Jeremy Waldron has been pitching it right in the MoJ wheelhouse recently. He just posted a new paper, The Image of God: Rights, Reason, and Order. The abstract:
The idea that humans are created in the image of God is often cited as a foundation for human rights theory. In this paper, this use of imago dei is surveyed, and while the paper is basically favorable to this foundation, it draws attention to some difficulties (both theological and practical) that using imago dei as a foundation for human rights may involve. Also it explores the suggestion that the image of God idea may be more apt as a foundation for some rights rather than others. Its use in relation to political rights is specifically explored. The moral of the discussion is that foundations do make a difference. We should not expect that, if we simply nail this idea onto the underside of a body of human rights theory as a foundation, everything in the theory will remain as it is.
And from the paper:
The foundational work that imago Dei does for dignity is, in my opinion,indispensable for generating the sort of strong moral constraint associated with rights – and for overriding the temptation to demonize or bestialize “the worst of the worst.” This temptation is so natural that it can only be answered by something that goes beyond our attitudes, even beyond “our” morality, something commanded from the depths of the pre-political and pre-social foundation of the being of those we are tempted to treat in this way Imago Dei presents the respect that humans as such are entitled to as something grounded, not in what we happen to care about or in what we happen to have committed ourselves to, but in facts about what humans are actually like, or, more accurately, what they have been made by the Creator to be like – like unto Himself and by virtue of that likeness sacred and inviolable. We are not just clever animals, and the evil-doers among us are not just good animals gone bad: our dignity is associated with a specifically high rank in creation accorded to us by our creator and refl ecting our likeness to the creator. Our status even as wrong-doers is to be understood in relation to this.
He also points out some difficulties with the Imago Dei as a basis for rights, both from theological and political vantage points. Well worth reading.
After reading this, at First Things, I ordered my own copy of Peter Leithart's Defending Constantine. The book is reviewed by Stanley Hauerwas, here, who notes that "[a]sking me to write a review of Peter Leithart's defense of Emperor Constantine may seem like asking the fox to inspect the henhouse." There are additional discussions at the "Christianbook.com Academics" forum. I also thought that this discussion, by Matthew Nickoloff (who has a very interesting blog), helpful.
For a time-sucking helpful site, which collects posts from a number of (it's probably fair to say, conservative) religion-related sites and blogs, check out The Pulp.it.
Thursday, December 2, 2010
Longtime MOJ readers know that, for a long time, we did not open our posts to "comments" (though contributions from readers were often posted by bloggers). In recent months, though, most of us have experimented with blogospherically-more-typical practice of welcoming comments. In my view, the typical practice is a good one, for the most part.
That said, my impression is that the tone of too many (not most of course, but still too many) of the recent comments and intra-comments exchanges is unattractively snarky, sarcastic, aggressive, or just mean, and is unworthy of this blog's aims (to say nothing of its namesake).
I know all too well that I've often fallen short when it comes to blog-charity, but I want to propose to all bloggers and readers that we not write and post a comment if its tone and content are such that we would not communicate the same thing, over a beer, to a friend with whom we (at the particular moment) disagree -- or, at the very least, if we would not communicate the same thing, face to face, in public.
Via Jonathan Adler at Volokh (the post is Eugene Volokh's), I learn that a motion was filed by the supporters of California's Proposition 8 to recuse Judge Stephen Reinhardt, one of three judges slated to hear the appeal in Perry v. Schwarzenegger. And Ed Whelan notes today that Judge Reinhardt has already denied the motion, his reasons to follow in a memorandum.
This little flurry got me thinking again about the recent suggestion (both by some legal academics and the N.Y. Times) that recusal decisions ought to be reviewed by other judges. I continue to believe this to be a dreadful idea, and wanted to explore how it might operate at the federal court of appeals level (rather than, as in my previous post, at the Supreme Court). In addition to the objections in that earlier post, I believe that this process might very well implicate judges in the public perception that they are assessing the legitimacy of each other's religious, or anti-religious, beliefs as applied to pending legal matters.
I'll use the Ninth Circuit as my example, both because this recusal motion is a Ninth Circuit creature and because, having clerked for a judge on the Ninth Circuit, Judge Jerome Farris, a wonderful man whom I'm fond of, I have a very little bit of knowledge about the dynamics of the Ninth Circuit's operations.
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This morning I'm preparing for a Family Law class in which we discuss, by way of review of the various topics covered in the course, how the law has been emptying itself of moral content. (Think no-fault divorce, the rise of prenuptial contracts, the narrowing of permissible rationales for child custody decisions, the demise of alimony, the elimination of fault as grounds for property division, and the decriminalization of adultery, fornication, etc.) I don't consider all of this to be a bad thing (though some of it is), in part because the state is not always the most effective means by which to maintain and/or implement moral norms in society. This assumes, however, that society has other means for maintaining those norms. An open question, I admit, especially when I come across stories like this one from Russia. I do wonder what it takes for a society to reach a tipping point on social practices related to the family that we currently take for granted, and whether there is a role for the law in supporting those practices long before the tipping point is reached. (I will note that the formidable threat to the family in Russia appears to have little or nothing to do with same-sex marriage, as that conversation, in my understanding, hasn't even gotten rolling there yet.)
Here's a story about the Smithsonian's decision to pull a video that shows ants crawling all over a crucifix. The video was part of an exhibit on "sexual identity in portraiture."
Not quite sure what the problem was. Doesn't everybody think of ants crawling all over a crucifix when they think about sexual identity?
Mike Huckabee has called for application of the death penalty to the source of the recent disclosures by WikkiLeaks. One might wonder how an evangelical Christian like Huckabee can square his Christianity with his support for the death penalty. In response to this question, Huckabee gave a breathtaking response in 1971, “Interestingly enough,” he said, “if there was ever an occasion for someone to have argued against the death penalty, I think Jesus could have done so on the cross and said, ‘This is an unjust punishment and I deserve clemency’.” See here. From the failure of Jesus to protest in this way, Huckabee concluded that Jesus was not opposed to the death penalty. I suppose it follows that Jesus was not opposed to torture or the killing of innocent men.
Seriously, I wonder what biblical argument a serious evangelical could make in support of the death penalty. I suppose a starting point would be that the Sermon on the Mount and the rest of the preaching of Jesus was not directed to and does not apply to how governments should operate, but rather to how disciples should live their lives. But, even if that were true (I do not believe it is), that would come nowhere near the conclusion that Jesus affirmed the death penalty. Indeed, it seems to me that Christ’s death on the cross is compelling witness against violence. As Stanley Hauerwas puts it, “What I find absolutely crucial is reflecting on Christ’s death and resurrection. What that means is that God would rather die, God would rather have God’s own Son die, than to redeem the world through violence. And that central story is what Christians are about.”
cross-posted at religiousleftlaw.com
