Tag Archives: Legal History

Christianity and the Rise of “the Problem of Church and State”

I have begun reading the British legal historian Theodore F.T. Plucknett’s massive work, A Concise History of the Common Law, a wonderful treatment of the subject written in the mid-twentieth century. Here’s something from early in the book:

While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognize some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution–and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power.

It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine. [citing C.H. Turner, Cambridge Mediaeval History]

Indeed, while the organization of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life. Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy. [4-5]

Center Sponsors Successful Joint Colloquium with Villanova Law School

Here’s an article, from the St. John’s Law School website, on the inaugural session of the Joint Colloquium in Law and Religion, which the Center hosted with Villanova Law School this semester. The Joint Colloquium, which featured leading law and religion scholars, used innovative “virtual classroom” technology to allow students and faculty at both schools to participate simultaneously through a synchronous video link.

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Joint Colloquium with Michael Walzer

From the article:

Michael Walzer (Institute for Advanced Studies) discussed the ethics of war in classical and contemporary Jewish law. Legal historian Sarah Barringer Gordon (University of Pennsylvania) explained how the availability of the corporate form empowered African-American congregations in the early national period. Kristine Kalanges (Notre Dame University School of Law) explored the relationship between Islamic law and contemporary ideas about constitutionalism and human rights. Kent Greenawalt (Columbia Law School) and Donald L. Drakeman (Cambridge University) both presented papers on Originalism. Greenawalt argued that factors other than the original understanding inevitably will and should play an important role in constitutional interpretation. Drakeman offered a methodological middle ground, one that takes account of both original intent and original meaning. Steven D. Smith (University of San Diego School of Law) critiqued the standard account of American religious freedom, and asked whether religious freedom in America today is suffering a decline.

The virtual classroom enriched the discussions by allowing for a fruitful exchange between participants at the two host schools. After the speakers presented their papers, students had the opportunity to ask questions and present their own insights and opinions on the issues.

This was our first experience with virtual classroom technology, and it was highly successful. You can read more about the joint colloquium, and view a photo gallery, here. Thanks to everyone who made it possible, and see you next time!

 

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.”

Joint Colloquium on Law and Religion

This semester, the Center for Law and Religion at St. John’s and Villanova Law School are teaming up to host the Joint Colloquium in Law and Religion. The course invites leading law and religion scholars to make presentations to an audience of selected students and faculty. The schools will be connected in real time by video link so that students and faculty at both schools can participate in a virtual classroom experience. At St. John’s, the colloquium will be hosted by Mark Movsesian and Marc DeGirolami, the Director and Associate Director of the Center. Vice Dean and Professor Michael Moreland will host at Villanova.

The following speakers have confirmed:

January 27, 2014 (at St. John’s)
Michael Walzer, Institute for Advanced Study
The Ethics of Warfare in the Jewish Tradition

February 10, 2014 (at Villanova)
Sarah Barringer Gordon, University of Pennsylvania Law School
The African Supplement: Religion, Race, and Corporate Law in the Early Republic

February 24, 2014 (at St. John’s)
Kent Greenawalt, Columbia Law School
Original Understanding: What is Relevant and How Much Does It Matter?

March 17, 2014 (at St. John’s)
Donald L. Drakeman, Cambridge University
Which Original Meaning of the Establishment Clause is the Right One?

March 31, 2014 (at St. John’s)
Kristine Kalanges, Notre Dame Law School
Transcendence and the Just Order

April 14, 2014 (at Villanova)
Steven D. Smith, University of San Diego Law School
Topic TBD

For more information, or if you would like to attend any of the sessions, please email one of the colloquium’s organizers:

Marc DeGirolami | degirolm@stjohns.edu
Mark Movsesian | movsesim@stjohns.edu
Michael Moreland | moreland@law.villanova.edu

Smith, “The Rise and Decline of American Religious Freedom”

9780674724754-lgThis February, Harvard University Press will publish The Rise and Decline of American Religious Freedom by Steven D. Smith (University of San Diego).

Familiar accounts of religious freedom in the United States often tell a story of visionary founders who broke from the centuries-old patterns of Christendom to establish a political arrangement committed to secular and religiously neutral government. These novel commitments were supposedly embodied in the religion clauses of the First Amendment. But this story is largely a fairytale, Steven D. Smith says in this incisive examination of a much-mythologized subject. He makes the case that the American achievement was not a rejection of Christian commitments but a retrieval of classic Christian ideals of freedom of the church and freedom of conscience.

Smith maintains that the distinctive American contribution to religious freedom was not in the First Amendment, which was intended merely to preserve the political status quo in matters of religion. What was important was the commitment to open contestation between secularist and providentialist understandings of the nation which evolved over the nineteenth century. In the twentieth century, far from vindicating constitutional principles, as conventional wisdom suggests, the Supreme Court imposed secular neutrality, which effectively repudiated this commitment to open contestation. Rather than upholding what was distinctively American and constitutional, these decisions subverted it. The negative consequences are visible today in the incoherence of religion clause jurisprudence and the intense culture wars in American politics.

Ackerman-Lieberman, “The Business of Identity: Jews, Muslims, and Economic Life in Medieval Egypt”

Next month, Stanford will publish The Business of Identity: Jews, Muslims, and 0804785473Economic Life in Medieval Egypt, by Phillip I. Ackerman-Lieberman (Vanderbilt University). The publisher’s description follows.

The Cairo Geniza is the largest and richest store of documentary evidence for the medieval Islamic world. This book seeks to revolutionize the way scholars use that treasure trove. Phillip I. Ackerman-Lieberman draws on legal documents from the Geniza to reconceive of life in the medieval Islamic marketplace. In place of the shared practices broadly understood by scholars to have transcended confessional boundaries, he reveals how Jewish merchants in Egypt employed distinctive trading practices. Highly influenced by Jewish law, these commercial practices served to manifest their Jewish identity in the medieval Islamic context. In light of this distinctiveness, Ackerman-Lieberman proposes an alternative model for using the Geniza documents as a tool for understanding daily life in the medieval Islamic world as a whole.

Compton, “The Evangelical Origins of the Living Constitution”

Next spring, Harvard will publish The Evangelical Origins of the Living Constitution, by Chapman University Professor John Compton. The publisher’s description follows:

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.

“National Prayers: Special Worship since the Reformation: Volume 1: Special Prayers, Fasts and Thanksgivings in the British Isles, 1533-1688″ (Mears, et al., eds.)

Next month, Boydell Press will publish National Prayers: Special Worship since the Reformation: Volume 1: Special Prayers, Fasts and Thanksgivings in the British Isles, 1533-1688, edited by Natalie Mears, Alasdair Raffe, and Stephen Taylor. The publisher’s description follows.

Since the sixteenth century, the governments and established churches of the British Isles have summoned the nation to special acts of public worship during periods of anxiety and crisis, at times of celebration or for annual commemoration and remembrance. These special prayers, special days of worship and anniversary commemorations were national events, reaching into every parish in England and Wales, in Scotland and in Ireland. They had considerable religious, ecclesiastical, political, ideological, moral and social significance, and they produced important texts: proclamations, council orders, addresses and – in England, Wales and Ireland – prayers or complete liturgies which for specified periods supplemented or replaced the services in the Book of Common Prayer. Many of these acts of special worship and most of the texts have escaped historical notice. National Prayers. Special Worship since the Reformation, in three volumes, provides the edited texts, commentaries and source notes for each of the nearly nine hundred occasions of special worship and for each of the annual commemorations. The first volume, Special Prayers, Fasts and Thanksgivings in the British Isles 1533-1688, has an extended Introduction to the three volumes and a consolidated list of all the occasions of special worship. It contains texts and commentaries which reveal the origins of special occasions of national worship during the Reformation in both England and Scotland, the development of fast days and wartime prayers later in the sixteenth century, and what we know about the origins of special national worship in Ireland. It also shows how special worship became a recurrent focus and expression of religion and political contention during the seventeenth century.

Call for Papers: “Cuius Regio, Eius Religio”

The Legal History Blog has a call for papers for an upcoming conference at the Jagiellonian University in Poland, “Cuius Regio, Eius Religio.” The conference will take place in December 2013. Details are here.