Law-and-religion scholar Fred Gedicks is guest-blogging over at "Times and Seasons", which is said to be "quite possibly the most mawkish, yet influential, onymous Mormon group blog in history." I've learned a lot from Fred's work.
Rick
Sunday, July 4, 2004
Gedicks guest-blogging at "Times and Seasons"
Solum on "Swing Votes" and "the Virtue of Justice"
In addition to running the invaluable Legal Theory Blog, Professor Larry Solum has for several years been exploring and fleshing out the role of virtue ethics and aretaic theory in constitutional law. (Click here for "Virtue Jurisprudence: A Virtue-Centered Theory of Judging", and here for "Theorizing About Constitutional Interpretation: The Aretaic Turn").
Not surprisingly, then, one of Professor Solum's recent posts provide a welcome break from the usual gouge-out-the-eyes sameness that is "End of the Term" commentary about the Supreme Court and its work (e.g., "Justice O'Connor: Swing Vote"; "Court Divided on Hot-Button Issues"; "Scalia Cranky About O'Connorism," etc.). In "Swing Votes, Making Things Come Out Right, and the Virtue of Justice" (here), Solum takes up "two interacting phenomena. First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the 'fair' or 'best' outcome, feeling only loosely constrained by the rules laid down--e.g. their own precedents, the constitutional text, statutory language, and so forth." And, with respect to these (relatively uncontroversial) observations, Solum suggests "that the interaction of these two phenomena is much more problematic than either would be by itself." That is, "(1) a closely divided court that is (2) results oriented poses a greater threat to the rule of law than would either phenomena standing alone."
In Solum's view, there *is* a solution to this problem, or "threat": "The key to the solution is rejection of the realist dogma that judges must be ideological. To put this point differently, we need to expand our model of judicial attitudes and dispositons and recognize that judges vary not only in their political ideology, but also in their judicial philosophies. Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility." The key to realizing this possibility, Solum suggests, is "good judicial character, and especially . . . the virtue of justice--the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges' own perceptions of what the law should be."
Solum has developed his theory of judging in considerable detail. The theory might be of interest to Mirror of Justice readers and bloggers, given the centrality -- or, at least, the importance -- of aretaic theory in the Catholic intellectual tradition.
Rick
Saturday, July 3, 2004
Steve Smith on "The Pluralist Predicament"
Here's another interesting-looking essay, by University of San Diego's Steve Smith:
"Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation between government and religion (and that at least until relatively recently did provide the foundations for such thinking). This essay, written to provide a succinct 'state of the art' review of current approaches, describes and assesses the various ways in which modern theorists of religious freedom have addressed this fundamental difficulty."
This paper should be of interest to those of us who engaged, a few weeks ago, Greg Kalscheur's recent article.
Rick
Friday, July 2, 2004
New Article by Brugger on Aquinas and Capital Punishment
Earlier I recommended E. Christian Brugger's book, Capital Punishment and Roman Catholic Moral Tradition (Notre Dame 2003). More recently, Rick Garnett called our attention to a symposium issue of the Notre Dame Journal of Law, Ethics & Public Policy. In that symposium issue, there is an article by E. Christian Brugger: Aquinas and Capital Punishment: The Plausibility of the Traditional Argument. Given Brugger's argument, the subtitle should be "The Implausibility of the Traditional Argument". If you would like to read the article, which I recommend, please click here:
Thursday, July 1, 2004
Call for Papers
Here's an announcement for an intriguing-looking conference:
ASSOCIATION FOR THE STUDY OF LAW, CULTURE, AND THE HUMANITIES
Eighth Annual Conference
March 11-12, 2005
Sponsored by the College of Liberal Arts, The University of Texas at Austin
We are pleased to announce that the Eighth Annual Meeting of the Association for the Study of Law, Culture and the Humanities will be held in Austin, Texas, March 11-12, 2005. We invite your participation.
The Association for the Study of Law, Culture and the Humanities is an organization of scholars engaged in interdisciplinary, humanistically-oriented legal scholarship. The Association brings together a wide range of people engaged in scholarship on legal history, legal theory and jurisprudence, law and cultural studies, law and literature, law and the performing arts, and legal hermeneutics. We want to encourage dialogue across and among these fields about issues of interpretation, identity, and values, about authority, obligation, and justice, and about law's place in culture.
Examples of the types of sessions we expect to organize include:
History, Memory and Law; Reading Race; Law and Literature; Human Rights and Cultural Pluralism; Speech, Silence, and the Language of Law; Judgment, Justice, and Law; Beyond Identity; The Idea of Practice in Legal Thought; Metaphor and Meaning; Representing Legality in Film and Mass Media; Anarchy, Liberty and Law; What is Excellence in Interpretation?; Ethics, Religion, and Law; Moral Obligation and Legal Life; The Post-Colonial in Literary and Legal Study; Processes and Possibilities in Interdisciplinary Law Teaching
This list is by no means exclusive. We invite scholars with interests across the range of areas in Law, Culture and the Humanities to organize panels, to submit proposals for individual paper presentations, and/or to indicate their interest in serving as chair/discussant. We welcome volunteers for chairs and discussants from people who are not submitting proposals for papers. If you would like to be a chair/discussant please submit a one-paragraph description of your interests/area of expertise along with your Name, Address, Phone, Fax, and e-mail.
We urge those interested in attending to consider submitting complete panels, and we hope to encourage a variety of formats-roundtables, sessions at which everyone reads the papers in advance, sessions in which commentators respond to a single paper. We invite proposals for sessions in which the focus is on pedagogy or methodology, for author-meets-readers sessions organized around important books in the field, or for sessions in which participants focus on performance (theatrical, filmic, musical, poetic).
Proposal Submissions
Proposals must contain the following information:
· Name, Address, Phone, Fax, and e-mail
· Title of paper (where applicable)
· A brief abstract (of up to150 words, to be included in the conference program)
· A statement of up to 1000 words explaining what you would like to present and why it is important in interdisciplinary studies of law, culture and the humanities
In the case of full panel proposals, all of this information should be supplied for each participant. Please make sure that your proposal is complete before you send it in. If you would be willing to serve as a chair/discussant please indicate that on your proposal.
Please submit proposals via e-mail, NO LATER THAN October 1, 2004 to Professor Susan Sage Heinzelman at [email protected]. Those submitting proposals can expect to receive a response in December. We cannot promise that we will be able to accommodate all proposals.
Registration and hotel information as well as a preliminary program will be mailed in early January 2005.
* * * * *
ASLCH Organizing Committee:
Susan Sage Heinzelman, English/Women and Gender Studies, University of Texas (President); Anita Allen-Castelitto, Law, University of Pennsylvania (Secretary); Robin West, Law, Georgetown University (Treasurer); Paul Schiff Berman, Law, University of Connecticut; Jennifer Culbert, Political Science, Johns Hopkins University; Peter Fitzpatrick, Law, Birkbeck College, University of London; Nasser Hussain, Law, Jurisprudence, and Social Thought, Amherst College; Pnina Lahav, Law, Boston University; Naomi Mezey, Law, Georgetown University; Harriet Murav, Russian, University of Illinois, Champagne-Urbana; Austin Sarat, Law, Jurisprudence, and Social Thought, Amherst College (Editor, Law, Culture and Humanities); Hilary Schor, English, University of Southern California; Madhavi Sunder, Law, University of California, Davis; James Boyd White, Law and English, University of Michigan.
Rick
Freedom
As we prepare to celebrate the 4th of July and "freedom," the Canticle of Zechariah (Luke 1:68-79; Gospel Canticle for Morning Prayer, Liturgy of the Hours) proclaims the source of our freedom: "Blessed be the Lord, the God of Israel; he has come to his people and set them free. He has raised up for us a mighty savior, born of the house of his servent David. Through his holy prophets he promised of old that he would save us from our enemies, from the hands of all who hate us. This was the oath he swore to our father Abraham: to set us free from our enemies, free to worship him without fear, holy and righteous in his sight all the days of our life. You my child, shall be called the prophet of the Most High; for you will go before the Lord to prepare his way, to give his people knowledge of salvation by the forgiveness of their sins. In the tender compassion of our God the dawn from on high shall break upon us, to shine on those who dwell in darkness and the shadow of death, and to guide our feet into the way of peace."
Human Rights and Headscarves
[The item below is from today's online edition of the Chronicle of Higher Education.]
European Court Upholds Turkey's Ban on Student Headscarfs
By AISHA LABI
A Turkish medical student has lost her bid to be able to wear a headscarf while pursuing studies at the University of Istanbul. In a potentially precedent-setting decision, the European Court of Human Rights ruled on Tuesday that Leyla Sahin's rights to freedom of thought, conscience, and religion were not violated by Turkey's ban on students' wearing overtly religious garb at public universities.
"Measures taken in universities to prevent certain fundamentalist religious movements from pressuring students who do not practice the religion in question or those belonging to another religion can be justified," the panel of seven judges said in a unanimous ruling. Ms. Sahin is an observant Muslim who wears a headscarf because of her religious beliefs.
One of her lawyers said the ruling reflected the judges' preoccupation with "not strictly legal considerations."
"The big message is that the European Court of Human Rights has largely left it to states to decide whether they consider it necessary to forbid wearing of signs of religion in educational establishments in order to preserve secularity and religious neutrality," said Stephen Grosz, a human-rights lawyer in London who worked with Turkish lawyers on the case.
Other human-rights advocates also criticized the decision. "The ruling is a real disappointment, but not entirely surprising," said Rachel Denber of Human Rights Watch.
The court framed its ruling as a defense of secularism, but Ms. Denber said that the decision would in fact foster religious separatism. "It's not clear why this is supposed to encourage pluralism," she said. "It's going to push women into separate institutions or force them to abandon what they consider to be their religious obligations."
Turkey is predominantly Muslim, but since the founding of the modern Turkish state 80 years ago, its military has been an overwhelming force for secularism. In recent years, however, the balance between religion and secularism has shifted with successive governments. The current prime minister, Recep Tayyip Erdogan, is himself an observant Muslim whose wife -- like most wives of members of his cabinet -- wears a headscarf.
Since the early 1980s, Turkish law has required students to dress according to the rules covering civil servants. "If applied uniformly, the code would also forbid women students from wearing miniskirts and jeans, but the prohibition is applied arbitrarily to the headscarf alone," according to a report published this week by Human Rights Watch.
The report, in the form of a memorandum to the Turkish government, goes on to note that despite the law, universities enforced the headscarf ban only sporadically until 1997. Following the installation of a new secular government that year, the military issued an ultimatum demanding that civilian authorities such as universities carry out the ban without exception.
As a result, thousands of women have had their access to higher education curtailed, said Jonathan Sugden, a researcher on Turkey for Human Rights Watch and the author of this week's report. Women who choose to cover their head, he said, "either can't get into university or are expelled, or they're forced to do things like wear the scarf under a wig."
Wearing the scarf under a wig is "quite a common practice," he said, "but in some universities that's not even allowed. I've spoken to women who said that they've had professors actually coming to them and lifting up the front of their hair to see if there's a scarf underneath."
In February 1998, the vice chancellor of the University of Istanbul issued a directive instructing staff members to turn away students wearing headscarfs or beards from lectures, courses, and tutorials. A month later, Ms. Sahin, then a fifth-year medical student, was refused entry to an examination because she was wearing a headscarf. She was later denied access to a course because of her insistence on wearing it. Ms. Sahin subsequently left Turkey and has been pursuing her medical studies at the University of Vienna since 1999.
Mr. Grosz said that he and Ms. Sahin's other lawyers plan to appeal the ruling. The appeal is likely to be heard by the court's appellate grand chamber within the next 18 months.
The European Court of Human Rights, which is based in Strasbourg, France, was established by the Council of Europe, a political organization of 45 member nations.
Turkey is the only member of the council with an across-the-board ban on headscarfs at universities. But the ruling could have broad implications for other member countries, where the court's rulings take precedence over national courts. In France, Germany, and the Netherlands, for example, the wearing of headscarfs in public educational institutions has also become a controversial issue.
Wednesday, June 30, 2004
Urban Design in His Kingdom
Here's more on the New Urbanism question (thanks to Stuart Buck) (quoting Christopher Leerssen):
"Consider, on the other hand, the community wrought by a currently popular retail format, the superstore building, also known as a “big box.” (Loosely defined, a big box is a standalone retail building having a floor area of greater than 50,000 square feet.) While the “big box” offers certain economic benefits and practical advantages (low prices, efficient distribution) it taxes our systems in other ways. There are the ecological issues: The big box is predicated on large parking lots that are inefficiently used most of the year . . . except Christmas. The design of these sites hardly ever takes into account preexisting natural features such as streams, fields, ridges, the nuances that cause each place to be distinct. Large expanses of asphalt create urban heat islands and significant pollution—with huge volumes of storm water runoff dumping harmful elements into our streams. Built to last 7-30 years maximum, these structures are essentially disposable. A big box’s location practically mandates the use of an automobile. But all this might be considered an aesthete’s fussiness, mere cultural preferences.
More to the point, maybe, pedestrian access is nearly impossible and prohibitively expensive. And so pedestrian traffic is almost non-existent. What kind of communion is this? (A friend recently described the virtues of being able to rotate from superstore to superstore, from strip mall to strip mall, all within 10-15 miles of home: “I can dress however I want, and I never have to worry about running into someone I know!”). To gain that anonymity and that lower price tag, consumers drive right past their neighbor, the local merchant who is rapidly disappearing from the American scene. Meanwhile, “format” stores such as WalMart and Costco are beating market expectations quarterly because Americans bend over backwards for the best price, and simply don’t value the things that well-thought-out urbanism can provide.
These days, sidewalks are the exception, the town square is a quaint and nostalgic idea, and public benches and places to sit are discouraged. The neighborhood park often is an enormous tract of land on the outskirts of town; some might drive there, but no one really owns it. Where, in today’s communities, are the places that parades are held and speeches given? Where is the special nook for young lovers to become engaged to be married? Where can neighbors be neighbors to one another, and where can rich and poor walk down the sidewalks as fellow citizens?
* * *
In terms of economic justice, there are in many communities, regulations and zoning laws that keep out the poor and working class. Some affluent counties currently prohibit developers from building a house smaller than 1200 square feet, or on a parcel of less than an acre. This drives housing costs so high that teachers, police, and postal workers—especially in large metro areas—cannot afford to live in the communities they serve. Minimum-wage workers are encouraged to commute long distances by public transportation just to serve in restaurants and offices. The Bible shouts its message of respect for the poor: “Do not scorn the poor man.”[iii] It would seem clear, then that design that scorns the poor and facilitates the rich is unbiblical. Does this pattern grow out of a sinful dislike and distrust of people with lesser standing?
* * *
I've said it before, I know: I really like urbanism, sidewalks, porches, narrow streets . . . but I really like Target and Best Buy, too.
Rick
Child Online Protection Act (II)
Michael asks (below), with respect to the Court's recent decision concerning the Child Online Protection Act, "drawing from Catholic Social Thought, how should we resolve the tension between maintaining freedom of speech (and publication) and the desire to protect children (what about adults?) from the glut of pornography on the internet?"
For what it's worth, I tend to have an ACLU-ish view with respect to free-speech matters, not because this view enjoys much support (in my view) in the relevant history, but primarily because (unfortunately?) it strikes me that libertarian, individualist free-speech doctrine plays a useful role in protecting religiously grounded speech and activity, and in constraining -- to some degree -- the state's ideological ambitions. (That said, for me, the real travesty of this Term is that restrictions on core, fundamental political activity were upheld in the campaign-regulation case, McConnell, but a modest effort to channel internet porn was invalidated).
With respect to the internet-porn case, I wonder if there are any interesting connections between Justice Kennedy's emphasis on filtering technologies and self-help mechanisms, on the one hand, and Catholic ideas of subsidiarity, on the other?
Rick
Nonestablishment Under God?
Here's the latest by Steve Smith: "Nonestablishment Under God? The Nonsectarian Principle":
Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the "public secularism" principle, the "neutrality" principle, and the "nonsectarian principle." The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.
Rick
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