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Bateman on Sovereignty’s Missing Moral Imperative

C.G. Bateman (U. of British Columbia Faculty of Law) has posted Sovereignty’s Missing Moral Imperative. The abstract follows.

The following paper claims that the theoretical construct of sovereignty was not only expropriated by the Christian religion out of ancient religious beliefs – shared with them by both Jewish and Muslim traditions – but, perhaps more importantly for modern policy considerations, that it always insisted on a positive moral imperative being placed on the person or body executing it in practice.

Posted on by Mark Movsesian

McCrudden on Religion and Human Rights

Christopher McCrudden (Queen’s University Belfast/University of Michigan) has posted a very interesting looking piece on religion and human rights, Catholicism, Human Rights and the Public Sphere. Here’s the abstract:

This article suggests that the scope and meaning of human rights, and its relationship to religion, is anything but settled, and that this gives an opportunity to those who support a role for religion in public life to intervene. Such intervention should address four main issues. First, it should ensure that judges engage in attempting to understand religious issues from a cognitively internal viewpoint. Secondly, it should articulate a justification for freedom of religion that fully captures the core of the significance of religious belief, and the importance of the religious principles in the public sphere. Thirdly, it should ensure engagement and dialogue between the churches and others on the meaning of human dignity, given its centrality to religious and secular perspectives on rights. Lastly, the churches should consider more carefully what it means to give ‘public reasons’ in the political and cultural context, and how it can engage in the process of ‘public reasoning’ regarding human rights.

Posted on by Marc O. DeGirolami

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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Posted on by Marc O. DeGirolami

Grasso & Rodriguez Castillo (eds.), Theology and Public Philosophy

Here is a very interesting set of exchanges edited by Kenneth Grasso and Cecilia Rodriguez Castillo, Theology and Public Philosophy: Four Conversations (Lexington Books 2012).  The contributors include Charles Taylor, Nicholas Wolterstorff, Jeanne Heffernan Schindler, Robin Lovin, Jean Porter, and many others.  The publisher’s description follows.

This volume brings together eminent theologians, philosophers and political theorists to discuss the relevance of theology and theologically grounded moral reflection to contemporary America’s public life and argument. Avoiding the focus on hot-button issues, shrill polemics, and sloganeering that so often dominate discussions of religion and public life, the contributors address such subjects as how religious understandings have shaped the moral landscape of contemporary culture, the possible contributions of theologically-informed argument to contemporary public life, religious and moral discourse in a pluralistic society, and the proper relationship between religion and culture.

Indeed, in the conviction that serious conversation about the type of questions being explored in this volume is in short supply today, this volume is organized in a manner designed to foster authentic dialogue. Each of the book’s four sections consists of an original essay by an eminent scholar focusing on a specific aspect of the problem that is the volume’s focus followed by three responses that directly engage its argument or explore the broader problematic it addresses. The volume thus takes the form of a dialogue in which the analyses of four eminent scholars are each engaged by three interlocutors.

Posted on by Mark Movsesian

Panel: The Original Source of Law (May 9)

The Crossroads Cultural Center will host a panel discussion, “The Original Source of Law: The Individual? The State? God?”, at NYU on May 9. The panel will address natural law, both as a general concept and in its practical implications. Speakers include Robert George (Princeton) and Andrea Simoncini (Florence). Details are here.

Posted on by Mark Movsesian

Piatt, “Catholic Legal Perspectives”

Robert William Piatt, Jr. (St. Mary’s) has published Catholic Legal Perspectives (Carolina Academic Press 2012), designed for classes on jurisprudence and Catholic legal theory. The publisher’s description follows.

This book examines our system of justice by identifying, in several critical areas, how Catholic principles and legal principles overlap and diverge. While it is not expected or required that the reader agree, in every instance, with either the law or the Catholic perspectives, the reader of this work will come away with an understanding of both. Critiques and responses are included throughout. Topics include family issues (marriage, same sex marriage, divorce, and annulment), immigration, public assistance, and matters of life and death (including abortion, euthanasia, and the death penalty).

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Agamben, “The Sacrament of Language”

Last month, Wiley Publishing published The Sacrament of Language (Polity March 2012) by well known philosopher Giorgio Agamben. The publisher’s description follows.

Oaths play an essential part in the political and religious history of the West as a ‘sacrament of power’. Yet despite numerous studies by linguists, anthropologists and historians of law and of religion, there exists no complete analysis of the oath which seeks to explain the strategic function that this phenomenon has performed at the intersection of law, religion and politics.

The oath seems to define man himself as a political animal, but what is an oath and from where does it originate? Taking this question as its point of departure, Giorgio Agamben’s book develops a pathbreaking ‘archaeology’ of the oath. Via a firsthand survey of Greek and Roman sources which shed light on the nexus of the oath with archaic legislation, acts of condemnation and the names of gods and blasphemy, Agamben recasts the birth of the oath as a decisive event of anthropogenesis, the process by which mankind became humanity. If the oath has historically constituted itself as a ‘sacrament of power’, it has functioned at one and the same time as a ‘sacrament of language’ – a sacrament in which man, discovering that he can speak, chooses to bind himself to his language and to use it to put life and destiny at stake.

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Eng, Ruskola & Shen on China and the Human

David L. Eng (U. of Penn.), Teemu Ruskola (Emory U. School of Law) Shuang Shen (Penn. State. U.) has posted China and the Human. The abstract follows.

China is everywhere in the news. Most stories seem to fall into one of two categories: accounts of China’s astounding economic development, and reports of equally astonishing human rights abuses in China. Paradoxically, as it turns into a global economic powerhouse, China’s relationship to political freedoms and rights appears to stand in an almost inverse relationship to its economic success. To make sense of the contemporary political moment, this essay examines the politics and histories of China and the human. At the same time, it constitutes a critical introduction to a special double issue of the journal Social Text on the same theme. The special issue, consisting of eleven essays and a visual dossier, considers the problematic conceptual, political, historical, and cultural relationship between Chineseness and humanity. By juxtaposing “China” and “the human” as two discrete categories, this introductory essay does not assume either concept as a pre-given object of knowledge. Rather — together with the other essays in the volume — it examines both China and the human as set of relational, differential, and contrapuntal events, in specific historical and geopolitical contexts.

The introductory essay provides a conceptual and historical map for this inquiry, in a comparative context that examines Euro-American, Chinese, and transnational itineraries of the human and their global crossings. It analyzes China’s potential to undo the universalizing claims of Western idealized norms of the human, while refusing to re-essentialize a Chinese otherness as an alternative perspective. More specifically, the essay interrogates the domination and limitations of the universal human while tracing alternative cosmologies and discourses of Chinese humanism and anti-humanism, informed by Confucianism, Daoism, and Buddhism, as well as other religious and political traditions. It also examines Marxist and Maoist conceptualizations of the human from transnational perspectives, and finally it considers the status of the human in contemporary China, defined increasingly as a bearer of a set of political and legal rights. What humanity means in China today — and in the world — and what it will mean in the future, is part of an ongoing struggle over the meaning of the past and the politics of the present. This essay offers “China” as a methodology in itself, rather than simply an object of inquiry.

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Kapai on Freedom of Conscience in Hong Kong

Puja Kapai (University of Hong Kong – Centre for Comparative and Public Law) has posted Freedom of Conscience and Religious Belief. The abstract follows.

Although the freedom of religion is a constitutionally guaranteed right in numerous jurisdictions around the world, ambiguities surrounding the content of the right continue to baffle courts as well as religious subjects seeking protection pursuant to the right the world over. The conceptual underpinnings of the right continue to prove elusive. This paper traces the journey of Hong Kong courts in the elaboration of various aspects of this right through an examination of local jurisprudence to determine the scope and limits of the protections as enshrined in the Basic Law of the Hong Kong Special Administrative Region (HKSAR). An examination of the jurisprudence indicates the need for a sophisticated approach towards the construction of religion. Given the limitations inherent in any attempt to comprehensively categorize social and psychological phenomena, particularly in light of the importance of the liberty of conscience, the task becomes increasingly challenging given the amorphous nature of the right and the likely ramifications if it is over-extended.
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