Movsesian on the Ashers Case

Bristol UniversityAt the Liberty Law site today, I have a post discussing the UK Supreme Court’s ruling this month in Lee v. Ashers Bakery, a wedding-vendor case from Belfast. The British case deals with several substantive issues that our own Supreme Court dodged earlier this year in Masterpiece Cakeshop. The British court’s president, Barbara Hale (left), wrote for a unanimous court:

Even though the issues do not line up exactly, Lady Hale’s opinion addresses many of the difficult questions that arise in the American context as well: whether denying services in connection with gay weddings is equivalent to denying services to gay persons; whether one should attribute certain kinds of commercial speech to the vendor or the customer; and whether the state’s interest in ending discrimination in public places overrides the religious convictions of persons who operate small businesses. The fight over these issues is still in its early stages, in Britain and America. This decision may provide guidance for the way forward.

Readers can find my post here.

Moon, “Putting Faith in Hate”

9781108442374Why do we protect free speech? My colleague, Marc, argues in his current draft that Americans, historically, have protected free speech on one of two theories. On the first, we protect free speech in order to promote individual expression. On the other, we protect free speech in order to advance the public welfare. These two conceptions can lead to different results in particular cases. Take hate speech, for example. If one thinks free speech is about promoting individual expression, one would give speakers a great deal of leeway, even when their speech insults others–on the basis of religion, for example. On the other hand, if one thinks free speech exists to promote the public good, one would be less inclined to allow speech that injures the dignity of third parties, at least without some compelling reason.

A forthcoming book from Cambridge, Putting Faith in Hate: When Religion Is the Source or Target of Hate Speech, addresses the regulation of hate speech in liberal democracies today. The author is Canadian law professor Richard Moon (University of Windsor, Ontario). The publisher’s description follows:

To allow or restrict hate speech is a hotly debated issue in many societies. While the right to freedom of speech is fundamental to liberal democracies, most countries have accepted that hate speech causes significant harm and ought to be regulated. Richard Moon examines the application of hate speech laws when religion is either the source or target of such speech. Moon describes the various legal restrictions on hate speech, religious insult, and blasphemy in Canada, Europe and elsewhere, and uses cases from different jurisdictions to illustrate the particular challenges raised by religious hate speech. The issues addressed are highly topical: speech that attacks religious communities, specifically anti-Muslim rhetoric, and hateful speech that is based on religious doctrine or scripture, such as anti-gay speech. The book draws on a rich understanding of freedom of expression, the harms of hate speech, and the role of religion in public life.

 

“Research Handbook on Law and Religion” (Adhar, ed.)

9781788112468To start off our book posts this week, here is a forthcoming volume from Edward Elgar that looks great, the Research Handbook on Law and Religion, edited by our friend, Rex Adhar (University of Otago, New Zealand). The list of contributors, including our sometime guest bloggers, Michael Helfand and Steve Smith, and Tradition Project participants Perry Dane and Hans-Martien ten Napel (also Steve, wearing a different hat!), is quite impressive, indeed. The volume addresses law and religion from a comparative perspective, which is always helpful. Here’s the description from the publisher’s website:

Offering an interdisciplinary, international and philosophical perspective, this comprehensive Research Handbook explores both perennial and recent legal issues that concern the modern state and its interaction with religious communities and individuals.

Providing in-depth, original analysis the book includes studies of a wide array of nation states, such as India and Turkey, which each have their own complex issues centered on law, religion and the interactions between the two. Longstanding issues of religious liberty are explored such as the right of conscientious objection, religious confession privilege and the wearing of religious apparel. The contested meanings of the secular state and religious neutrality are revisited from different perspectives and the reality of the international human rights protections for religious freedom are analysed.

Timely and astute, this discerning Research Handbook will be a valuable resource for both academics and researchers interested in the many topics surrounding law and religion. Lawyers and practitioners will also appreciate the clarity with which the rights of religious liberty, and the challenges in making these compatible with state law, are presented.

Schwartz & Tatalovich, “The Rise and Fall of Moral Conflicts in the United States and Canada”

9781442637269From down here, South of the Border, Canada seems a remarkably quiet place, especially when it comes to religious and social conflict. American politics is continually roiled by fights over moral issues like abortion and same-sex marriage; Canada, not so much. Perhaps that is because Canada is a more secular place and there is less to quarrel about; perhaps Canadians are just more peaceable. A new book from the University of Toronto Press, The Rise and Fall of Moral Conflicts in the United States and Canada, compares the two countries. The authors are sociologist Mildred Schwartz (University of Illinois-Chicago) and political scientist Raymond Tatalovich (Loyola University Chicago). Here is the publisher’s description:

In The Rise and Fall of Moral Conflicts in the United States and Canada, sociologist Mildred A. Schwartz and political scientist Raymond Tatalovich bring their disciplinary insights to the study of moral issues. Beginning with prohibition, Schwartz and Tatalovich trace the phases of its evolution from emergence, establishment, decline and resurgence, to resolution. Prohibition’s life history generates a series of hypotheses about how passage through each of the phases affected subsequent developments and how these were shaped by the political institutions and social character of the United States and Canada.

Using the history of prohibition in North America as a point of reference, the authors move on to address the anticipated progression and possible resolution of six contemporary moral issues: abortion, capital punishment, gun control, marijuana, pornography, and same-sex relations. Schwartz and Tatalovich build a new theoretical approach by drawing on scholarship on agenda-setting, mass media, social movements, and social problems. The Rise and Fall of Moral Conflicts provides new insights into how moral conflicts develop and interact with their social and political environment.

Akan, “The Politics of Secularism”

9780231181808One of the most interesting aspects of comparative law is the way legal terms migrate across borders and, in the process, acquire different meanings. “Secular” is one such term. Both the French and Turkish Constitutions declare that the state is “laic,” usually translated as “secular.” But “secular” can have different meanings, depending on the local context. A new book from Columbia University Press, The Politics of Secularism: Religion, Diversity, and Institutional Change in France and Turkey, by Murat Akan (Boğaziçi University) explores the topic. Here is the description from the publisher’s website:

Discussions of modernity—or alternative and multiple modernities—often hinge on the question of secularism, especially how it travels outside its original European context. Too often, attempts to answer this question either imagine a universal model derived from the history of Western Europe, which neglects the experience of much of the world, or emphasize a local, non-European context that limits the potential for comparison. In The Politics of Secularism, Murat Akan reframes the question of secularism, exploring its presence both outside and inside Europe and offering a rich empirical account of how it moves across borders and through time.

Akan uses France and Turkey to analyze political actors’ comparative discussions of secularism, struggles for power, and historical contextual constraints at potential moments of institutional change. France and Turkey are critical sites of secularism: France exemplifies European political modernity, and Turkey has long been the model of secularism in a Muslim-majority country. Akan analyzes prominent debates in both countries on topics such as the visibility of the headscarf and other religious symbols, religion courses in the public school curriculum, and state salaries for clerics and imams. Akan lays out the institutional struggles between three distinct political currents—anti-clericalism, liberalism, and what he terms state-civil religionism—detailing the nuances of how political movements articulate the boundary between the secular and the religious. Disputing the prevalent idea that diversity is a new challenge to secularism and focusing on comparison itself as part of the politics of secularism, this book makes a major contribution to understanding secular politics and its limits.

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.

 

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!

Call for Panels: Comparative Law, Faith & Religion

The American Society of Comparative Law has announced that the theme of this year’s meeting in Washington in October will be “Comparative Law, Faith & Religion: The Role of Faith in Law.” The Society has issued a call for panels with a deadline of June 1:

Examples of diverse topics that such a conference could address are: (1) historical or modern day attitudes that result in having faith in a legal tradition or developing religious attitudes towards secular texts such as the U.S. constitution; (2) a comparison of secular faith with religious faith in a legal system, perhaps looking at the history and development of western democracies; (3) the role of Christianity in development of common and/or civil law traditions; (4) comparative approaches to legal ethics and the influence of religion on development and implementation of
ethical rules for lawyers and judges; (5) Islamic visions of dispute settlement and the role of Islamic law in modern day commercial arbitration; (6) the role of Catholicism in development of family law in Latin America; (7) Laws of the nation’s secular authority as faithless law; (8) the continuing influence of Hindu “law”; (9) whether there is such a thing as Buddhist law?; (10) the influence of the Talmud on modern western legal systems or (11) the challenge of teaching about religion in a law school setting; etc. Interdisciplinary work is encouraged.

Further details are here.

Ten Napel, “Constitutionalism, Democracy and Religious Freedom”

Classical liberalism was supposed to resolve religious conflict within a society, principally by making religion a private matter and, in compensation, allowing religious communities, within limits, to conduct themselves as they saw fit. Today, the classical liberal model is undergoing a lot of stress, as people, particularly on the left, increasingly question what those limits should be. Hans-Martien ten Napel (Leiden University), one of the most interesting scholars in comparative law and religion today, has a new book, Constitutionalism, Democracy and Religious Freedom: To Be Fully Human (Routledge), that addresses these questions. Here’s the description from the Routledge website:

9781138647152In both Europe and North America it can be argued that the associational and institutional dimensions of the right to freedom of religion or belief are increasingly coming under pressure. This book demonstrates why a more classical understanding of the idea of a liberal democracy can allow for greater respect for the right to freedom of religion or belief.

The book examines the major direction in which liberal democracy has developed over the last fifty years and contends that this is not the most legitimate type of liberal democracy for religiously divided societies. Drawing on theoretical developments in the field of transnational constitutionalism, Hans-Martien ten Napel argues that redirecting the concept and practice of liberal democracy toward the more classical notion of limited, constitutional government, with a considerable degree of autonomy for civil society organizations would allow greater religious pluralism. The book shows how, in a postsecular and multicultural context, modern sources of constitutionalism and democracy, supplemented by premodern, transcendental legitimation, continue to provide the best means of legitimating Western constitutional and political orders.

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