I spent this morning at the fourth annual Religious Legal Theory Conference, hosted this year by Sam Levine at Touro Law School. I moderated a panel, “Religious Legal Theory and the Perspectives of ‘Others.’” The idea for the panel, which was Sam’s, was to bring together scholars who write about law in religious traditions other than their own, something that I tried to do a few years ago at the first Religious Legal Theory Conference with my essay, Fiqh and Canons.
The presentations were interesting and covered a variety of perspectives. Randy Lee (Widener) spoke about his experience as a Christian studying Jewish law. He said that this experience had taught him the importance of “listening Jewish”–to find the best in others. He wondered whether “Godly lawyers” who listened to clients in this way might actually transform lives. In response to a question from me, Randy stated that he did not think that all lawyers who study religious law would have his experience, or should; but, in studying Jewish law, he realized that he himself was a “variable,” not a “constant,” and that he himself had been transformed.
David Friedman (Santa Clara) is an atheist who studies the history of religious legal systems. He argued that Jewish and Islamic law both rest in part on pre-existing, decentralized ”feud systems,” characterized by private retaliation for wrongs. He gave examples from both systems. Friedman also addressed the problems that arise in legal systems that have God, rather than humans, as “the legislator,” and the various interpretive devices such systems employ to mitigate what seem to be disproportionate penalties called for in sacred scripture- Islamic law rules calling for amputation as punishment for theft, for example.
Philip Ackerman-Lieberman (Vanderbilt), who is Jewish, spoke about his work on the interactions between Islamic and Jewish commercial law in medieval Cairo. He argued that scholars should not concern themselves only with a comparison of legal details, but should study social and legal structures as a whole. Structural analysis reveals that the Islamic legal culture and Jewish legal subculture influenced each other in a kind of “dialogue.” The two systems shared ideas, but also differentiated themselves from one another–and in this differentiation may be found the distinctive elements of each legal tradition. Philip suggested that the study of legal theory and commercial practice in medieval Cairo could have an impact on contemporary issues faced by Islam and Judaism.
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.
religious history of the English-speaking world, providing the context for liberal Lockean ideas of government that influenced the American Constitution a century later. I’ve always had the impression that the Revolution was essentially a Protestant rebellion against the last of the Stuart Monarchs, James II, who seemed poised to restore Catholicism in England. A new book by Northwestern historian Scott Sowerby, 
Inquisition: A Papal Bureaucracy and Its Laws in the Age of Galileo
Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a 
of opinions over several decades, the Supreme Court has held that the Constitution protects sexually explicit speech, contraception, abortion, and, latterly, homosexual conduct. The Court may be about to declare same-sex marriage a constitutional right. All this has put significant pressure upon traditionalist religions. More and more, fights about religious liberty involve the right to dissent — and to act in ways that reflect that dissent — from the legal consensus on sexuality.
Happy Birthday, Edict of Milan
When I, Constantine Augustus, and I, Licinius Augustus, came under favorable auspices to Milan and took under consideration everything which pertained to the common weal and prosperity, we resolved among other things, or rather first of all, to make such decrees as seemed in many respects for the benefit of every one; namely, such as should preserve reverence and piety toward the deity. We resolved, that is, to grant both to the Christians and to all men freedom to follow the religion which they choose, that whatever heavenly divinity exists may be propitious to us and to all that live under our government.
We have, therefore, determined, with sound and upright purpose, that liberty is to be denied to no one, to choose and to follow the religious observances of the Christians, but that to each one freedom is to be given to devote his mind to that religion which he may think adapted to himself, in order that the Deity may exhibit to us in all things his accustomed care and favor.
Note a couple of things. The edict does not, as commonly believed, make Christianity the state religion. That decision came later, under a different emperor, Theodosius–which suggests that Christians who condemn the “Constantinian compromise” that weakened the faith have got their emperors wrong. And, although it is famous for legalizing the practice of Christianity in Rome, the edict does not cover only Christians. It grants religious liberty to everyone in the empire. Everyone should follow the religion he thinks best, the edict proclaims, so that “whatever heavenly divinity exists” will continue his favors to Rome. Which puts one in mind of Gibbon’s famous jibe: to the magistrate, all religions are equally useful.
At length, Licinius changed his mind about the edict and began persecuting Christians in his part of the empire. A power struggle followed; Constantine eventually defeated Licinius, thereby becoming sole emperor. Constantine was always cagey about his own Christianity, perhaps because he wished to avoid upsetting those powerful Romans who remained pagan. He advanced the interests of the church and influenced (or interfered in) doctrinal developments, but he did not actually become a Christian until shortly before his death. Today, both he and Theodosius are commemorated as saints in Eastern churches. Licinius? Not so much.
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Posted in Commentary, Mark L. Movsesian
Tagged Ancient Rome, Christianity, Church and State, Legal History, Religious Freedom, Religious Liberty