Christian and Muslim Approaches to Law

One of the very earliest recorded encounters between a Christian and a Muslim, a public debate between a Syriac patriarch and an Arab emir shortly after the Arab conquest of Syria, concerns the role of law in religion. Without a body of law, the emir insisted, Christianity could not call itself a religion; Christians should convert to Islam, a real religion that had the Sharia. The patriarch responded that Christians indeed had law, though not as Muslims understood it; Christians had no need to convert. I thought of this debate when I saw a notice for a forthcoming book from Cambridge, Law and the Rule of God: A Christian Engagement with Sharia, by Joshua Rallston (Edinburgh). Law–or, rather, the proper conception of law–is a major point of contention between these two world religions, and a comparative study like this one seems very promising. The publisher’s description follows:

Sharī’a is one of the most hotly contested and misunderstood concepts and practices in the world today. Debates about Islamic law and its relationship to secularism and Christianity have dominated political and theological discourse for centuries. Unfortunately, Western Christian theologians have failed to engage sufficiently with the challenges and questions raised by Islamic political theology, preferring instead to essentialize or dismiss it. In Law and the Rule of God, Joshua Ralston presents an innovative approach to Christian-Muslim dialogue. Eschewing both polemics and apologetics, he proposes a comparative framework for Christian engagement with Islamic debates on sharī’a. Ralston draws on a diverse range of thinkers from both traditions including Karl Barth, Ibn Taymiyya, Thomas Aquinas, and Mohammad al-Jabri. He offers an account of public law as a provisional and indirect witness to the divine rule of justice. He also demonstrates how this theology of public law deeply resonates with the Christian tradition and is also open to learning from and dialoguing with Islamic and secular conceptions of law, sovereignty, and justice.

Virtue Politics Operationalized

One of the best books I’ve read recently is James Hankins’ Virtue Politics: Soulcraft and Statecraft in Renaissance Italy. In it, Professor Hankins provides an alternative to the account of Renaissance political thought that places “republican liberty” as its chief achievement. It is, says Hankins, the cultivation of virtue in political leadership, and the reclaiming of the classical traditions of virtues of character in Greek and Roman thought, that animates the central political project of the great humanist tradition. Machiavelli, who is often placed at the center of Renaissance political thought (he is certainly the most widely read figure of the Renaissance political tradition), is, on Hankins’ account, at best deeply ambivalent about this tradition, and certainly not the central representative of the spirit of the age.

I’ve thought a lot about Professor Hankins’ book, and in particular just what a virtue politics of the modern period, in America, for example, might do (or aspire to do). So I’m especially pleased to see that he will have a new book out in the spring that seems to concretize the Renaissance virtue politics program in a number of ways, and whose subject is the last figure (before Machiavelli) he considers in Virtue Politics, Francesco Patrizi. The book is Political Meritocracy in Renaissance Italy: The Virtuous Republic of Francesco Patrizi of Siena. It will be a must read for anyone interested in this fascinating period of history and anyone thinking about the role of virtue in contemporary political life.

At the heart of the Italian Renaissance was a longing to recapture the wisdom and virtue of Greece and Rome. But how could this be done? A new school of social reformers concluded that the best way to revitalize corrupt institutions was to promote an ambitious new form of political meritocracy aimed at nurturing virtuous citizens and political leaders.

The greatest thinker in this tradition of virtue politics was Francesco Patrizi of Siena, a humanist philosopher whose writings were once as famous as Machiavelli’s. Patrizi wrote two major works: On Founding Republics, addressing the enduring question of how to reconcile republican liberty with the principle of merit; and On Kingship and the Education of Kings, which lays out a detailed program of education designed to instill the qualities necessary for political leadership—above all, practical wisdom and sound character.

The first full-length study of Patrizi’s life and thought in any language, Political Meritocracy in Renaissance Italy argues that Patrizi is a thinker with profound lessons for our time. A pioneering advocate of universal literacy who believed urban planning could help shape civic values, he concluded that limiting the political power of the wealthy, protecting the poor from debt slavery, and reducing the political independence of the clergy were essential to a functioning society. These ideas were radical in his day. Far more than an exemplar of his time, Patrizi deserves to rank alongside the great political thinkers of the Renaissance: Machiavelli, Thomas More, and Jean Bodin.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The U.S. Supreme Court has denied review in Resurrection School v. Hertel. In the case, an en banc panel of the Sixth Circuit held by a vote of 13-1-3 that a free exercise challenge to Michigan’s COVID mask mandate for school children is moot.
  • In United States v. Dickey, the Seventh Circuit upheld a trial court’s refusal to give jury instructions sought by a criminal defendant who was the leader of her own church, Deliverance Tabernacle Ministry, and who was convicted of wire fraud and forced labor. The court held that Dickey’s proposed jury instructions failed because they were not an accurate statement of the law and would have excused her criminal conduct based on her religious assertions. 
  • In Tatel v. Mt. Lebanon School District, a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection, and free exercise claims against a teacher who taught their students about transgender topics over parental objections. The court also allowed plaintiffs to move forward against school administrators, the school board, and the school district. 
  • In JLF v. Tennessee State Board of Education, Plaintiff asked a Tennessee federal district court to reconsider its prior holding that the display of the national motto “In God We Trust” in a public charter school did not violate the Establishment Clause. Plaintiff argued that the U.S. Supreme Court’s holding in Kennedy v. Bremerton School District, which rejected the Lemon test and adopted the Historical Practice test for Establishment Clause cases, constitutes an intervening change in controlling law. However, the court denied Plaintiff’s motion to reconsider as Kennedy did not affect the court’s previous ruling, and the court did not rely on the Lemon test to reject Plaintiff’s Establishment Clause claim.
  • In Chambers of Commerce of the USA v. Bartolemo, various business organizations filed suit in a Connecticut federal district court challenging on free speech grounds a Connecticut statute that protects employees from being made into captive audiences. The statute imposes liability on employers that discipline employees who refuse to attend employer-sponsored meetings or listen to employer communications whose primary purpose is to express the employer’s views on religious or political matters. 
  • In Billy Graham Evangelistic Association v. Scottish Event Campus Limited, a trial court in Scotland concluded that a large arena in Scotland whose majority owner is the city of Glasgow violated the Equality Act when it canceled an appearance by evangelist Franklin Graham because of concern that he might make homophobic and Islamophobic comments during his appearance. The court awarded Graham’s organization damages equivalent to $112,000 USD.  

“Roma Traversata”

This might seem a little far afield for us, but the Center regularly sponsors conferences in Rome and Marc and I are there a lot for our work. One of the great pleasures of Rome is wandering through its streets. It’s such a dense city, and practically every corner has an interesting history. A new book out this month from Cornell University Press looks like it will be a welcome addition to the literature on the city. And the book’s focus on how a great city grows organically over centuries is very much in keeping with our Tradition Project. The book is Roma Traversata: Tracing Historic Pathways through Rome, by scholar Allan Ceen (Penn State). Here’s the publisher’s description:

Roma Traversata analyzes pathways to decipher the complexity of Rome’s urban layout. Nearly all of the prehistoric country paths converging on what was to become the Roman Forum (the ancient city center) are still traceable in the modern city. To these were added other major streets in ancient times. Additional Medieval and Renaissance streets developed the city further as its center shifted from the Forum toward the Vatican. Some of these provided the framework for Rome’s late 19th century urban development.

Ceen follows nine routes: three prehistoric, three ancient, and three post-classical pathways through the city, showing us that streets are not merely the space left over between buildings but have a formal character of their own and even determine certain aspects of buildings. Rather than insisting upon the greater importance of streets over buildings, Ceen studies the interactions between buildings and public space, something he describes as urban reciprocity.

Profusely and beautifully illustrated, Roma Traversata shows that streets and pathways of Rome are not merely ways of getting from place to place. They are places.

The Catholic Church as Shatterer of Polities

In our law and religion colloquium, one of the early themes Mark and I touch on is the dualism of Christianity, and the complicated sense in which this dualism is, and is not, a precursor to contemporary ideas of church-state separation. Some of the complications concern the view that separation in this early sense may not have meant complete division, but instead a kind of complementarity of authorities.

We don’t touch perhaps as much as we should on the Catholic Church’s role in the formation of the contemporary nation state, but this new book does: The Catholic Church and European State Formation, AD 1000-1500 (Oxford University Press) by political historians Jørgen Møller and Jonathan Stavnskær Doucette. Their core claim seems to be that the Church was the prime mover of political fragmentation (or “pluralism,” to give it its modern euphemism), and in particular the disruption of the Holy Roman Empire, during this period.

Generations of social scientists and historians have argued that the escape from empire and consequent fragmentation of power – across and within polities – was a necessary condition for the European development of the modern territorial state, modern representative democracy, and modern levels of prosperity. The Catholic Church and European State Formation, AD 1000-1500 inserts the Catholic Church as the main engine of this persistent international and domestic power pluralism, which has moulded European state-formation for almost a millennium.

The ‘crisis of church and state’ that began in the second half of the eleventh century is argued here as having fundamentally reshaped European patterns of state formation and regime change. It did so by doing away with the norm in historical societies – sacral monarchy – and by consolidating the two great balancing acts European state builders have been engaged in since the eleventh century: against strong social groups and against each other.

The book traces the roots of this crisis to a large-scale breakdown of public authority in the Latin West, which began in the ninth century, and which at one and the same time incentivised and permitted a religious reform movement to radically transform the Catholic Church in the period from the late tenth century onwards.

Drawing on a unique dataset of towns, parliaments, and ecclesiastical institutions such as bishoprics and monasteries, the book documents how this church reform movement was crucial for the development and spread of self-government (the internal balancing act) and the weakening of the Holy Roman Empire (the external balancing act) in the period AD 1000-1500.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • A petition for certiorari has been filed with the U.S Supreme Court in Arkansas Times, LP v. Waldrip (see prior posting). In the case, the Eighth Circuit sitting en banc upheld, against a free speech challenge, Arkansas’ law requiring public contracts to include a certification from the contractor that it will not boycott Israel. 
  • In Weiss v. Perez, a California federal district court allowed a tenured professor to move ahead against most of the defendants she named in a lawsuit, which alleged that the University had retaliated against her because of her opposition to repatriation of Native American remains. Professor Weiss has argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act violate the Establishment Clause by favoring religion over science. Due to this belief, Weiss claims San Jose State University has interfered with her research and limited her professional activities. 
  • In In re A.C. (Minor Child), an Indiana state appeals court upheld a trial court’s order removing from the home a sixteen-year-old transgender child who suffered from an eating disorder and emotional abuse due to their parent’s unwillingness to accept the child’s transgender identity. The parents allege that they could not affirm their child’s transgender identity or use the child’s preferred pronouns because of their religious beliefs. The court rejected the parents’ Free Exercise claims.
  • The EEOC announced that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc., which operate one of the largest medical transport companies in the country. The suit alleges that the companies refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons. 
  • The EEOC has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company’s apron. The employees insisted that the symbol on the apron promotes the LGBT community, which the employees’ religious beliefs preclude them from affirming. Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages. 

The Church of Saint Thomas Paine

A few years ago, while a fellow in the Madison Program at Princeton, I did a little research on a relative of mine, Mangasar Mangasarian, who had attended Princeton in the 19th Century. I had always heard that Mangasar, one of the earliest Armenian immigrants in the US, had gone on to become a Protestant minister. That was the story our family told, and it was true, as far as it went. What they failed to mention (maybe they didn’t know), and what I came to learn at Princeton, was that Mangasar eventually left his pulpit in the Presbyterian Church to found his own, rationalist sect, the “Independent Religious Society of Chicago,” which had some success around the turn of the century. I guess my relatives found that part of Mangasar’s story less edifying.

I’ve always wanted to do some more research to find out why Mangasar took the path he did. We’re a little late getting to it here at the Forum, but a book published last year by Princeton seems like it will provide some very helpful information. The book, The Church of Saint Thomas Paine, by Leigh Eric Schmidt (Washington University in St. Louis) describes 19th century secular “religions” in the United States. I checked the index online and Mangasar’s name appears quite prominently! Can’t wait to see what the book says. Meanwhile, here’s the publisher’s description:

In The Church of Saint Thomas Paine, Leigh Eric Schmidt tells the surprising story of how freethinking liberals in nineteenth-century America promoted a secular religion of humanity centered on the deistic revolutionary Thomas Paine (1737–1809) and how their descendants eventually became embroiled in the culture wars of the late twentieth century.

After Paine’s remains were stolen from his grave in New Rochelle, New York, and shipped to England in 1819, the reverence of his American disciples took a material turn in a long search for his relics. Paine’s birthday was always a red-letter day for these believers in democratic cosmopolitanism and philanthropic benevolence, but they expanded their program to include a broader array of rites and ceremonies, particularly funerals free of Christian supervision. They also worked to establish their own churches and congregations in which to practice their religion of secularism.

All of these activities raised serious questions about the very definition of religion and whether it included nontheistic fellowships and humanistic associations—a dispute that erupted again in the second half of the twentieth century. As right-wing Christians came to see secular humanism as the most dangerous religion imaginable, small communities of religious humanists, the heirs of Paine’s followers, were swept up in new battles about religion’s public contours and secularism’s moral perils.

An engrossing account of an important but little-known chapter in American history, The Church of Saint Thomas Paine reveals why the lines between religion and secularism are often much blurrier than we imagine.

Around the Web

Here are some important law-and-religion news stories from around the web:

  • The D.C. Circuit Court of Appeals heard oral arguments in Singh v. Berger. In the case, the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine’s uniform and grooming policies during recruit training while their case continues to be litigated. 
  • In Hardaway v. Nigrelli, a New York federal district court issued a temporary restraining order barring enforcement of the provision in New York law that prohibits possession of firearms at “any place of worship or religious observation.” The suit was filed by two clergy members who allege that, as leaders of their churches, they want to carry firearms on church premises to keep the peace. The court concluded that the state restriction violates the Second Amendment. 
  • Suit was filed in a Wisconsin federal district court challenging the city of La Crosse’s ordinance prohibiting medical and mental health professionals from engaging in conversion therapy with anyone under eighteen. The complaint in Buchman v. City of Law Crosse alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression, or behaviors violates Plaintiff’s free speech and free exercise rights. 
  • Suit was filed in a California federal district court by two California State University professors challenging the University’s inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint in Kumar v. Koester alleges that the term “caste,” as used in the Interim Policy, is unconstitutionally vague and the Interim Policy violates the rights of Plaintiffs under the First and Fourteenth Amendments. 
  • In a tentative decision, a California state trial court concluded that a bakery that refuses on religious grounds to furnish custom-designed cakes for same-sex weddings and instead refers customers to another bakery for such items does not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy’s Creations, Inc., the court held that because California’s Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate Defendant’s free exercise rights. 
  • In L.F. v. S.C.R.L., the Court of Justice of the European Communities held that a private company may prohibit employees from wearing all visible signs of political, philosophical, or religious belief in the workplace. This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company’s policy covers any manifestation of religious, philosophical, or spiritual beliefs without distinction.  

The Secular Prophet of American Law

I’ve always thought that the activity we now call “constitutional theory” began with the work of James Bradley Thayer. For centuries, it was a common view among Western legal thinkers that the law was a manifestation of something that was greater than ordinary legislation or judicial decisions. Judicial decisions, in particular, were not law, but were thought of as evidence of the law. Today, by contrast, it is hard to imagine leading scholars or judges explaining law in anything like these terms. Just when the change happened is impossible to pinpoint, but Oliver Wendell Holmes, Jr. was certainly an important figure in the transition. Holmes mocked the classical view that law is some sort of “brooding omnipresence in the sky,” a view he rejected as “fallacy and illusion.” Instead, Holmes proclaimed that law is a purely human affair. The Legal Realists that followed Holmes believed that what needed to be done was to “redefine supernatural concepts in natural terms.”

That’s why Thayer is so pivotal. He saw all of this coming in the views of legal academics and thinkers of the time. So he tried with the first “theory” to head it off. And so the rise of constitutional theory coincides precisely with the fall of the classical conception of law and the rise of this new, realist, conception of law. When it comes to the Constitution, what takes the place of the old, classical view is, in fact, theory. Theory is what ostensibly preserves “the law” as something separate and apart from raw policy preferences, or from raw partisan politics. Theory purports to provide a new account and defense of law’s essential nature.

At any rate, here is what looks like an important and very insightful new book on Thayer, which interestingly uses religious language right in its title to describe him: The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy (University of Kansas Press), by Andrew Porwancher, Austin Coffey, Taylor Jipp, and Jake Mazeitis.

Amid the halls of Harvard Law, a professor of legend, James Bradley Thayer, shaped generations of students from 1874 to 1902. His devoted protégés included future Supreme Court justices, appellate judges, and law school deans. The legal giants of the Progressive Era—Holmes, Brandeis, and Hand, to name only a few——came under Thayer’s tutelage in their formative years.

He imparted to his pupils a novel jurisprudence, attuned to modern realities, that would become known as legal realism. Thayer’s students learned to confront with candor the fallibility of the bench and the uncertainty of the law. Most of all, he instilled in them an abiding faith that appointed judges must entrust elected lawmakers to remedy their own mistakes if America’s experiment in self-government is to survive.

In the eyes of his loyal disciples, Thayer was no mere professor; he was a prophet bequeathing to them sacred truths. His followers eventually came to preside over their own courtrooms and classrooms, and from these privileged perches they remade the law in Thayer’s image. Thanks to their efforts, Thayer’s insights are now commonplace truisms.

The Prophet of Harvard Law draws from untouched archival sources to reveal the origins of the legal world we inhabit today. It is a story of ideas and people in equal measure. Long before judges don their robes or scholars their gowns, they are mere law students on the cusp of adulthood. At that pivotal phase, a professor can make a mark that endures forever after. Thayer’s life and legacy testify to the profound role of mentorship in shaping the course of legal history.

Christianity’s American Fate?

I have to confess the publisher’s description of a new book from Princeton on American Christianity lost me at the get-go. “How did American Christianity become synonymous with conservative white evangelicalism,” the blurb for Christianity’s American Fate by Berkeley historian David Hollinger earnestly asks? I guess such a framing attracts an academic audience, always on the lookout for reassurance about its priors. But it’s misleading. First, of course, American Christianity comprises a lot more than Evangelicals. Second, although the majority of American Evangelicals are white, the most interesting fact about them is that they are becoming much less so over time. A PRRI study a few years ago revealed that one third of Evangelicals are members of racial and ethnic minorities. Among younger Evangelicals, the transformation is even more pronounced. About half of Evangelicals below the age of 30 are minorities. “PRRI found that ’22 percent of young evangelical Protestants are Black, 18 percent are Hispanic, and 9 percent identify as some other race or mixed race.'” The short answer to the question, how did American Christianity become synonymous with conservative white evangelicalism is, it’s not.

Readers of the book can judge for themselves. The publisher’s full description follows:

How did American Christianity become synonymous with conservative white evangelicalism? This sweeping work by a leading historian of modern America traces the rise of the evangelical movement and the decline of mainline Protestantism’s influence on American life. In Christianity’s American Fate, David Hollinger shows how the Protestant establishment, adopting progressive ideas about race, gender, sexuality, empire, and divinity, liberalized too quickly for some and not quickly enough for others. After 1960, mainline Protestantism lost members from both camps—conservatives to evangelicalism and progressives to secular activism. A Protestant evangelicalism that was comfortable with patriarchy and white supremacy soon became the country’s dominant Christian cultural force.

Hollinger explains the origins of what he calls Protestantism’s “two-party system” in the United States, finding its roots in America’s religious culture of dissent, as established by seventeenth-century colonists who broke away from Europe’s religious traditions; the constitutional separation of church and state, which enabled religious diversity; and the constant influx of immigrants, who found solidarity in churches. Hollinger argues that the United States became not only overwhelmingly Protestant but Protestant on steroids. By the 1960s, Jews and other non-Christians had diversified the nation ethnoreligiously, inspiring more inclusive notions of community. But by embracing a socially diverse and scientifically engaged modernity, Hollinger tells us, ecumenical Protestants also set the terms by which evangelicals became reactionary.