“The Rule of Law and the Rule of God” (Ilesanmi et. al., eds.)

Next month, Palgrave Macmillion will release “The Rule of Law and the Rule of God” edited by Simeon O. Ilesanmi (Wake Forest University), Win-Chiat Lee (Wake Forest University),  and J. Wilson Parker (Wake Forest University School of Law). The publisher’s description follows:

The Rule of Law and the Rule of God examines the competing regimes of law and religion, using the concept of rule to illustrate the patterns of their interactions, and a multidisciplinary approach to demonstrate the global scope of their influence. It argues that the tension that often characterizes the relationship between these two cultural institutions results from their disagreements about the kinds of rule that should govern human life and society, and from where they should be derived. By combining theoretical analyses with tradition-specific and regional case studies, the book aims to advance our understanding of how the rule of law and the rule of religion should properly relate to each other, not only in a general way, but also in the context of addressing conflicts that may arise from their inevitable interaction. In addition to legal academics, the humanities scholars and students as well as the general public, will benefit from this book.

O’Brien & Koons on A Hylomorphic Critique of the New Natural Law Theory

Matthew B. O’Brien (Rutgers U.) and Robert C. Koons (U. of Texas, Austin) have posted Objects of Intention: A Hylomorphic Critique of the New Natural Law Theory. The abstract follows.

The “New Natural Law” Theory (NNL) of Grisez, Finnis, Boyle, and their collaborators offers a distinctive account of intentional action, which underlies a moral theory that aims to justify many aspects of traditional morality and Catholic doctrine. In fact, we show that the NNL is committed to premises that entail the permissibility of many actions that are irreconcilable with traditional morality and Catholic doctrine, such as elective abortions. These consequences follow principally from the NNL’s planning theory of intention coupled with an implicitly Cartesian conception of human behavior, in which behavior chosen by an agent has no intrinsic “intentionalness” apart from what he confers upon it as part of his plan. Pace the NNL collaborators, we sketch an alternative hylomorphic conception of intentional action that avoids untoward moral implications by grounding human agency in the exercise of basic powers that are either essential to human nature or acquired through participation in social practices.

Lewis on Religious Freedom, the Common Good and the Contraception Services Mandate

V. Bradley Lewis (Catholic U. of America) has posted Religious Freedom, the Good of Religion and the Common Good: The Challenges of Pluralism, Privilege and the Contraceptive Services Mandate. The abstract follows.

The right to religious freedom is properly grounded in religion’s status as a fundamental and irreducible human good, which is nevertheless related to other goods and social in character. Its protection for persons and groups is therefore also a component of the common good of political society. After arguing for these propositions on broadly Thomistic philosophical grounds, the article discuses and answers three recent challenges. The first is based on a perceived conflict between recognition of the good of religion and pluralism and I argue that this objection can be met by distinguishing between different kinds of pluralism, most of which pose no problem to the thesis. A second objection comes from those outside the Thomistic tradition, who either reject the status of religion as a good deserving of explicit legal recognition and protection or accept it on inadequate grounds. The objections, I argue, are based on accounts of religion that are inadequate to the role it plays in sound practical reason. Finally, I discuss an argument from those within the Thomistic tradition who accept some limitations on religious freedom in the name of the common good. This third challenge is linked to the current controversy over the application of the US federal government’s insurance mandate to religious organizations and the US Catholic bishops’ response to it as an issue of religious freedom. Here I argue that the objection is based on a misunderstanding and misapplication of Aquinas’s account.

Finnis on the Philosophy of Law and the Relevance of “Common Custom”

This is a short and highly accessible essay by the eminent John Finnis entitled, “What is the Philosophy of Law?”  Readers of CLR Forum will know that Finnis is the author of one of the most important books of jurisprudence of the last century, Natural Law and Natural Rights, which represents the keystone in the revival of natural law thought in contemporary times. 

In this short piece, Finnis explains in summary form what the philosophy of law (or jurisprudence — he believes the terms are synonymous, for reasons he discusses) is and what its tasks are to be.    Why is this relevant to religion?  Well, grossly oversimplifying (and I mean really grossly and highly incompletely), though it does not appear in this essay, one of the basic common goods described by Finnis in NLNR (see pp. 89-90 and 371-410) is the good of religion (obliquely adverted to in this essay at page 4 as one of the common goods “of other associations of society”).  And inasmuch as a society provides for freedom of religion, the philosophy of law “consider[s] precisely how far choices made today for one’s political community should be determined or shaped by choices made in the past, in the form of contracts, wills, constitutions, legislative enactments, customs, judicial decisions, and the like.”

Two little noteworthy items in Finnis’s new piece.  First, Finnis gives a very clear and easily digested explanation for why the statement “an unjust law is no law” is true (he has done this before, and this essay does it succinctly).  Again, I am oversimplifying, but the criticism has been: well of course an unjust law is a law — in fact, whether a law is really a law has nothing to do with its morality or ultimate justice.  Finnis says:

Natural law theory has no quarrel with – indeed, promotes – a distinction or bifurcation between intra-systemic [legal] validity (and obligatoriness) and legal validity (and obligatoriness) in the moral sense.  Indeed, it is not unreasonable to see such a distinction at work in the famous tag — “An unjust law is not a law.”  Such a way of speaking is not self-contradictory, paradoxical, or even remarkable: “an insincere friend is not a friend”; “a logically invalid argument is no argument”; “a quack medicine is no medicine”… So too in the famous tag or theorem: “unjust law” (lex iniusta) here refers to an intra-systemically valid legal rule or order, and “not law” (non lex) signifies that, moral limits having been transgressed, this same law lacks validity (as law) in the moral sense (i.e., legitimacy) and thus, as such, lacks moral obligatoriness.  (8-9) (footnotes omitted)

The second item to note is the conclusion, in which Finnis is discussing the philosophy of law’s tasks and its future.  I was especially struck by Finnis’s emphasis of the importance of “common custom” in maintaining a healthy legal system. 

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Ahmed, “Narratives of Islamic Legal Theory”

Next month, Oxford University Press will publish Narratives of Islamic Legal Theory (OUP March 2012) by Rumee Ahmed (University of British Columbia).  The publisher’s description follows.

In the critical period when Islamic law first developed, a new breed of jurists developed a genre of legal theory treatises to explore how the fundamental moral teachings of Islam might operate as a legal system. Seemingly rhetorical and formulaic, these manuals have long been overlooked for the insight they offer into the early formation of Islamic conceptions of law and its role in social life.

In this book, Rumee Ahmed shatters the prevailing misconceptions of the purpose and form of the Islamic legal treatise. Ahmed describes how Muslim jurists used the genre of legal theory to argue for individualized, highly creative narratives about the application of Islamic law while demonstrating loyalty to inherited principles and general prohibitions. These narratives are revealed through careful attention to the nuanced way in which legal theorists defined terms and concepts particular to the legal theory genre, and developed pictures of multiple worlds in which Islamic law should ideally function. Ahmed takes the reader into the logic of Islamic legal theory to uncover diverse conceptions of law and legal application in the Islamic tradition, clarifying and making accessible the sometimes obscure legal theories of central figures in the history of Islamic law. The book offers important insights about the ways in which legal philosophy and theology mutually influenced premodern jurists as they formulated their respective visions of law, ethics, and theology. Continue reading

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