Tag Archives: Jurisprudence

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.”

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Call for Papers: “Love and Law”

The Helen and Elinor Nootbar Institute on Law, Religion and Ethics at Pepperdine has issued a call for papers for an upcoming conference, “Love and Law: What Would Law Be Like if We Organized It Around the Value of Christian Love [Agape]?” The conference, which already has quite an impressive lineup of speakers, will take place in Malibu on February 7-8, 2014. Details are here.

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.)

Lecture, “Seeing God Through Law” (March 14)

On March 14, St. Nersess Armenian Orthodox  Seminary in Westchester will host a lecture by Professor Christopher Guzelian (Thomas Jefferson), “Seeing God Through Law.” The lecture is part of a series on law and faith. Details are here.

Podcast on “First Amendment Institutions”

Paul Horwitz and I discuss his book in this podcast, the latest in the Federalist Society’s worthwhile series of conversations on new books.

Our written exchange is here.

Barzilai on Law, Politics, and the Adjudication of Religious Issues

Gad Barzilai (University of Washington – Henry M. Jackson School of International Studies) has posted Law is Politics. The abstract follows.

In his essay, “Law or Politics: Israeli Constitutional Adjudication as a Case Study,” Gideon Sapir is coping with some problems concerning adjudication of religious issues. He presumes that there is a certain dichotomy that differentiates “law” from “politics,” since the first deals with norms and the second with regulating and balancing political branches. Sapir’s article, in my opinion, proves that law is politics in a sense that law generates and embodies political and socioeconomic interests, identities, and consciousness. I argue below that politics cannot be differentiated from law, and therefore cannot respond to Sapir’s aspiration to de-politicize adjudication and to monitor and hamper the effects of personal backgrounds and worldviews on judicial rulings. I analyze some of Sapir’s findings and arguments from a critical perspective that law is politics.

The subject matter of religious justices in supreme courts are particularly relevant in countries where almost no institutional and constitutional separation between state and religion prevails. In countries like Israel that have not separated state from religion, and have used religion as part of state nationality and legal ideology, the background of the justices and their basic worldviews will most often be a reflection and articulation of interactions between religion, state power foci, and state ideology. The Israeli Jewish political elite has used Orthodox religion to legitimize the state, and hence has used the non-separation of nationality and religion embedded in Zionism, for political purposes.

Richard Epstein to Lecture on Natural Law (March 21)

I’ve always thought of natural law and law and economics as opposing schools of thought. Like Rick in Casablanca, I must have been misinformed. On March 21, law and economics scholar Richard Epstein will deliver the Spring 2013 Natural Law Colloquium Lecture at Fordham. Details are here.

Panel: Law and Freedom Put to the Test of Experience (Jan 20)

The Crossroads Cultural Center in New York will host a panel discussion, “Law and Freedom Put to the Test of Experience,” in New York on January 20:

What is the relationship between law, rights, and freedom? When is freedom realized by law? When is it, instead, suffocated or suppressed? The speakers will address these questions in light of the irreducible need for justice and freedom as they emerge in human experience. Does human experience reveal an objective yet inherently personal criteria that enables the individual (regardless of any social, cultural or religious background) to judge both the fairness of a rule and its ability to realize greater freedom? The discussion will relate to a recently published book titled “Elementary Experience and Law” in which four legal scholars apply an innovative take on the concept of “elementary experience” – which is at the basis of Msgr. Luigi Giussani’s fundamental work “The Religious Sense” – to the legal system and the issue of justice.

Details are here.

Conference on Christian Legal Thought (Jan 5)

For CLR Forum readers attending the AALS Meeting in New Orleans this weekend, the annual Lumen Christi Conference on Christian Legal Thought will take place on Saturday, January 5. This year’s meeting will focus on a recent statement on the nature of law by Evangelical and Catholic scholars and will include speakers from non-Christian perspectives as well. Details are here.