Joel Nichols and Alan Brownstein are putting together an interesting and timely panel for the Law and Religion section at the January 2014 AALS meeting, to be held in New York City. The subject of the panel is “Cooperating With Evil Complicity With Sin.” I wish I had the time to do it, but I’ve long thought that it would be interesting if a criminal law scholar who had studied accomplice liability wrote an article comparing the idea of complicity in criminal law and in various religious traditions in which complicity figures as a theologically important concept. See below for the call for papers.
Section on Law and Religion
Call for Papers for January 2014 AALS Annual Meeting Program:
“Cooperating With Evil, Complicity with Sin”
From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion
The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel also. The program description follows:
What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby “complicit” with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients.
Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law.
Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ. of St. Thomas (MN) School of Law, joel.nichols@stthomas.edu
Proposal Requirements: An abstract of not more than five pages, or a completed paper.
Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year.
Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses.
In People v. Philips, William Sampson — a banished political exile from Ireland and a Protestant — argued on behalf of the Trustees of St. Peter’s Roman Catholic Church on Barclay Street before the presiding judge, Mayor DeWitt Clinton [left]. William Sampson’s experience of religious-based intolerance in Ireland propelled him to persuade the court that America should not look to British common law for legal precedent when dealing with Catholics, then a small but growing minority in New York City.
Non sum Oedipus, sed Morus
I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center. But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (one of the conference’s conveners) of Travis Curtwright’s recently published The One Thomas More (2012). Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting. One issue I’ve always wanted to learn more about–and have thought might be rightly considered in a legal ethics course–is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.
A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career. Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia. More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.
Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence. By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform. More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law. For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.
The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s. As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86). Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.” As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99). This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7). Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism: “The Cure for the greatest part of human Miseries is not radical, but palliative.” (The Rambler, No. 32, July 7, 1750.)
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Posted in Commentary, Marc O. DeGirolami
Tagged Conferences, Jurisprudence, Professional Ethics, Thomas More