Tag Archives: Law and Religion

Richard Hooker on Law, the Ancient, and the Good

Richard Hooker was a sixteenth-century Anglican churchman whose Of the LawsRIchard Hooker of Ecclesiastical Polity (1594-1597) is both a masterpiece of Anglican theology and a work of extraordinary stylistic elegance and force.  It was written primarily as a defense of the Church of England against the Puritan challenge, but Hooker ranges over many subjects of more general interest related to law, authority, custom, change, and tradition.  Over the last couple of days, on the recommendation of a friend, I’ve been reading fragments of the Laws here and there (you can access the whole thing for free at the link above).  I cannot recommend it more highly.

Here is my favorite passage (so far!) — from Book V, Chapter 7.  It relates closely to some of the things we think about on CLR Forum, from time to time.  Merry Christmas to those of our readers who are celebrating the holiday.

VII. Neither may we in this case lightly esteem what hath been allowed as fit in the judgment of antiquity, and by the long continued practice of the whole Church; from which unnecessarily to swerve, experience hath never as yet found it safe. For wisdom’s sake we reverence them no less that are young, or not much less, than if they were stricken in years. And therefore of such it is rightly said that their ripeness of understanding is “grey hair,” and their virtues “old age.” But because wisdom and youth are seldom joined in one, and the ordinary course of the world is more according to Job’s observation, who giveth men advice to seek “wisdom amongst the ancient, and in the length of days, understanding;” therefore if the comparison do stand between man and man, which shall hearken unto other; sith the aged for the most part are best experienced, least subject to rash and unadvised passions, it hath been ever judged reasonable that their sentence in matter of counsel should be better trusted, and more relied upon than other men’s. The goodness of God having furnished man with two chief instruments both necessary for this life, hands to execute and a mind to devise great things; the one is not profitable longer than the vigour of youth doth strengthen it, nor the other greatly till age and experience have brought it to perfection. In whom therefore time hath not perfected knowledge, such must be contented to follow them in whom it hath. For this cause none is more attentively heard than they whose speeches are as David’s were, “I have been young and now am old,” much I have seen and observed in the world. Sharp and subtile discourses of wit procure many times very great applause, but being laid in the balance with that which the habit of sound experience plainly delivereth, they are overweighed. God may endue men extraordinarily with understanding as it pleaseth him. But let no man presuming thereupon neglect the instructions, or despise the ordinances of his elders, sith He whose gift wisdom is hath said, “Ask thy father and he will shew thee; thine ancients and they shall tell thee.”

[2.]It is therefore the voice both of God and nature, not of learning only, that especially in matters of action and policy, “The sentences and judgments of men experienced, aged and wise, yea though they speak without any proof or demonstration, are no less to be hearkened unto, than as being demonstrations in themselves; because such men’s long observation is as an eye, wherewith they presently and plainly behold those principles which sway over all actions.” Whereby we are taught both the cause wherefore wise men’s judgments should be credited, and the mean how to use their judgments to the increase of our own wisdom. That which sheweth them to be wise, is the gathering of principles out of their own particular experiments. And the framing of our particular experiments according to the rule of their principles shall make us such as they are.

[3.]If therefore even at the first so great account should be made of wise men’s counsels touching things that are publicly done, as time shall add thereunto continuance and approbation of succeeding ages, their credit and authority must needs be greater. They which do nothing but that which men of account did before them, are, although they do amiss, yet the less faulty, because they are not the authors of harm. And doing well, their actions are freed from prejudice of novelty. To the best and wisest , while they live, the world is continually a froward opposite, a curious observer of their defects and imperfections; their virtues it afterwards as much admireth. And for this cause many times that which most deserveth approbation would hardly be able to find favour, if they which propose it were not content to profess themselves therein scholars and followers of the ancient. For the world will not endure to hear that we are wiser than any have been which went before. In which consideration there is cause why we should be slow and unwilling to change, without very urgent necessity, the ancient ordinances, rites, and long approved customs, of our venerable predecessors. The love of things ancient doth argue stayedness, but levity and want of experience maketh apt unto innovations. That which wisdom did first begin, and hath been with good men long continued, challengeth allowance of them that succeed, although it plead for itself nothing. That which is new, if it promise not much, doth fear condemnation before trial; till trial, no man doth acquit or trust it, what good soever it pretend and promise. So that in this kind there are few things known to be good, till such time as they grow to be ancient. The vain pretence of those glorious names, where they could not be with any truth, neither in reason ought to have been so much alleged, hath wrought such a prejudice against them in the minds of the common sort, as if they had utterly no force at all; whereas (especially for these observances which concern our present question) antiquity, custom, and consent in the Church of God, making with that which law doth establish, are themselves most sufficient reasons to uphold the same, unless some notable public inconvenience enforce the contrary. For a small thing in the eye of law is as nothing.

[4.]We are therefore bold to make our second petition this, That in things the fitness whereof is not of itself apparent, nor easy to be made sufficiently manifest unto all, yet the judgment of antiquity concurring with that which is received may induce them to think it not unfit, who are not able to allege any known weighty inconvenience which it hath, or to take any strong exception against it.

Ahdar & Leigh, “Religious Freedom in the Liberal State”

This December, Oxford University Press will publish the second edition of Religious Freedom in the Liberal State by Rex Ahdar (University of Otago Faculty of Law) and Ian Leigh (University of Durham, Durham Law School). The publisher’s description follows.

Examining the law and public policy relating to religious liberty in Western liberal democracies, this book contains a detailed analysis of the history, rationale, scope, and limits of religious freedom from (but not restricted to) an evangelical Christian perspective. Focussing on United Kingdom, the United States, Canada, New Zealand, Australia, and EU, it studies the interaction between law and religion at several different levels, looking at the key debates that have arisen.

Divided into three parts, the book begins by contrasting the liberal and Christian rationales for and understandings of religious freedom. It then explores central thematic issues: the types of constitutional frameworks within which any right to religious exercise must operate; the varieties of paradigmatic relationships between organized religion and the state; the meaning of ‘religion’; the limitations upon individual and institutional religious behaviour; and the domestic and international legal mechanisms that have evolved to address religious conduct. The final part explores key subject areas where current religious freedom controversies have arisen: employment; education; parental rights and childrearing; controls on pro-religious and anti-religious expression; medical treatment; and religious group (church) autonomy.

This new edition is fully updated with the growing case law in the area, and features increased coverage of Islam and the flashpoint debates surrounding the accommodation of Muslim beliefs and practices in Anglophone nations.

Horwitz, “First Amendment Institutions”

This November, Harvard University Press will publish First Amendment Institutions by Paul Horwitz (University of Alabama School of Law). The publisher’s description follows.

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Continue reading

Koppelman, “Defending American Religious Neutrality”

This November, Harvard University Press will release Defending American Religious Neutrality by Andrew Koppelman (Northwestern University School of Law). The publisher’s description follows.

Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality—more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate.

The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity. Continue reading

Sandberg on the Study of Law and Religion

Russell Sandberg (University of Wales System – Cardiff Law School) has posted The Sociology of the Law and Religion. The abstract follows.

This is the English language version of a piece which is published in Italian in Dizionario del sapere storico-religioso del Novecento, edited by Alberto Melloni, by Il Mulino (Bologna, 2010). It provides a definition of ‘the sociology of the law on religion’. This can be understood as a discipline which studies the interaction between law, religion and society. The paper assesses the extent to which this discipline exists. It looks at law and religion scholars such as Doe and Bradney who have made reference to sociology and sociologists of religion such as Davie and Beckford who have made reference to law. The author has further developed his analysis of the interaction between law and religion and the sociology of religion in his doctoral thesis and will return to the subject in a forthcoming monograph for Cambridge University Press.

New Podcast Series: Dialogues on Law and Justice

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.

Lecture at Fordham Law

Fordham’s Institute on Religion, Law, and Lawyer’s Work will host a lecture on January 24  by Archbishop Timothy Dolan as part of its “Law & the Gospel of Life” series. Archbishop Dolan will discuss bioethics. Details are here.

Conference on Christian Legal Thought (Jan. 7)

The Lumen Christi Institute will host the annual Conference on Christian Legal Thought on January 7 in Washington. Panels include “Public Unions and the State of Organized Labor,” “Pedagogy,” “Law, Speech, and Morality,” and “The Vocation of the Christian Lawyer and the Future of Legal Education.” Speakers include St. John’s own David Gregory. Details are here.

Wendel on Christian Legal Ethics

W. Bradley Wendel (Cornell) has posted Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions on SSRN. The abstract follows.

This paper was prepared for a conference on Stanley Hauerwas and the Law, held at Duke University in September 2011. One who shared Hauerwas’s theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper’s well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while the law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, citizens are necessarily required in some cases to seek advice from legally trained professionals to determine whether their proposed course of conduct may violate the law, or to employ mechanisms provided for by the legal system (such as contrasts, wills and trusts, and business entities) to achieve their goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients’ conduct; rather, they should assist their clients in implementing their own plans, providing technical assistance but not moral suasion. As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about, in which the autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community — for Hauerwas this is the church — and sharing in the ongoing development of its history. Thus, one may ask whether a Christian lawyer can follow some version of the standard conception, at least on Hauerwas’s conception of Christian social ethics.

With considerable hesitation, given the size and complexity of the corpus of Hauerwas’s scholarship, this paper attempts to offer an engaged Christian legal ethics in which the primary obligation of lawyers, acting in their Continue reading

Nichols on Marriage

Joel Nichols (University of St. Thomas – Minnesota) has posted Misunderstanding Marriage and Missing Religion on SSRN. The abstract follows.

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. Continue reading