Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.

Larson & Ruse, “On Faith and Science”

980dfd8b0364028103664dfafe2235cbOne of the themes we’ve been discussing in the Tradition Project is the relationship between tradition and reason. Since the Enlightenment, the West has distinguished the two. Tradition is the language of faith, mystery, and reaction; reason, of science, empiricism, and progress. If you think about it for a moment, though, you see tradition and reason are deeply related. Tradition relies on reason and real-world facts, and science is impossible except within a tradition of thought. That so many of us today assume that tradition is simply a matter of darkness and unreason reflects how successful Enlightenment thinkers were at demonizing it.

The relation of faith and science is explored in an interesting-looking new book from Yale University Press, On Faith and Science, by historian and law professor Edward Larson (Pepperdine) and historian of science Michael Ruse (Florida State). Here is the description from the Yale website:

A captivating historical survey of the key debates, questions, and controversies at the intersection of science and religion

Throughout history, scientific discovery has clashed with religious dogma, creating conflict, controversy, and sometimes violent dispute. In this enlightening and accessible volume, distinguished historian and Pulitzer Prize–winning author Edward Larson and Michael Ruse, philosopher of science and Gifford Lecturer, offer their distinctive viewpoints on the sometimes contentious relationship between science and religion. The authors explore how scientists, philosophers, and theologians through time and today approach vitally important topics, including cosmology, geology, evolution, genetics, neurobiology, gender, and the environment. Broaching their subjects from both historical and philosophical perspectives, Larson and Ruse avoid rancor and polemic as they address many of the core issues currently under debate by the adherents of science and the advocates of faith, shedding light on the richly diverse field of ideas at the crossroads where science meets spiritual belief.

Denysenko, “Theology and Form”

P03253As readers of this blog know, our center is in the midst of the Tradition Project, a multi-year research initiative on the continuing role of tradition in politics, law, and culture. One of the project’s themes is how traditional religious communities adapt to American liberalism. The religions change, of course–a strong pressure exists to reform along Protestant lines–yet they also remain, in some respects, the same. A new book from the University of Notre Dame Press, Theology and Form: Contemporary Orthodox Architecture in America, by Loyola Marymount University professor Nicholas Denysenko, examines how Orthodox parishes adapt traditional architectural forms in the new world, and how the adaptations influence liturgy and parish identity. Looks fascinating. Here’s the description from the publisher’s website:

How do space and architecture shape liturgical celebrations within a parish? In Theology and Form: Contemporary Orthodox Architecture in America, Nicholas Denysenko profiles seven contemporary Eastern Orthodox communities in the United States and analyzes how their ecclesiastical identities are affected by their physical space and architecture. He begins with an overview of the Orthodox architectural heritage and its relation to liturgy and ecclesiology, including topics such as stational liturgy, mobility of the assembly, the symbiosis between celebrants and assembly, placement of musicians, and festal processions representative of the Orthodox liturgy. Chapters 2–7 present comparative case studies of seven Orthodox parishes. Some of these have purchased their property and built new edifices; Denysenko analyzes how contemporary architecture makes use of sacred space and engages visitors. Others are mission parishes that purchased existing properties and buildings, posing challenges for and limitations of their liturgical practices. The book concludes with a reflection on how these parish examples might contribute to the future trajectory of Orthodox architecture in America and its dialogical relationship with liturgy and ecclesial identity.

Himmelfarb, “Past and Present”

Tradition’s continuing role in law, politics, and culture is the main focus of our Center’s ongoing Tradition Project, a multi-year research initiative. It’s also one of the central themes of a new book from Encounter Books, a collection of essays by the famous American historian Gertrude Himmelfarb, Past and Present: The Challenges of Modernity, from the Pre-Victorians to the Post-Modernists (Encounter). Looks very worthwhile. Here’s the description from the Encounter website:

Past-and-Present-310x460“The past is never dead. It’s not even past,” wrote William Faulkner. In Past and Present, an eminent American historian and cultural critic shows the truth of that statement. The common theme of the twenty essays gathered here is the intriguing, often unexpected ways in which the past continues to illuminate the present.

Gertrude Himmelfarb helps us find a new perspective on contemporary issues through a trenchant analysis of debates and thinkers from earlier times.

The topics of the essays vary widely, from the disorders of modern democracy to the challenges of postmodernism, from the Victorian ethos to the Jewish question. The thinkers examined range from Edmund Burke to Leo Strauss, from Cardinal Newman to Lionel Trilling. The political figures who appear here are also diverse, from Benjamin Disraeli to Winston Churchill, from the American founders to Queen Elizabeth II.

Running through all the essays as a first premise is the conviction that the pursuit of knowledge and truth, however difficult or discomfiting, matters immensely in the “practical life,” to use Trilling’s terms, as it does in the “moral life.” Past and Present is a notable contribution to this endeavor—to understanding where we have been, where we are today, and where we may be (or should be) going.

 

Florensky, “Early Religious Writings” (Jakim, trans.)

As readers of this blog know, the Center co-sponsored a conference last week at the Fondazione Bruno Kessler in Trent, Italy on tradition in American and Russian thought. One thing the conference made clear to me is that, to understand Russian traditionalism, and its implications for law, one must engage with the writings of Orthodox scholars. Sadly, these writings are often untranslated. But here is a new Eerdman’s translation of the writings of one such scholar, Fr. Pavel Florensky: Early Religious Writings, 1903-1909. Florensky, whom the Communists executed in 1937, is known for his insistence on the importance of intuition and experience, rather than reason, as the basis for communion with God, a point some of our Russian interlocutors made at our event last week. Here’s a description of the book from the Eerdman’s website:

9780802874955Profound writings by one of the twentieth century’s greatest polymaths

“Perhaps the most remarkable person devoured by the Gulag” is how Alexandr Solzhenitsyn described Pavel Florensky, a Russian Orthodox mathematician, scientist, linguist, art historian, philosopher, theologian, and priest who was martyred during the Bolshevik purges of the 1930s.

This volume contains eight important religious works written by Florensky in the first decade of the twentieth century, now translated into English—most of them for the first time. Splendidly interweaving religious, scientific, and literary themes, these essays showcase the diversity of Florensky’s broad learning and interests. Including reflections on the sacraments and explorations of Russian monastic culture, the volume concludes with “The Salt of the Earth,” arguably Florensky’s most spiritually moving work.

Writeup of Last Week’s Event in Trent

DCGoVy8XYAAXAIu

Last week’s gathering at the Fondazione Bruno Kessler in Trent, Italy

 

The Fondazione Bruno Kessler has posted this report of our conference on tradition and traditionalism in American and Russian thought. The conference, at the Fondazione’s headquarters in Trent, Italy, was a very worthwhile event. The discussions revealed significant differences, and some similarities, in how American and Russian scholars perceive tradition and tradition’s proper role in law and politics.

For me, the most interesting discussions were those that revealed the differences among us. From the American side, some of us were concerned with carving out space for traditional communities in the larger society; others were more interested in placing tradition at the center of legal debate. Some argued that tradition is already more central to that debate than it sometimes seems.

On the Russian side, some participants took the Russian Church’s recent advocacy of traditional values as a serious critique of liberalism, one that resonates with consistent themes in Orthodox thought. Others, by contrast, argued that “traditional values” are a recent, post-Soviet construct, even a pretext.

The Postsecular Conflicts Project will publish an online collection of participants’ essays later this year. Meanwhile, let me say thanks again, on behalf of the Center, to Kristina Stoeckl, Pasquale Annicchino, Marco Ventura, and their very capable staffs, for being such good hosts. Let’s do it again soon!

The Revival of Nationalism in 2016

1

At the Library of Law and Liberty site this morning, I have a post on the elections of 2016. Across the West this year, the unthinkable has occurred again and again: Brexit; the election of Donald Trump; the popularity of the National Front in France and Euroskeptic parties like Lega Nord and the Five Star Movement in Italy. What explains these developments?

Although traditional conservatism, including religious conservatism, has had a role, I argue that the most important factor has been the revival of nationalism across the West:

In short, although traditional conservatism has been on the winning side in recent political contests, it has been a junior partner in a larger project: the revival of nationalism. Nationalism is a complicated phenomenon that takes different forms. A good working definition is the following: a political program that unites a people with a common ancestry or culture together with a sovereign state. Nationalism rejects attempts to subordinate the state to outside governance. Often, it seeks to protect local traditions from being diluted by an aggressive global culture. In its present iteration, it sets the nation-state against supranational, liberal regimes like the EU or NAFTA, and local customs and traditions, including religious traditions, against alien, outside trends….

One can easily perceive nationalism’s role in the politics of 2016. Repeatedly, the side advocating a recovery of sovereignty from supranational bodies and a limit on immigration prevailed. In the Brexit campaign, the “Leave” supporters argued that Britain must take back control from EU bureaucrats and assert authority over its borders. Here, Trump famously called for withdrawal from the proposed Trans-Pacific Partnership treaty and for renegotiation of other free-trade agreements, including NAFTA; for a wall to keep out Mexican immigrants; and for a temporary ban on Muslims entering the country.

In France, the National Front’s Marine Le Pen has proudly declared that “the time of the nation state is back” and calls for restrictions on immigration and an end to multiculturalism. She maintains that the EU should be reconceived as a loose collection of sovereign states and that France should withdraw from the common currency. The ideology of Italy’s Euroskeptics is more fluid; nationalism is weaker in Italy, too. But important elements within Lega Nord and the Five Star Movement express skepticism about the EU and seek to withdraw from the euro, and also disfavor allowing large numbers of immigrants into the country.

The rise of nationalism upsets the conventional wisdom, which for some time has been predicting its demise. But, in times of crisis, people return to the nation state. I explain more here.

The End of the Liberal Tradition?

At the First Things site today, I have an essay about a remarkable new paper from political scientists Roberto Foa and Yascha Mounk on the growing opposition to liberal democracy among American Millennials–especially wealthy Millennials. For example, the authors write, surveys reveal that 35% of wealthy young Americans think it would be a good thing for the military to take over the government!

In my essay, I argue that the surveys reveal the decline of yet another American tradition: liberalism itself:

Liberalism is often understood as propositional, as a series of abstract principles. This understanding has led scholars like Fukuyama to think that liberalism can be easily exported to other cultures; it has formed the basis for much American foreign policy, especially in recent decades. In important ways, this understanding is correct. Liberalism does justify itself largely on the basis of ideas. The Framers of the American Constitution, for example, were strongly influenced by Enlightenment concepts of reason and rational government.

In a deeper sense, though, liberalism generally, and American liberalism specifically, is a tradition, the organic working-out of precedent, over time, in a particular political culture. The American Framers were figures of the Enlightenment, true, but they also thought they were restoring the traditional rights of Englishmen, rights that could be traced back to Magna Carta and beyond. The American conception of religious liberty, for example, is deeply influenced by the historical experience of the English Civil War and the Glorious Revolution, and also by the particular understanding of religion that took hold in a colonial, frontier society. This explains why it differs so much from its cousin on the European continent, the French doctrine of laïcité.

But American culture is changing. Our traditions are not so popular nowadays, including our political traditions; and when we discard our traditions, we can fall for many things, including, apparently, authoritarianism. That, it seems to me, is the upshot of this important paper. The authors identify authoritarianism in our politics with Donald Trump, and it’s easy to recognize Trump’s authoritarian appeal (“I alone can fix it”). But there is authoritarianism on the left, as well, which the authors ignore. American college students increasingly oppose free speech, at least with respect to certain viewpoints, and insist on shutting down speakers with whom they disagree, often with the approval of administrators and faculty who should know better. Not to mention the left’s continuing assaults on religious liberty, including attempts to get nuns to cover contraceptives for their employees and threats to remove the tax-exempt status of religious schools that disapprove of same-sex marriage.

My essay is available here.

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

Billioud and Thoraval, “The Sage and the People”

In August, the Oxford University Press will release “The Sage and the People: The Confucian Revival in China,” by Sébastien Billioud (University Paris-Diderot, Sorbonne Paris Cité) and Joël Thoraval (Research Center on Modern and Contemporary China, School for Higher Studies in Social Sciences (EHESS)). The publisher’s description follows:

After a century during which Confucianism was viewed by academics as a relic of the imperial past or, at best, a philosophical resource, its striking comeback in Chinese society today raises a number of questions about the role that this ancient tradition might play in a contemporary context.

The Sage and the People is the first comprehensive enquiry into the “Confucian revival” that began in China during the 2000s. Based on extensive anthropological fieldwork carried out over eight years in various parts of the country, it explores the re-appropriation and reinvention of popular practices in fields as diverse as education, self-cultivation, religion, ritual, and politics.

The book analyzes the complexity of the “Confucian revival” within the broader context of emerging challenges to such categories as religion, philosophy, and science that prevailed in modernization narratives throughout the last century. Exploring state cults both in Mainland China and Taiwan, authors Sébastien Billioud and Joël Thoraval compare the interplay between politics and religion on the two shores of the Taiwan strait and attempt to shed light on possible future developments of Confucianism in Chinese society.

%d bloggers like this: