Mirror of Justice

Book Award for "Religious Liberty in a Polarized Age"

I'm very gratified and humbled to report that my book Religious Liberty in a Polarized Age (Eerdmans Publishing 2023) has won an award in the 2024 Christianity Today Book Awards: the Award of Merit (2d place) in the Politics and Public Life category. The awards reflect, as the CT editors' subtitle puts it, "the books most likely to shape evangelical life, thought, and culture."

I also greatly appreciate the kind endorsement from one of the judges, Katie Frugé, director of the Center for Cultural Engagement for Texas Baptists:

Religious liberty is a fundamental part of the American political order. But in many current conversations, it has taken on a controversial edge, often functioning as a flash point in our culture wars. In this thorough book, Berg argues that religious liberty, rather than being a prescription of uniformity, is both a remedy for divisiveness and an essential safeguard for genuine pluralism and cultural diversity. Religious Liberty in a Polarized Age is a must-read for all who find themselves engaging in the public square, and it gives valuable insight into the current legal and ideological landscape. 

I'm grateful to the Eerdmans editorial team. to John Witte for including it in Emory's Law and Religion series, and to many colleagues including several on MOJ for reading chapters, discussing ideas, and giving encouragement. 

I very much hope that the book will in some way fulfill the editors' statement by helping evangelicals, Catholics, and many others defend strong religious liberty in a way that is persuasive in our divided society.

Political Catholicism Reborn? A symposium on Kevin Vallier's new book

Law and Liberty is hosting a collection of reviews of Prof. Kevin Vallier's new book, All the Kingdoms of the World.  Although I think -- and have, I confess, imposed this view on Prof. Vallier more times than is polite -- that the "Catholic Integralism" phenomenon is being treated, in some quarters of the legal academy, as more of a "thing" than, I think, it actually is, I think Vallier's book is excellent and also appreciated the collected reviews.  As the man says, "highly recommended"!

Religious Liberty in a Polarized Age (from Eerdmans)

My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher,  at Amazon, and elsewhere  It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:

Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]

       Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.

From a blog summary I did on the book:

[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....

       A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.

Get your copy for vacation reading!

 

Book Chapter "Life Patents, Religion, and Justice: A Summary of Themes"

Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:

This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.

Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.

This final chapter gives a good sense, I think, of what the rest of the book covers. 

I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:

       1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.

       2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.

       3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.

       4) Because of the richness of Catholic social doctrines  in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."

"Patents on Life" Book (Religious, Legal, and Other Views) Coming Soon

Coming in the next few days and weeks from Cambridge University Press: 

The book contains 16 interdisciplinary essays (law, theology, ethics, politics, business) on biotechnology patents and issues of justice. A bit from the description at Amazon (see also the Cambridge Press page here): 

This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or 'patents on life'. ... Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology -- from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources.

The issues the book addresses appear regularly in the news: gene-sequence patents and their effect on biomedical innovation and costs, "biopiracy" of developing-nation resources and its effect on indigenous peoples, genetically modified crops and their effect on farmers and farming practices, biologic-drug patents, gene-editing (CRISPR) technology patents.

This book responds to the fact that such issues concerning biotechnology ownership, patents, etc., have received considerable secular ethical (as well as political and economic) analysis--but relatively little theological/ethical analysis by religious traditions, leaders, and thinkers. There is plenty of religious bioethics, including on new genetic technologies, but relatively little of it addresses ownership, patents, and so forth. The Vatican has actually been a fairly active voice (emphasizing a moderate view of patent rights, their role in innovation, but also the need to temper them to ensure access for the poor and fair rewards to indigenous peoples)--but the Church's role is not as well known as it should be.

The premise of this book is that the great religious traditions and their leaders and thinkers can speak to those issues but haven’t addressed or studied them much. They need to understand the basics of patent law and policy better. Conversely, the many lawyers, policymakers, and activists engaged in moral debates over biotech patents and the creation and distribution of technologies haven't appreciated the contributions that religious thought can make. They need to understand religious social thought better. 

This book, with its multidisciplinary contents, is a one-stop, readable resource for all of the groups above.

Please tell your libraries to buy the book! And--just in time for holiday gift-giving--you can pre-order it at Amazon in Kindle (delivery Oct. 24) or hardcover (available December) versions.

The book also reflects both US and European approaches to the patentability of genetic material and the role of moral considerations in granting patents, both topics that involve interesting trans-Atlantic contrasts and comparisons. And it also reflects multiple religious approaches: Catholic, Jewish, Muslim, and Protestant (both evangelical and mainline).

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Dreher on Decline, Fall, and What Then: the Habsburgs and Today

Rod Dreher has a thought-provoking post reflecting on Joseph Roth's 1932 novel The Radetzky March, which narrates the decay and collapse of the Habsburg empire and society, culminating in WWI, through the story of one doomed aristocratic family:

      What makes Radetzsky resonate so deeply is that the story it tells is a universal one, though it happens to be set in a particular time and place. It is a story about the effect of time on all human institutions and ways of seeing the world. It’s impossible to read Radetzsky without wondering if our own liberal democratic institutions and ways of ordering our experiences are declining as surely as the Austro-Hungarian monarchy — and we can’t see it clearly because we are caught up inside it, and we have powerful internal confirmation biases telling us that something this fine should be eternal....

      The problem is that the people who would have been capable of making the kinds of changes that might have saved the system in some form were incapable of thinking outside the system. Consider how hard this would be for anybody, in any place and time. As Kierkegaard said, life has to be lived forwards, but can only be understood backwards.

      Think about how the Republican Party, for example, could not see Trump coming, even though the signs were there.... Or think beyond the GOP, to the entire system. We can see that big, big changes need to be made, especially economically. But where is the will to make the changes? And who knows exactly what to do? We should also see, but many do not, that the way we are living in general is unsustainable. But we aren’t at the crisis point yet.

Much more follows: about Patrick Deneen's new book Why Liberalism Failed, and, as one might expect, how this relates to the "Benedict option."

Another Book Worth Noting: Stark on Anti-Catholic History

John Inazu's Confident Pluralism, noted by Rick, is a book with an important thesis--hope it gets a lot of attention. 

Another book worth checking out, for which I've just seen a notice, is Rodney Stark's Bearing False Witness: Debunking Centuries of Anti-Catholic History. Stark is an interesting and readable sociologist and historian of religion, who always makes important and generally correct points in his books, even if (in my experience) he may oversimplify or overstate things in places.

Love Trollope!

Thanks to Marc for posting about Anthony Trollope's The Warden, which is indeed a lovely novel. Trollope is one of my favorites, because his social criticism--which is definitely there--is tempered with a wryness and wide-ranging sympathy that often eluded Dickens. Trollope seems to trend every once in a while (I remember years ago when the series based on the Palliser political novels was big on Masterpiece Theatre). And according to Adam Gopnik recently in the New Yorker, he's trending again. Marc's post reminded me of Nathaniel Hawthorne's great assessment (which Gopnik quotes) of Trollope's novels:

“Just as real as if some giant had hewn a great lump out of the earth and put it under a glass case, with all its inhabitants going about their daily business, and not suspecting that they were made a show of.”

More Comments on Irony and Tragedy

Marc and I are engaged in a fun (for us, at least) dialogue about the "tragic" versus "ironic" approaches to religious liberty questions and probably other legal/social disputes too.  I've described the ironic approach, in the tradition of Niebuhr's The Irony of American History, as calling for humility and self-examination even in our most strenuous arguments against opponents, because our virtue can easily transmute into vice, while self-examination may make us see commonalities with, or virtue in, our opponents.  Marc, in turn, has defended the tragic approach laid out in his fine book, on the ground that it takes more seriously the often-unbridgeable gulfs between beliefs and ways of life that contend with each other.

Marc also argues that the ironic approach reflects a certain pretense of "knowing," a "clever detachment" that stands in judgment over the parties embroiled in the conflict.  On this last point, a friend of mine who's a student and fan of Niebuhr's work sent me some thoughts that laid out ideas I had only barely expressed in my response:

[T]he ironic disposition cannot be separated from the movement of repentance in Niebuhr's work -- that is, repentance is that movement in which the self transcends itself, its past, the causes to which it has pledged allegiance and see itself and this past and these commitments under the judgement of God. This is not clever detachment. Viewing itself and its past and its commitments under the judgment of God, it is enabled to see how virtuous intentions have gone astray as well as to discern the commonalities of sin between itself and its enemy. This emphasis on repentance is consistent throughout the two volumes of [Niebuhr's major work, The] Nature and Destiny [of Man].

Now, I'm sure that some people would be suspicous that when the self "transcends itself, its past, [and] the causes to which it has pledged allegiance," it is not actually "see[ing] itself ... under the judgment of God" but is instead asserting a kind of radical autonomy. Catholic theologians accused Niebuhr of favoring the autonomous self over the moral guidance of the Christian community.  I'm definitely not an experton these things, but I tend to see that criticism of Niebuhr as overstated.  However, let's set that debate aside.  The relevant point, which my friend expresses better than I had, is that in calling for self-examination and humility, the "ironic" thinker applies--should apply--the same demand to himself.  The kind of "ironic" disposition I'm describing, then, does not claim detachment--or intellectual or moral superiority, except insofar as moments of self-examination and repentance can lead to morally better behavior.

Along the same lines: Marc used an observation from Tom Shaffer to describe the ironic thinker's detachment and perceived superior insight.  My friend restates that quote and takes the analogy in an interesting direction:

"Shaffer [Marc wrote] once described irony as 'what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.' The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining."

The self in the ironic disposition is not an observer, but one of the two young lovers, who perhaps at a later date smiles wryly at a moment of innocence that was in actuality not quite so innocent as imagined at the time. As he has since discovered that, as a young man, he was still too young to know the full meaning of loving another human being.  The movement of repentance does not negate responsibility for the self's obligations. In so far as he reflects upon this past moment of innocence, he does so in order to gain a greater purchase on the meaning of love and the full meaning of loving another human being. Not to negate that obligation or to be an observer who stands outside of it. 

I'm piling on with the words here (sorry Marc!), but I thought that my friend's comments were worth sharing as part of the discussion.

I wonder if "irony," in our current circumstances, bespeaks too much of Letterman or Kimmel snark.  Is there a better term to refer to the disposition I've tried to describe?

Irony and Tragedy: Reply to Marc

Thanks, Marc, for the thought-provoking responses to my questions about irony and tragedy as approaches to understanding religious-liberty (and other) conflicts. Here are a few quick responses. A tragic diagnosis might be more accurate than an ironic one*/ on balance, or for some range of cases—say, the most difficult and vexing ones. That is, there’s surely some point where values and ways of life become incommensurable, no moral appeal to more general commonalities is sufficiently relevant or persuasive, and the only possibility is a pragmatic compromise that heads off worse harms. Both I and (as you mention) Niebuhr acknowledge that. And many of the pro-religious-exemptions arguments made by Berg-Esbeck-Garnett-Laycock-Wilson et al. are self-consciously pragmatic. The question, I think, is how quickly we should reach the conclusion that case-by-case compromise is all there is; or whether moral appeals to a sense of irony or humility can have any significant effect in meaningful cases of conflict. I think you’re saying “No they can’t,” and I have a few reactions.   

1. That seems to me too much of a blanket denial. As I see it (and I think as Niebuhr saw it), human beings have highly divergent beliefs and projects stemming from their different situations, experiences, and attitudes; but they also share certain commonalities at more general levels, and they have some capacity to recognize those commonalities. You say that “[t]he opposing sides [in religious-freedom disputes] are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life.” You say that they cannot accept in principle any liberty or equality claims of the other side, because “[t]he other side’s success inevitably detracts from the larger moral vision.”

     I doubt that this reflects our constitutional system—even in its reality, not just in its rhetoric—or that it could sustain that system. The same things could be said be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other’s side ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise? I concede that as the cases get “harder,” they become more difficult, and eventually impossible, to resolve through consensus principles; each side will point to a plausible general-consensus principle that supports its position, and the conflict cannot be fully resolved by either principle. But before we reach that point, it seems to me, there are many cases where a lot of people can say, “I disagree strongly with your underlying beliefs or views—I may even despise them—but I can see that you are asserting a legal claim that in principle falls in the same category as mine.”

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