Oman, “The Dignity of Commerce”

Here’s a fine new book from William & Mary Law professor Nate Oman (who, by the way, will be joining out Tradition Project this fall), The Dignity of Commerce: Markets and the Moral Foundations of Contract Law (University of Chicago Press). The book argues that liberal markets are a mechanism for promoting pluralism and tolerance, including religious tolerance. As Nate knows, I’m a bit skeptical about parts of his argument and will be doing a fuller review later this summer. But the book shows tremendous learning and is very thought-provoking–a major contribution to the contracts literature. Here’s the description from the publisher’s website:

9780226415529Why should the law care about enforcing contracts? We tend to think of a contract as the legal embodiment of a moral obligation to keep a promise. When two parties enter into a transaction, they are obligated as moral beings to play out the transaction in the way that both parties expect. But this overlooks a broader understanding of the moral possibilities of the market. Just as Shakespeare’s Shylock can stand on his contract with Antonio not because Antonio is bound by honor but because the enforcement of contracts is seen as important to maintaining a kind of social arrangement, today’s contracts serve a fundamental role in the functioning of society.

With The Dignity of Commerce, Nathan B. Oman argues persuasively that well-functioning markets are morally desirable in and of themselves and thus a fit object of protection through contract law. Markets, Oman shows, are about more than simple economic efficiency. To do business with others, we must demonstrate understanding of and satisfy their needs. This ability to see the world from another’s point of view inculcates key virtues that support a liberal society. Markets also provide a context in which people can peacefully cooperate in the absence of political, religious, or ideological agreement. Finally, the material prosperity generated by commerce has an ameliorative effect on a host of social ills, from racial discrimination to environmental destruction.

The first book to place the moral status of the market at the center of the justification for contract law, The Dignity of Commerce is sure to elicit serious discussion about this central area of legal studies.

Tugendhat, “Liberty Intact”

As readers of this blog know, the Center is in the midst of a three-year research project, the Tradition Project, which examines the continuing relevance of tradition–the received wisdom of the past–for law, politics, and culture. At our first meeting last fall, we focused on tradition in law and, specifically, the traditionalism of the common law method. A new book by Sir Michael Tugendhat, a Judge of the High Court of England and Wales, Liberty Intact: Human Rights in English Law (Oxford) argues that contemporary human rights law derives from English common law antecedents. Several participants in the Tradition Project would no doubt agree. Here’s a description from the Oxford website:

9780198790990 (1)What are the connections between conceptions of rights found in English law and those found in bills of rights around the World? How has English Common Law influenced the Universal Declaration of Human Rights (UDHR) 1948 and the European Convention on Human Rights (ECHR) 1950? These questions and more are answered in Michael Tugendhat’s historical account of human rights from the eighteenth century to present day.

Focusing specifically on the first modern declarations of the rights of mankind- the ‘Virginian Declaration of Rights’, 1776, the French ‘Declaration of the Rights of Man and of the Citizen’, 1789, and the ‘United States Bill of Rights’, 1791- the book recognises that the human rights documented in these declarations of the eighteenth century were already enshrined in English common law, many originating from English law and politics of the fifteenth century. The influence of English Common Law , taken largely from Blackstone’s Commentaries on the Laws of England, can also be realised in the British revolutions of 1642 and 1688; the American and French Revolutions of 1776 and 1789 respectively; and through them, on the UDHR and ECHR. Moreover, Tugendhat argues that British law, in all but a few instances, either meets or exceeds human rights standards, and thus demonstrates that human rights law is British law and not a recent invention imported from abroad.

Structured in three sections, this volume (I) provides a brief history of human rights; (II) examines the rights found in the American and French declarations and demonstrates their ancestry with English law; and (III) discusses the functions of rights and how they have been, and are, put to use.

Tradition and Traditionalisms Compared: A Joint Program of the Tradition Project and the Post-Secular Conflicts Project

Tradition Project

I’m very pleased to announce this conference, to be held in Trento, Italy, on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.

The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl’s very fine book on Russian Orthodoxy and human rights, allow me to recommend it). Mark and I will have more by and by with the meeting’s proceedings.

There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.

Conversations: Rod Dreher

rod-dreher

Rod Dreher is a prolific journalist and author, and a senior editor at The American Conservative. He comments regularly on American culture, politics, and religion, and has written three widely-discussed books: Crunchy Cons (2006), The Little Way of Ruthie Leming (2013), and The Benedict Option (2017). His blog at The American Conservative gets about a million page views a month and draws followers from the left and the right. As a recent New Yorker profile explains, Rod has such a wide readership because he covers a wealth of interesting topics, in depth, and with valuable insight: “Because Dreher is at once spiritually and intellectually restless, [his] blog has become a destination for the ideologically bi-curious.”

Recently, Rod, who is a participant in our Tradition Project, agreed to answer some questions about his new, best-selling book, The Benedict OptionThe book argues that traditional Christians need to return to older, more intentional ways of living in order to thrive in a post-Christian culture. In our wide-ranging interview, Rod talks about why he thinks the Benedict Option is so necessary and why it isn’t just for monks and hermits. He discusses examples like classical Christian schooling and Christian centers at secular universities. He addresses the paradox of traditionalism in contemporary life, responds to progressive criticism, and explains the danger that “Technological Man” poses for traditional Christianity.

Movsesian: Rod, let’s begin by summarizing the main theme of your book. As I understand it, you argue that traditionalist, small-o orthodox Christians need to repurpose older, intentional ways of Christian living for our contemporary age. To take the “Benedict Option” means to establish tighter networks, communities, and institutions that will allow American Christians to survive in our post-Christian culture. Is that about right? Why do you think this option is necessary for American Christians today?

Dreher: Yes, that’s it. This is necessary because of the nature of postmodern culture, more on which in a second. In the book, I talk about a couple of social facts that so far, few if any critics have addressed head on. First is the fact that enormous numbers of Americans are leaving institutional Christianity. This has been shown repeatedly in recent years by reputable social scientists. In fact, back in 2010, Robert Putnam of Harvard and Notre Dame’s David E. Campbell said that if it weren’t for the heavy influx of Latino immigrants, the US Catholic Church would be hemorrhaging adherents at the same rate as Mainline Protestant churches. The numbers are not getting better for any of us. Last year, Mark Chaves and David Voas, two of the top sociologists of religion, published a paper analyzing social science data from the last decade or so, and concluding that the US is no longer a counterexample to the “secularization thesis” – that is, the idea that as modernity progresses, religion withers. It’s not true elsewhere in the world, but it was true in the West, with the notable exception of America. But we are now finally on the same steady downward slide that Europe pioneered.

And overwhelming numbers of young adults who still identify as Christians hold a nominal faith that has only scant connection to historic Christian orthodoxy. Their true faith is something the Notre Dame sociologist Christian Smith calls “Moralistic Therapeutic Deism” – basically a shallow, self-centered, feel-good, emotion-driven faith that’s all about being nice and feeling happy with oneself. Smith and his colleagues do their survey work on Millennials, but he has said he is confident that quite a few older American Christians hold the same vapid faith. I concur.

The point is that American Christianity is so shallowly rooted that it will not be able to withstand the strong currents of post-Christian culture. Anecdotally, in my travels around the country, especially to Christian colleges, I am hearing the same thing. One Evangelical professor at a conservative Christian college told me that these kids are all nice and big-hearted, but they come to college knowing next to nothing about Christianity, with no formation at all. The main problem is not these kids, but their parents, their churches, and their Christian schools. Few people want to face the reality of this spiritual and cultural crisis, and to make the kinds of radical changes that are going to be necessary if the faith is going to survive into the coming generations.

American Christians simply cannot imagine that the faith might not be here for their descendants. The history of Europe in the 20th century, especially after the Second World War, ought to disabuse them of that fallacy. I was quite taken by a 2015 book by the historian Edward J. Watts, titled “The Final Pagan Generation.” It’s a short history of Roman elites born just before Constantine’s conversion in the fourth century. They lived through the collapse of paganism, which had been the religion of the Empire for many centuries. It all happened in a single century. Watts shows that these men – intelligent, cultured men – had no idea what was happening around them. They could not imagine that the world that formed them could dissolve so quickly. But it happened. I think it’s happening to us Christians today.

Movsesian: Of course, to call it the “Benedict Option” is to conjure up an image of a monastic retreat from the world—something suggested, as well, by the book’s cover photo of Mount St. Michel. And some Christian critics have taken to you task for that. But that isn’t quite what you mean, is it? You’re not calling on all Christians to live as monastics. Could you explain? Is the Benedict Option only for spiritual virtuosos? What about regular people who live in the world but would like a deeper Christian life?

Dreher: No, I’m not at all encouraging Christians to run for the hills and live like monks. Rather, I’m saying that all of us believers have to live lives of much greater spiritual discipline, with much thicker ties to our local churches and Christian communities. If we don’t, we are not going to make it as Christians through this Dark Age upon us. That’s not just an anxious American journalist saying this; Father Cassian Folsom, the former prior of the Benedictine monastery in Norcia, the saint’s hometown, told me exactly that when I first met him several years ago. This is not a game.

I call this project the Benedict Option after the philosopher Alasdair MacIntyre’s famous final paragraph in “After Virtue,” in which he recalled the example of St. Benedict, leaving the ruins of imperial Rome to found a monastic order. MacIntyre said that today, we await “a new – and doubtless very different – St. Benedict” to help those who wish to live out the traditional virtues create resilient communities capable of doing this amid the chaos and barbarism of our own time. In my book, I ask what would a new and very different St. Benedict look like today? What would he tell us?

We lay Christians – Catholic, Protestant, and Eastern Orthodox – have a lot to learn from the Benedictine tradition. In the book, I talk about certain ways of thinking and living that the Benedictines have from the early sixth century Rule of St. Benedict that we can Continue reading

On the Religious Liberty Order

At the First Things site, I have a post on last week’s executive order on religious liberty. I argue that the order doesn’t do very much about religious accommodation, but that doing little may be a strategic choice by the Trump administration. I also argue that weakening the Johnson Amendment, which prohibits tax exempt religious organizations from electioneering, would be a bad thing, and inconsistent with American tradition.

Here’s a sample:

[A]voiding partisan political contests is a longstanding tradition for American churches, and a very beneficial one. In the nineteenth century, Tocqueville observed that Christianity had a powerful influence in American politics; religion was, he famously said, “the first” of our “political institutions.” But Christianity’s influence on politics was an indirect one, and powerful precisely because it was indirect. Churches shaped Americans’ attitudes and morals, and Americans’ attitudes and morals shaped our politics. But churches studiously avoided party contests as such, and clergy “maintained a sort of professional pride in remaining outside of” them. As a result, Tocqueville observed, churches were never mixed up in the public mind with the vicissitudes of electoral campaigns, and maintained people’s confidence and respect.

This practice has served us very well. This is not to say that churches should avoid commenting on public questions, only that churches should refrain from endorsing or opposing particular candidates and parties, and avoid electioneering as such. In fact, I’ve never known a member of the clergy, liberal or conservative, who said he wanted to endorse or oppose a particular candidate from the pulpit. I suspect that, deep down, they all understood that mixing to that extent in partisan contests would interfere with their mission of preaching the Gospel and administering the sacraments. If last week’s order signals a change in our longstanding American tradition, it’s not a change conservatives should celebrate.

You can read the post here.

“Patriarch Kirill in His Own Words” (Hatfield, ed.)

In recent years, the Russian Orthodox Church has taken the lead in asserting an Orthodox approach to human rights, one that focuses on the moral value of tradition and which differs in significant respects from the secular human rights model. In close coordination with the Russian government, the Church, and especially its leader, Patriarch Kirill, has promoted its vision of human rights in international fora, including the UN’s Human Rights Council, often to the consternation of Western human rights advocates.

It’s imperative for students of human rights law to understand the Church’s model and its appeal to tradition–an appeal that differs in significant ways from Western understandings of tradition. In fact, next month in Trento, the Center will co-host a conference on the different meanings of tradition in American and Russian thought; more on this to come. Meanwhile, here’s a new book from the St. Vladimir’s Seminary Press on Kirill’s thought, Patriarch Kirill in His Own Words, edited by the seminary’s president, Chad Hatfield. The description is from the publisher’s website:

KirillProfiles8__77148.1479225081.300.300Patriarch Kirill shepherds the largest flock in the Orthodox world in a time of great transition and growth. In the past century Russia experienced the greatest persecution of Christians in history. But the “blood of the martyrs is the seed of the Church,” and in the years following the fall of the Soviet Union the Church in Russia has been reborn and has grown beyond all expectation.

This unprecedented renewal continues under Patriarch Kirill’s pastoral guidance. In this book we encounter the patriarch’s vision for the Church’s mission and public life, including her relationship with the state. We also find the penetrating words of a spiritual father who offers counsel on how we can fight the passions and acquire the virtues, who gives guidance on how we can find our way in the midst of modern temptations, confusions, and distractions. At the very center of Patriarch Kirill’s vision we encounter Christ, who wills that all men be saved and come to the knowledge of the truth (1 Tim 2.4).

Save the Date: Sir Roger Scruton Keynotes The Tradition Project, Part II

Tradition ProjectRoger ScrutonPlease save the date for Sir Roger Scruton’s keynote address for the second part of The Tradition Project, which will focus on “Tradition, Culture, and Citizenship.” Sir Roger will open our conference with a lecture on the evening of Thursday, November 2, 2017, at the New York Athletic Club. Further details will be forthcoming in the fall. Please write to me or Mark if you are interested in attending.

For more about Part II of The Tradition Project, see this post. And for an illuminating treatment of Sir Roger’s thought across the decades, see this recently published piece in The New Criterion.

Out with the old, in with the new!

I have said before that if you are interested in law and religion, you must read Anthony Trollope. I can’t think of many authors who are more intimately concerned with the quotidian working out of church-state arrangements. As Hawthorne once put it, “Trollope’s novels are solid, substantial, written on the strength of beef and through the inspiration of ale and just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business and not suspecting they were being made a show of.”

Trollope’s Barsetshire Novels in particular are concerned with political and cultural change, or “evolution,” within the Anglican Church in English nineteenth century life. Here is a wonderful passage from “Barchester Towers” in which a “new man” representative of the progressively liberalizing episcopacy (Mr. Slope) informs an “old man” (Mr. Harding) about the changes coming to the Church and to English life more broadly:

“You must be aware, Mr. Harding, that things are a good deal changed in Barchester,” said Mr. Slope.

Mr. Harding said that he was aware of it. “And not only in Barchester, Mr. Harding, but in the world at large. It is not only in Barchester that a new man is carrying out new measures and casting away the useless rubbish of past centuries. The same thing is going on throughout the country. Work is now required from every man who receives wages; and they that have to superintend the doing of work, and the paying of wages, are bound to see that this rule is carried out. New men, Mr. Harding, are now needed, and are now forthcoming in the church, as in other professions.”

All this was wormwood to our old friend [Mr. Harding]. He had never rated very high his own abilities or activity; but all the feelings of his heart were with the old clergy, and any antipathies of which his heart was susceptible, were directed against those new, busy, uncharitable, self-lauding men, of which Mr. Slope was so good an example….

Mr. Harding was not a happy man as he walked down the palace pathway, and stepped out into the close. His preferment and pleasant house were a second time gone from him; but that he could put up with. He had been schooled and insulted by a man young enough to be his son; but that he could put up with. He could even draw from the very injuries, which had been inflicted on him, some of that consolation, which we may believe martyrs often receive from the injustice of their own sufferings, and which is generally proportioned in its strength to the extent of cruelty with which martyrs are treated….But the venom of [Mr. Slope’s] harangue had worked into his blood.

“New men are carrying out new measures, and are carting away the useless rubbish of past centuries!” What cruel words these had been; and how often are they now used with the heartless cruelty of a Slope! A man is sufficiently condemned if it can only be shown that either in politics or religion he does not belong to some new school established within the last score of years. He may then regard himself as rubbish and expect to be carted away. A man is nothing now unless he has within himself a full appreciation of the new era; an era in which it would seem that neither honesty nor truth is very desirable, but in which success is the only touchstone of merit. We must laugh at every thing that is established. Let the joke be ever so bad, ever so untrue to the real principles of joking; nevertheless we must laugh–or else beware the cart. We must talk, think, and live up to the spirit of the times, and write up to it too, if that cacoethes be upon us, or else we are naught. New men and new measures, long credit and few scruples, great success or wonderful ruin, such are now the tastes of Englishmen who know how to live.

Michael McConnell, “Tradition and the Constitution”

Here is a story with some details of the Center’s Tradition Project conference last week-end, which also links to pictures of the event and various recent reflections by conference participants.

And here is Professor Michael McConnell’s lecture, “Tradition and the Constitution”:

Center Receives Major Grant from The Achelis and Bodman Foundation

Tradition ProjectWe’re delighted to announce that the Center has received a major grant from the Achelis and Bodman Foundation for its ongoing Tradition Project, a new research initiative exploring the value of tradition for contemporary citizens and the relationship of tradition and change in today’s world.

Conceived and co-directed by Professors Marc O. DeGirolami and Mark L. Movsesian, the Tradition Project seeks to develop a broad and rich understanding of what tradition—the received wisdom of the past—might continue to offer in cultivating virtuous, responsible, self-governing citizens.

The first component of the Project, which gets underway in New York next week and is supported by a generous grant from The Lynde and Harry Bradley Foundation, examines tradition in American law and politics.

The new grant from the Achelis and Bodman Foundation will help support the second component of the Project, which focuses on tradition and culture. Slated for 2017 in New York, this component will explore tradition’s role in sustaining a common culture, defined as a people’s habits, beliefs, attitudes, education, and everyday morality—its way of life.

The Tradition Project brings together leading public figures, scholars, judges, and journalists for lectures, workshops, and sponsored research. Work related to the project will include book manuscripts, journal articles, and curricular development.

The Achelis and Bodman Foundation was established in 2015 from the merger of the Achelis Foundation and the Bodman Foundation, each of which dates to the 1940s. The Foundation sponsors grants in six major areas, including education, arts and culture, and public policy. It focuses its giving mainly in New York City.

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