Thursday, April 14, 2011
Nate Oman has posted a very interesting looking paper (h/t Larry S.) that attempts to revive and update a theory of honor to explain and justify private law. A while back, Paul Horwitz tried to do something similar in the realm of public law for oaths (see here and also in this little review of Philip Hamburger's Law and Judicial Duty).
Putting aside their substantive merits (both papers have a lot to offer), these assays to reconstruct honor for modern sensibilities are interesting as a sociological matter -- just as a matter of mapping the moods and movements of academic thought. Oman quotes a piece by Peter Berger from the late '80s that I remember reading a while back called, "On the Obsolescence of the Concept of Honor," but it seems that obsolescence may be a cyclical rather than linear phenomenon. Likewise, and as Oman notes, Charles Taylor in Sources of the Self describes a transition from 'honor' societies to societies of 'dignity.'
All of this leads to a question: in what way (if at all) does the concept of honor figure into Catholic writing and thought? If it is right that a dignitarian outlook has largely replaced the honor ethic (pace the good efforts of folks like Oman), was it always the case that Catholic writers spoke in terms of dignity? And are there Catholic writers who rely explicitly on ideas of honor (and not dignity) to explain their views?
Monday, April 11, 2011
France's ban of the face-covering veil (niqab) has taken effect, with some predictable early returns.
This line of the story caught my eye in particular: "The law is worded to trip safely through legal minefields: The words "women," ''Muslim" and "veil" are not even mentioned. The law says it is illegal to hide the face in the public space." Would a measure like this pass muster in the United States under the Free Exercise Clause (set aside RFRA and other statutes), assuming the wording of the ban was formally neutral in this fashion? I take it that any case advancing the right to wear the veil would not be a hybrid. And I'm also not sure that it rises to the level of the direct targeting in Lukumi Babablu. Do you think so?
I do not know who Jacques Berlinerblau is , [Editorial amendment: what I should have said was, since Mr. Berlinerblau is writing specifically about Religion Clause doctrine, I don't think I've read anything written by Mr. Berlinerblau dealing with the law of religious liberty before, but perhaps I've missed it. I did not mean at all to imply that my not knowing someone's writing is itself problematic (except, of course, for me). That would be a silly thing to say. I fully expect that Mr. Berlinerblau has not the first idea who I am.] but I guess he writes things for the Chronicle of Higher Education and he obviously has very strong feelings about the decision in Winn. It seems that he believes that the decision signals the overthrow of the enlightenment -- the one inaugurated in the 1960s and 1970s, he says -- and ushers in a new age in which government may violate the Establishment Clause at will.
However one might feel about the jurisprudence of the Warren and Burger Courts (and whatever the author means by the "secular judicial consensus" that obtained in that mythical golden age), this seems a rather apocalyptic reading of a relatively narrow ruling decided on a technical, non-Establishment-Clause-related issue. The reading of precedent, and of Flast in particular, is unfortunately crude: whether the Flast exception applied in a case like this is not answered by the simple one-liner that Berlinerblau just knows that it is.
Friday, April 8, 2011
I've got a review of Paul Horwitz's very good book, The Agnostic Age, at The New Republic, on its reviewing site, "The Book" (and yes, I did not both author the book and write the review...though that would be extremely cool...it will be corrected soon enough).
UPDATE: I'm informed that the review went up a little early, and will be placed back up on the site in the next few days.
The story is here, and particularly interesting is the union of anti-Muslim/immigrant and animal rights forces. Strange bed-fellows indeed. I also did not know that the Scandinavian and Baltic countries, as well as Switzerland, have long-standing bans on these practices whose troubling source is the pre-WWII period.
Difficult times for Europe.
Tuesday, April 5, 2011
This column by Roger Cohen is noteworthy for the earnestness of its anger against religion -- its "disgust." In truth, I have little quarrel with the claim that lots and lots of people in this world are miserable, including many of the people Cohen discusses. In fact, I have great sympathy for that view, and can remember having it reinforced almost every day as a state prosecutor. And that was just after dealing with defense counsel. I can even forgive Cohen for painting in rough and uncareful strokes. After all, I'm not sure it's really true that Representative King, as misguided as his hearings may be, is in precisely the same category as the guy who murdered the Swedish man, or the other one who killed the Catholic policeman. There seem to be relevant differences there. I also don't quite understand the charge that Newt Gingrich and King are choosing "opportunistically" to target "creeping Sharia" "at a time when the middle name of the president is Hussein." Opportunistic as their motives may be, I am not sure I see the connection to the President's middle name. But maybe I just haven't been keeping up with this nonsense. And of course, I understand that wrathfulness becomes more rhetorically pleasing as one wraps together disparate incidents into a single ball of seething self-righteous disgust.
Interestingly enough, Cohen finds in "religion" the lightning rod for his lightning. This is a move made with greater elegance by Professor Amos Guiora in this book as well, and one can find some nice discussion of it in Paul Horwitz's book too (see the section on the "New Commissars of the Enlightenment"). Non-religious people like Cohen (see the last line), eschewing the usual liberal tolerance of religion, are electing instead to take a more aggressive tack and blame religion itself for what ails us. I won't rehearse the standard replies to this move, as they will be familiar to the readership here. But I often do wonder the extent to which this new approach -- a bit more Voltaire and a bit less Madison -- might or might not influence the law of religious liberty.
Monday, April 4, 2011
Rick has noted the Winn decision and offered a per usual smart and nuanced rapid reaction. I agree with Rick that the Flast exception is problematic (I am still not quite clear about the "logical link" and "nexus" tests...Justice Scalia notes that the majority and the dissent "struggle" to decide whether this case is in or out), and I, too, might have liked to see this case develop the Zelman line (however that development took shape). But I'm not sure about that. For a very nice piece on the beneficent move of the Court to standing doctrine to resolve some of these cases, see Steve Smith's excellent piece, Nonestablishment, Standing, and the Soft Constitution.
I also note that this is the first (I think?) major Religion Clause decision in which we can see how Justice Kagan's mind operates in these cases, as she wrote the quite lengthy dissent. Rick was perspicuous here too.
Saturday, April 2, 2011
Friday, April 1, 2011
Don't miss Larry Solum's fantastic April Fool's scholarly papers. My favorite is the abstract from Richard Posner's piece, "What Do Deities Maximize?" and this line in particular: "Given omnipotence and omniscience, it follows that all states of affairs already accord with the preferences of an omnipotent and omniscient deity, leading to the paradoxical conclusion that rational action by such an entity is impossible."
The best thing about Solum's tom-foolery is its near-plausibility.