Culture and law have a mutually-reinforcing relationship. Cultural transformation typically promotes legal change, and legal change often speeds up cultural transformation. A good example is the sexual revolution of the 1960s. As the revolution became mainstream, it put pressure on family law concepts that had been based on traditional Christian sexual ethics. And changes in family law have no doubt accelerated the weakening of traditional Christian sexual morality.
Next month, Harvard University Press will publish a book that describes another cultural transformation that had an effect on law: the movement from pagan to Christian sexual ethics that occurred in late antiquity. In some ways, this seems the mirror image of what is happening today. As Christian values displaced the pagan sexual ethic, Roman law changed as well. Doubtless, pagan traditionalists grumbled about the revolution, just as religious traditionalists grumble today. It’s a good reminder that history doesn’t really move in a one-way direction.
The book is From Shame to Sin: The Christian Transformation of Sexual Morality in Late Antiquity by Kyle Harper (University of Oklahoma). Here’s the publisher’s description:
When Rome was at its height, an emperor’s male beloved, victim of an untimely death, would be worshipped around the empire as a god. In this same society, the routine sexual exploitation of poor and enslaved women was abetted by public institutions. Four centuries later, a Roman emperor commanded the mutilation of men caught in same-sex affairs, even as he affirmed the moral dignity of women without any civic claim to honor. The gradual transformation of the Roman world from polytheistic to Christian marks one of the most sweeping ideological changes of premodern history. At the center of it all was sex. Exploring sources in literature, philosophy, and art, Kyle Harper examines the rise of Christianity as a turning point in the history of sexuality and helps us see how the roots of modern sexuality are grounded in an ancient religious revolution.
While Roman sexual culture was frankly and freely erotic, it was not completely unmoored from constraint. Offending against sexual morality was cause for shame, experienced through social condemnation. The rise of Christianity fundamentally changed the ethics of sexual behavior. In matters of morality, divine judgment transcended that of mere mortals, and shame—a social concept—gave way to the theological notion of sin. This transformed understanding led to Christianity’s explicit prohibitions of homosexuality, extramarital love, and prostitution. Most profound, however, was the emergence of the idea of free will in Christian dogma, which made all human action, including sexual behavior, accountable to the spiritual, not the physical, world.
Dan Awrey (University of Oxford), William Blair, and David Kershaw (London School of Economics) have posted Between Law and Markets: Is There a Role for Culture and Ethics in Financial Regulation? The abstract follows.
The limits of markets as mechanisms for constraining socially suboptimal behavior are well documented. Simultaneously, conventional approaches toward the law and regulation are often crude and ineffective mechanisms for containing the social costs of market failure. So where do we turn when both law and markets fail to live up to their social promise? Two possible answers are culture and ethics. In theory, both can help constrain socially undesirable behavior in the vacuum between law and markets. In practice, however, both exhibit manifest shortcomings.
To many, this analysis may portend the end of the story. From our perspective, however, it represents a useful point of departure. While neither law nor markets may be particularly well suited to serving as “the conscience of the Square Mile,” it may nevertheless be possible to harness the power of these institutions to carve out a space within which culture and ethics – or, combining the two, a more ethical culture – can play a meaningful role in constraining socially undesirable behavior within the financial services industry. The objective of this article is to explore some of the ways which, in our view, this might be achieved.
This exploration takes place across two dimensions. In the first dimension, we hold constant the core internal governance arrangements – corporate objectives, directors’ duties, board composition, committee structures and remuneration policies – within financial institutions. Continue reading
Yale sociologist Philip Gorski has written a thoughtful essay in The Chronicle of Higher Education (subscription required) on the need to accommodate both secular and religious values in American politics. Both secular and religious Americans should give up their maximalist claims, he argues, in favor of “civil religion,” a concept most closely associated in the United States with sociologist Robert Bellah:
What is needed, then, is a mediating tradition that allows room for both religious and political values, without subordinating one to the other. Such a tradition does exist. The sociologist Robert N. Bellah sought to describe it almost a half century ago in his famous article on “Civil Religion in America.” It comprises two main intellectual strands: civic republicanism and prophetic religion. Where liberalism emphasizes individual autonomy and a free market, republicanism is more concerned with civic virtue and participatory government. Consequently it is less wary of religion. Where religious conservatism stresses individual salvation and personal accountability, prophetic religion emphasizes human flourishing and collective responsibility. Consequently it is less wary of the state.
It’s an interesting idea, but I wonder whether civil religion would really do the job Gorski asks of it. At an abstract level, civil religion may resolve tensions between individualists and communitarians, between secular and religious Continue reading
Judging by church attendance and the percentage of people who say religion plays an important role in their lives, Europe is a secular place. And yet, as sociologists of religion have observed, Christianity continues to have a major cultural and legal role. Nowhere is this clearer than in Britain, where the Monarch is the “Supreme Governor” of the state church. Britain today commemorated the Jubilee of Queen Elizabeth II with a Thanksgiving service in London’s St. Paul’s Cathedral. The Prime Minister read from the New Testament and the Archbishop of Canterbury delivered a sermon praising the Queen for manifesting the values of St. Paul himself:
Dr Rowan Williams paid tribute to the Queen’s selfless devotion, saying: “I don’t think it’s at all fanciful to say that, in all her public engagements, our Queen has shown a quality of joy in the happiness of others; she has responded with just the generosity St Paul speaks of in showing honour to countless local communities and individuals of every background and class and race.”
One would think such ceremonies, to borrow the phrase from American law, send a message of exclusion and disparagement that religious minorities resent, but that is apparently not the case, or at least not typically. It’s not the American way of doing things, but, as Joseph Weiler has written, “there is something inspiring and optimistic by the fact that even though the Queen is the Titular Head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too.”
Robin Kar (Illinois) is doing a series of articles that takes issue, among other things, with parts of the Berman thesis I mentioned yesterday in my post on John McGinnis. Here is the abstract for the second in the series, On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Earliest Legal and Cultural Origins (Part 2):
Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.
This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Continue reading
I have the pleasure of being hosted this week at the DePaul College of Law by the Center for Jewish Law and Judaic Studies, which is holding a two-day Jewish Law Symposium. The format for the symposium has been fantastic. The first day was dedicated to CLE presentations on contemporary issues in Jewish law (I presented on practical issues that arise when trying to enforce rabbinical court judgments in U.S. courts). The second day will include works in progress by some fantastic Jewish Law scholars, including Chaim Saiman (Villanova), who is presenting his paper “Talmudic Analysis and Ethical Thought,” David Flatto (Penn State), who is presenting his paper “Justice Retold,” and Roberta Kwall (DePaul), who is presenting her paper “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study,” with all papers receiving comments from Keith Sharfman (St. Johns). I’ve got to say the combination of both discussions of practical Jewish law issues and scholarly presentations of Jewish Law papers has been a great format. Many thanks to the Center and to its co-directors Roberta Kwall and Steven Resnicoff for putting together such a wonderful program.
The Crossroads Cultural Center will host a panel discussion, “The Original Source of Law: The Individual? The State? God?”, at NYU on May 9. The panel will address natural law, both as a general concept and in its practical implications. Speakers include Robert George (Princeton) and Andrea Simoncini (Florence). Details are here.
José Woehrling (University of Montreal) and Rosalie Jukier (McGill University) have posted Religion and the Secular State in Canada. The abstract follows.
This article reflects the National Report from Canada on Religion and the Secular State prepared by the co-authors for the XVIIIth International Congress of Comparative Law that took place in Washington, D.C., in July 2010. This Report provides a snapshot of the state of the law with respect to religion in Canada from a multitude of perspectives, touching on both its private law and public law dimensions, against the backdrop of the diverse and changing social and religious composition of Canada. The theoretical and constitutional frameworks, as well as important questions of the definition of secularity and the need for reasonable accommodation, are canvassed. Particular applications of religion and the secular state in the arenas of education, marriage and divorce, contracts, religious symbols and hate speech are also discussed.
Here’s an interesting new podcast series: Dialogues on Law and Justice. The series is produced by Mars Hill Audio, an independent organization in the Reformed/Calvinist tradition that seeks to engage contemporary culture. So far, the series has included interviews with a number of prominent scholars, including Carl Esbeck (Missouri) on Hosanna-Tabor, John Witte (Emory) on the relationship between secular and religious jurisprudence, Michael McConnell (Stanford) on the Court’s reduction of First Amendment claims to free speech claims, and Robert George (Princeton) on marriage. This looks to be a great resource.