Posted on by Marc O. DeGirolami

Kandinsky: Law Professor Turned Anti-Materialist Artist

If you happen to be in the New York City area and have the chance to stop in at the Guggenheim, there is a very small but charming exhibit on the work of Wassily Kandinsky from the 1911-13 period.  Kandinsky was a successful lawyer and law professor — he had even been offered a chair in Roman Law at the Universität Dorpat — when he suddenly abandoned the law and applied to art school in Munich.  Maybe legal academia is the second best job in the world.

Among the items in the exhibit are some really neat first editions of his work, Concerning the Spiritual in Art — and Painting in Particular, published in 1911.  When I got home yesterday afternoon, I found a translation here.  Kandinsky had ambitious ideas about the power of art to achieve spiritual illumination — and in some ways to replace traditional religion for future generations.  He had some very critical things to say about “materialism” in art, as well as the idea that art was to be enjoyed for its own sake.  Here is a selection which gives (I think) something characteristic of the flavor of the writing:

With cold eyes and indifferent mind the spectators regard the work.  Connoisseurs admire the ‘skill’ (as one admires a tightrope walker), enjoy the ‘quality of the painting’ (as one enjoys a pasty).  But hungry souls go hungry away . . . . This neglect of inner meanings, which is the life of colors, this vain squandering of artistic power is called ‘art for art’s sake.’ . . . . The spiritual life, to which art belongs and of which she is one of the mightiest elements, is a complicated but easily definable movement forwards and upwards.  This movement is the movement of experience.  It may take different forms, but it holds at bottom to the same inner thought and purpose.  Veiled in obscurity are the causes of this need to move ever upwards and forwards, by sweat of the brow, through sufferings and fears.  When one stage has been accomplished, and many evil stones cleared from the road, some unseen and wicked hand scatters new obstacles in the way, so that the path often seems blocked and totally obliterated.  But there never fails to come to the rescue some human being, like ourselves in everything except that he has in him a secret power of vision.  The power to do this he would sometimes fain lay aside, for it is a bitter cross to bear. But he cannot do so. Scorned and hated, he drags after him over the stones the heavy chariot of a divided humanity, ever forwards and upwards.  Often, many years after his body has vanished from the earth, men try by every means to recreate this body in marble, iron, bronze, or stone, on an enormous scale. As if there were any intrinsic value in the bodily existence of such divine martyrs and servants of humanity, who despised the flesh and lived only for the spirit! But at least such setting up of marble is a proof that a great number of men have reached the point where once the being they would now honour, stood alone . . . .

When religion, science and morality are shaken . . . and when the outer supports threaten to fall, man turns his gaze from externals in on to himself.  Literature, music and art are the first and most sensitive spheres in which this spiritual revolution makes itself felt. They reflect the dark picture of the present time and show the importance of what at first was only a little point of light noticed by few and for the great majority non-existent.  Perhaps they even grow dark in their turn, but on the other hand they turn away from the soulless life of the present towards those substances and ideas which give free scope to the non-material strivings of the soul. 

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Hashemi, “Islam, Secularism, and Liberal Democracy”

Next month, Oxford University Press will publish Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies by Nader
Hashemi (University of Denver, Josef Korbel School of International Studies). The publisher’s description follows.

Islam’s relationship to liberal-democratic politics has emerged as one of the most pressing and contentious issues in international affairs. In Islam, Secularism, and Liberal Democracy, Nader Hashemi challenges the widely held belief among social scientists that religious politics and liberal-democratic development are structurally incompatible. This book argues for a rethinking of democratic theory so that it incorporates the variable of religion in the development of liberal democracy. In the process, it proves that an indigenous theory of Muslim secularism is not only possible, but is a necessary requirement for the advancement of liberal democracy in Muslim societies.

Posted on by Mark Movsesian · 1 Comment

Walter Russell Mead on Christianity and America’s Elites

For Americans of the Framing generation, it was axiomatic that religion–which, for them, meant Protestant Christianity–was essential to the functioning of a republic. Without Christian morality, they believed, self-government would be impossible. They worried about establishments, of course, but very few would have argued that a republic could survive without a religious citizenry. Indeed, even with a religious citizenry, they thought restraints were necessary. As Richard Hofstadter famously argued, the Constitution’s structure of checks and balances owes much to Calvinist conceptions of Original Sin and its consequences. The conviction that people are ultimately flawed and self-seeking explains the intricate mechanisms for impeding the will of democratic majorities. The Framers were not utopians.

One doesn’t hear these sentiments expressed too much nowadays. Many more Americans are atheists, and non-Christians, than at the Framing, and everybody knows believers have no monopoly on ethical behavior. That may be why this recent column by Walter Russell Mead has hit such a nerve. Mead argues, in a way that would have been very familiar to Washington, Hamilton, and their contemporaries, that the fading of Christianity among America’s elites has had a very bad influence on national life, and that America must recapture a sense of Christian humility if it is to meet its current challenges. The whole thing is worth reading, but here’s a representative sample. CLR Forum readers, any thoughts?

I do not say that a “Christian” or theistic meritocracy would work where a secular one must fail. (We had a Christian meritocracy in Puritan New England. The best, brightest and godliest hanged Quakers and witches.) And I repeat what I wrote earlier, to avoid misunderstanding: Christianity is not the only religious or other source of the kind of moral insight and spiritual depth that can mitigate the problems of a meritocratic society. It is the one I understand best and the one that, historically, has played the most important role in American life. I leave to others the task of describing other resources and traditions by which other Americans whose talents have brought them into important and powerful positions in our society can be guided and checked.

But with those appropriate reservations appropriately taken, I do say that the fading of serious Christian commitment in the sleek and successful ranks of America’s meritocracy plays a significant and damaging role in our national life. The renewal of Christian commitment among a significant sector of America’s elite is, I think, a necessary condition of continued American progress and success.  If we get this, we will still need social reforms and social change . . . . But if we don’t get that kind of renewal and commitment, no program of reform, however wisely engineered, can keep our liberty, our prosperity and our democracy safe, much less transform them into something richer, deeper, greater and more widely and fairly shared than anything we have yet seen.

Posted on by Mark Movsesian

Cinar et al., “Visualizing Secularism and Religion”

A year ago, I participated in a wonderful symposium on secularism in the  contemporary Middle East, sponsored by the Oasis Foundation in Venice. The conversations at the symposium made clear that secularism is very much a contested term, particularly in majority Muslim societies, which often view secularism as a Western, even Christian concept. The University of Michigan Press has published an interesting-looking new book on the subject by Alev Cinar (Mugla University, Turkey), Srirupa Roy (Göttingen), and Maha Yahya (UN), Visualizing Secularism and Religion: Egypt, Lebanon, Turkey, India (2012). The publisher’s description follows.

Over the past two decades secular polities across the globe have witnessed an increasing turn to religion-based political movements, such as the rise of political Islam and Hindu nationalism, which have been fueling new and alternative notions of nationhood and national ideologies. The rise of such movements has initiated widespread debates over the meaning, efficacy, and normative worth of secularism. Visualizing Secularism and Religion examines the constitutive role of religion in the formation of secular-national public spheres in the Middle East and South Asia, arguing that in order to establish secularism as the dominant national ideology of countries such as Turkey, Lebanon, and India, the discourses, practices, and institutions of secular nation-building include rather than exclude religion as a presence within the public sphere. The contributors examine three fields—urban space and architecture, media, and public rituals such as parades, processions, and commemorative festivals—with a view to exploring how the relation between secularism, religion, and nationalism is displayed and performed. This approach demands a reconceptualization of secularism as an array of contextually specific practices, ideologies, subjectivities, and “performances” rather than as simply an abstract legal bundle of rights and policies.

Posted on by Mark Movsesian

Goldenziel on Courts in Majority-Muslim Countries

In the conflict between Islamists and secularists in majority-Muslim countries, courts can play a major role. Yesterday, for example,  Egypt’s Supreme Constitutional Court issued rulings allowing a former Mubarak loyalist to run for president and effectively dissolving the country’s Islamist-dominated parliament — clear victories for executive power and supporters of the old regime. A new piece by Jill Goldenziel (Harvard), Veiled Political Questions: Islamic Dress, Constitutionalism, and the Ascendance of Courts, suggests that the situation is more complicated, however. Courts in majority-Muslim countries do not always side with executive power. Even in Egypt, there are tensions between the SCC, which the Mubarak regime brought to heel, and the High Administrative Court, which remained more independent.  Her piece makes for interesting reading. The abstract follows.

This article explains how judicial independence can develop in regimes that are not fully democratic. Conventional wisdom holds that a strong legislature and political parties are necessary for the emergence of an independent judiciary. This article challenges conventional wisdom by explaining how judicial independence may arise in regimes where these conditions are not present. It presents a theory of how judicial independence emerges and why and when other political actors will respect it. The article also explains why courts may be better poised than legislatures to counter executive power in non-democracies. The theory is developed through a discussion of cases involving Islamic headscarves and veils in Middle Eastern courts. These cases have broad political implications because Read more

Posted on by Mark Movsesian

Merin on Religious Marriage in Israel

Yuval Merin (COMAS) has posted a new article on SSRN, Recognizing Foreign Marriages of Couples Ineligible for Religious Marriage in Israel–A New Perspective of Choice of Law and Public Policy (in Hebrew). The abstract follows.

The Israeli laws of marriage and divorce are governed exclusively by religious law. Several groups of the Israeli population are completely excluded from the institution of marriage due to a long list of religious restrictions and impediments. Couples ineligible for religious marriage include persons “disqualified for religious marriage”; interfaith couples; persons without a recognized religion; and same-sex couples.

Such couples can only marry abroad. Upon their return to Israel, they may register as “married” in the Population Registry and may enjoy a few of the rights associated with the institution, but their marriages are unrecognized for most other purposes. Since the field of marriage recognition is not regulated under Israeli positive law, the courts will have to decide whether to apply the English personal law system or the American principle of lex loci celebrationis. A critical comparison between the two competing systems reveals that the American rule is preferable since it best promotes the policy objectives which choice of law rules in the field of marriage recognition should seek to achieve. It is also preferable since it best corresponds to the unique social and legal conditions prevalent in the State of Israel. Foreign marriages performed by Israeli couples ineligible for religious marriage (valid in the place of celebration) should thus be recognized, subject to the public policy exception. Religious norms, which are exclusively applied in matters of marriage and divorce within Israel, should not be considered in the framing of the public policy exception, which should be interpreted narrowly, as protecting only democratic, secular, rational and liberal values. Thus, the foreign marriages of couples who are single, adult, and unrelated to one another, and whose marriage in Israel is prohibited due to purely religious restrictions, should be fully recognized under Israeli private international law.

Posted on by Mark Movsesian

Liveblogging the Religion and Civil Society Conference: Glendon

I’m here today at this year’s Religion and Civil Society Conference, “The Changing Faces of ‘Religion’ and ‘Secularity,’” organized by the Institute for Culture and Society at the University of Navarra and hosted by Harvard Law School. This morning’s first speaker was Harvard’s Mary Ann Glendon, who opened the conference by offering a helpful roadmap of the current social science literature regarding secularization.

Glendon argued against simplistic evaluations of religion’s place in civil society. Organized religion does seem to be in decline in the West, as the old secularization theory predicted, but there is also an upsurge in “political religion” in many parts of the world. She identified four new, competing “grand narratives” regarding secularization: (1) the “New Atheism” of writers like Hitchens, which celebrates the decline of religion; (2) the “Melancholy Secularism” of Habermas and Pera, which agrees that religion is in decline but views this as a sorry development that will lead to the abandonment of the Judeo-Christian values that support classical liberalism; (3) the “Cultural Secularism” associated with Charles Taylor, which describes, in a more or less detached way, a society in which religious belief is only one option among many;  and (4) the “Positive Secularism” of Pope Benedict XVI, which advocates state neutrality, not hostility, toward religion. Ironically, Glendon noted, this last version, championed by the Catholic Church today, shows more sympathy for the Enlightenment value of religious liberty than the New Atheism, which sees itself as the heir of the Enlightenment. She closed with some reflections on the role of social scientists in assessing the contemporary place of religion in society.

Posted on by Mark Movsesian

Tomorrow at Harvard Law

I’ll be participating tomorrow in “The Changing Faces of Religion and Secularity,” a conference taking place at Harvard Law School. The program is here. CLR Friends in the neighborhood, stop by and say hello.

Posted on by Mark Movsesian · 1 Comment

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).