Skaria, “Unconditional Equality”

This month, the University of Minnesota Press releases “Unconditional Equality: Gandhi’s Religion of Resistance,” by Ajay Skaria (University of Minnesota).  The publisher’s description follows:

Unconditional Equality examines Mahatma Gandhi’s critique of liberal ideas of freedom and equality and his own practice of a freedom and equality organized image (10)around religion. It reconceives satyagraha (passive resistance) as a politics that strives for the absolute equality of all beings. Liberal traditions usually affirm an abstract equality centered on some form of autonomy, the Kantian term for the everyday sovereignty that rational beings exercise by granting themselves universal law. But for Gandhi, such equality is an “equality of sword”—profoundly violent not only because it excludes those presumed to lack reason (such as animals or the colonized) but also because those included lose the power to love (which requires the surrender of autonomy or, more broadly, sovereignty).

Gandhi professes instead a politics organized around dharma, or religion. For him, there can be “no politics without religion.” This religion involves self-surrender, a freely offered surrender of autonomy and everyday sovereignty. For Gandhi, the “religion that stays in all religions” is satyagraha—the agraha (insistence) on or ofsatya (being or truth).

Ajay Skaria argues that, conceptually, satyagraha insists on equality without exception of all humans, animals, and things. This cannot be understood in terms of sovereignty: it must be an equality of the minor. This equality is simultaneously a resistance: satyagrahis (practitioners) must resist all that obscures absolute equality and do so passively, without sovereignty and in the spirit of absolute equality.

Clark on Religions on Sovereigns

Elizabeth A. Clark (J. Reuben Clark Law School) has posted Religions as Sovereigns: Why Religion is “Special” The abstract follows.

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism theories and the values of (and concerns about) federalism that they identify and draws strong parallels with a range of theories of religious freedom, highlighting its similar values and potential weaknesses. This comparative endeavor highlights the powerful resonance of sovereignty talk in the religion and law field and suggests that sovereignty is part of the deep structure of our understanding of religious liberty.

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.

Amar on the Establishment Clause as a Westphalian Resolution

Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:

The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally.  (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.) 

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998).  Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking.  — MOD

Pontifical Council for Justice and Peace’s Note on Financial Reform

This is a powerfully expressed statement by the Pontifical Council for Justice and Peace on the current financial maladies facing the world.  All of the recommendations warrant sustained thought, and most are well beyond my capacity to assess.

One thing that I did not remember is the call of Pope John XXIII in Pacem in Terris for a “true world political authority” to emerge to serve the common good of humanity.  This vision is taken up by the Council, which talks about the need for “a supranational Authority” to take charge of these matters in light of what is seen as a movement toward greater globalization.  The Council’s recommendations are cautious in this respect, but they are striking nevertheless.  It also seemed to me, especially after Mark’s post below, that thoughts about a global authority reflect a quite Catholic way to envision the issue of human authority, to be contrasted with the more Protestant view of state sovereignty described and championed by Vattel and others.  These old fights never really die.  — MOD

Is Sovereignty Protestant?

I spent last weekend participating in an interesting Federalist Society/Liberty Fund colloquium, “International Law, Foreign Law, and the Constitution.” Some of readings for the colloquium discussed the development of the concept of sovereignty in international law. It’s striking how closely the concept relates, historically, to the Protestant Reformation. The great theoreticians of sovereignty were mostly, though not exclusively, Protestants seeking to provide an intellectual grounding for the Westphalian system, people like Grotius and Vattel, though Vattel is more an Enlightenment than a Christian thinker, it seems to me. Even Bodin, the 16th Century French writer credited with the first comprehensive theory of sovereignty, was a crypto-Protestant, at least according to the Tudor secret police.

The core components of Westphalian sovereignty were the equality and independence of states. Each state had an equal right to govern itself and no state had the right to meddle in another’s internal affairs. The non-interference principle extended especially to religion. According to Vattel, for example, the Law of Nations, a set of rules derived from natural law, prohibited attempts to impose the “true faith” on a state from the outside. In fact, Vattel argued, even peaceful missionary work was prohibited, unless the local government allowed it. (Vattel made an exception for the Twelve Apostles; they had resisted the state’s attempts to silence them, he conceded, but they could perform miracles). Sovereignty, presented as a matter of natural law, greatly assisted the Protestant Reformers, who were seeking a principled, “neutral” justification for resisting the Catholic Church’s assertions of universal jurisdiction. It takes a natural law to beat a natural law.

Protestants and Catholics don’t fight about these things so much anymore, but one can see a similar pattern in contemporary disputes about international human rights. Even though contemporary human rights law tends to speak in a secular idiom, it’s hard to miss the strong religious, natural law aspect of some of its key concepts, such as “human dignity.” International human rights advocates assert that these concepts are universally true and must apply as a matter of law everywhere. States that resist, in turn, often assert their sovereignty, and their position is often a moral one: “You can’t impose your norms here, because this is our country, and we have the right to decide.” Sovereignty thus continues to serve its historical function as a mechanism for resisting centralized moral authority in a fight about ultimate value. – MLM

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