In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of "personal law" that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state's different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to generally-applicable law. That being said, the U.S. Supreme Court has also recently given renewed emphasis to state sovereignty and other federal values. As this piece argues, what results from this worship of federalism is a truly American-style personal law system, where territorial communities have taken the place of other personal law systems' religious and ethnic communal constituencies. This being the case, I conclude by questioning recent innovations in American constitutional jurisprudence which devalue religious pluralism, while simultaneously elevating territorial communalism.
In the Catholic Social Tradition, "family" matters. Not merely as a code or short-hand for a certain set of policies, but as a pre-political (and political) institution, a structural safeguard of freedom and promoter of human flourishing. So, those who read this blog might be interested in Prof. Robert Ellickson's new paper, "Unpacking the Hearth," which -- I'm quoting Ethan Lieb -- argues that "it is good to keep the law out of the hearth because people in liberal societies are pretty good at self-organization and find optimal living situations in households without too much recourse to legal institutions. We consort with intimates -- and it is bad to contract with our intimates because it is not efficient and it debases those relationships."
Here's Prof. Ellickson's abstract:
As Aristotle recognized in The Politics, the household is an indispensable building block of social, economic, and political life. A liberal society grants its citizens far wider berth to arrange their households than to choose their familial and marital relationships. Legal commentators, however, have devoted far more attention to the family and to marriage than to the household as such. To unpack the household, this Article applies transaction cost economics and sociological theory to interactions among household participants. It explores questions such as the structure of ownership of dwelling units, the scope of household production, and the governance of activities around the hearth. Drawing on a wide variety of historical and statistical sources, the Article contrasts conventional family-based households with arrangements in, among others, medieval English castles, Benedictine monasteries, and Israeli kibbutzim.
A household is likely to involve several participants and as many as three distinct relationships--that among occupants, that among owners, and that between these two groups (the landlord-tenant relationship). Individuals, when structuring these home relationships, typically pursue a strategy of consorting with intimates. This facilitates informal coordination and greatly reduces the transaction costs of domestic interactions. Utopian critics, however, have sought to enlarge the scale of households, and some legal advocates have urged household members to write formal contracts and take disputes into court. These commentators fail to appreciate the great advantages, in the home setting, of informally associating with a few trustworthy intimates.
Prof. Ellickson was one of the best teachers I've ever had. I cannot wait to read this paper.
This weekend (Thurs-Sat), the University of Portland's Garaventa Center for Catholic Intellectual Life and Culture is hosting a conference, "The American Experiment in Religious Freedom." Justice Scalia is delivering the keynote address, and presenters include: Judge John Noonan, Kevin Hasson, Judge Diarmuid O'Scannlain, Sen. Patrick Leahy, Jean Bethke Elshtain, the lovely and talented Nicole Stelle Garnett, MOJ-pals Michael Moreland and John O'Callaghan, and many, many others. Check it out.
This piece, in the Washington Post, about the 2,000 or so adult converts being received this weekend in the D.C. area into full communion with the Catholic Church was, for me, a real heart-warmer. So often, the stories about the Church involve scandal, decline, and vulnerability. No doubt, these stories reveal a lot that needs to be taken seriously. Still, in parishes large and small, all over the country, adults are following the Holy Spirit to Church. It's a beautiful thing.
The New York Times Magazine today has a cover story, "Keeping the Faith," which describes Pope Benedict XVI as the "anti-secularist" who "believes that the Roman Catholic Church in Europe faces a dire threat in secularism and that re-Christianizing the Continent is critical not only to the fate of the church but to the fate of Europe itself." The piece is very long, but here is just a snippet from the early paragraphs:
Benedict is one of the most intellectual men ever to serve as pope — and surely one of the most intellectual of current world leaders — and he has pinpointed the problem of the age, as well as its solution, at the level of philosophy. His argument, elaborated in the years leading up to his election and continuing through his daily speeches and pronouncements, reduces to something like this: Secularism may be one of the great developments in history, but the secularism that holds sway in much of the West — that is, in Western Europe — is flawed; it has a bug in its programming. The mistaken conviction that reason and faith are two distinct realms has weakened Europe and has brought it to the verge of catastrophic collapse.
Here's E.J. Dionne's recent column, responding to the rash of smug, trendy atheism (Sam Harris, etc.):
As a general proposition, I welcome the neo-atheists' challenge. The most serious believers, understanding that they need to ask themselves searching questions, have always engaged in dialogue with atheists. The Catholic writer Michael Novak's book "Belief and Unbelief" is a classic in self-interrogation. "How does one know that one's belief is truly in God," he asks at one point, "not merely in some habitual emotion or pattern of response?"
The problem with the neo-atheists is that they seem as dogmatic as the dogmatists they condemn. They are especially frustrated with religious "moderates" who don't fit their stereotypes.
In his bracing polemic " The End of Faith," Harris is candid in asserting that "religious moderates are themselves the bearers of a terrible dogma: they imagine that the path to peace will be paved once each one of us has learned to respect the unjustified beliefs of others." . . .
What's really bothersome is the suggestion that believers rarely question themselves while atheists ask all the hard questions. But as Novak argued -- in one of the best critiques of neo-atheism -- in the March 19 issue of National Review, "Questions have been the heart and soul of Judaism and Christianity for millennia." (These questions get a fair reading in another powerful commentary on neo-atheism by James Wood, himself an atheist, in the Dec. 18 issue of the New Republic.) "Christianity is not about moral arrogance," Novak insists. "It is about moral realism, and moral humility." Of course Christians in practice often fail to live up to this elevated definition of their creed. But atheists are capable of their own forms of arrogance. Indeed, if arrogance were the only criterion, the contest could well come out a tie.
As for me, Christianity is more a call to rebellion than an insistence on narrow conformity, more a challenge than a set of certainties. . . .
If Rudy G. were a candidate in Mexico, it sounds like he might have more to worry about than Eduardo's and my disapproval! According to this story:
A leading Catholic official in Mexico said Wednesday that any lawmakers in the capital city's legislature that vote for a bill to legalize abortion there will be excommunicated when the first legal abortion is done. Both the city's legislature and the Mexican Congress are considering bills to allow abortions.
Bishop Marcelino Hernandez said the Church would not hold a ceremony or use any official procedure to kick the legislators out but explained that they would be essentially voting to remove themselves.
"The person excommunicates himself, it's not that the Church goes around with a rod, looking for people who make mistakes, in order to hit them on the head," Hernandez told reporters in a press conference, according to an AP report.
MOJ readers might enjoy this new blog, by political theorist Patrick Deneen: "What I Saw In America: The Political Theory of Daily Life." Here's a post on the recent decision at Georgetown to deny funding for an internship with an abortion-rights group; here's another about agrarianism and "big government".
Shamelessness time: I'm going to be delivering the Kamm Memorial Lecture in Jurisprudence (details here) at Wheaton College on Tuesday, April 10: "Two There Are: Understanding the Separation of Church and State." I think highly of Wheaton, so I'm really excited about this opportunity, and am looking forward to hob-nobbing about the Freedom of the Church with our beloved Separated Brethren.
Any MOJ readers in or at all near Boston will want to consider attending this lecture:
On Monday, April 9th, Professor Robert P. George of Princeton University will be giving the 2007 John Dewey Lecture in Philosophy of Law at Harvard University. The lecture, entitled "Natural Law," will be held at 5:00 p.m. in Austin East Hall at Harvard Law School. A reception will follow. All are welcome.
Robby George giving the Dewey Lecture at Harvard Law School. I love it.
