Posted on by Mark Movsesian

Domingo on Law and Religion in a Secular Age

It’s a truism that law cannot exist on its own, a formal system that operates entirely within itself, without reference to extralegal norms. (OK, maybe not everyone agrees). Those norms, historically, have come from religion–in the West, from Christianity, specifically. As Christianity’s influence wanes, what will supply the norms? Scholar Rafael Domingo (University of Navarra) takes on this question in a new book from Catholic University Press, Law and Religion in a Secular Age. The book adds to a growing literature on the failures of positivism and the need to integrate law and morality. Here’s the publisher’s description:

Law and Religion in a Secular Age seeks to restore the connection between spirituality and justice, religion and law, theology and jurisprudence, and natural law and positive law by building a new bridge suitable for pluralistic societies in the secular age. The author argues for a multidimensional view of reality that includes legal, political, moral, and spiritual dimensions of human nature and society. Each of these dimensions of life needs to recognize the existence, influence, and function of the others, which act as a filter or check on the excesses of each other. This multidimensionality of reality clarifies why no legal theory can fully account for law from the legal dimension alone, just as no moral theory makes perfect sense of morality from the moral dimension—and, for that matter, nothing in physics can fully interpret the physical dimension of reality. The premises of a legal system cannot be fully explained by the legal dimension alone because the fundamental conditions and qualities of justice, freedom, and dignity touch all the dimensions of reality in which the human person acts, including the moral and the spiritual, not just the legal. Building on this multidimensional theory of reality, the author explores the core differences and the essential interconnections between law, morality, religion, and spirituality and some of the legal implications of these connections.

Rafael Domingo reminds readers of the vital role of religion in shaping the conceptual framework of Western legal systems, underscores the spirit of Christianity that inspired legal institutions, principles, and values, and recalls the contributions of specific Christian jurists as central figures for the development of justice in society.

Law and Religion in a Secular Age aims to be a valuable antidote against the dominant legal positivism that has cornered public morality, the defiant secularism that has marginalized religion, and any other legal doctrine that diminishes the spiritual dimension of law and justice.

Posted on by Mark Movsesian

A New Book on Law and Morality

A couple of months ago, Marc and I recorded a Legal Spirits episode with Julia Mahoney and Steve Smith on whether classical legal theory, which rejects positivism’s sharp distinction between law and morality, is ready for a comeback in American law–and whether that would be, on balance, a good thing. Obviously, something is in the air. This month, Harvard releases a new book by University of Michigan law professor Scott Hershovitz that addresses the relationship between law and morality and that takes a definite position on the question. The book is titled Law is a Moral Practice. Here’s the description from the Harvard website:

What is law? And how does it relate to morality? It’s common to think that law and morality are different ways of regulating our lives. But Scott Hershovitz says that this is a mistake: law is a part of our moral lives. It’s a tool we use to adjust our moral relationships. The legal claims we advance in court, Hershovitz argues, are moral claims. And our legal conflicts are moral conflicts.

Law Is a Moral Practice supplies fresh answers to fundamental questions about the nature of law and helps us better appreciate why we disagree about law so deeply. Reviving a neglected tradition of legal thought most famously associated with Ronald Dworkin, Hershovitz engages with important legal and political controversies of our time, including recent debates about constitutional interpretation and the obligations of citizens and officials to obey the law.

Leavened by entertaining personal stories, guided by curiosity rather than ideology, moving beyond entrenched dichotomies like the opposition between positivism and natural law, Law Is a Moral Practice is a thought-provoking investigation of the philosophical issues behind real-world legal debates.

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Domingo, “God and the Secular Legal System”

In June, Cambridge University Press will release “God and the Secular Legal System” by Rafael Domingo (University of Navarra, Spain). The publisher’s description follows:

This timely book offers a theistic approach to secular legal systems and demonstrates that these systems are neither agnostic nor atheist. Critical but succinct in its approach, this book focuses on an extensive range of liberal legal approaches to religious and moral issues and subjects them to critical scrutiny from a secular perspective. Expertly written by a leading scholar, the author offers a rare combination of profundity of ideas and simplicity of expression. It is a ringing defense of the theistic conception of secular legal systems and an uncompromising attack on the agnostic and atheist conception.

Posted on by Christina Vlahos

Kaveny, “A Culture of Engagement”

In March, the Georgetown University Press will release “A Culture of Engagement: Law, Religion, and Morality,” by Cathleen Kaveny (Boston College).  The publisher’s description follows:

Religious traditions in the United States are characterized by ongoing tension between assimilation to the broader culture, as typified by 51rjwd8azvl
mainline Protestant churches, and defiant rejection of cultural incursions, as witnessed by more sectarian movements such as Mormonism and Hassidism. However, legal theorist and Catholic theologian Cathleen Kaveny contends there is a third possibility—a culture of engagement—that accommodates and respects tradition. It also recognizes the need to interact with culture to remain relevant and to offer critiques of social, political, legal, and economic practices.

Kaveny suggests that rather than avoid the crisscross of the religious and secular spheres of life, we should use this conflict as an opportunity to come together and to encounter, challenge, contribute to, and correct one another. Focusing on five broad areas of interest—Law as a Teacher, Religious Liberty and Its Limits, Conversations about Culture, Conversations about Belief, and Cases and Controversies—Kaveny demonstrates how thoughtful and purposeful engagement can contribute to rich, constructive, and difficult discussions between moral and cultural traditions.

This provocative collection of Kaveny’s articles from Commonweal magazine, substantially revised and updated from their initial publication, provides astonishing insight into a range of hot-button issues like abortion, assisted suicide, government-sponsored torture, contraception, the Ashley Treatment, capital punishment, and the role of religious faith in a pluralistic society. At turns masterful, insightful, and inspirational, A Culture of Engagement is a welcome reminder of what can be gained when a diversity of experiences and beliefs is brought to bear on American public life.

Posted on by Marc O. DeGirolami

Kontorovich on Sex With (German) Animals

Eugene Kontorovich, whose blogging is a treat, has a wonderful post up on the new German zoophilia.  The old German zoophilia was manifested in the civil right to bestiality back in 1969, and the rise of predictably associated phenomena of moral decay — the taste for which, it seems, is on the rise.  The new zoophilia champions the rights of animals to be left alone — one might even call it a right of privacy — in seeking to have these libertine liberties reversed (note that animal cruelty laws do not seem to be in issue, though I haven’t studied the challengers’ case well enough to know).  The difficulty is the question of the grounding of the right, since moralistic reasons, or reasons of “legal moralism” (whatever those may be) are now widely deemed outré in Germany.  The law and religion angle?  Well, historically “legal moralist” reasons have included religious reasons as a kind of core example.  Professor Kontorovich has an interesting observation about the issue of consent:

I suspect the motives behind the ban are entirely moralistic. Yet the government cannot come out and say so. Thus effort is made to distinguish the matter from Germany’s libertarian approach to sexual matters by suggesting the animals do not consent in the way consenting humans do. Yes, but they don’t consent to being bought or sold, or butchered, either, and they are not human, so consent is a red herring. This would not pass intermediate scrutiny in the U.S.

He then notes the now-common move of grounding the moralistic regulation of sexuality in arguments from social harm and public policy, but here perhaps I differ a bit with Professor Kontorovich.  It was always the case that the retrograde moralizers grounded their arguments in ideas of social harm, beneficent social policy, and so on.  The distinction is not of the method of argumentation now and then, but of the difference between what passes for harm now and then.  These two excellent papers — one by Bernard Harcourt (but sadly unavailable without payment) and the other by Steve Smith — come at matters from fairly different angles but gesture toward the same larger idea.

Posted on by Marc O. DeGirolami

DeGirolami, “The Punishment Jurist”

I have a new paper, which is a chapter contribution for what will be a conceptual history of several foundational writings in criminal law and punishment.  It’s called, The Punishment Jurist, and deals with the thought of Sir James Fitzjames Stephen, a judge of the Victorian period.  The essay is more about criminal punishment than about law and religion, but there is a good bit about the latter as well.

In his major work of scholarship — the History of the Criminal Law of England (1883) — Stephen discusses (at the end of Volume II) the issue of “offenses against religion.”  And one of the matters he takes up is the crime of witchcraft.  I discuss his views of witchcraft and other offenses against religion to rebut the oft-heard and erroneous claim that Stephen believed the realms of morality and criminality to be co-extensive (notwithstanding his belief in the important connections between the two, and in turn between morality and religion), and the claim that Stephen is a punishment consequentialist full stop.

Comments are welcome.

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Vischer, “Martin Luther King, Jr. and the Morality of Legal Practice”

Next month, Cambridge University Press will publish Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice by Robert K. Vischer (U. of St. Thomas School of Law). The publisher’s description follows.

This book seeks to reframe our understanding of the lawyer’s work by exploring how Martin Luther King Jr. built his advocacy on a coherent set of moral claims regarding the demands of love and justice in light of human nature. King never shirked from staking out challenging claims of moral truth, even while remaining open to working with those who rejected those truths. His example should inspire the legal profession as a reminder that truth-telling, even in a society that often appears morally balkanized, has the capacity to move hearts and minds. At the same time, his example should give the profession pause, for King’s success would have been impossible absent his substantive views about human nature and the ends of justice. This book is an effort to reframe our conception of morality’s relevance to professionalism through the lens provided by the public and prophetic advocacy of Dr. King.

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Kaveny, “Law’s Virtues: Fostering Autonomy and Solidarity in American Society”

This October, Georgetown University Press will publish Law’s Virtues: Fostering Autonomy and Solidarity in American Society by Cathleen Kaveny (University of Notre Dame). Kaveny will present her book on September 20 at a lunchtime seminar at the Berkley Center. The publisher’s description follows.

Can the law promote moral values even in pluralistic societies such as the United States? Drawing upon important federal legislation such as the Americans with Disabilities Act, legal scholar and moral theologian Cathleen Kaveny argues that it can. In conversation with thinkers as diverse as Thomas Aquinas, Pope John Paul II, and Joseph Raz, she argues that the law rightly promotes the values of autonomy and solidarity. At the same time, she cautions that wise lawmakers will not enact mandates that are too far out of step with the lived moral values of the actual community.

According to Kaveny, the law is best understood as a moral teacher encouraging people to act virtuously, rather than a police officer requiring them to do so. In Law’s Virtues Kaveny expertly applies this theoretical framework to the controversial moral-legal issues of abortion, genetics, and euthanasia. In addition, she proposes a moral analysis of the act of voting, in dialogue with the election guides issued by the US bishops. Moving beyond the culture wars, this bold and provocative volume proposes a vision of the relationship of law and morality that is realistic without being relativistic and optimistic without being utopian.

Posted on by Marc O. DeGirolami

Haidt, “The Righteous Mind”

Jonathan Haidt has been doing extremely interesting work at the intersection of psychology, ethics, politics, and sociology.  That is in part why I am very much looking forward to reading his recently published book, The Righteous Mind: Why Good People Are Divided by Politics and Religion (Random House 2012).  The publisher’s description follows.

Why can’t our political leaders work together as threats loom and problems mount? Why do people so readily assume the worst about the motives of their fellow citizens? In The Righteous Mind, social psychologist Jonathan Haidt explores the origins of our divisions and points the way forward to mutual understanding. 

His starting point is moral intuition—the nearly instantaneous perceptions we all have about other people and the things they do. These intuitions feel like self-evident truths, making us righteously certain that those who see things differently are wrong. Haidt shows us how these intuitions differ across cultures, including the cultures of the political left and right. He blends his own research findings with those of anthropologists, historians, and other psychologists to draw a map of the moral domain, and he explains why conservatives can navigate that map more skillfully than can liberals. He then examines the origins of morality, overturning the view that evolution made us fundamentally selfish creatures. But rather than arguing that we are innately altruistic, he makes a more subtle claim—that we are fundamentally groupish. It is our groupishness, he explains, that leads to our greatest joys, our religious divisions, and our political affiliations. In a stunning final chapter on ideology and civility, Haidt shows what each side is right about, and why we need the insights of liberals, conservatives, and libertarians to flourish as a nation.

Posted on by Mark Movsesian

The Secularization of the Legal Profession

Over at Mirror of Justice, Rob Vischer (St. Thomas – Minnesota) has an interesting post about a presentation he made last week, at a conference at Notre Dame, about the secularization of the legal profession over the last century. As evidence, he gives the very good example of the move from the “‘moral law’” standard of the 1908 ethical canons to today’s more agnostic approach. Although under the 1908 canons lawyers had a duty to provide moral advice to clients, nowadays moral advice is optional, and, in fact, subtly disfavored. The contemporary lawyer must find a way to achieve the client’s ends within the bounds of the law; we leave questions of morality mostly to the client. As it happens, I made a presentation on this very subject last month at the Forum 2000 Conference in Prague, in which I argued that the new approach is not the abdication of morality, exactly, but the substitution of a morality of individualism for one based on consensus moral norms derived from religion. (A video of the talk is here). Rob has a paper in the works that will no doubt be, like all his scholarship, well worth the reading. – MLM