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The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

Barry & Abo-Zena (eds.), “Emerging Adults’ Religiousness and Spirituality”

9780199959181This April, Oxford University Press will publish Emerging Adults’ Religiousness and Spirituality: Meaning-Making in an Age of Transition edited by Carolyn McNamara Barry (Loyola University Maryland) and Mona M. Abo-Zena (Brown University). The publisher’s description follows.

Although most American children are raised in a faith tradition, by the time they reach their early twenties their outward religious expression declines significantly, with many leaving the faith in which they were raised in favor of another faith or none at all, though many still claim that religion and spirituality are important. Reasons for this change in religious behavior include adolescents’ forging their own identities, increased immersion in contexts beyond the family, and exposure to media. As emerging adults encounter events such as attending university, breaking up with a romantic partner, and traveling, they are likely to make sense out of them, a process known as meaning-making. Thus, coming into one’s own takes on great prominence during the years of emerging adulthood (18-29), making it ripe for religious and spiritual development.

Emerging Adults’ Religiousness and Spirituality seeks to understand how the developmental process of meaning-making encompasses American emerging adults’ religiousness and spirituality. This volume does not focus on disentangling religion and spirituality conceptually, but rather emphasizes their centrality in the psychology of human development. It highlights the range of experiences and perspectives of emerging adults in the U.S. grounded in social context, social position, and religious or spiritual identification. Chapters are written by an interdisciplinary group of authors and explore topics such as the benefits and detriments of religiousness and spirituality to emerging adults; contexts and socializing agents such as parents and peers, the media, religious communities, and universities; and variations of religiousness and spirituality concerning gender, sexuality, culture, and social position. Using a developmental lens and focusing on a significant period within the lifespan, this volume embodies the key aspects of a developmental perspective by highlighting specific domains of development while considering themes of continuity and discontinuity across the lifespan.

Dixon & Ginsburg (eds.), “Comparative Constitutional Law in Asia”

comparative-constitutional-lawThis April, Edward Elgar Publishing will publish Comparative Constitutional Law in Asia edited by Rosalind Dixon (University of New South Wales, Australia) and Tom Ginsburg (University of Chicago). The publisher’s description follows.

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions. The authors – leading comparativists from around the world – illuminate material from Asian jurisdictions on matters such as freedom of religion, constitutional courts, property rights, emergency regimes and the drafting process of constitutions. Together they present a picture of a region that is grappling with complex constitutional issues and is engaged with developments in the rest of the world, while at the same time pursuing distinctive local solutions that deserve close attention. This unique scholarly study will prove an important research tool for Asian scholars, constitutional lawyers within Asia and comparative constitutional scholars around the world.

A River Runs Through It

As a young woman in 1968, American Wallis Wilde-Menozzi moved to Rome, leaving behind a troubled first marriage and a tenured faculty position in the UK. In The Other Side of the Tiber, she reflects upon that experience and the decades that followed, in which she developed as a writer, married again and raised a family, and became acculturated to her new home. Her metaphor for remembering is the Tiber, the river that runs through Rome, carrying with it the residue of earlier times and civilizations. Like the river, she writes, one’s memories are always a fluid part of one’s present.

The book is not only a personal memoir, though. A major theme is the contrast between the American and Italian ways of doing things–between a Protestant, progressive, rule-of-law society that exalts individualism and looks relentlessly to the future, and a Catholic, traditional one that rejects the idea that people can disregard the past and create their own identities. (“There is no such thing. We are always accompanied by ancestors.”) Each way has advantages and disadvantages. Americans are often shocked by what they see as the casual lawlessness of Italian life–”there is a breathtaking gap,” she writes–”a metaphysical canyon, between what is considered moral and what is considered legal in Italy”–which, no doubt, contributes to economic and political stagnation. On the other hand, there are qualities of community and public forgiveness to compensate. Italians are dismayed by American free-market economics, which often seem heartless and uncivilized, and by Americans’ lack of real appreciation for history. One of the most interesting episodes in the book is Wilde-Menozzi’s account of teaching American students in Siena. The students seem unaware of even the recent history of their own country, to say nothing of the ancients. She attributes their ignorance to the cost, and emptiness, of higher education in the US.

Wilde-Menozzi often gets nostalgic for the leftism of her youth, when she read Gramsci and Pasolini, and she tends to find feminist implications in everything, from Etruscan statuary to the annual August holiday, the Ferragosto. But, ideology aside, her writing is often lovely, and her images remain with you. (She is admirably spare in conveying, without detail, the pain of the sexual abuse in her childhood and her tense relationship with her mother; the theme of mothers is a recurring one in the book). On sfogliatelle, the Neapolitan pastries that must be done in a certain way: they are “a conscious effort to deny time its novelty.” On the the mosaics at the fourth-century church of Santa Costanza: their creators “imagined permanence, and yet, how could they have imagined us, so far away in time, still delighted by them?” And on the infinite regress of memory: “Italy is a story that always starts with ‘In the beginning there was already something before what you think is the beginning.’”

Abraham Lincoln, None?

Today is Presidents Day in the United States, a national holiday. Actually, that’s not quite right. Officially, the federal holiday is still called Washington’s Birthday, and that’s the official name here in New York, too. (Who knew?) But, unofficially, America uses this day to commemorate all its presidents–including, especially, two born in February, George Washington (February 22) and Abraham Lincoln (February 12).

I wasn’t surprised, therefore, when I saw in my twitter feed this afternoon Pew ‘s list of American presidents and their religious identities. About one-quarter have been Episcopalians; several have been Presbyterians; only one, John Kennedy, has been a Catholic. Pew lists three as having no religious identity: Thomas Jefferson, Andrew Johnson, and Abraham Lincoln.

Lincoln, in particular, is an interesting case. People have been fighting over his religious identity since just after he died. He never formally joined a church. But some people who knew him said that, although he had been skeptical about organized religion in his youth, and may in fact have written an atheist pamphlet at one point, he became receptive to Christianity during his time in the White House, especially after the death of his son. One report says he was about to join the Presbyterian Church right before he was assassinated. Others who knew him, however, said they noticed no such transformation.

In his definitive 2003 study, Lincoln: A Life of Purpose and Power, historian Richard Carwardine surveys the evidence and, in the end, says that Mary Todd Lincoln probably had the best assessment. Her husband, she explained, was never “a technical Christian.” In particular, he seems not to have accepted the divinity of Christ. On the other hand, almost everyone who knew him agreed that he was “naturally religious.” Those lines in the Second Inaugural Address were not just for show. Lincoln believed that the universe was governed by an omnipotent God who worked things out for His own righteous, often inscrutable purposes. And Lincoln thought the better part of wisdom was to submit to God’s plan.

So, was the Great Emancipator a None? I leave it to you, gentle reader.

Chaudhry, “Domestic Violence and the Islamic Tradition”

Last month, Oxford published Domestic Violence and the Islamic Tradition, by 9780199640164_140Ayesha S. Chaudhry (University of British Columbia). The publisher’s description follows.

This book examines the challenges and resources that the Islamic tradition offers to Muslim scholars who seek to address this dilemma. This is achieved through extensive study of the intellectual history of a Qur’anic verse that has become especially contentious in the modern period: Chapter 4, Verse 34 (Q. 4:34) which can be read to permit the physical disciplining of disobedient wives at the hands of their husbands.

Though this verse has been used by historical and contemporary Muslim scholars in multiple ways to justify the right of husbands to physically discipline their wives, progressive and reformist Muslim scholars and activists offer alternative and non-violent readings of the verse. The diverse and divergent interpretations of Q. 4:34 showcases the pivotal role of the reader in shaping the meaning and implications of scriptural texts.

This book investigates the sophisticated and creative interpretive approaches to Q. 4:34, tracing the intellectual history of Muslim scholarship on this verse from the ninth century to the present day. Ayesha S. Chaudhry examines the spirited and diverse, and at times contradictory, readings of this verse to reveal how Muslims relate to their inherited tradition and the Qur’anic text.

Repairs Begin on Bethlehem’s Church of the Nativity

Here’s some good news, for a change, about Christianity in the Middle East. This fall, workers began much-needed repairs to the roof Church of the Nativity in Bethlehem, the traditional site of the birth of Christ.

The roof of the church has been in a terrible state for some time. Experts warn it could collapse at any moment. Getting agreement on repairs has been exceptionally difficult, however. There were geopolitical issues. To qualify for UN restoration funds, the building had to be added to UNESCO’s list of World Heritage sites. This proved controversial–the US and Israel worried about the implications naming the site would have for Palestinian statehood–but the church was ultimately added to the list last year. (The church has long been a flashpoint for world intrigue. In the nineteenth century, someone stole the star that marks the place of Christ’s birth; the theft led to the Crimean War.)

The most significant hurdle, though, has been getting the agreement of the Christian communions that share the church–Armenian Apostolic, Greek Orthodox, and Roman Catholic. The three share the church under the “Status Quo,” a set of rules and customs that date back centuries to Ottoman times, and which also govern other Christian sites like the Church of the Holy Sepulcher in Jerusalem. According to custom, repairing part of the church, or even paying for repairs, is an assertion of ownership. As a result, each communion carefully guards against the possibility that another will undertake repairs in common areas, like the roof, and thereby gain rights by a sort of adverse possession. Fistfights among the monks are not uncommon.

How did the three communions reach agreement on the repairs this time? No one’s saying much, but the AP reports:

A senior church official said the three denominations would never have been able to reach an agreement on their own. But once the Palestinian Authority stepped in, all three churches accepted the decision. He spoke on condition of anonymity because he was not permitted to discuss the matter with the media.

Well, anyway, the point is they did agree and the church will be preserved. And that is wonderful news for Christians and people of good will generally. Congratulations to everyone concerned. And Merry Christmas!

President Adams’s 1798 Proclamation For a “Day of Humiliation and Prayer”

In past years at this time, we have noted Thanksgiving proclamations in American history here at CLR Forum. On the occasion of this year’s Thanksgiving, I want to draw attention again to President John Adams’s 1798 Proclamation For a National Fast, which he issued on March 23 of that year and prescribed for the month of May. Two things are striking to me about the proclamation, though of course they are not unique to this particular proclamation.

First, days of public prayer are closely associated in the mind of Adams (and likely in the minds of his audience) with “humiliation”–that is, with the recognition of the limits of human power, with humility, and with the need and desire for guidance beyond oneself to set to the affairs of governance wisely. It has longed seemed to me that this was the principal function of legislative and other public prayer. Is is an irony of history that legislative prayer has now come to signify, in the minds of many of its opponents, something like the opposite of “humiliation.”

Second, note the emphasis on fasting. The idea behind such days was not to gorge on as much food as one could hold down, or to acknowledge one’s own comfortably sated life, or to revel in the capacity to spend lots of money on entirely useless nonsense on “Black Friday.” It was to thank God for one’s gifts by abstaining from consumption.

Now, if you will excuse me, I’m off to stuff the turkey and, then (Grace having been said) myself. A very happy Thanksgiving to all of our readers.

As the safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is not only an indispensable duty, which the people owe to him, but a duty whose natural influence is favorable to the promotion of that morality and piety, without which social happiness cannot exist, nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty and of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation, by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredations on our commerce, and the infliction of injuries on very many of our fellow-citizens, while engaged in their lawful business on the seas;—under these considerations, it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country, demands at this time a special attention from its inhabitants.

I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States, as a day of solemn humiliation, fasting and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of mercies, agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation; beseeching him at the same time, of his infinite grace, through the Redeemer of the world, freely to remit all our offences, and to incline us, by his Holy Spirit, to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication, that our country may be protected from all the dangers which threaten it, that our civil and religious privileges may be preserved inviolate, and perpetuated to the latest generations, that our public councils and magistrates may be especially enlightened and directed at this critical period, that the American people may be united in those bonds of amity and mutual confidence, and inspired with that vigor and fortitude by which they have in times past been so highly distinguished, and by which they have obtained such invaluable advantages, that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures, be blessed and prospered, that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom, and pure religion, may be speedily extended to all the nations of the earth.

And finally I recommend, that on the said day, the duties of humiliation and prayer be accompanied by fervent thanksgiving to the bestower of every good gift, not only for having hitherto protected and preserved the people of these United States in the independent enjoyment of their religious and civil freedom, but also for having prospered them in a wonderful progress of population, and for conferring on them many and great favors conducive to the happiness and prosperity of a nation.

Pope Francis’s Remarks on “Social Dialogue in a Context of Religious Freedom”

Pope Francis has issued an Apostolic Exhortation–Evangelii Gaudium (“The Joy of the Gospel”)–which ranges over many subjects, emphasizing in particular and in many places the obligations of Catholics toward the poor and toward realizing just social, political, and economic arrangements.

In a substantial portion of the Exhortation (beginning at paragraph 182), the Pope discusses the social teaching of the Church and he focuses on two issues: the alleviation of poverty and the Church’s special concern for the poor; and “The Common Good and Peace in Society.” As to the latter, and because they involve issues of religion and public life that we consider here at the Center, here are the Pope’s remarks (footnotes omitted) about the importance of “social dialogue in a context of religious freedom,” which conclude his reflections on the social dimension of the Gospel:

255. The Synod Fathers spoke of the importance of respect for religious freedom, viewed as a fundamental human right. This includes “the freedom to choose the religion which one judges to be true and to manifest one’s beliefs in public” A healthy pluralism, one which genuinely respects differences and values them as such, does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace.

256. When considering the effect of religion on public life, one must distinguish the different ways in which it is practiced. Intellectuals and serious journalists frequently descend to crude and superficial generalizations in speaking of the shortcomings of religion, and often prove incapable of realizing that not all believers – or religious leaders – are the same. Some politicians take advantage of this confusion to justify acts of discrimination. At other times, contempt is shown for writings which reflect religious convictions, overlooking the fact that religious classics can prove meaningful in every age; they have an enduring power to open new horizons, to stimulate thought, to expand the mind and the heart. This contempt is due to the myopia of a certain rationalism. Is it reasonable and enlightened to dismiss certain writings simply because they arose in a context of religious belief? These writings include principles which are profoundly humanistic and, albeit tinged with religious symbols and teachings, they have a certain value for reason.

257. As believers, we also feel close to those who do not consider themselves part of any religious tradition, yet sincerely seek the truth, goodness and beauty which we believe have their highest expression and source in God. We consider them as precious allies in the commitment to defending human dignity, in building peaceful coexistence between peoples and in protecting creation. A special place of encounter is offered by new Areopagi such as the Court of the Gentiles, where “believers and non-believers are able to engage in dialogue about fundamental issues of ethics, art and science, and about the search for transcendence”. This too is a path to peace in our troubled world.

Realism and Idealism: On Law’s Limits

Last week, I attended a very interesting conference about which I’ve written here before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not  law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

  1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
  2. I was also struck by how prevalent critical methodology seemed to be.  Continue reading