Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, June 5, 2014

Curious about religion-specific oath and affirmation practices circa 1804?

Thanks to Google Books and a pointer from a helpful guide, I've recently had occasion to take a look at an early nineteenth-century guide- and sourcebook for judges on inferior state courts and justices of the peace dealing with federal matters: Samuel Bayard, An abstract of those laws of the United States which relate chiefly to the duties and authority of the judges of the inferior state courts: and the justices of the peace, throughout the union; illustrated by extracts from English law books. To which is added, an appendix, containing a variety of useful precedents (1804). 

Of interest to MOJ readers may be Bayard's description of how oaths and affirmations were to be administered, which differed depending on a witness's religion (or absence thereof):

Prior to giving evidence in a cause, a witness in all cases, must be sworn or affirmed to declare "the truth, the whole truth, and nothing but the truth."

Jew may be sworn on the books of the Old Testament; a Mahometan on the Alcoran; pagans, or infidels of any description, also persons of any religious denomination may be sworn according to the ceremonies of the religion they profess, and are admissible witnesses in any cause ....

In the courts of Great Britain, in pursuance of an express act of parliament, the affirmation of a quaker cannot be received in any criminal case; but in the United States, where the religious principles, and pure morals, of this respectable denomination of christians, are well known, and where sincere scruples of conscience are more respected; their affirmation is in all cases, regarded as equivalent to the oath of other christians. It is considered as an appeal to Heaven for the truth of what they declare, and by our laws, where taken falsely, it is punished in the same manner, as where a false oath is taken. (p.216)

* * * 

An atheist, who professes to have no belief in the existence of a God, and of course disbelieves a future state of rewards and punishments; also a person who has no idea of a God or religion, who is altogether ignorant of the obligations of an oath; ought not to be sworn. (p. 217)

* * *

[There are also some more explicit directions later:]

NB. The witness having laid his right hand on the Bible or New Testament, then kisses the same.

If a Jew, he should be sworn on the five books of Moses, with his hat on.

If a Roman Catholic, there should be a cross on the book.

A Mahomedan must be sworn on the Alkoran, and other witnesses according to the ceremonies of their respective systems of faith (or mode of worship). (pp. 252-53)

* * * 

[The appendix also contains a "special form of an oath used by some denominations of christians."]

"I, A.B., do swear by Almighty God, the searcher of all hearts (or by the ever living God) that the evidence I will give, &c. and that, as I shall answer to God, at the great day." (p .253)

 

Religious Perspectives on Just War Theory

 

Cambridge University Press has just published a new sourcebook entitled Religion, War, and Ethics. The project took place under the guidance of Greg Reichberg and Henrik Syse, both of the Peace Research Institute of Oslo. The religious perspectives include: Judaism, Catholic Christianity, Eastern Orthodox Christianity, Protestant Christianity, Sunni Islam, Shi’ite Islam, Hinduism, Buddhism, Chinese and Korean traditions, Japanese traditions, and the Sikh tradition. Dr. Reichberg wrote the historical background of the Catholic tradition chapter, and I wrote the section dealing with contemporary sources. Unlike some anthologies where the authors simply write their contributions without any contact with the other contributors, we met as a group on a number of occasions to discuss one another’s chapters. In doing so, I believe we came to a better understanding of our own individual traditions as well as the others included in this project. As the publication is over seven hundred pages, this book will hopefully be a good research tool for theorists as well as those responsible for making and executing official government policies.

 

RJA sj

Subsidiarity

Global Perspectives on Subsidiarty, edited by Michelle Evans and Augusto Zimmerman, has just been published.  In addition to my "Subsidiarity in the Tradition of Catholic Social Doctrine" (a fairly final version of which is here ), the volume includes such chapters as "Subsidiarity in the Writings of Aristotle and Aquinas" by Nicholas Aroney, "The Relationship Between Sphere Sovereignty and Subsidiarity" by Lael Daniel Weinberger, "Subsidiarity and Social Pluralism" by Jonathan Chaplin, and "Subsidiarity and the Reform of the Welfare of the Nation State" by Robert A. Sirico, among many others.  

This rich volume offers a much-needed correction of the ubiquitous confusions --  especially among those who miss or deny what Roger Scruton recently called "the good of government" -- according to which subsidiarity amounts to either a norm of smallness per se or of devolution. Any serious academic library should own a copy of this book.     

Chen Guangcheng on the 25th anniversary of Tiananmen

My esteemed Witherspoon Institute colleague Chen Guangcheng, the great Chinese democracy and human rights advocate, has given an important speech on the twenty-fifth anniversary of the massacre at Tiananmen Square. The text has been posted at Public Discourse, the Witherspoon Institute's on-line journal edited by the formidable Ryan Anderson.

http://www.thepublicdiscourse.com/2014/06/13252/

 

Olivier Roy on "The Closing of the Right's Mind"

The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:

The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.

Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).

The changes brought on by the decades that followed--in which rights and values of sexual autonomy came to dominate the scene--were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.

The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian--"spiritually” Christian--but for political reasons, principally for the purpose of resisting a growing Islam in Europe.

The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.

Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion alike as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”

Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state--a distinctively American conception of that relationship primarily (though not exclusively) embraced today by the political left in this country--strict separationism. Its influence in American law, however, has been steadily declining: there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.

Wednesday, June 4, 2014

UPDATE: Revised Conference Agenda-- "International Religious Freedom and the Global Clash of Values"

Here is the updated schedule for our upcoming conference, International Religious Freedom and the Global Clash of Values, in Rome, Italy on June 20-21. If you happen to be in Rome, it would be great to have you!

The Center for International and Comparative Law and the Center for Law and Religion at St. John’s School of Law, and the Department of Law at the Libera Università Maria SS. Assunta, are pleased to present an academic conference:

International Religious Freedom and the Global Clash of Values

Taking place in Rome on Friday, June 20, 2014, and Saturday, June 21, 2014, the conference will bring together American and European scholars and policymakers to discuss the place of religious freedom in international law and politics. Speakers will address a variety of perspectives. Proceedings will be in English and Italian with simultaneous translation.

Revised Conference Agenda

Friday, June 20, 2014

1:30 - 2:30 p.m.
Lunch

2:30 - 2:45 p.m.
Welcome

2:45 - 4 p.m.
Keynote Panel
Religious Freedom in International Law, Yesterday and Today
Thomas Farr (Georgetown University)
John Witte, Jr. (Emory University)
Moderator: Marc DeGirolami (St. John’s University)

4:15 – 5:30 p.m.
Panel 1: The Politics of International Religious Freedom
Pasquale Annicchino (European University Institute)
Heiner Bielefeldt (UN Special Rapporteur on Freedom of Religion or Belief)
Hon. Ken Hackett (US Ambassador to the Holy See)
Moderator: Margaret E. McGuinness (St. John’s University)

Saturday, June 21, 2014

8:30 - 9 a.m.
Coffee

9 - 10:15 a.m.
Panel 2: Comparative Perspectives on International Religious Freedom
Francisca Pérez-Madrid (University of Barcelona)
Marco Ventura (Catholic University Leuven and University of Siena)
Roberto Zaccaria (University of Florence)
Moderator: Monica Lugato (LUMSA)

10:15 - 10:30 a.m.
Coffee

10:30 - 11:45 a.m.
Panel 3: Christian and Muslim Perspectives on International Religious Freedom
Abdullahi Ahmed An-Na’im (Emory University)
Olivier Roy (European University Institute)
Nina Shea (Hudson Institute)
Moderator: Mark L. Movsesian (St. John's University)

Noon - 12:30 p.m.
Conference Conclusions
Giuseppe Dalla Torre
LUMSA

Location
LUMSA, Complesso del Giubileo
via di Porta Castello, 44 – Roma

Registration
Please register to attend the conference by June 9 at: [email protected]

More Information
Monica Lugato | LUMSA Department of Law | [email protected]
Mark L. Movsesian | St. John's School of Law |[email protected]

Monday, June 2, 2014

Religious Freedom Victory in Murfreesboro

The constitutional right to the free exercise of religion is everyone's right. Everyone includes our Muslim fellow citizens. They, like everyone else, have the right to build houses of worship and worship in peace and security. Today, this right was re-affirmed by the Supreme Court of the United States. The Becket Fund for Religious Liberty, on whose board and executive committee I am proud to serve, represented Muslims seeking to worship in the town of Murfreesboro, Tennessee. We prevailed--"we" in the sense of the Becket Fund and our clients, and "we" in the sense of all friends of religious freedom. If anyone's rights are left unprotected, no one's rights are secure.

http://www.becketfund.org/scotus-mosque-win/

Sunday, June 1, 2014

The courage to stand for principle

Bravo to Governor Bobby Jindal of Louisiana for vetoing a gestational surrogacy bill passed by the state legislature. Fighting infertility is good. Promoting the adoption of children in need of parents is good. But gestational surrogacy is bad---bad for children, bad for women, bad for the community. There are better ways. If you doubt that (or even if you don't), please see the documentary film "Breeders: A Subclass of Women" by the great Jennifer Lahl. Anyway, Jindal did the right thing and demonstrated that he is someone who possesses the courage--rare among politicians--to stand for principle.

Wouldn't you love to see that quality in a President?

Weisenburger on Hammond on Sunday mail transportation

Rick's recent link to his "Complicating the Common Narrative" post on the Cornerstone blog of the Religious Freedom Project at Georgetown's Berkeley Center brought to mind Charles Hammond. Or maybe Rick's post just prompted a link to Hammond, who was already on my mind. 

I'd wager most people now have never heard of Charles Hammond (he doesn't even have his own Wikipedia page!), but he was one of the best constitutional lawyers and journalists of his time (b. 1779, d. 1840). One of my projects this summer is to start making Charles Hammond better known to people who ought to know about him. Much of Hammond's public writing was for the Cincinnati Gazette, which is not presently accessible in electronic form. But Google can still help one to acquire some knowledge of the man, his life, and his thoughts. For example, one can find a monograph on Hammond's life by Francis Phelps Weisenburger, first published in Volume 43 of the Ohio Archaeological and Historical Quarterly.

Near the end of this biographical sketch, Weisenburger discusses Hammond's response to a proposal to eliminate the transportation of mail on Sundays, a controversy that Rick mentions in passing in his "Complicating the Common Narrative" post. Here's Weisenburger on Hammond on Sunday mail transportation:

Another matter of religious implications on which Hammond expressed himself arose out of the attempt on the part of certain zealous persons to prevent the transportation of mail on Sunday. Richard M. Johnson of Kentucky attracted attention by a report which he submitted to the Senate, disapproving of the practice. Hammond was moved to sarcastic language on the mistaken enthusiasm of "Sabbath observances, Sabbath schools, Bible societies," and the like, and at least one subscriber threatened to withdraw his subscription as a result. Hammond, nevertheless, stood his ground, observing that the Sabbath was intended for social intercourse as well as religious ceremonies, that an ill-advised zeal was of all the enemies of vital religion the most dangerous, and that every effort to sustain religion by legal enactments must be doomed to failure.

Among the reasons I would like to investigate Hammond's writings is to understand the extent to which arguments like these were carried on in constitutional terms. When Hammond objected in 1833 to the proposal to prohibit the transportation of mail on Sundays, did he invoke the Establishment Clause? I don't know now, but will report when I do.

For whatever it's worth, Hammond's observations at the conclusion of the quoted material seem to be a good jumping-off point for sound thinking about legislative prayer policies in the wake of Town of Greece v. Galloway. Legislative bodies should not let "ill-advised zeal" persuade them to attempt to "sustain religion" by policies that privilege the particular religion for which they possess zeal.

Friday, May 30, 2014

"My law clerks and I thought it appropriate ... to be a bit more expansive."

Judge Jones of Whitewood v. Wolf has given another media interview discussing his unusually "expansive" opinion holding unconstitutional Pennsylvania's definition of marriage as the union of husband and wife. See 23 Pa. C.S. § 1102 (defining "marriage" as "[a] civil contract by which one man and one woman take each other for husband and wife"). The interviewer explains that Judge Jones does not let the charges of "piling cliché upon cliché" or displaying "hubris" and "philosophical bombast" get to him. Says Judge Jones: "When you disagree with the premise or conclusion of a particular judge--well, we're an easy mark, aren't we? You can extract or mine opinions and take things out of context and describe us as something that we're not, but that goes with the territory."

This depends on "the territory" the judge chooses to occupy. And Judge Jones has chosen History, which is an unusually broad territory to defend.

It would reflect better on the judge if he were to be more reflective about the criticisms he has received for the way he wrote this opinion. After all, many other judges have been able to explain their reasons for reaching the same legal conclusions from similar legal premises without opening themselves up to some of the well-justified criticisms that Judge Jones has received.

Consider Judge Jones's made-for-Slate language discussing Pennsylvania's laws limiting "marriage" to the union of man and woman as husband and wife: "We are a better people than what these laws represent, and it is time to discard them into the ash heap of history."

To say that this statement represents "incredible hubris" is not to "take things out of context" but to observe that Judge Jones believes he's something that he's not--the Judge as Everyman speaking for "a better people" than what he imagines their laws to "represent."

When one takes the judicial oath, statements like this do not "go with the territory." Criticisms for traveling beyond one's office do--and should.