Barton & Bibas, “Rebooting Justice”

Rebooting-Justice-310x460This is not a law-and-religion book, but it is co-written by one of the participants in our Center’s Tradition Project, Stephanos Bibas, who recently left his position at the University of Pennsylvania Law school for a seat on the Third Circuit, and it looks to be of interest to anyone concerned about our legal system and the potential for technology to improve it. Tradition doesn’t mean stagnation, and there’s no reason why traditionalists must in principle oppose new technologies. As long as those new technologies don’t displace law professors, that is. The book is Rebooting Justice: More Technology, Fewer Lawyers, and the Future of Law, co-written by Bibas and law professor Benjamin Barton (Tennessee). Here is the description from the publisher, Encounter Books:

America is a nation founded on justice and the rule of law. But our laws are too complex, and legal advice too expensive, for poor and even middle-class Americans to get help and vindicate their rights. Criminal defendants facing jail time may receive an appointed lawyer who is juggling hundreds of cases and immediately urges them to plead guilty. Civil litigants are even worse off; usually, they get no help at all navigating the maze of technical procedures and rules. The same is true of those seeking legal advice, like planning a will or negotiating an employment contract.

Rebooting Justice presents a novel response to longstanding problems. The answer is to use technology and procedural innovation to simplify and change the process itself. In the civil and criminal courts where ordinary Americans appear the most, we should streamline complex procedures and assume that parties will not have a lawyer, rather than the other way around. We need a cheaper, simpler, faster justice system to control costs. We cannot untie the Gordian knot by adding more strands of rope; we need to cut it, to simplify it.

“The Political Writings of Alexander Hamilton” (Holloway & Wilson, eds.)

9781107088474Alexander Hamilton had a tempestuous inner life, including with respect to religion. Devout as a child, skeptical as an adult, towards then end of his life he seems to have become an orthodox Christian. Whatever his internal views, his position with respect to the public importance of religion was clear. He drafted Washington’s Farewell Address, one of the most important texts in American history on the place of religion in public life, and even proposed a Christian Constitutional Society, to counter Jacobinism in the United States.

The Christian Constitutional Society is one of the issues addressed in a new, two-volume collection from Cambridge University Press, The Political Writings of Alexander Hamilton. The editors are Carson Holloway (Nebraska) and our own Tradition Project participant Bradford Wilson (Princeton). Looks very interesting. Here’s the publisher’s description:

Few of America’s founders influenced its political system more than Alexander Hamilton. He played a leading role in writing and ratifying the Constitution, was de facto leader of one of America’s first two political parties, and was influential in interpreting the scope of the national government’s constitutional powers. This comprehensive collection provides Hamilton’s most enduringly important political writings, covering his entire public career, from 1775 to his death in 1804. Readers are introduced to Hamilton – in his own words – as defender of the American cause, as an early proponent of a stronger national government, as a founder and protector of the American Constitution, as the nation’s first secretary of the treasury, as President George Washington’s trusted foreign policy advisor, and as a leader of the Federalist Party. Presented in a convenient two volume set, this book provides a unique insight into the political ideas of one of America’s leading founders; a must-have reference source.

Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.

Video of Sir Roger Scruton’s Tradition Project Lecture Now Available

Last month in New York, Sir Roger Scruton gave the keynote speech at our second Tradition Project conference, “Tradition, Culture, and Citizenship.” A video of Sir Roger’s speech is now available below:

Annicchino, “Law and International Religious Freedom”

9781138282445I’m delighted to post this forthcoming book by Forum guest blogger and Tradition Project member Pasquale Annicchino, Law and International Religious Freedom: The Rise and Decline of the American Model (Routledge). Pasquale, a fellow at the European University Institute, is a rising star in comparative law and religion studies, with a special focus on international religious freedom. The issues he highlights in this book — the debate between individualistic and communitarian understandings of religion and the need for law to focus on major rights violations — are important ones, in America and abroad. Here’s a description of his book from the Routledge website:

This book analyzes the promotion and protection of freedom of religion in the international arena with a particular focus on the role and influence of the US International Religious Freedom Act, 1998. It also investigates the impact of the IRFA on the legislation and policies of third countries and the EU. The book develops the story of the protection of religious freedom through foreign policy by showing how religious laws affect and shape a more communitarian dimension of the notion of freedom of religion which stands in contrast with a traditionally Western individualistic understanding of the right. It is argued that it is still possible to defend the unstable category of freedom of religion or belief especially when major violations are at stake. The book presents a balanced contribution to the academic debate on the promotion and protection of religious freedom. The comparative approach and interdisciplinary methodology make it a valuable resource for academics, students and policy- makers in Law, International Relations and Strategic Studies.

The Clash of Traditions

tradition_banner_1_navyAt the Liberty Law site this morning, I have an essay on our recent Tradition Project conference in Trento, and what it reveals about the different understandings of tradition in American and Russian thought. For me, the conference shows how Samuel Huntington was right 20 years ago, when he described how a clash of civilizations would characterize the post-war world:

I thought a great deal about Huntington at a conference I helped organize last month in Trento, Italy, on tradition in American and Russian thought. Cosponsored by the Tradition Project at the St. John’s Center for Law and Religion, the Postsecular Conflicts Project at the University of Innsbruck, and Center for Religious Studies at the Fondazione Bruno Kessler, the conference brought together American, European, and Russian commentators to discuss the use of tradition in law and politics in the two countries. Given the way that Russo-American relations have dominated world politics lately, it seemed an important topic.

Tradition is an exceptionally complicated concept and the participants in the conference expressed a variety of views. The Russian scholars, in particular, disagreed among themselves about precisely what is going on in their country right now (more on this in a bit). But, for me at least, the conference confirmed the basic correctness of Huntington’s insights. People disposed to favor tradition in Russia and America often understand the concept very differently.

Consider religious freedom. For the past several years, Russian church and government officials have argued strenuously that cultural traditions can legitimately limit the exercise of religion. Both Patriarch Kirill of the Russian Orthodox Church and President Putin have argued that cultural traditions deserve respect because they reflect eternal truths and embody a people’s morality. Because traditions have a moral character, states can legitimately act to protect them from outside forces. States can, for example, legitimately limit proselytism by new religious groups that threaten to undermine traditional religious communities and values. This attitude is behind a ban Russia recently imposed on the activities of the Jehovah’s Witnesses, a ban the country’s Supreme Court sustained.

Some American traditionalists have a similar understanding of the moral value of tradition. But most, it’s fair to say, do not. As a rule, American conservatives do not defend tradition on the basis of unchanging moral verities or the right of nations to defend their cultures from foreign threats. American traditionalism is more pragmatic and empirical.

With all that’s going on now–and I mean right now, as the Trump-Putin meeting today and Trump’s speech in Warsaw yesterday–readers might find the essay interesting. You can find it here.

 

Doux Commerce?

At the Liberty Law site today, I have a review of Nate Oman’s important new book on markets and morals, The Dignity of Commerce. The book is a great contribution to contracts scholarship, thoughtful and beautifully written. Nate and I have a friendly disagreement, though, about the cause-and-effect relationship between markets and morals, so it’s no surprise that I find myself disagreeing with one of the book’s main claims:

Liberals maintain that markets create wealth, promote mutual gain, and unlock talents and resources in individuals and nations. And, they say, markets have political benefits. Since the Enlightenment, liberals have argued that markets promote civic pluralism by making people more reasonable and prudent; less given to political and, especially, religious enthusiasm; and eager to avoid divisive debates about deep commitments.

That markets have these advantages is known as the doux commerce thesis. (That’s doux as in soft, or having a softening effect.) The thesis is most closely associated with the Baron de Montesquieu and Voltaire, though David Hume and Adam Smith endorsed it, too. In a very fine new book, The Dignity of Commerce: Markets and the Moral Foundations of Contract Law, contracts scholar Nathan B. Oman advances a version of the theory, updated to take account of current contract doctrine. Oman, a law professor at William and Mary Law School, combines immense learning and sophistication with a lightness of touch that makes his book a pleasure to read.

All of that said, I remain unpersuaded about doux commerce. Edmund Burke had it right, I think. Markets don’t inevitably lead to liberalism. Rather, the liberal tradition itself creates the sort of markets liberals admire.

You can read my full review here. For more information on Nate’s book, click here.

Writeup of Last Week’s Event in Trent

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Last week’s gathering at the Fondazione Bruno Kessler in Trent, Italy

 

The Fondazione Bruno Kessler has posted this report of our conference on tradition and traditionalism in American and Russian thought. The conference, at the Fondazione’s headquarters in Trent, Italy, was a very worthwhile event. The discussions revealed significant differences, and some similarities, in how American and Russian scholars perceive tradition and tradition’s proper role in law and politics.

For me, the most interesting discussions were those that revealed the differences among us. From the American side, some of us were concerned with carving out space for traditional communities in the larger society; others were more interested in placing tradition at the center of legal debate. Some argued that tradition is already more central to that debate than it sometimes seems.

On the Russian side, some participants took the Russian Church’s recent advocacy of traditional values as a serious critique of liberalism, one that resonates with consistent themes in Orthodox thought. Others, by contrast, argued that “traditional values” are a recent, post-Soviet construct, even a pretext.

The Postsecular Conflicts Project will publish an online collection of participants’ essays later this year. Meanwhile, let me say thanks again, on behalf of the Center, to Kristina Stoeckl, Pasquale Annicchino, Marco Ventura, and their very capable staffs, for being such good hosts. Let’s do it again soon!

Center Co-Sponsoring Conference on Tradition in America and Russia Next Week in Trent

tradition_banner_1_navyNext week, Marc and I will travel to the Italian city of Trent for an important conference, “Tradition and Traditionalisms Compared,” at the Fondazione Bruno Kessler. The conference, which our Center’s Tradition Project is co-sponsoring with the Postsecular Conflicts Project at the University of Innsbruck, will gather scholars and commentators from the US and Europe to consider the competing understandings of tradition in American and Russian law and politics. It’s a great lineup of participants, and with all that’s going on in the world today, a very timely topic.

From the Tradition Project, aside from Marc and me, the participants include Patrick Deneen (Notre Dame), Rod Dreher (The American Conservative), Michael Moreland (Villanova), and Adrian Vermeule (Harvard). The other participants are listed in the conference program, which you can find here. From the papers people have submitted, it looks like we will have a candid and productive discussion on deep issues–exactly what one hopes for in a scholarly community.

We’ll have a report on the conference after the event. Meanwhile, let me say that we’ve been delighted to plan this program with Kristina Stoeckl (Innsbruck) and Pasquale Annicchino (EUI), and that we look forward to seeing everyone in Trento next week!

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.

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