Posted on by Marc O. DeGirolami

Classic Revisited: Oakeshott’s “Religion, Politics, and the Moral Life”

Andrew Sullivan has an interesting post about belief and practice as distinct facets of religious experience.  The belief/conduct distinction was at one time an important one in the American law of religious liberty as well.  In Reynolds v. United States, for example, the first case interpreting the Free Exercise Clause, the Court stated that while Congress was free to regulate “action,” it could not regulate “mere opinion” (of course, the regulation of “action” might well be thought in some circumstances to infringe gravely on the free exercise of religion).  Sullivan discusses the views of Michael Oakeshott about religion, noting that the English political theorist located religion within the world of “practice” (an important term of art in Oakeshott’s thought).

Sullivan’s reflection prompts me to recommend a wonderful and perhaps lesser known book of Oakeshott’s, Religion, Politics, and the Moral Life (Timothy Fuller ed., YUP 1993), a collection of essays by Oakeshott, most from early in his life, about the relationship of religion and politics.  Religion is a subject that some writers mistakenly believe that Oakeshott ignored.  One of my favorite of the essays in this volume is the first, “Religion and the World,” in which Oakeshott describes the attitudes of early and late Christianity — the one preparing ecstatically for the imminent second coming, the other coping with the disappointment of delay in the fallen world.  Oakeshott describes two types of self, the worldly and religious man, and their orientations and interactions.  For an absolutely superb discussion of Oakeshott’s views about religion and politics, may I also recommend Elizabeth Campbell Corey’s Michael Oakeshott on Religion, Aesthetics, and Politics (2006).   Yale’s description of the Oakeshott collection follows after the jump.  — MOD Read more

Posted on by Marc O. DeGirolami

Classic Revisited: Hamburger’s “Separation of Church and State”

In light of some recent perplexing commentary, it seemed like an appropriate moment to commend the definitive book about the historical origins of the famous metaphor of the “wall of separation” between church and state, as well as its use in constitutional law beginning at the turn of the 20th century and especially since the famous Everson decision: Philip Hamburger’s Separation of Church and State (HUP 2002).

And just in brief response to the post by Sarah Posner above, it seems to me that both constitutional conservatives and constitutional progressives do not, today, differ on the viability of separation as a principle of religious liberty per se, so much as they differ on the nature and scope of the principle of separationism.   The question, to my mind, is not whether the idea of separationism is “a myth.”  An important variety of separation between ecclesiastical and temporal authority is bedrock — indeed, it was the Catholic Church itself which played a key role in initiating this separation.  The question is instead what the particular contours of the principle should be today — one which thoughtful constitutional conservatives and constitutional progressives can debate without resorting to caricature.  — MOD

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Classic Revisited: Berman’s “Law and Revolution”

“This book tells the following story: that once there was a civilization called ‘Western’; that it developed distinctive ‘legal’ institutions, values, and concepts; that these Western institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a ‘tradition’; that the Western legal tradition was born of a ‘revolution’ and thereafter, during the course of many centuries, has been periodically interrupted and transformed by revolutions; and that in the twentieth century the Western legal tradition is in a crisis greater than any other in its history, one that some believe has brought it virtually to an end.”

So begins the late Harold Berman’s Law and Revolution: The Formation of the Western Legal Tradition (HUP 1983), as important and learned a book in law and religion as has ever been written.  Berman traces the development of contemporary Western legal institutions from the medieval period to the present, emphasizing especially the importance of the Papal Revolution of Pope Gregory VII, which, he writes, “gave birth to the modern Western state — the first example of which, paradoxically, was the church itself.”  (113)  Berman’s monumental contribution is as powerful as it is fascinating; if anything deserves the rank of canonical in law and religion literature, it is this book.  — MOD

Posted on by Marc O. DeGirolami

Classic Revisited: Greenawalt’s “Private Consciences and Public Reasons”

Today’s Classic Revisited is Kent Greenawalt’s Private Consciences and Public Reasons (OUP 1995), a study of the circumstances in which it is appropriate for citizens, legislators, and judges to employ religious reasons to make judgments about political matters.  My old teacher, known for the carefulness of his analysis and for his fine and thoughtful distinctions between various issues, laces this discussion with lively thought experiments about the sort of political society we would want to live in if given the choice among a number of church-state arrangements.  And as is also common with Kent, sprinkled into the text every so often are personal stories or reflections that have shaped his thinking on these matters.  Finally, and in keeping with the book’s emphasis on the “accessibility” of reasons, Kent writes in a straightforward and easily accessible style.  You could not do better for an introduction to his intermediate, nuanced, middle-road, and deeply sophisticated views on these important questions.  The publisher’s description follows.  — MOD

Within democratic societies, a deep division exists over the nature of community and the grounds for political life. Should the political order be neutral between competing conceptions of the good life or should it be based on some such conception? This book addresses one crucial set of problems raised by this division: What bases should officials and citizens employ in reaching political decisions and justifying their positions? Should they feel free to rely on whatever grounds seem otherwise persuasive to them, like religious convictions, or should they restrict themselves to “public reasons,” reasons that are shared within the society or arise from the premises of liberal democracy? Kent Greenawalt argues that fundamental premises of liberal democracy alone do not provides answers to these questions, that much depends on historical and cultural contexts. After examining past and current practices and attitudes in the United States, he offers concrete suggestions for appropriate principles relevant to American society today. This incisive and timely analysis by one of our leading legal philosophers should attract a wide and diverse readership of scholars, practitioners, and concerned citizens.
Posted on by Marc O. DeGirolami

Classic Revisited: Tierney’s “Religion, Law, and the Growth of Constitutional Thought, 1150-1650”

Generally here at CLR Forum we provide notices of new or forthcoming books in law and religion.  But from time to time we will also revisit a classic in the law and religion canon.  The first in this occasional series is the magisterial Religion, Law, and the Growth of Constitutional Thought, 1150-1650 (CUP) by Brian Tierney.  Many other books of Professor Tierney’s could have been selected — his, The Idea of Natural Rights, or The Crisis of Church and State: 1050-1300, for example.  But if you are interested in the origins of constitutional thought, this book is a deeply learned and elegant treatment.

I once had the privilege of listening to Professor Tierney deliver a talk on Locke and natural law a couple of years ago.  One had the impression of a master surveying an intellectual continent from a great height, a man who was capable of capturing in just a few words the core of an enormous and complicated area of inquiry.  I will never forget it.  A description of the book follows.  — MOD 

To understand the growth of Western constitutional thought, we need to consider both ecclesiology and political theory, ideas about the Church as well as ideas about the state. In this book Professor Tierney traces the interplay between ecclesiastical and secular theories of government from the twelfth century to the seventeenth. He shows how ideas revived from the ancient past – Roman law, Aristotelian political philosophy, teachings of Church fathers – interacted with the realities of medieval society to produce distinctively new doctrines of constitutional government in Church and state. The study moves from the Roman and canon lawyers of the twelfth century to various thirteenth-century theories of consent; later sections consider fifteenth-century conciliarism and aspects of seventeenth-century constitutional thought. Fresh approaches are suggested to the work of several figures of central importance in the history of Western political theory. Among the authors considered are Thomas Aquinas, Marsilius of Padua, Jean Gerson, Nicholas of Cusa and Althusius, along with many lesser-known authors who contributed significantly to the growth of the Western constitutional tradition.