Posted on by Marc O. DeGirolami

Theological Argument in Law: Engaging with Stanley Hauerwas

From our friend John Inazu, we get news of the publication of the latest issue of Law and Contemporary Problems, a symposium on the work of Stanley Hauerwas and theological argument in law which John put together.  Congratulations to him and to all of the contributors for their pieces.  Here is a portion of John’s foreword to the symposium (footnotes omitted):

Some of Hauerwas’s critics may be right to argue that he “reacts against a type of liberalism that exists mostly on the pages of books by Rawls, Rorty, and their followers, and not in actual practice.” But that description is at least true of the academy.  Much teaching and scholarship relies upon unacknowledged constraints on argumentative practices from professors who embrace the ideals of Rawlsian public reason or, more strikingly, whose epistemic commitments welcome a spectacular diversity of viewpoints and worldviews—except for theological ones. As a result, a great deal of scholarship ignores or too easily dismisses theological argument. If public reason and epistemic bias have succeeded anywhere in squelching theological argument, it is in the academy.

Contrary to the academy’s dominant orthodoxies, Hauerwas insists that Christian theology properly belongs in contemporary discourse: “[A]t the very least Christianity names an ongoing argument across centuries of a tradition which has established why some texts must be read and read in relation to other texts.” As a result, “Christians for all their shortcomings still represent an ongoing educated public that means they must . . . have agreements that make their disagreements intelligible.” It is for this reason that

[Christians] should not avoid exploring what differences their convictions might make for why they do what they do. That difference will, of course, vary from subject to subject but surely such an investigation is the kind of work a university should sponsor. I obviously think that would be true of those working in other religious and nonreligious traditions. Of course, such work would make the university more conflictual but I see no reason why that is a disadvantage.  (Stanley Hauerwas, The State of the University: Academic Knowledges and the Knowledge of God 91 n.19 (2007)).

Posted on by Mark Movsesian

Mautner on Excluding Women from Torah Study

One of the many things that worries secular liberals about the revival of religion — assuming a revival is really occurring — is the traditionalism of the religious worldview. Since the Enlightenment, liberalism has taught that the individual must be free to  determine for himself, without the interference of tradition or traditional authority,  the meaning of existence and his place in the universe (see, e.g., Planned Parenthood v. Casey). The religious worldview rejects this idea. The meaning of the universe is determined by God, and wisdom lies in discovering His plan and accepting the place He has assigned you in it. (Of course, religions differ on the details of the plan!) There are important qualifications, of course. Liberalism doesn’t think people should just do what they want, and traditionalism doesn’t think that everything must always remain the same. But much of the tension between secular liberals and religious conservatives can be traced to these different premises.

Menachem Mautner (Tel Aviv University – Buchman Faculty of Law) has posted an interesting-looking piece that explores this tension in the context of Jewish law, or, more precisely, the study of Jewish law: A Dialogue between a Liberal and an Ultra-Orthodox on the Exclusion of Women from Torah Study. Here’s the abstract:

This is a fictive dialogue between a liberal and an ultra-Orthodox on the exclusion of women from Torah study. The dialogue begins with a lengthy discussion of the highly intricate preliminary problems of understanding and normatively evaluating the practices of another culture. The Liberal argues that the exclusion of women from Torah study precludes them from fully realizing the intellectual potential that lies within them, i.e., it denies them reaching the height of their human flourishing. It also implies that ultra-Orthodox women are regarded as having lesser moral worth than men.

The ultra-Orthodox argues that whereas modernity is premised on the denial of any status bestowed by tradition in the life of a person, for the ultra-Orthodox tradition has a binding force: it embodies God’s imperatives as to the good life, together with the ways these imperatives have been interpreted throughout the generations by Halakhic sages. Torah study is a religious imperative (mitzvah) that under the accepted tradition is Read more

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Schmidt & Promey (eds.), “American Religious Liberalism”

Last month, Indiana University Press published American Religious Liberalism edited by Leigh E. Schmidt (Washington University in St. Louis) and Sally M. Promey (Yale University). The publisher’s description follows.

Religious liberalism in America has often been equated with an ecumenical Protestant establishment. By contrast, American Religious Liberalism draws attention to the broad diversity of liberal cultures that shapes America’s religious movements. The essays gathered here push beyond familiar tropes and boundaries to interrogate religious liberalism’s dense cultural leanings by looking at spirituality in the arts, the politics and piety of religious cosmopolitanism, and the interaction between liberal religion and liberal secularism. Readers will find a kaleidoscopic view of many of the progressive strands of America’s religious past and present in this richly provocative volume.

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Redding on What American Legal Theory Might Learn from Islamic Law

Jeff Redding (Saint Louis U. School of Law) has posted What American Legal Theory Might Learn from Islamic Law: Some Lessons About ‘The Rule of Law’ from ‘Shari‘a Court’ Practice in India. The abstract follows.

In 2010, voters in the state of Oklahoma passed a constitutional amendment that prohibits the Oklahoma courts from considering “Sharia Law.” A great deal of the support for this amendment and similar (ongoing) legal initiatives appears to be generated by a deep-seated paranoia about Muslims and Islamic law that has taken root in many parts of the post-9/11 United States. This Article contends that the passage of this Oklahoma constitutional amendment should not have been surprising given that it is not only right-wing partisans who have felt the need to strictly demarcate and police the boundaries of the American legal system, but also liberal partisans too. Indeed, this Article argues that certain modes of American liberal legal thought actually facilitate the anti-shari‘a mania currently sweeping the United States. As a result, an adequate response to this mania cannot simply rely on traditional, American-style, liberal legal theorizing. Indeed, as this Article argues and explains, some extant American liberal understandings of ‘law,’ ‘legal systems,’ and ‘the rule of law’ are eminently inappropriate resources in the struggle against American forms of reactionary parochialism because these liberal understandings are themselves deeply compromised by their own forms of parochialism.

This state of theoretical affairs is unfortunate. As a result, in the course of demonstrating some of the theoretical inadequacies of American liberal legalism, this Article also commences an alternative theorization about ‘law,’ ‘legal systems’ and, more particularly, ‘the rule of law.’ This theorization relies heavily on what can be learned about ‘the rule of law’ — including whatever exists of it in the United States — from the experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a non-state ‘shari‘a court’ (specifically, a ‘dar ul qaza’) in Delhi to exercise her Indian Islamic divorce rights. I recently interviewed Ayesha at length as part of a larger project on liberalism and Islamophobia.

Posted on by Marc O. DeGirolami

Inazu on Hauerwas and Dworkin

CLR Forum friend John Inazu has posted a sophisiticated piece on Ronald Dworkin’s legal and political theory (they are distinct but related), The Limits of Integrity.  John relies on the writing of Stanley Hauerwas to ground his critique of Dworkin.  The article is of a piece with some of John’s other efforts at integrating theological and legal argument.  An excellent read.  The abstract follows.

This article draws upon the work of theologian Stanley Hauerwas to demonstrate how Ronald Dworkin’s theory of law as integrity relies upon secular liberal presuppositions. Dworkin’s constraint on “religious convictions or goals” not only inhibits theological argument in our discussions about law and legal interpretation, but also neutralizes what may be the strongest objections to Dworkin’s normative views. The juxtaposition of Hauerwas and Dworkin is particularly apt because both hold similar interpretive commitments that hang in the balance between a fixed textualism and an unbounded pragmatism. Both justify their epistemic practices by a kind of faith — they do not and cannot know what comes next in their interpretive traditions.

Part I sketches Dworkin’s interpretive theory, and Part II notes its limitations. Part III introduces Hauerwas’s views on interpretation and suggests commonalities between Dworkin and Hauerwas. Parts IV and V illustrate the exclusionary effects of Dworkin’s premises on Hauerwas’s arguments by comparing the ways in which both thinkers approach the abortion controversy. Hauerwas’s arguments show that Dworkin has either imported his own normative commitments into his interpretive premises or failed to distinguish law as integrity from the constraints of public reason. Put differently, either Law’s Empire or Life’s Dominion has overreached. Dworkin hasn’t told us which it is, but Hauerwas shows us why the question cannot go unanswered.

Posted on by Mark Movsesian

How French Catholicism Accepted Liberalism

Princeton University Press has published a posthumous work by the late  Cambridge lecturer Emile Perreau-Saussine, Catholicism and Democracy: An Essay in the History of Political Thought (Richard Rex trans. 2012). The publisher’s description follows.

Catholicism and Democracy is a history of Catholic political thinking from the French Revolution to the present day. Emile Perreau-Saussine investigates the church’s response to liberal democracy, a political system for which the church was utterly unprepared.

 Looking at leading philosophers and political theologians–among them Joseph de Maistre, Alexis de Tocqueville, and Charles Péguy–Perreau-Saussine shows how the church redefined its relationship to the State in the long wake of the French Revolution. Disenfranchised by the fall of the monarchy, the church in France at first embraced that most conservative of Read more

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Lemert, “Why Niebuhr Matters”

From Charles Lemert (Wesleyan/Yale), an overview of the career of 20th Century Protestant  theologian and public intellectual Reinhold Niebuhr, Why Niebuhr Matters (Yale 2011). Niebuhr has been much in the news lately as the inspiration for liberal realism in contemporary American politics; Barack Obama, among others, has acknowledged his debt to him. Niebuhr has also been the subject of other recent books, including one CLR Forum has noted. The publisher’s description follows.

Reinhold Niebuhr (1892–1971) was a Protestant preacher, an influential religious thinker, and an important moral guide in mid-twentieth-century America. But what does he have to say to us now? In what way does he inform the thinking of political leaders and commentators from Barack Obama and Madeleine Albright to David Brooks and Walter Russell Mead, all of whom acknowledge his influence? In this lively overview of Niebuhr’s career, Charles Lemert analyzes why interest in Niebuhr is rising and how Niebuhr provides the answers we ache for in the face of seismic shifts in the global order.

In the middle of the twentieth century, having outgrown a theological liberalism, Niebuhr challenged and rethought the nonsocialist Left in American politics. He developed a political realism that refused to sacrifice ideals to mere pragmatism, or politics to bitterness and greed. He examined the problem of morality in an immoral society and reimagined the balance between rights and freedom for the individual and social justice for the many. With brevity and deep insight, Lemert shows how Niebuhr’s ideas illuminate our most difficult questions today.

Posted on by Marc O. DeGirolami

Egyptian Military Forces the Issue

This is a disconcerting development.  The conflict seems to be one between democracy and liberalism.  If the democratically elected majority is not permitted to assume power because the military forces an unwanted diversity of representation down the throats of the electorate, one possible outcome is backlash and further polarization.

Posted on by Mark Movsesian · 1 Comment

Diggins, “Why Niebuhr Now?”

From the University of Chicago Press, a posthumous work by the late historian John Patrick Diggins (CUNY Graduate Center), Why Niebuhr Now? (2011),  on the public theology of Reinhold Niebuhr. The publisher’s description follows.

Barack Obama has called him “one of my favorite philosophers.” John McCain wrote that he is “a paragon of clarity about the costs of a good war.” Andrew Sullivan has said, “We need Niebuhr now more than ever.” For a theologian who died in 1971, Reinhold Niebuhr is maintaining a remarkably high profile in the twenty-first century.

In Why Niebuhr Now? acclaimed historian John Patrick Diggins tackles the complicated question of why, at a time of great uncertainty about America’s proper role in the world, leading politicians and thinkers are turning to Niebuhr for answers. Diggins begins by clearly and carefully working Read more

Posted on by Mark Movsesian

Pierik and Van der Burg on Neutrality

Roland Pierik (Amsterdam) and Wibren Van der Burg (Erasmus University Rotterdam) have posted a new piece, What Is Neutrality?, on SSRN.  The abstract follows. — MLM

One of the central axioms of liberalism is that government should treat its citizens with equal respect and concern. One way to achieve that goal is that government should be neutral with respect to the variety of ideas of the good life its citizens endorse. The classic liberal interpretation of neutrality is that government should not embrace or penalize particular conceptions of the good life, but should provide a neutral framework within which the various and potentially conflicting conceptions of the good life can be pursued. Important ways of providing such a neutral framework are the employment of general laws that affect all citizens equally – or so it is assumed – and the exclusion of religious arguments and symbols from political debates and the public sphere in general.

In this paper we want to reinvestigate the question of liberal neutrality. We contend that liberal discussions have been dominated – if not hijacked – by one particular interpretation of what neutrality could imply, namely, exclusive neutrality, that aims to exclude religious and cultural expressions from the public sphere. Although we acknowledge the importance of this exclusive interpretation of neutrality in specific contexts, we will argue that that it is only one of several relevant interpretations. To substantiate our claim, we will firstly elaborate upon inclusive neutrality. To do so, we will formulate two supplementary interpretations of neutrality: proportional neutrality and compensatory neutrality. Secondly, we will argue that in most contexts inclusive proportional neutrality is more appropriate than exclusive neutrality.

Our elaboration of these different interpretations of the neutrality ideal can help to acknowledge that some political disputes should not be seen in terms of the antithesis between liberal neutrality and illiberal multiculturalism but of a clash between various valid but incompatible interpretations of what liberal neutrality can imply. In these cases there is no simple or straightforward answer to the question which interpretation of neutrality should prevail. Moreover, since neutrality is not an end in itself, it must be balanced against other liberal values, mentioned above. Philosophical analysis can only show which values are at stake in this balancing act; actual choices can only be made in specific contexts.