scale.”

Catholic Interpretations of Leo Strauss’s Thought

Over the winter break, I read a terrific book by Arthur Melzer on “esoteric” philosophical writing, the major part of which aimed simply to make a case that such writing was a frequent staple of philosophical writing before the modern period. But the final chapter of the book explored the thought of Leo Strauss (perhaps the figure most associated with the idea of esoteric writing) to make a defense of esoteric writing. As someone with relatively little background in Strauss, I found the discussion clear and illuminating.

That perhaps explains why we are a little late in noticing this interesting book of essays, Leo Strauss and His Catholic Readers (CUA Press), edited by Geoffrey M. Vaughan.

“This book looks at the work and influence of Leo Strauss in a variety of ways that will be of interest to readers of political philosophy. It will be of particular interest to Catholics and scholars of other religious traditions. Strauss had a great deal of interaction with his contemporary Catholic scholars, and many of his students or their students teach or have taught at Catholic colleges and universities in America. Leo Strauss and His Catholic Readers brings together work by scholars from two continents, some of whom knew Strauss, one of whom was his student at the University of Chicago. The first section of essays considers Catholic responses to Strauss’s project of recovering Classical natural right as against modern individual rights. Some of the authors suggest that his approach can be a fruitful corrective to an uncritical reception of modern ideas. Nevertheless, most point out that the Catholic cannot accept all of Strauss’s project. The second section deals with areas of overlap between Strauss and Catholics. Some of the chapters explore encounters with his contemporary scholars while others turn to more current concerns. The final section approaches the theological-political question itself, a question central to both Strauss’s work and that of the Catholic intellectual tradition. This section of the book considers the relationship of Strauss’s work to Christianity and Christian commitments at a broader level. Because Christianity does not have an explicit political doctrine, Christians have found themselves as rulers, subjects, and citizens in a variety of political regimes. Leo Strauss’s return to Platonic political philosophy can provide a useful lens through which his Catholic readers can assess what it means for there to be a best regime.”

A Book on the Penal System and (Religious?) Conversion

One of the first papers I ever wrote concerned what was at that time the surging phenomenon of “faith-based prisons.” The idea was to create a network for prisoners not only to learn necessary skills for productive life outside prison, but to convert them to (usually, but not always, Christian) belief, thereby giving them an additional and important system of community and support upon their release. Those programs were run by private organizations, since government-operation would clearly violate the Constitution. But even in private hands, they raise very difficult and perhaps insurmountable Establishment Clause issues, which I explicitly bracketed in that paper. Instead, I wanted to explore the penological purposes of such programs.

Here is a new book that tackles very similar issues from a theological and philosophical perspective, though it is unclear whether the “conversion” advocated is a religious conversion or something else: Conversion and the Rehabilitation of the Penal System (Oxford University Press) by Andrew Skotnicki.

“The Cincinnati Penal Congress of 1870 ushered in the era of “progressive” penology: the use of statistical and social scientific methodologies, commitment to psychiatric and therapeutic interventions, and a new innovation–the reformatory–as the locus for the application of these initiatives. The prisoner was now seen as a specimen to be analyzed, treated, and properly socialized into the triumphal current of American social and economic life. The Progressive rehabilitative initiatives succumbed in the 1970s to withering criticism from the proponents of equally futile strategies for addressing “the crime problem”: retribution, deterrence, and selective incapacitation. 

The early Christian community developed a methodology for correcting human error that featured the unprecedented belief that a period of time spent in a given penitential locale, with the aid and encouragement of the community, was sufficient in and of itself to heal the alienation and self-loathing caused by sin and to lead an individual to full reincorporation into the community. The “correctional” practice was based upon the conviction that cooperative sociability–or conversion–is possible, regardless of the specific offense, without any need to inflict suffering, or to use the act of punishment as a warning to potential offenders, or to undertake programmatic interventions into the lives of the incarcerated for the purpose of rehabilitating them. 

Andrew Skotnicki contends that the modern practice of criminal detention is a protracted exercise in needless violence predicated upon two foundational errors. The first is an inability to see the imprisoned as human beings fully capable of responding to an affirmative accompaniment rather than maltreatment and invasive forms of therapy. The second is a pervasive dualism that constructs a barrier between detainees and those empowered to supervise, rehabilitate, and punish them. In this book, Skotnicki argues that the criminal justice system can only be rehabilitated by eliminating punishment and policies based upon deterrence, rehabilitation, and the incapacitation of the urban poor and returning to the original justification for the practice of confinement: conversion.”

Adam Gopnik’s “Manifesto” for Liberalism

Into the liberalism apologetics cottage industry charges Adam Gopnik, essayist and author of a set of books covering such variegated themes as his family’s lovely sojourn in Paris, the sorry decline in appreciation for all things invernal, and the spiritual profundities of very expensive food consumption in Manhattan. Now, in a synthetic spirit, he mounts his defense of liberalism, A Thousand Small Sanities: The Moral Adventure of Liberalism (Basic Books), inspired to write his “manifesto” in “an age of autocracy.” Things must be bad at The New Yorker.

“Not since the early twentieth century has liberalism, and liberals, been under such relentless attack, from both right and left. The crisis of democracy in our era has produced a crisis of faith in liberal institutions and, even worse, in liberal thought.

A Thousand Small Sanities is a manifesto rooted in the lives of people who invented and extended the liberal tradition. Taking us from Montaigne to Mill, and from Middlemarch to the civil rights movement, Adam Gopnik argues that liberalism is not a form of centrism, nor simply another word for free markets, nor merely a term denoting a set of rights. It is something far more ambitious: the search for radical change by humane measures. Gopnik shows us why liberalism is one of the great moral adventures in human history–and why, in an age of autocracy, our lives may depend on its continuation.”

Michael Walzer on Local and Universal Moral Argument

We were honored to host the eminent political philosopher, Michael Walzer, five years ago at our Joint Colloquium in Law and Religion with Michael Moreland and Villanova Law School. Professor Walzer gave a very interesting paper on the ethics of warfare in the Jewish tradition at that time.

In this new edition of this book by Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame Press), he picks up on and synthesizes some major themes in his political philosophical writing. Well worth reading.

“In Thick and Thin: Moral Argument at Home and Abroad, Michael Walzer revises and extends the arguments in his influential Spheres of Justice, framing his ideas about justice, social criticism, and national identity in light of the new political world that has arisen in the past three decades. Walzer focuses on two different but interrelated kinds of moral argument: maximalist and minimalist, thick and thin, local and universal. This new edition has a new preface and afterword, written by the author, describing how the reasoning of the book connects with arguments he made in Just and Unjust Wars about the morality of warfare.

Walzer’s highly literate and fascinating blend of philosophy and historical analysis will appeal not only to those interested in the polemics surrounding Spheres of Justice and Just and Unjust Wars but also to intelligent readers who are more concerned with getting the arguments right.”

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