Some more information about the Pontifical Council”s recent statement on the world financial crisis, which drew attention for suggesting the need for global government. According to veteran Vatican correspondent Sandro Magister of the Italian newsweekly, L’Espresso, the Pontifical Council’s statement surprised many inside the Vatican, including Secretary of State Cardinal Bertone, who apparently did not know of the statement until shortly before its release. Magister argues that the Pontifical Council’s statement, particularly its call for a global financial authority, contradicts the tone of Pope Benedict XVI’s recent encyclical, Caritas in Veritate, which endorses subsidiarity rather than centralized world government. The Vatican has not withdrawn the Pontifical Council’s statement. According to Magister, however, Cardinal Bertone will now have to approve all Vatican documents before their release. — MLM
Pin on the Italian Separation of Church and State
Andrea Pin (University of Padua – Faculty of Law) has posted Public Schools, the Italian Crucifix, and the European Court of Human Rights: The Italian Separation of Church and State. The abstract follows. – ARH
The recent judgments of the European Court of Human Rights (“ECHR”) with regard to the presence of the Catholic symbol of the crucifix in Italian public schools are just the latest episodes of the ongoing juridical and political struggle for the secularization of the Italian state. This debate involves the interpretation and the enactment of the Italian Constitution as well as the political and cultural trends that shape the Italian public debate about the public role of religion.
The decisions of the ECHR, which operates in Strasbourg, pushed the debate further: from the interpretation of the Italian Constitution to the respect for international treaties. In the first degree, the Court found Italy’s policy of displaying crucifixes in public schools violated Article 9 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention on Human Rights”) that protects the right to freedom of religion. The popular and political criticisms of the judgment were immediate and forceful throughout Italian public discourse, because a majority in Italian society supports the presence of the crucifix in public schools. Read more
Gavison on the Law of Return
Ruth E. Gavison (Hebrew University of Jerusalem) has posted The Law of Return at Sixty Years: History, Ideology, Justification. The abstract follows. – JKH
The Law of Return, passed unanimously by the Knesset with much excitement and elation in 1950 on the day commemorating Theodor Herzl, establishes the principle that ‘every Jew is entitled to come to this country as an Oleh’ and lays the foundation for the preference given to Jews in Aliyah and in the acquisition of citizenship in Israel. The law is considered one of the primary expressions of Israel as a Jewish state. In this position paper the author rejects the principal claim of the law’s opponents, that the preference given to Jews in Aliyah to Israel is either unjustified or needs to be limited in time. Read more
El-Bialy & Gouda on The Possible Role of Religion in Fighting Software Piracy
Nora El-Bialy and Moamen Gouda (University of Hamburg and Philipps University Marburg) has posted Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy. The abstract follows. – ARH
The existence of formal IPR laws can be considered a prerequisite for having efficient law enforcement but does not imply efficient enforcement in itself. A simple model is constructed to explain the interplay between the IPR law and human behavior within counterfeiting countries. It shows how a politically monitored IPR enforcement strategy is able to alter formal IPR laws or institutions but might not affect informal institutions, or human morals and behavior, to the same extent, hence barely affecting piracy situation. The model shows the essential role of informal institutions and its sanction mechanisms in the enforcement process. The main obstacle of IPR enforcement is that people are still not convinced that IPR violations are unethical. Religion can be considered an informal institution that might support or hinder formal laws issued with regards to IPR and hence influence de facto enforcement of laws,especially in countries with high piracy rate if a high adherence to religion is found. As the Religion-Loyalty Index (RLI) developed by this study shows, Muslim countries have the highest religiosity level among different religions. Consequently, an investigation of how Islamic jurisprudence views IPR piracy is conducted. As Islam generally prohibits IPR piracy, a set of policy recommendations based on new institutional perspective is presented that can effectively help in minimizing IPR piracy in developing countries in general and Muslim ones in specific.
Another Augsburgian Interlude
This one from eminent constitutional scholar and historian Michael
McConnell (Stanford law school):
The idea of civil control over the Church was difficult to maintain during the days of a single universal Catholic Church with its headquarters in Rome. Church-state relations in those days almost inevitably consisted of conflict and negotiation between two institutionally separate authorities: the Church in Rome and the civil power, usually the monarch, in various nations of Europe. Neither could completely control the other. With the outbreak of the Protestant Reformation, however, governmental power over each national church became more feasible. Indeed, with the Peace of Augsburg in 1555, the principle that the prince had authority to determine the religion for his nation (“cuius regio, eius religio”) became a staple of international relations.
Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2191 (2003). — MOD
Pontifical Council for Justice and Peace’s Note on Financial Reform
This is a powerfully expressed statement by the Pontifical Council for Justice and Peace on the current financial maladies facing the world. All of the recommendations warrant sustained thought, and most are well beyond my capacity to assess.
One thing that I did not remember is the call of Pope John XXIII in Pacem in Terris for a “true world political authority” to emerge to serve the common good of humanity. This vision is taken up by the Council, which talks about the need for “a supranational Authority” to take charge of these matters in light of what is seen as a movement toward greater globalization. The Council’s recommendations are cautious in this respect, but they are striking nevertheless. It also seemed to me, especially after Mark’s post below, that thoughts about a global authority reflect a quite Catholic way to envision the issue of human authority, to be contrasted with the more Protestant view of state sovereignty described and championed by Vattel and others. These old fights never really die. — MOD
Is Sovereignty Protestant?
I spent last weekend participating in an interesting Federalist Society/Liberty Fund colloquium, “International Law, Foreign Law, and the Constitution.” Some of readings for the colloquium discussed the development of the concept of sovereignty in international law. It’s striking how closely the concept relates, historically, to the Protestant Reformation. The great theoreticians of sovereignty were mostly, though not exclusively, Protestants seeking to provide an intellectual grounding for the Westphalian system, people like Grotius and Vattel, though Vattel is more an Enlightenment than a Christian thinker, it seems to me. Even Bodin, the 16th Century French writer credited with the first comprehensive theory of sovereignty, was a crypto-Protestant, at least according to the Tudor secret police.
The core components of Westphalian sovereignty were the equality and independence of states. Each state had an equal right to govern itself and no state had the right to meddle in another’s internal affairs. The non-interference principle extended especially to religion. According to Vattel, for example, the
Law of Nations, a set of rules derived from natural law, prohibited attempts to impose the “true faith” on a state from the outside. In fact, Vattel argued, even peaceful missionary work was prohibited, unless the local government allowed it. (Vattel made an exception for the Twelve Apostles; they had resisted the state’s attempts to silence them, he conceded, but they could perform miracles). Sovereignty, presented as a matter of natural law, greatly assisted the Protestant Reformers, who were seeking a principled, “neutral” justification for resisting the Catholic Church’s assertions of universal jurisdiction. It takes a natural law to beat a natural law.
Protestants and Catholics don’t fight about these things so much anymore, but one can see a similar pattern in contemporary disputes about international human rights. Even though contemporary human rights law tends to speak in a secular idiom, it’s hard to miss the strong religious, natural law aspect of some of its key concepts, such as “human dignity.” International human rights advocates assert that these concepts are universally true and must apply as a matter of law everywhere. States that resist, in turn, often assert their sovereignty, and their position is often a moral one: “You can’t impose your norms here, because this is our country, and we have the right to decide.” Sovereignty thus continues to serve its historical function as a mechanism for resisting centralized moral authority in a fight about ultimate value. – MLM
Brandes on Human Dignity and Constitutional Rights Jurisprudence in Israel
Tamar Hostovsky Brandes (Ono Academic College – Faculty of Law) has posted Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters. The abstract follows. –JKH
This paper examines the role the concept of Human Dignity has played in constitutional rights jurisprudence in Israel since the enactment of Basic Law: Human Dignity and Liberty, in particular with regard to the recognition of rights not explicitly included in the Basic Law.
The right to Human Dignity has served as the primary source of recognition of unenumerated rights in Israel. This paper examines the methods employed by the Supreme Court in determining which unenumerated rights fall within the scope of the Basic Law. It examines the theories of interpretation applied by the Court when recognizing unenumerated rights and the judicial rhetoric used throughout the years to justify recognition of unenumerated rights.
MacDougall & Short on Religion and Sexual Orientation
Bruce MacDougall (UBC Faculty of Law) and Donn Short (University of Manitoba – Faculty of Law) have posted Religion-Based Claims for Impinging on Queer Citizenship. The abstract follows. –JKH
Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual orientation. The authors examine the basis of claims for such religion based exceptionalism and argue that acceptance of the religion claim in these three public-area categories would involve unjustifiable curtailment of citizenship for queer people and could undermine the equality gains that have been made by this group.
Menchik on Religious Intolerance in Islamic Institutions
Jeremy M. Menchik (Stanford University; University of Wisconsin-Madison) has posted Missionaries, Modernists and the Origins of Intolerance in Islamic Institutions. The abstract follows. –JKH
Why are some Islamic institutions more tolerant than others? This basic question has far-reaching implications. Islamic movements have considerable sway in the policies of newly democratic Egypt, Tunisia and most other Muslim-majority states. Islamic movements are likewise important for the formation of social trust; recent scholarship suggests that democratization in Muslim counties is more likely to occur when Islamic institutions are able to build networks of cooperation across religious differences, while scapegoating and sectarian polemics between religious groups increases the likelihood of violence. I answer this basic question by focusing on Islamic institutions in Indonesia, the world’s largest Muslim-majority country and one of the most diverse. Using archival material and newly collected survey data, I argue against the notion that theology or ideology shape interethnic relations and show that local politics during the late colonial period explains the policies of contemporary Islamic institutions.