Wednesday, September 25, 2013
A few additional thoughts on the convergences and divergences of law and the academic study of religion, prompted by thoughtful emails from legal and ASR scholars Nelson Tebbe and Donald Drakeman (here's my earlier post on the topic).
Both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law's non-autonomy. Indeed, Posner has advocated the project of "overcoming" law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it's mostly economics for Posner). Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown.
Practice and Theory: Maintaining or Collapsing the Division?
Both law and ASR have roots as practical endeavors--as trades and professions, rather than as purely academic subjects. For law this is obvious; for ASR the root is theology and ministry. And law schools and divinity schools historically functioned to prepare tradesmen; indeed, both continue to operate primarily to train future practitioners of their respective trades.
My friend Nelson Tebbe points out to me that Yale Law School Professor Paul Kahn notes some of these similarities in his book, The Cultural Study of Law: Reconstructing Legal Scholarship. Kahn's project is precisely to help legal scholarship get over its past professional association, in much the same way that ASR has attempted to transcend its own. Here's an interesting passage from early in Kahn's book:
When lawyers think about contemporary legal theory, they are likely to express the view that it is too theoretical, too disconnected from the practice of law to be of any interest or use. In fact, the problem is exactly the opposite. Theory has substantially failed to separate itself from practice. The reforms offered by legal theorists may often be impractical, but the central assumption of both the scholar and the lawyer-critic is that reform is the appropriate end of scholarship. The lawyer-critic wants only to replace the poor--meaning impractical--reform proposals that emerge from the academy with better ones.
By taking up the project of legal reform, however, the scholar becomes a participant in legal practice and, therefore, a part of the very object that he or she has set out to investigate. The collapse of the distinction between the subject studying the law and the legal practice that is the object of study is the central weakness of contemporary legal scholarship. "Collapse" does not happen at a moment in time, as if there were first a separation of subject and object, which suddenly disappeared. The legal scholar comes to the study of law already understanding herself as a citizen in law's republic. She is committed to "making law work," to improving the legal system of which she is a part. Collapse refers to the failure of an analytic possibility, not some sort of transitional experience.
I believe that Kahn is right about this: there is a tension that permeates legal scholarship that is in some ways a product of its historical situation within a practical discipline alongside its long tradition of rigorous academic study (dating at least to the University of Bologna in the medieval period). Sometimes, legal scholars do not negotiate this tension successfully.
But where Kahn criticizes the collapse of theory into practice, one might just as readily question the collapse of practice into theory that he recommends. It has always seemed to me that one of the strengths and unique points of legal scholarship lies in its preservation of the separation of theory and practice. That is, its strength lies in negotiating that separation, and in refusing to collapse it into either constituent category. Legal scholarship is perched between two worlds, and it is only in this precarious posture that it retains both an internal and an external perspective on its subject. If it fell to one side or the other--if the separation on which it depends really did collapse-- what methodological tools would the legal scholar use to analyze law? Precisely those of the economist, the philosopher, the political scientist, or the ASR scholar.
The Role of Doctrine
Likewise, as I have noted before, law schools and schools of theology or divinity are the only ones I can think of in which the idea of doctrine is intrinsically important. This is in part because these disciplines are specially attuned to the authoritativeness of the past. Other disciplines have no such commitments--indeed, their commitments may run in a very different direction. It is not clear to me what perspective ASR has on the role of doctrine, but it would not be surprising that the less closely the discipline associates itself with schools of theology or divinity schools, the more it would embrace a critical posture toward doctrine.
The other difference in this respect is that doctrine provides a coordinating function in law and theology that simply does not apply in other areas of study. This function of doctrine is, of course, connected to law's managerial role and its internal perspective on the customs and traditions of the specific society in which it operates. This role and this orientation are not shared by most other disciplines.
My friend and former student, Brian Murray -- now an attorney in Pennsylvania -- has posted an adaptation of forthcoming law-review article ("The Elephant in Hosanna-Tabor") at Public Discourse. Here is a taste:
The history of the First Amendment indicates a strong preference for institutional religious autonomy. Religion remains special in the eyes of the law. This tradition of respect and deference must guide any legal framework that purports to determine whether an organization qualifies as religious under the Free Exercise Clause. Hence, the Court should consider placing a presumption of religiousness at the forefront of any test, finding its support in the divergent opinions among the founding fathers, the prevalence of unconventional religious experience throughout American history, and current precedent, which admits that religion is special--even if it is difficult to define. Such a presumption comports with the Court's inclusive language in Hosanna-Tabor.
However, this presumption cannot be the end of the analysis. Left unchecked, it could conflict with Employment Division v. Smith because an organization's self-characterization as religious is not entirely internal. . . .
Check it out.
Tuesday, September 24, 2013
The Little Sisters of the Poor: Ordinarily in Their Homes for the Elderly Poor, but Today in Federal Court
Each Catholic religious order has its own special charism that can be seen in institutions founded by and run by members of the order. In and through their various institutions, I have personally experienced the distinctive charism of Dominican sisters, Salesian priests, brothers, and sisters, Capuchin Franciscan priests, Holy Cross priests and brothers, Jesuit seminarians and priests, and Augustinian priests and brothers, among others. It was not until earlier this year, however, that I encountered the distinctive charism of the Little Sisters of the Poor in their own distinctive institutions: homes for the elderly poor. The Little Sisters' charism is one of hospitality, in which the Sisters strive to "be little in order to be close to the most humble, and [to] be close to make them happy."
Like many Catholics, I was familiar with the Little Sisters from their trips to our parish to beg for funds for their ministry. I knew that they knew how to ask in a way that touched the hearts of the congregation. But it was not until I met some of the sisters at St. Joseph's Home in Richmond (including two Sisters from St. Martin's Home in Baltimore), and again at Jeanne Jugan Residence in Washington, D.C., that I understood on a deeper personal level the real difference that their presence makes in the lives of their homes' residents and in the life of the Church. It’s the difference that comes from knowing that one is loved and has dignity and will not die alone, and the difference that comes from vowed women religious spreading that love, cultivating that dignity, and accompanying the dying on their final journey.
Unfortunately, however, the occasions for my visits to their homes were meetings to discuss legal matters. Like many religious organizations, the Little Sisters have needed to figure out how to deal with the federal government’s refusal to treat them as a religious employer exempt from the legal requirement to offer health benefit plans that violate their religious beliefs. The fruit of some of those earlier consultations was a set of comments in response to the federal government’s Notice of Proposed Rulemaking. In those comments, the Little Sisters respectfully requested the government “to reach a just resolution that respects the religious freedom and conscience rights of all.” And the comments expressed the hope “that it is unnecessary for us to join the scores of employers that have already resorted to the federal courts for protection.”
That hope has now met necessity, and the Sisters are now in federal court. Through two of their homes (in Denver and in Baltimore), the Little Sisters have filed a lawsuit, together with Christian Brothers Services and Christian Brothers Employee Benefits Trust (which cooperate with religious organizations in the provision of benefits). The lawsuit seeks relief from enforcement of the requirement to arrange their health benefit plans so that beneficiaries receive no-cost access to female sterilization and all FDA-approved contraceptive drugs and devices (including some with abortifacient properties).
Although aware of the Little Sisters’ religion-based objections to this requirement, the federal government has refused to treat the Little Sisters’ homes as “religious employers” that receive an exemption. Having witnessed the Sisters’ ministry in these homes and having worshipped with the Little Sisters in the St. Joseph's Home's chapel, this refusal boggles even the lawyerly part of my mind. These Little Sisters of the Poor homes are—in the words of Cardinal George—“icons of mercy where Christ is welcomed and served in the elderly poor with the utmost respect for their dignity.” In any ordinary time, these homes would easily be recognized as "religious employers." But perhaps this is no ordinary time. If the federal government continues to refuse to recognize these homes as “religious employers” under the federal contraceptives mandate, then words have lost their meaning for them.
The lead lawyers on the case are from the Becket Fund for Religious Liberty and Locke Lord LLP. I am continuing to assist the Little Sisters as part of their legal team and will therefore be more circumspect than I might otherwise be in discussing various aspects of the case. But the complaint speaks for itself. And the Becket Fund has created a case page with more background, including a press release and a web video, which I encourage all to check out.
I am greatly looking forward to participating in a conference next month called, "The Politics of Religious Freedom," and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law--Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.
The title of my panel is "Religion and Politics After Religious Freedom." With the organizers' permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law's distinctiveness as both a practical and an academic discipline. I welcome your thoughts.
My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.
The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.
It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.
In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR). To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.
I will fly to Paris this afternoon, and from there travel to St. Jean Pied de Port, where on Friday (feast day of one of my great heroes, St. Vincent de Paul) I will begin walking the Camino Francais. It is my hope to arrive in Santiago de Compostela on All Saints Day.
As Michael Scaperlanda did when he walked this same route four years ago, I will try to share something of my experience from time to time as I walk.
I ask for your prayers that I be open to whatever it is God wishes to share with me during this pilgrimage. Be assured of my prayers as well for the contributors and readers of Mirror of Justice.
Monday, September 23, 2013
First of all, I should like to thank Lisa for her kind, generous words in her recent posting “International Perspectives on Family” regarding last week’s conference in Rome that celebrated the 30th anniversary of the Charter of the Rights of the Family (the Charter).
As one of the key presenters of a formal paper (yes, Lisa, I think they will be published—but anyone wishing to see my final draft can request a PDF copy from me), I had to think long and hard about how a major document of the Church intersects not only domestic law principles but international law principles as well.
In doing so I reached a conclusion that I have arrived at probably thousands of times before that there is a connection between human law made by states and natural law reasoning. This became evident once again when I saw parallels between the laws of many national legal systems, several international texts, and the Charter.
The essence of the parallels is how human intelligence that thinks objectively (beyond its comfort zone, if you will) in comprehending the intelligible reality of specific matters can develop normative principles (laws) that are fitting and just not only for a particular place but for all places and all peoples. This claim reveals the truth about the basic structure and substantive content of the Charter.
I think this realization also reflects a further truth about law in general. While different legal cultures need to respond to the issues that are pressing upon that culture, there are, nonetheless matters which are of concern for all people and that necessitate universal norms. The Charter and its substantive content demonstrate this, as do the Universal Declaration of Human Rights and several important international human rights instruments of the latter half of the 20th century. All of these texts rely to a large extent upon the objectivity of natural law reasoning.
Here is where an important element needs to be introduced about the Catholic take on law. Like Lisa, I saw at this conference members of the faithful from virtually every continent who, in spite of their particular concerns back home, largely agree on the need for universal principles designed to promote and protect the fundamental unit of society—the natural family. In this context I reflected on how often I have heard some American Catholics who are, when all is said, very kind and decent people, nonetheless claim that the American (i.e., USA) church is very different from all others because of the uniqueness of the polity in which we live. Well, in some ways, this can be said of all the local churches around the world including those of the several hundred dioceses of the United States. But still, in spite of these differences, there is a need to acknowledge through the application of objective reason that these local and particular differences cannot and must not interfere with the universality of fundamental Church teachings which are of significance to all persons regardless of where they are in the world. The truth of this claim became all the more clear as the conference of which Lisa and I were a part reached its conclusion on midday Saturday.
Again, I extend to Lisa my profound gratitude for her thoughtful words, and I look forward to the publication of the several formal papers delivered at this conference.
On a seemingly different but not unrelated matter, I hope to offer my reflections on Pope Francis’s interview of last week. It was interesting for me, at last week’s conference, to see how others around the world comprehend the pope’s lengthy interview, and how it has been perceived by influential members of our American culture. Again, I hope to tackle this chore soon and to contribute to the thread begun by Rick, given our dedicated purpose of developing Catholic legal theory.