Category Archives: Scholarship Roundup
Greetings from Chicago
“Religious Arbitration and the New Multiculturalism” on The Legal Workshop
The Legal Workshop – one of my favorite websites – posted the short essay version of my recent article “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders.” I have to say that I really enjoyed the process of distilling the core points of the full version of the article (available here) into the shorter format, which is what I think makes The Legal Workshop such a useful venue for reading up on recent scholarship.
The Cambridge History of Religions in America
Here is an absolutely tremendous 3-volume resource that should be of
interest to all students of American history: The Cambridge History of Religions in America, to be published by Cambridge University Press in July and edited by Stephen J. Stein (Indiana Bloomington). The publisher’s description follows.
The three volumes of The Cambridge History of Religions in America trace the historical development of religious traditions in America, following both their transplantation from other parts of the world and the inauguration of new religious movements on the continent of North America. This story involves complex relationships among these religious communities as well as the growth of distinctive theological ideas and religious practices. The net result of this historical development in North America is a rich religious culture that includes representatives of most of the world’s religions. Volume 1 extends chronologically from prehistoric times until 1790, a date linked to the formation of the United States as a nation. The first volume provides background information on representative Native American traditions as well as on religions imported from Europe and Africa. Diverse religious traditions in the areas of European settlement, both Christian and non-Christian, became more numerous and more complex with the passage of time and with the accelerating present. Tension and conflict were also evident in this colonial period among religious groups, triggered sometimes by philosophical and social differences, other times by distinctive religious beliefs and practices. The complex world of the eighteenth century, including international tensions and conflicts, was a shaping force on religious communities in North America, including those on the continent both north and south of what became the United States. Volume 2 focuses on the time period from 1790 until 1945, a date that marks the end of the Second World War. One result of the religious freedom mandated by the Constitution was the dramatic expansion of the religious diversity in the new nation, and with it controversy and conflict over theological and social issues increased among denominations. Religion, for example, played a role in the Civil War. The closing decades of the nineteenth century witnessed the rising prominence of Roman Catholicism and Judaism in the United States as well as the growth of a variety of new religious movements, some that were products of the national situation and others that were imported from distant parts of the globe. Modern science and philosophy challenged many traditional religious assumptions and beliefs during this century and a half, leading to a vigorous debate and considerable controversy. By the middle of the twentieth century, religion on the North American continent was patterned quite differently in each of the three nations – the United States, Canada, and Mexico. Volume 3 examines the religious situation in the United States from the end of the Second World War to the second decade of the twenty-first century, contextualized in the larger North American continental context. Among the forces shaping the national religious situation were suburbanization and secularization. Conflicts over race, gender, sex, and civil rights were widespread among religious communities. During these decades, religious organizations in the United States formulated policies and practices in response to such international issues as the relationship with the state of Israel, the controversy surrounding Islam in the Middle East, and the expanding presence of Asian religious traditions in North America, most notably Buddhism and Hinduism. Religious controversy also accompanied the rise of diverse new religious movements often dismissed as “cults,” the growth of mega-churches and their influence via modern technologies, and the emergence of a series of ethical disputes involving gay marriage and abortion. By the turn of the twenty-first century, the national and international religious contexts were often indistinguishable.
Posted in Marc O. DeGirolami, Scholarship Roundup
Tagged Books, Religion in America
Bebbington, “Victorian Religious Revivals”
Another terrific looking book about religious history in Great Britain
which also delves into some sociology of the religious “awakening” — this one by David Bebbington (Stirling), Victorian Religious Revivals: Culture and Piety in Local and Global Contexts (OUP 2012). An especially interesting feature of this book looks to be the study of the structure or organization of the revival, which is perhaps in some cases less spontaneous than one might believe. The publisher’s description follows.
Revivals are outbursts of religious enthusiasm in which there are numerous conversions. In this book the phenomenon of revival is set in its broad historical and historiographical context. David Bebbington provides detailed case-studies of awakenings that took place between 1841 and 1880 in Britain, North America and Australia, showing that the distinctive features of particular revivals were the result less of national differences than of denominational variations. These revivals occurred in many places across the globe, but revealed the shared characteristics of evangelical Protestantism. Bebbington explores the preconditions of revival, giving attention to the cultural setting of each episode as well as the form of piety displayed by the participants.
No single cause can be assigned to the awakenings, but one of the chief factors behind them was occupational structure and striking instances of death were often a precipitant. Ideas were far more involved in these events than historians have normally supposed, so that the case-studies demonstrate some of the main patterns in religious thought at a popular level during the Victorian period. Laymen and women played a disproportionate part in their promotion and converts were usually drawn in large numbers from the young. There was a trend over time away from traditional spontaneity towards more organised methods sometimes entailing interdenominational co-operation.
Worden, “God’s Instruments”
Very interesting book about the religious dimensions of Puritan
politics in 17th century England by Blair Worden (Royal Holloway College London), God’s Instruments: Political Conduct in the England of Oliver Cromwell (OUP 2012). The publisher’s description follows.
The Puritan Revolution escaped the control of its creators. The parliamentarians who went to war with Charles I in 1642 did not want or expect the fundamental changes that would follow seven years later: the trial and execution of the king, the abolition of the House of Lords, and the creation of the only republic in English history. There were startling and unexpected developments, too, in religion and ideas: the spread of unorthodox doctrines; the attainment of a wide measure of liberty of conscience; new thinking about the moral and intellectual bases of politics and society. God’s Instruments centres on the principal instrument of radical change, Oliver Cromwell, and on the unfamiliar landscape of the decade he dominated, from the abolition of the monarchy in 1649 to the return of the Stuart dynasty in 1660.
Its theme is the relationship between the beliefs or convictions of politicians and their decisions and actions. Blair Worden explores the biblical dimension of Puritan politics; the ways that a belief in the workings of divine providence affected political conduct; Cromwell’s commitment to liberty of conscience and his search for godly reformation through educational reform; the constitutional premises of his rule and those of his opponents in the struggle for supremacy between parliamentary and military rule; the relationship between conceptions of civil and religious liberty. The conflicts Worden reconstructs are placed in the perspective of long-term developments, of which historians have lost sight, in ideas about parliament and about freedom. The final chapters turn to the guiding convictions of two writers at the heart of politics, John Milton and the royalist Edward Hyde, the future Earl of Clarendon. Material from previously published essays, much of it expanded and extensively revised, comes together with freshly written chapters.
Waldron on Natural Law
Jeremy Waldron (NYU School of Law) has posted What is Natural Law Like? The abstract follows.
“The State of Nature,” said John Locke, “has a Law of Nature to govern it, which obliges every one.” But what is “a law of nature”? How would we tell, in a state of nature, that there was a natural law as opposed to something else — like positive law, a set of customs, natural morality, natural ethics, a set of natural inclinations, the truth of certain prudential calculations, a widespread but perhaps false belief in some transcendent law, the voice of God, or just a natural disposition on the part of some pompous people to make sonorous objective-sounding pronouncements? What form should we expect natural law to take in our apprehension of it? This paper argues three things. (a) John Finnis’s work on natural law provides no answer to these questions; his “theory of natural law” is really just a theory of the necessary basis in ethics for evaluating positive law. (b) We need an answer to the question “What is natural law like” not just to evaluate the work of state-of-nature theorists like Locke, but also to explore the possibility that natural law might once have played the role now played by positive international law in regulating relations between sovereigns. And (c), an affirmative account of what natural law is like must pay attention to (1) its deontic character; (2) its enforceability; (3) the ancillary principles that have to be associated with its main normative requirements if it is to be operate as a system of law; (4) its separability form objective from ethics and morality, even from objective ethics and morality; and (5) the shared recognition on earth of its presence in the world. Some of these points — especially 3, 4, and 5 — sound like characteristics of positive law. But the paper argues that they are necessary nevertheless if it is going to be plausible to say that natural law has ever operated (or does still operate) as law in the world.
Posted in Andrew R. Hamilton, Scholarship Roundup
Tagged Articles, John Finnis, Locke, Natural Law
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 in Andrew R. Hamilton, Scholarship Roundup
Tagged Articles, Islam in India, Islamic Law, Liberalism, Oklahoma, Sharia
Barnett & Stein (eds.), “Sacred Aid: Faith and Humanitarianism”
Here’s an interesting collection of essays about the increasing
religious inspiration and commitment of contemporary human rights organizations, Sacred Aid: Faith and Humanitarianism (OUP 2012), edited by Michael Barnett (GW) and Janice Gross Stein (Toronto). The publisher’s description follows.
The global humanitarian movement, which originated within Western religious organizations in the early nineteenth century, has been one of the most important forces in world politics in advancing both human rights and human welfare. While the religious groups that founded the movement originally focused on conversion, in time more secular concerns came to dominate. By the end of the nineteenth century, increasingly professionalized yet nominally religious organization shifted from reliance on the good book to the public health manual. Over the course of the twentieth century, the secularization of humanitarianism only increased, and by the 1970s the movement’s religious inspiration, generally speaking, was marginal to its agenda. However, beginning in the 1980s, religiously inspired humanitarian movements experienced a major revival, and today they are virtual equals of their secular brethren.
From church-sponsored AIDS prevention campaigns in Africa to Muslim charity efforts in flood-stricken Pakistan to Hindu charities in India, religious groups have altered the character of the global humanitarian movement. Moreover, even secular groups now gesture toward religious inspiration in their work. Clearly, the broad, inexorable march toward secularism predicted by so many Westerners has halted, which is especially intriguing with regard to humanitarianism. Not only was it a highly secularized movement just forty years ago, but its principles were based on those we associate with “rational” modernity: cosmopolitan one-worldism and material (as opposed to spiritual) progress. How and why did this happen, and what does it mean for humanitarianism writ large? That is the question that the eminent scholars Michael Barnett and Janice Stein pose in Sacred Aid, and for answers they have gathered chapters from leading scholars that focus on the relationship between secularism and religion in contemporary humanitarianism throughout the developing world. Collectively, the chapters in this volume comprise an original and authoritative account of religion has reshaped the global humanitarian movement in recent times.
Posted in Marc O. DeGirolami, Scholarship Roundup
Tagged Books, Human Rights, International Human Rights, Secularism
Weinstein on RLUIPA’s Effect on Local Governments
Alan C. Weinstein (Cleveland-Marshall College of Law, Cleveland State University) has posted The Effect of RLUIPA’s Land Use Provisions on Local Governments. The abstract follows.
In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.
Wright on Neutrality in Religion Clause Cases
R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Can We Make Sense of ‘Neutrality’ in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative. The abstract follows.
This Article addresses the controversial question of ‘neutrality’ as a crucial test in a number of important Religion Clause cases. The idea of ‘neutrality’ in the Religion Clause context turns out to be popular, but unavoidably incoherent.
The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.
What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.
