John Witte, Jr.
Emory University, Emory Law, Department Member
- Emory University, The Center for the Study of Law and Religion, Department Memberadd
- John Witte, Jr., J.D. (Harvard)edit
A brief overview of an important new collection of essays on great Christian jurists in Italian history from the Middle Ages until today.
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This is a brief introduction to a book that explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. In this book, two... more
This is a brief introduction to a book that explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. In this book, two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historical-biographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges.
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A brief preface to this volume of Christianity and Global Law, one of several new introductions to Christianity and law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume is an anthology of some... more
A brief preface to this volume of Christianity and Global Law, one of several new introductions to Christianity and law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume is an anthology of some two dozen chapters written by leading scholars. Each volume has historical, doctrinal, and comparative materials designed to uncover Christian sources and dimensions of familiar legal topics. Each volume is authoritative but accessible, calibrated to reach students, scholars, and instructors in law, divinity, graduate, and advanced college courses as well as educated readers from various fields interested in what Christianity has, can, and perhaps should offer to the world of law.
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This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As... more
This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, regardless of race. He emphasized the authority and freedom of the individual conscience as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by historians, Pennington was well known and influential among his contemporaries. His life and work represent an important step in the development of law, religion, and human rights.
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This article responds to Mark Jordan, Brian Bix, Michael Broyde, Robin Fretwell Wilson and Jonathan Chaplin who offered learned reviews of my volume, Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties... more
This article responds to Mark Jordan, Brian Bix, Michael Broyde, Robin Fretwell Wilson and Jonathan Chaplin who offered learned reviews of my volume, Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties (Cambridge University Press, 2019). This volume marshals historical, philosophical, jurisprudential, theological, and social science arguments to defend the fundamental place of the marital family in modern liberal societies. While applauding modern sexual freedoms as a welcome relief from traditional forms of patriarchy, paternalism, and plain prudishness, it also defends the traditional Western teaching that the marital family is an essential cradle of conscience, chrysalis of care, and cornerstone of ordered liberty. The volume thus urges churches, states, and other social institutions to protect and promote the monogamous marital family, including same-sex families. It encourages reticent churches to embrace the rights of women and children, as earlier Christian writers taught. It encourages modern states to promote responsible sexual freedom and stable family relations, as classical liberals in Europe and North America repeatedly said. It counsels modern churches and states to share somewhat in family law governance, and to resist recent efforts to privatize, abolish, flatten, or radically expand the marital family sphere. And the volume invites fellow citizens to get over their bitter battles concerning same-sex marriage and tend to the vast family field that urgently needs concerted attention and action. The five reviewers generously condone the main argument of the book, while offering interesting caveats and elaborations.
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Concluding remarks on the compiled essays in Russell Sandberg's edited volume, Leading Works in Law and Religion, along with a reflection on the broader global development of the field of law and religion.
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This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religion. These remarks comment briefly on the growing field of inquiry located at the intersection of law and religion before introducing the... more
This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religion. These remarks comment briefly on the growing field of inquiry located at the intersection of law and religion before introducing the diverse range of provocative topics addressed by the articles and reviews included in this issue, with contributions by Mary Ann Glendon, Michael J. Broyde, Matthew S. Erie, Jianlin Chen, Joel Harrison, Avishalom Westreich, William A. Barbieri, Rabea N. Benhalim, Nadieszda Kizenko, Bart Klem, and Audra L. Savage.
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This review essay evaluates Kathleen Brady's provocative and original defense of the idea that religion remains special in modern liberal democracies, and deserves special constitutional treatment. While warmly commending this work, this... more
This review essay evaluates Kathleen Brady's provocative and original defense of the idea that religion remains special in modern liberal democracies, and deserves special constitutional treatment. While warmly commending this work, this essay also queries the author's non-originalist reading of original sources, her non-theological account of religious arguments, and her neglect of valuable international human rights sources in support of religious freedom for all.
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This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and religion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article... more
This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and religion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article distinguishes and illustrates the roles of "orientation," "structural," and "ontologi-cal" metaphors in everyday life and language. Drawing on jurists like Robert Cover and Steven Winter, it shows how metaphors work both in describing the law in terms like "the body," and in prescribing the foundational beliefs and values on which the legal system depends. Finally, the Article explores the ample use of the number three in the law and speculates tentatively whether this legal appetite for "triads" might provide traction for the development of a Trinitarian jurisprudence. This Article is dedicated to Robert Cochran, one of the pioneers of law and religion and Christian legal thought in the United States, whose own writings make ample use of metaphors.
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The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced... more
The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom-freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.
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Este artículo compara la protección de la libertad religiosa contenida en la Primera Enmienda de la Constitución de los Estados Unidos con las principales normas internacionales de derechos humanos sobre la materia. Especialmente, se... more
Este artículo compara la protección de la libertad religiosa contenida en la Primera Enmienda de la Constitución de los Estados Unidos con las principales normas internacionales de derechos humanos sobre la materia. Especialmente, se analiza el Pacto Internacional de Derechos Civiles y Políticos de 1966, la Declaración de las Naciones Unidas sobre la eliminación de todas las formas de intolerancia y discriminación fundadas en la religión o las convicciones de 1981 y los llamados Documentos de Clausura de Viena de 1989. Los casos de la Corte Suprema de los Estados Unidos sobre la libertad de conciencia, el libre ejercicio de la religión, la igualdad religiosa y la no discriminación encajan favorablemente con las normas internacionales. Sin embargo, el encaje resulta más desfavorable en lo que respecta a la deficiente y repetida falta de protección de las distintas reivindicaciones de libertad religiosa por parte de grupos indígenas estadounidenses. Los casos de la Corte Suprema que defienden el principio de la separación de la iglesia y el estado encajan bien con las preocupaciones internacionales por los derechos y la autonomía de los grupos religiosos, aunque van más allá de lo dispuesto en las normas internacionales porque eliminan en gran medida la libertad religiosa de la educación pública.
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This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and... more
This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.
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This Article analyzes John Calvin’s reformation of the life, law, and lore of the marital family in sixteenth-century Geneva. Calvin’s early efforts in the 1530s and 1540s were focused on the law of marital formation, maintenance, and... more
This Article analyzes John Calvin’s reformation of the life, law, and lore of the marital family in sixteenth-century Geneva. Calvin’s early efforts in the 1530s and 1540s were focused on the law of marital formation, maintenance, and dissolution. Particularly his 1545 Marriage Ordinance was famous for requiring parental consent, church consecration, and publicly attested marital contracts for valid marital formation, and for allowing both husbands and wives to divorce on grounds of adultery and desertion. When Calvin’s legal views were challenged, he both defended and refined them with a new theology of marriage as a covenant, modeled on the covenant between God and his elect. This theology emphasized both the spiritual and contractual qualities of marriage, its dependence on the moral law of God, and the participation of God through parents, peers, pastors, and political officials who each hold divine authority. In Calvin’s covenant theology, marriage was more than a mere contract (given its vital public rolls and roles) but less than a divine sacrament (only baptism and the Eucharist counted as sacraments). A German translation of this article appears as "Zwischen Sakrament und Vertrag: Ehe als Bund im Genf Johannes Calvins," Zeitschrift der Savigny-Stiftung (Kanonisches Abteilung) 115 (1998): 386-469.
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This brief Article introduces the highly original theory of equality of two distinguished Catholic legal scholars. They root their argument in a reconstructed theory that human beings are created with the divine invitation to moral... more
This brief Article introduces the highly original theory of equality of two distinguished Catholic legal scholars. They root their argument in a reconstructed theory that human beings are created with the divine invitation to moral self-perfection, however impossible this state is for anyone to achieve in this life. Humans can still, however, achieve goodness in objective good intentions and doing the best they can to discover and perform certain good actions. This Article places this argument in historical context, compares it other theories of equality based on reason, will, and dignity, and judges it to be a refreshing new way of thinking about human equality, liberty, and capability.
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This Article explores the surprising use of medieval Catholic canon law in the new Protestant civil law of Lutheran Germany within a decade of Luther's decision to burn the canon law books and reject papal authority. Inertia is part of... more
This Article explores the surprising use of medieval Catholic canon law in the new Protestant civil law of Lutheran Germany within a decade of Luther's decision to burn the canon law books and reject papal authority. Inertia is part of the reason. Prior to the Reformation, the canon law was a vital part of the ius commune in which most jurists and theologians who had joined the Reformation cause were trained. In the heady days of revolutionary defiance of Pope and Emperor in the 1520s, it was easy for Protestant neophytes to be swept up in the radical cause of eradicating the canon law and establishing a new evangelical order based on the Bible alone. When this revolutionary plan proved unworkable, however, theologians and jurists invariably returned to a truncated version of the canon law and civil law that they knew. Innovation is also part of the reason. Lutheran theologians after 1530 offered an innovative theory of the church that ultimately required church and state officials to use both biblical and canonical rules and procedures to govern the polity, property, and clergy of the church. Lutheran jurists offered an innovative theory of the state and the sources of civil law that ultimately saw much of the canon law as a quintessentially Christian and equitable law that could be readily used in Lutheran lands, especially in the governance marriage and family, education and schooling, charity and welfare.
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Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex... more
Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex crimes and the roles of churches in maintaining sexuality morality. But sexual misconduct remains a perennial reality in modern societies, including notably within churches, and sex crimes inflict some of the deepest scars on their victims. Modern liberal states must thus maintain a basic standard of sexual morality in its criminal law as a restraint on harmful behavior and as a bulwark against a sexual state of nature where life is often “brutish, nasty, and short” for the most vulnerable. And liberal societies should encourage its citizens and churches to pursue a higher morality of aspiration that views sex and the sexual body as a special gift for oneself and others.
Christianity and democracy complement each other. Christianity provides democracy with a system of beliefs that integrates its concerns for liberty and responsibility, individuality and community. Democracy provides Christianity with a... more
Christianity and democracy complement each other. Christianity provides democracy with a system of beliefs that integrates its concerns for liberty and responsibility, individuality and community. Democracy provides Christianity with a system of government that balances its concerns for human dignity and depravity, social pluralism and progress. This complementarity has brought Christianity and democracy together, and has placed Christianity in the vanguard of early modern democratic revolutions in the West, and the new wave of democratic revolutions breaking around the world. Christianity and democracy, however, also challenge each other. Democracy's commitment to religious freedom opens new opportunities to Christianity and challenges the church to extend its mission and ministry. Democracy's commitment to religious equality forces Christianity to stand on its own feet and on an equal footing with all other religions. Its survival and growth must turn on the cogency of its word, not the coercion of the sword, on the faith of its members, not the force of the law. Christianity, in turn, must challenge democracy to extend its regime against tyrants and autocrats, and to vindicate its inherent promise for peace, justice, and a better life for all. Christianity must also challenge democracy to reform itself. Democracy has stored up many idols in its short life-the proud cults of progress and freedom, the blind beliefs of materialism and technologism, the desperate faiths of agnosticism and nihilism. Democracy has done much to encourage a vulgar industrialization that reduces both human beings and natural resources to fungible and expendable economic units. It has done much to impoverish the already poor, to marginalize the already marginal, to exploit the already exploited-all along promising them a better life. Christianity must work to exorcise the idols of democracy and to continually drive democracy to purge and reform itself.
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The practice of taxing church property while exempting other nonprofit groups appears to violate the “no special burden” principle of the free exercise clause. The Supreme Court case of Walz v. Commission charted a course between the free... more
The practice of taxing church property while exempting other nonprofit groups appears to violate the “no special burden” principle of the free exercise clause. The Supreme Court case of Walz v. Commission charted a course between the free exercise and establishment clause. The Court argued from neutrality, separatism, and history to state that tax exemption of church property is part of an unbroken national tradition. However, the Court’s neutrality argument does not address constitutionality, its separatism argument is contrived, and historically, only established religions have been exempt from taxation.
Past tax exemptions are rooted in two traditions: the common law adopted from England that granted exemptions to established churches, and the equity law tradition that granted exemptions to all churches. The common law tradition was restricted to certain types of church property of established churches, and the exemptions could be put on hold during times of emergency. The equity tradition gave churches another chance; ecclesiastical and charitable organizations could be tax exempt.
These traditions continued uninterrupted in the early American republic. Three provisions ultimately provided ground for a challenge to the tax exemption of church property. The disestablishment of religion undercut the authority of officials to prefer one religion over the other. The truncation of the equity tradition removed the equitable privileges given to charities. Finally, equal and uniform taxation was considered a basis of American life.
In modern theory, churches are seen as beneficial to society because they promote public morality, charity, and education. The law of equity is now based in statutory schemes or state constitutions, but the religious use of property is key to its tax exempt status. In the future, courts must find a via media between the eradication of exemptions and blanket endorsements.
Past tax exemptions are rooted in two traditions: the common law adopted from England that granted exemptions to established churches, and the equity law tradition that granted exemptions to all churches. The common law tradition was restricted to certain types of church property of established churches, and the exemptions could be put on hold during times of emergency. The equity tradition gave churches another chance; ecclesiastical and charitable organizations could be tax exempt.
These traditions continued uninterrupted in the early American republic. Three provisions ultimately provided ground for a challenge to the tax exemption of church property. The disestablishment of religion undercut the authority of officials to prefer one religion over the other. The truncation of the equity tradition removed the equitable privileges given to charities. Finally, equal and uniform taxation was considered a basis of American life.
In modern theory, churches are seen as beneficial to society because they promote public morality, charity, and education. The law of equity is now based in statutory schemes or state constitutions, but the religious use of property is key to its tax exempt status. In the future, courts must find a via media between the eradication of exemptions and blanket endorsements.
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While they maintained firm and sometimes brutal religious establishments, the New England Puritans also helped cultivate a number of striking constitutional ideas that would prove influential for the United States after the American... more
While they maintained firm and sometimes brutal religious establishments, the New England Puritans also helped cultivate a number of striking constitutional ideas that would prove influential for the United States after the American Revolution. Among the most novel were their ideas of social, political, and ecclesiastical covenants, rooted in biblical covenant thinking but prescient of later secular social and government contract theories. Also influential were their ideas of natural rights and liberties and their necessary protection by church and state authorities alike. But the Puritans' most prescient and enduring contribution lay in their theory of sin and the need to create constitutional safeguards against tyranny. This led them to develop early doctrines of separation of church and state, separation of powers within church and state, checks and balances amongst these powers, federalist layers of authority, codification of laws and limitations on equity, democratic election of religious and political officials, and the practice of congregational and town meetings between elections to render officials accountable to their constituents. The themes and contents of this early Article were greatly expanded and revised in the author's later book: The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge University Press, 2007).
Research Interests: Religion, History, American Legal and Constitutional History, Covenant Theology, Separation of Powers, and 10 moreNatural rights, Church and State, Puritanism, John Winthrop, Checks and Balances, Democratic Elections, Thomas Hooker (1586-1647), Samuel Willard, Town Meetings, and Congregational Meetings
This article discusses the current situation of the right to religious freedom in the context of the postsecular, global revival of religion. After discussing the development of universal human rights norms, including religious human... more
This article discusses the current situation of the right to religious freedom in the context of the postsecular, global revival of religion. After discussing the development of universal human rights norms, including religious human rights, the article details the provisions for the protection of religious freedom in key instruments of international human rights law. The article then discusses the "new alphabet" of religious freedom in connection with the hot-button issues of Apostasy, Blasphemy, Conversion, and Defamation. It concludes with reflections on the mutual relationship and interdependence of religion and human rights.
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This is a brief report on an international conference on the contested place of religious freedom in the United States and the United Kingdom, offering legal, historical, and comparative perspectives.
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This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and... more
This Article analyzes John Calvin’s reformation of Western family law in sixteenth century-Geneva. Calvin depicted marriage as a sacred and presumptively enduring union, but also a conditional and breakable covenant with distinct and discernible goods and goals that couples and communities alikehad to support. This covenantal framework gave Calvin new rationales for old rules concerning marital and non-marital sex and cohabitation, courtship and weddings, procreation, nurture, and education of children, and the punishment of adultery, polygamy, and “unnatural” sex within and beyond the marital bed. But Calvin also set out new teachings on the proper communal formation and maintenance of the marital covenant, and introduced into Genevan law the rightsof husbands and wives alike to divorce and remarry in cases of hard fault.
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En este artículo, el autor analiza los cuatro distintos modelos de libertad religiosa que se pueden distinguir en la época fundacional estadounidense: el modelo puritano, el evangélico, el ilustrado y el cívico-republicano. Los exponents... more
En este artículo, el autor analiza los cuatro distintos modelos de libertad religiosa que se pueden distinguir en la época fundacional estadounidense: el modelo puritano, el evangélico, el ilustrado y el cívico-republicano. Los exponents de estos cuatro modelos a menudo defendieron causas communes y utilizaron un mismo lenguaje, particularmente durante el período de debates de la convención constitucional y ratificación. Sin embargo, cada grupo ofreció su propia doctrina sobre la libertad religiosa y tuvo sus propias preferencias para su implementación en el derecho constitucional. Juntos, se puede decir que estos grupos sostuvieron las cuatro esquinas de un amplio dosel de opinion sobre la libertad religiosa en la América del siglo XVIII.
The sixteenth-century Protestant Reformation revolutionized not only theology and the church, but also law and the state. This northern European reform movement, though divided into Lutheran, Anabaptist, Anglican, and Calvinist branches,... more
The sixteenth-century Protestant Reformation revolutionized not only theology and the church, but also law and the state. This northern European reform movement, though divided into Lutheran, Anabaptist, Anglican, and Calvinist branches, collectively broke the international rule of the medieval Catholic Church and its canon law, and permanently splintered Western Christendom into competing nations and regions. The Reformation also triggered a massive shift of power, property, and prerogative from the church to the state. Protestant states now assumed jurisdiction over numerous subjects and persons previously governed by the medieval church, and they gave new legal form to Protestant teachings. But these new Protestant laws also drew heavily on the medieval ius commune as well as on earlier biblical and Roman jurisprudence. This chapter analyses the new legal syntheses that emerged in Protestant lands, with attention to the new laws of church-state relations, religious and civil freedom, marriage and family law, education law, social welfare law, and accompanying changes in legal and political philosophy.
Research Interests: Education, Calvinism, Lutheranism, Anabaptism, Protestantism, and 15 morePolitical Theology, John Calvin, Martin Luther, Thomas Cranmer, Social Welfare, Crime and punishment, Reformation, Henry VIII, Marriage and Family, Philipp Melanchthon, Anglicanism, Richard Hooker, Church-state relations, Menno Simons, and Christianity and Law
French-born Protestant Reformer, John Calvin, led a sweeping reformation of law, politics, and society in sixteenth-century Geneva. Building on classical and earlier Christian sources, Calvin developed an innovative and integrative... more
French-born Protestant Reformer, John Calvin, led a sweeping reformation of law, politics, and society in sixteenth-century Geneva. Building on classical and earlier Christian sources, Calvin developed an innovative and integrative theory of rights and liberties, church and state, authority and power, natural law and positive law. Particular striking was his use of the Decalogue as a source and summary of natural law, and as a template for spiritual and civil laws and rights in a Christian republic. Also novel was his theory of the uses of natural and positive law to cultivate a baseline civil morality and an aspirational spiritual morality for each member of the community. Calvin and his followers believed in law, as a deterrent against sin, an inducement to grace, and a teacher of Christian virtue. They also believed in liberty, structuring their churches and states alike to minimize the sins of their rulers and to maximize the liberties of their subjects. Calvin distilled his legal teachings into sundry public, private, penal, and procedural laws for Geneva, and he broadcast them widely among other French and other European jurists, theologians, and political leaders of his day. His work helped shape Western legal thought and practice until the modern Enlightenment, and several of his basic teachings about law, politics, and society still live on today both in secular legal thought and in modern Protestant churches.
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This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religion. These remarks comment briefly on the growing field of inquiry located at the intersection of law and religion before introducing the... more
This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religion. These remarks comment briefly on the growing field of inquiry located at the intersection of law and religion before introducing the diverse range of provocative topics addressed by the articles and reviews included in this issue, with contributions by Mary Ann Glendon, Michael J. Broyde, Matthew S. Erie, Jianlin Chen, Joel Harrison, Avishalom Westreich, William A. Barbieri, Rabea N. Benhalim, Nadieszda Kizenko, Bart Klem, and Audra L. Savage.
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Throughout his career, Bernie Zylstra worked to proselytize and popularize the legal philosophy of his mentor Herman Dooyeweerd. He expounded Dooyeweerd's philosophy in numerous courses, lectures, and private letters. He explained them in... more
Throughout his career, Bernie Zylstra worked to proselytize and popularize the legal philosophy of his mentor Herman Dooyeweerd. He expounded Dooyeweerd's philosophy in numerous courses, lectures, and private letters. He explained them in popular pamphlets, chapters, and introductory texts. He extrapolated them in his own important writings on liberalism, marxism, and modernism. Through his efforts, and those of some of his peers and students, Dooyeweerd's legal philosophy has come to enjoy considerable currency in Western Europe, North America, and South Africa.
Zylstra's emphasis on Dooyeweerd's legal philosophy was well placed. For Dooyeweerd, despite his renown as a general philosopher and Christian apologist, was first and foremost a jurist. He studied law for five years at the Free University of Amsterdam and in l9l7 completed his dissertation on the role of the cabinet in Dutch public law. For three years thereafter he worked in the Dutch Department of Labor as a clerk and legislative drafter. From l926 until l965, he served as a law professor at the Free University of Amsterdam, where he taught legal philosophy, legal history, and legal science. He presided over the distinguished Society of Legal Philosophy and numerous other legal symposia. He engaged in ample and able debate with such leading jurists of his day as Giorgio Delvecchio, Georg Jellinek, and Hans Kelsen and filled his library with a vast array of legal tomes. Well over half of his own 200 odd professional publications are on legal subjects.
This article, dedicated to the memory of Bernie Zylstra, focuses on one small part of Dooyeweerd's legal legacy, his concept of rights. Dooyeweerd addressed the subject of rights several times in his career, each time seeking to develop a comprehensive Calvinist concept of rights. His initial efforts led him to a rather traditional Calvinist concept of political liberties, rooted in simple theological principles. His later efforts yielded an intricate modal concept of legal competences and subjective rights, rooted in a complex philosophical system. The analysis that follows will pay particular attention to the analytical stages through which Dooyeweerd passed to develop his concept.
Zylstra's emphasis on Dooyeweerd's legal philosophy was well placed. For Dooyeweerd, despite his renown as a general philosopher and Christian apologist, was first and foremost a jurist. He studied law for five years at the Free University of Amsterdam and in l9l7 completed his dissertation on the role of the cabinet in Dutch public law. For three years thereafter he worked in the Dutch Department of Labor as a clerk and legislative drafter. From l926 until l965, he served as a law professor at the Free University of Amsterdam, where he taught legal philosophy, legal history, and legal science. He presided over the distinguished Society of Legal Philosophy and numerous other legal symposia. He engaged in ample and able debate with such leading jurists of his day as Giorgio Delvecchio, Georg Jellinek, and Hans Kelsen and filled his library with a vast array of legal tomes. Well over half of his own 200 odd professional publications are on legal subjects.
This article, dedicated to the memory of Bernie Zylstra, focuses on one small part of Dooyeweerd's legal legacy, his concept of rights. Dooyeweerd addressed the subject of rights several times in his career, each time seeking to develop a comprehensive Calvinist concept of rights. His initial efforts led him to a rather traditional Calvinist concept of political liberties, rooted in simple theological principles. His later efforts yielded an intricate modal concept of legal competences and subjective rights, rooted in a complex philosophical system. The analysis that follows will pay particular attention to the analytical stages through which Dooyeweerd passed to develop his concept.
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The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God's moral law... more
The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God's moral law was not a pathway to salvation, but it still had "uses" in this life: (1) a civil use that restrains person from sinful conduct by threat of divine punishment; (2) a theological use that condemns sinful persons in their consciences and drives them to repentance; and (3) an educational use that teaches those who have already been saved the good works that please God and induce others to come to God, too. Protestant jurists, in turn, developed an analogous theory of three purposes of why a state needs criminal law and punishment: (1) deterrence of individuals and groups through the threat of criminal punishment; (2) retribution, the necessary punishment needed to restore a convicted criminal within the community; and (3) rehabilitation, teaching a person the good works that become proper citizenship. This Article analyzes the close conceptual connections between these theological and legal doctrines and the historical evidence that each influenced the development of the other. The Article also calls for a proper balancing of the three uses of moral law and the three purposes of criminal law.
Research Interests: Religion, Christianity, Criminal Law, American Legal and Constitutional History, Legal History, and 12 moreDeterrence, Protestantism, John Calvin, Criminality and Punishment, Martin Luther, Oliver Wendell Holmes Jr., Law and Morality, Retribution, Rehabilitaiton, Anglo-American Common Law Traditions, Thomas Becon, and Samuel Willard
The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God’s moral law... more
The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God’s moral law was not a pathway to salvation, but it still had “uses” in this life: (1) a civil use that restrains person from sinful conduct by threat of divine punishment; (2) a theological use that condemns sinful persons in their consciences and drives them to repentance; and (3) an educational use that teaches those who have already been saved the good works that please God and induce others to come to God, too. Protestant jurists, in turn, developed an analogous theory of three purposes of why a state needs criminal law and punishment: (1) deterrence of individuals and groups through the threat of criminal punishment; (2) retribution, the necessary punishment needed to restore a convicted criminal within the community; and (3) rehabilitation, teaching a person the good works that become proper citizenship. This Article analyzes the close conceptual connections between these theological and legal doctrines and the historical evidence that each influenced the development of the other. The Article also calls for a proper balancing of the three uses of moral law and the three purposes of criminal law.
Research Interests: Religion, Christianity, Criminal Law, Rehabilitation, Legal History, and 13 moreDeterrence, Law and Religion, Protestantism, John Calvin, Criminality and Punishment, Martin Luther, Oliver Wendell Holmes Jr., Law and Morality, Retribution, American Legal History, Thomas Becon, Anglo-American Criminal Law, and Samuel Willard
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This review analyzes Jesse Choper's theory of religious liberty, built on the principles of equality, neutrality, accommodationism, and separationism. Choper argues that government should permit innocuous displays of religion. Choper... more
This review analyzes Jesse Choper's theory of religious liberty, built on the principles of equality, neutrality, accommodationism, and separationism. Choper argues that government should permit innocuous displays of religion. Choper suggests that traditional bans on prayer and Bible reading in schools. Likewise, legislative chaplains and religious tax exemptions would be outlawed. However, Choper advocated that parochial schools and religious charities should be permitted. Choper recognizes that his ideas would not be easily received. However, he is firm in his belief that such an interpretation of the Religion Clause would best serve American society. His book should serve as a guide and enlighten courts regarding religious liberty.
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This Article reports on a major international conference in 1994 a Emory on the state of religious rights and liberties around the world today. This report offers a thumbnail sketch of certain core teachings on religious rights and... more
This Article reports on a major international conference in 1994 a Emory on the state of religious rights and liberties around the world today. This report offers a thumbnail sketch of certain core teachings on religious rights and liberties among the Religions of the Book, notably the core guarantees of liberty of conscience, free exercise, and equality of religions. The second section of articles describes the state of religious rights and liberties in select nations and regions today.
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This Article documents how and why the sixteenth-century Lutheran Reformation helped to build the modern public education system of the West. Rejecting the medieval tradition of church education primarily for and by the clergy, Martin... more
This Article documents how and why the sixteenth-century Lutheran Reformation helped to build the modern public education system of the West. Rejecting the medieval tradition of church education primarily for and by the clergy, Martin Luther argued that all Christians need to be educated to be able to read the Bible on their own, to participate fully in the life of the church, state, and society, and to prepare for their distinct vocations. Lutheran Germany and Scandinavia thus set up public schools as "civic seminaries," in Philip Melanchthon's apt phrase, designed to offer general spiritual and civic education for all. In early modern Lutheran lands, the state replaced the church as the chief educator of the community, and free basic education with standard curricula was made compulsory for all children, boys and girls alike. The Article offers case studies of new German city and territorial laws on education on the books and in action, and it reflects on the enduring significance of this early experiment in education even in our day.
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Some scholars portray John Calvin as a champion of religious liberty and human rights. Others view him as a rigid and brutal theocrat. This article shows that neither interpretation does justice to Calvin's complex and evolving views of... more
Some scholars portray John Calvin as a champion of religious liberty and human rights. Others view him as a rigid and brutal theocrat. This article shows that neither interpretation does justice to Calvin's complex and evolving views of spiritual and political liberty. In his early writings, Calvin distinguished sharply between the spiritual and political liberty of individuals, and showed how these two concepts of liberty operated in the heavenly and earthly kingdoms respectively. In his later writings, Calvin worked to harmonize spiritual and temporal life and liberty, and to balance the religious liberty of the individual with the corporate needs of church, state, and society. This resulted in a much more nuanced understanding of liberty and authority, rights and duties, church and state, that Calvin worked out in both theological and jurisprudential terms. Many of his formulations proved axiomatic for the Western tradition, and anticipated understandings of rights and liberties that are still pertinent today.
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A new war has developed for the salvation of souls in Russia, as local and foreign religious groups battle in Russia over the right and power to proselytize. This is, in parti a legal war just as it is a religious war, as the Russian... more
A new war has developed for the salvation of souls in Russia, as local and foreign religious groups battle in Russia over the right and power to proselytize. This is, in parti a legal war just as it is a religious war, as the Russian government has developed favorite denominations and oppressed others. After the Soviet Union crumbled, president Mikhail Gorbachev broke the Marxist/Lennist atheism of Russian and allowed religious freedom with legal backing. No state religion was implemented, and Russia entered a golden age of religious liberty along with a massive religious awakening, both within and without its borders. Foreign religious groups even began to make some headway in Orthodox Russia. These new arrivals eventually created resentment due to their Western concepts and their “hit and run evangelism.” The Russian Orthodox church requested these groups lower their level of activity, but they were ignored and forced to turn to state law. They proposed restrictions on foreign proselytism, which were only enacted on the local level.
However, the Russian government eventually passed the Freedom of Conscience Law, a controversial law that places religious groups with certain classes. The Orthodox Russian Church receives legal protection and benefits. Traditional foreign religions, like Protestant Christian and mainline Jewish and Muslim sects, are given full protection under the law, but fewer benefits. Other religious groups, those considered “dangerous” by the Orthodox Russian Church, are given only a pro forma guarantee of freedom of worship and liberty of conscience. Similarly, religious organizations are given a juridical personality and affirmative rights, while religious group are given only minimal protections and can be dissolved for a number of reasons that are vague and expansive.
This law is self-contradictory and violates basic human rights guarantees. Boris Yeltsin vetoed the law, religious groups have protested the law, and foreign leaders have admonished the law. Unfortunately, the Freedom of Conscience Law is not a temporary problem on one based on misunderstanding. The law instead reflects ontological differences between Russian Orthodoxy and Western theology. To the Russian Church, Western theology is under the “shadow of the Enlightenment” and grants too much freedom to its congregants while expressing too little faith. The main problems that exist are twofold: 1. Theological differences over the concept of proselytism, and 2. Cultural differences over concepts of church, state, and nation. A middle ground must be found between Russian Orthodox values and Western theological concepts so Russia can regain the religious liberty the Freedom of Conscience Law has oppressed.
However, the Russian government eventually passed the Freedom of Conscience Law, a controversial law that places religious groups with certain classes. The Orthodox Russian Church receives legal protection and benefits. Traditional foreign religions, like Protestant Christian and mainline Jewish and Muslim sects, are given full protection under the law, but fewer benefits. Other religious groups, those considered “dangerous” by the Orthodox Russian Church, are given only a pro forma guarantee of freedom of worship and liberty of conscience. Similarly, religious organizations are given a juridical personality and affirmative rights, while religious group are given only minimal protections and can be dissolved for a number of reasons that are vague and expansive.
This law is self-contradictory and violates basic human rights guarantees. Boris Yeltsin vetoed the law, religious groups have protested the law, and foreign leaders have admonished the law. Unfortunately, the Freedom of Conscience Law is not a temporary problem on one based on misunderstanding. The law instead reflects ontological differences between Russian Orthodoxy and Western theology. To the Russian Church, Western theology is under the “shadow of the Enlightenment” and grants too much freedom to its congregants while expressing too little faith. The main problems that exist are twofold: 1. Theological differences over the concept of proselytism, and 2. Cultural differences over concepts of church, state, and nation. A middle ground must be found between Russian Orthodox values and Western theological concepts so Russia can regain the religious liberty the Freedom of Conscience Law has oppressed.
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John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between... more
John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.
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Massachusetts was the last of the original 13 American states to disestablish religion, having been founded in the early seventeenth century as a bastion of Puritanism. The Massachusetts Constitution of 1780 moved part way toward... more
Massachusetts was the last of the original 13 American states to disestablish religion, having been founded in the early seventeenth century as a bastion of Puritanism. The Massachusetts Constitution of 1780 moved part way toward disestablishment by guaranteeing freedom and equality to all peaceable private religions but also retaining what leading constitutional draftsman John Adams called a "mild and equitable establishment of religion." This consisted of (1) a ceremonial establishment, reflected in public religious language, symbols, rituals, and oaths supported by the state; (2) a moral establishment, reflected in the virtues and values to be taught in state schools and universities and exemplified by elected officials and other public figures; and (3) an institutional establishment, reflected in mandatory tithe payments, required Sunday worship, and other supports for Congregational churches. Adams advocated this balance of a tempered religious freedom and a slender religious establishment as the best political compromise between hardline establishmentarians and radical separationists in the state. But this view also reflected Adams' own political and religious philosophy that too little religious freedom is a recipe for hypocrisy and impiety, while too much religious freedom is an invitation to depravity and license. Too firm a religious establishment breeds coercion and corruption, while too little religious establishment allows secular prejudices to become constitutional prerogatives. Somewhere between these extremes, Adams believed, a society must find its balance. This was a strikingly different view of religious freedom than the strict separation of church and state views advocated by Adams' long time friendly rival, Thomas Jefferson. The balance between freedom and establishment that Adams advocated was reflected in the 1780 Massachusetts constitution and was defended in a series of famous state cases authored by Chief Justice Theophilus Parsons. But in 1833, Massachusetts amended its constitution to outlaw the institutional establishment of religion, notably the state tithing system, even though the state retained its ceremonial and moral establishments.
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A new war has developed for the salvation of souls in Russia, as local and foreign religious groups battle in Russia over the right and power to proselytize. This is, in parti a legal war just as it is a religious war, as the Russian... more
A new war has developed for the salvation of souls in Russia, as local and foreign religious groups battle in Russia over the right and power to proselytize. This is, in parti a legal war just as it is a religious war, as the Russian government has developed favorite denominations and oppressed others. After the Soviet Union crumbled, president Mikhail Gorbachev broke the Marxist/Lennist atheism of Russian and allowed religious freedom with legal backing. No state religion was implemented, and Russia entered a golden age of religious liberty along with a massive religious awakening, both within and without its borders. Foreign religious groups even began to make some headway in Orthodox Russia. These new arrivals eventually created resentment due to their Western concepts and their “hit and run evangelism.” The Russian Orthodox church requested these groups lower their level of activity, but they were ignored and forced to turn to state law. They proposed restrictions on foreign proselytism, which were only enacted on the local level.
However, the Russian government eventually passed the Freedom of Conscience Law, a controversial law that places religious groups with certain classes. The Orthodox Russian Church receives legal protection and benefits. Traditional foreign religions, like Protestant Christian and mainline Jewish and Muslim sects, are given full protection under the law, but fewer benefits. Other religious groups, those considered “dangerous” by the Orthodox Russian Church, are given only a pro forma guarantee of freedom of worship and liberty of conscience. Similarly, religious organizations are given a juridical personality and affirmative rights, while religious group are given only minimal protections and can be dissolved for a number of reasons that are vague and expansive.
This law is self-contradictory and violates basic human rights guarantees. Boris Yeltsin vetoed the law, religious groups have protested the law, and foreign leaders have admonished the law. Unfortunately, the Freedom of Conscience Law is not a temporary problem on one based on misunderstanding. The law instead reflects ontological differences between Russian Orthodoxy and Western theology. To the Russian Church, Western theology is under the “shadow of the Enlightenment” and grants too much freedom to its congregants while expressing too little faith. The main problems that exist are twofold: 1. Theological differences over the concept of proselytism, and 2. Cultural differences over concepts of church, state, and nation. A middle ground must be found between Russian Orthodox values and Western theological concepts so Russia can regain the religious liberty the Freedom of Conscience Law has oppressed.
However, the Russian government eventually passed the Freedom of Conscience Law, a controversial law that places religious groups with certain classes. The Orthodox Russian Church receives legal protection and benefits. Traditional foreign religions, like Protestant Christian and mainline Jewish and Muslim sects, are given full protection under the law, but fewer benefits. Other religious groups, those considered “dangerous” by the Orthodox Russian Church, are given only a pro forma guarantee of freedom of worship and liberty of conscience. Similarly, religious organizations are given a juridical personality and affirmative rights, while religious group are given only minimal protections and can be dissolved for a number of reasons that are vague and expansive.
This law is self-contradictory and violates basic human rights guarantees. Boris Yeltsin vetoed the law, religious groups have protested the law, and foreign leaders have admonished the law. Unfortunately, the Freedom of Conscience Law is not a temporary problem on one based on misunderstanding. The law instead reflects ontological differences between Russian Orthodoxy and Western theology. To the Russian Church, Western theology is under the “shadow of the Enlightenment” and grants too much freedom to its congregants while expressing too little faith. The main problems that exist are twofold: 1. Theological differences over the concept of proselytism, and 2. Cultural differences over concepts of church, state, and nation. A middle ground must be found between Russian Orthodox values and Western theological concepts so Russia can regain the religious liberty the Freedom of Conscience Law has oppressed.
Research Interests:
This article offers an appreciative review of a new title on Calvin's theory of equity developed in conversation with Greek, Roman, and humanist tracts on legal interpretation
Research Interests: Religion, Ethics, Aristotle, John Calvin, Equity, and 3 moreMedieval Canon Law, Morality, and Gϋnther Haas
This Article reviews the theory of rights and liberties developed by Dutch theologian, philosopher, and statesman Abraham Kuyper at the turn of the twentieth century. Drawing generously on the Calvinist tradition, Kuyper distinguished... more
This Article reviews the theory of rights and liberties developed by Dutch theologian, philosopher, and statesman Abraham Kuyper at the turn of the twentieth century. Drawing generously on the Calvinist tradition, Kuyper distinguished religious, ecclesiastical, associational, and political liberties, which he grounded in his signature theories of the created order, social pluralism, covenant doctrine, and sphere sovereignty. The Article then compares Kuyper's theory of liberty with one historical Calvinist community in Puritan New England.
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The modern Western legal tradition owes a great debt to the medieval canon law of the Church, several new authoritative titles have shown. James Brundage's Medieval Canon Law provides an efficient outline of the development of Western... more
The modern Western legal tradition owes a great debt to the medieval canon law of the Church, several new authoritative titles have shown. James Brundage's Medieval Canon Law provides an efficient outline of the development of Western canon law from its apostolic beginnings till the sixteenth century. He deals particularly with the monumental influence of the 12 th century shadowy figure named Gratian, the supposed compiler of the anchor text of canon law called the Decretum. John Noonan's Canons and Canonists in Context rejects the common idea that Gratian was a monk or a bishop, and he questions whether Gratian authored the Decretum, particularly its influential texts on marriage. He shows that Paucapalea, a disciple of Gratian, may well have written a portion of the Decretum, too. Noonan also challenges the legend that Rolandus, Gratian's famous commentator, was the same Rolandus that became Pope Alexander II. Jean Gaudemet's Église et cité explores the contested relationships between medieval religious and political authorities, and their respective canon and civil law systems. This book is particularly effective in showing how medieval jurists resolved complex jurisdictional conflicts and issues of conflict of laws. R.H. Helmolz's, The Spirit of Canon Law analyzes closely how the medieval canonists-on their own or in collaboration with the civil lawyers-resolved intricate and enduring questions of public, private, penal, and procedural law that are still relevant today. This Article offers an appreciative review of these four volumes, setting them in the context of the emerging historiography of the law of the High Middle Ages.
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This Article argues that modern Anglo-American marriage law was formed out of two traditions-one rooted in Christianity, a second in the Enlightenment. Each of these traditions has contributed a variety of familiar legal ideas and... more
This Article argues that modern Anglo-American marriage law was formed out of two traditions-one rooted in Christianity, a second in the Enlightenment. Each of these traditions has contributed a variety of familiar legal ideas and institutions of modern domestic life, lore, and law-some overlapping, some conflicting. The overlapping and creatively juxtaposed legal contributions of these two traditions hold the promise of creating a new understanding of marriage that is neither blindly nostalgic about a purported golden of marriage nor naively myopic about the massive social, psychological, and structural costs of the modern revolution of sex, marriage, and family.
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The modern human rights revolution has catalyzed a great awakening of religion around the globe. But it has also created a new "war for souls" between Western religions and local religious groups, many of them trying to recover from... more
The modern human rights revolution has catalyzed a great awakening of religion around the globe. But it has also created a new "war for souls" between Western religions and local religious groups, many of them trying to recover from decades of political oppression. Particularly Orthodox Christians in the former Soviet bloc and Muslims in sub-Saharan Africa have resented the sudden rise of a Western marketplace of religious ideas, and have turned to the state to impose new restrictions on foreigners. They have also highlighted the sharp differences between Western voluntarist views of religious conversion that feature easy-in/easy-out religion and non-Western views that tie religious identity and practice to blood, soil, and family. After surveying the juxtaposed free exercise rights of proselytizers and the liberty of conscience claims by proselytizees, this Article advocates self-restraint and respect on the part of foreign proselytizing faiths, even a moratorium for a time. It also encourages local Orthodox, Muslim, and other groups, who see conversion out of their faith as a capital crime of apostasy, to adopt milder measures of ostracism and communal self-protection as some of their earlier thinkers had advocated.
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This Article offers a brief review of the sharp new religious conflicts that have emerged at the end of the second millennium, particularly between Western and Eastern Orthodox Christians and Muslim and Christian groups over issues of... more
This Article offers a brief review of the sharp new religious conflicts that have emerged at the end of the second millennium, particularly between Western and Eastern Orthodox Christians and Muslim and Christian groups over issues of proselytism and conversion.
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This Article was written at a time when international discussions of religion, human rights, and religious freedom were just beginning to blossom. The Article documents the paradox that the modern human rights revolution has catalyzed a... more
This Article was written at a time when international discussions of religion, human rights, and religious freedom were just beginning to blossom. The Article documents the paradox that the modern human rights revolution has catalyzed a new religious awakening around the globe but has also triggered sharp new interreligious conflicts. This has led many to argue that religion should be excluded from the human rights paradigm. This Article argues that religion and human rights need each other. Not only were Christianity and other faith traditions essential historical sources of many modern rights ideas, but all faith traditions today provide essential resources for a human rights culture to flourish. The Article thus calls for a new human rights hermeneutic that respects religious contributions to human rights, that induces religions to confess their rights violations, and that encourages reconciliation between religions that are fighting over issues of proselytism, blasphemy, and more.
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This is a brief review of an important text by one of the leading Christian scholars of the family who is trying to reconcile traditional Christian teachings on marriage and the troubling marital condition in the post-modern West.... more
This is a brief review of an important text by one of the leading Christian scholars of the family who is trying to reconcile traditional Christian teachings on marriage and the troubling marital condition in the post-modern West. Thatcher ultimately commends the traditional Christian monogamous, heterosexual, permanent marriage, citing Scripture and various leading Christian theologians of the present and past. But he also offers creative new ways of thinking about engagements contracts, non-marital cohabitation, premarital sex, and more.
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Research Interests: Political Science, John Calvin, John Milton, Johannes Althusius, English Revolution, and 15 moreSocial Science Research Network, Dutch Revolt, Separation of Powers, Geneva, Constitutions, Levellers, Theodore Beza, Doctrine of Sin, Checks and Balances, Nathaniel Ward, Marian Exiles, Magdeburg Confession, Christopher Goodman, Puritan New England, and Body of Liberties
Concluding remarks on the compiled essays in Russell Sandberg's edited volume, Leading Works in Law and Religion, along with a reflection on the broader global development of the field of law and religion.
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This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and reli- gion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article... more
This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and reli- gion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article distinguishes and il- lustrates the roles of "orientation," "structural," and "ontologi- cal" metaphors in everyday life and language. Drawing on jurists like Robert Cover and Steven Winter, it shows how metaphors work both in describing the law in terms like "the body," and in prescrib- ing the foundational beliefs and values on which the legal system depends. Finally, the Article explores the ample use of the number three in the law and speculates tentatively whether this legal appe- tite for "triads" might provide traction for the development of a Trinitarian jurisprudence. This Article is dedicated to Robert Cochran, one of the pioneers of law and religion and Christian legal thought in the United St...
Research Interests: Sociology, Law, Jurisprudence, Philosophy, Law and Religion, and 15 moreLegal Theory, Culture, Metaphor, Metaphors, George Lakoff, Mark Johnson, Robert Cover, Festschrift, Christian Legal Thought, Triads, Ontological metaphors, Law Professors, Trinitarian Jurisprudence, orientation metaphors, and Thomas Shaffer
This Article analyzes the little explored late medieval and early modern household manuals that provided European and North American parents, children, and other household members with detailed instructions on their domestic, spiritual,... more
This Article analyzes the little explored late medieval and early modern household manuals that provided European and North American parents, children, and other household members with detailed instructions on their domestic, spiritual, emotional, and social responsibilities to God, neighbor, and self. The manuals outlined the duties of love, respect, recompense, and life-long honor that children owed to parents, and the duties of love, support, education, nurture, emancipation, and inheritance that parents owed to their children. Some of these early household manuals proved to be important prototypes for later theories of catechesis, education, children's rights, and books of etiquette and deportment that were common in Catholic and Protestant circles on both sides of the Atlantic.
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This Article analyzes John Calvin's reformation of the life, law, and lore of the marital family in sixteenth-century Geneva. Calvin's early efforts in the 1530s and 1540s were focused on the law of marital formation, maintenance,... more
This Article analyzes John Calvin's reformation of the life, law, and lore of the marital family in sixteenth-century Geneva. Calvin's early efforts in the 1530s and 1540s were focused on the law of marital formation, maintenance, and dissolution. Particularly his 1545 Marriage Ordinance was famous for requiring parental consent, church consecration, and publicly attested marital contracts for valid marital formation, and for allowing both husbands and wives to divorce on grounds of adultery and desertion. When Calvin's legal views were challenged, he both defended and refined them with a new theology of marriage as a covenant, modeled on the covenant between God and his elect. This theology emphasized both the spiritual and contractual qualities of marriage, its dependence on the moral law of God, and the participation of God through parents, peers, pastors, and political officials who each hold divine authority. In Calvin's covenant theology, marriage was more than...
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This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As... more
This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, re- gardless of race. He emphasized the authority and freedom of the individual con- science as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by h...
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After surveying the range of historical and contemporary meanings of democracy, this article surveys briefly the past and present contributions of Protestant ideas of human nature, social order, and rule of law to the development of... more
After surveying the range of historical and contemporary meanings of democracy, this article surveys briefly the past and present contributions of Protestant ideas of human nature, social order, and rule of law to the development of modern democratic theory and law.
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The historical Protestant tradition has interpreted the biblical teachings on male headship in a variety of ways – from stern theories of patriarchy within the church, state, and family to gender-equality in all relationships. This... more
The historical Protestant tradition has interpreted the biblical teachings on male headship in a variety of ways – from stern theories of patriarchy within the church, state, and family to gender-equality in all relationships. This Article uses a nineteenth- century English literary debate between the patriarchal views of James Fitzjames Stephens and the egalitarian views of John Stuart Mill to test the values and limits of each perspective and their respective influence on modern family law.
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Both church and state in sixteenth-century Protestant Geneva helped to resolve local disputes, particularly over issues of sex, marriage, and family which dominated the proceedings during John Calvin's tenure from 1541 to 1564. The... more
Both church and state in sixteenth-century Protestant Geneva helped to resolve local disputes, particularly over issues of sex, marriage, and family which dominated the proceedings during John Calvin's tenure from 1541 to 1564. The Genevan Consistory, comprised of pastors and political officials, was a preliminary hearings court with power to summon and examine witnesses and documents, and to issue spiritual sanctions from admonition to excommunication in an effort to reconcile disputants, reform delinquents, and restore legal and moral order in the city. But the Consistory left it to the Genevan City Council to prosecute serious offenses and offenders, and to issue legal orders respecting divorce, inheritance, marital property, child custody, and other legal issues. This Article sketches this new collaborative regime of dispute resolution, and then analyzes several illustrative cases from the Consistory records.
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This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and... more
This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-belie...
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Research Interests:
dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and... more
dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historicalbiographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law to...
Research Interests: Religion, Christianity, Canon Law, International Relations, Philosophy, and 15 moreTheology, International Law, Legal History, Political Science, Law and Religion, Philosophy Of Law, Catholic Theology, History of International Law, Direito, Derecho Internacional, Filosofía del Derecho, Histoire du droit, Droit International Public, Philosophy of Law, and Routledge
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Research Interests:
David Little has pioneered the study of religion, human rights, and religious freedom during fifty-five years of distinguished scholarly work at Yale, Harvard, Virginia, Georgetown, and the United States Institute of Peace. Starting with... more
David Little has pioneered the study of religion, human rights, and religious freedom during fifty-five years of distinguished scholarly work at Yale, Harvard, Virginia, Georgetown, and the United States Institute of Peace. Starting with his first major book,Religion, Order, and Law: A Study in Pre-Revolutionary England, he has traced cardinal principles like freedom of conscience and free exercise of religion from their earliest formulations in Stoic philosophy and Roman law, through the writings of Augustine, Aquinas, the medieval canonists and scholastics, and their many early modern heirs. Among the latter, he has explored most deeply the contributions of Protestants to the Western understanding of human rights and religious freedom, with special focus on John Calvin, John Locke, Roger Williams, and Reinhold Niebuhr, all of whose ideas he connects to each other and to the broader Western tradition in fresh and inventive ways. He has written astutely on the vexed questions arisin...
Research Interests: Law, Philosophy, Human Rights, Natural Law, Calvinism, and 15 moreConscience, John Calvin, Harm Principle, Social Science Research Network, Roger Williams, Natural rights, Law Religion, Self-evidence, Religious Freedom, Natural Rights, Free Exercise of Religion, religious skepticism, David Little, Malum in se, and Gratuitous Pain
Research Interests: Sociology, Law, Family Law, Calvinism, Lutheranism, and 15 moreEnlightenment, Commonwealth, Protestantism, Anglicanism (Anglicanism), Jurisdiction, John Calvin, John Locke, Separation of Church and State, Martin Luther, Roman Catholicism, Marriage, Henry VIII, Relations between Church and State, Religious Liberty, and Marital pluralism
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This article analyzes the historical sources and forms of human rights in Western legal and Christian traditions, and it identifies key questions about the intersections of Christianity and human rights in modern contexts. The authors... more
This article analyzes the historical sources and forms of human rights in Western legal and Christian traditions, and it identifies key questions about the intersections of Christianity and human rights in modern contexts. The authors identify nine distinctions between different conceptions of rights correlating with at least four types of jural relationships, and they argue that leading historical accounts of human rights attribute “subjective” rights too narrowly to Enlightenment and post-Enlightenment legal thought. Earlier forms of classical Roman law and medieval canon law, and legal norms developed by Protestant reformers of the sixteenth and seventeenth centuries shaped Western human rights regimes in historically important ways, anticipating most of the rights formulation of modern liberals. In response to contemporary scholars who criticize human rights paradigms as inadequate or incompatible with Christian faith and practice, the authors argue that rights should remain a p...
Research Interests: Religion, Christianity, Sociology, Law, Human Rights, and 15 morePolitical Science, Enlightenment, Civil Rights Movement, Second Vatican Council, Bible, Leo Strauss, Freedom, Political Liberalism, Law Religion, African Americans, Prisoners, Catholocism, Subjective and Objective Rights, rights skepticism, and rights critique
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Ethicist Max Stackhouse challenges libertarian and liberationist arguments that distort the nature and character of love, sexuality, and commitment. He seeks to recover a covenantal ethic, which would recapture the value of strong family... more
Ethicist Max Stackhouse challenges libertarian and liberationist arguments that distort the nature and character of love, sexuality, and commitment. He seeks to recover a covenantal ethic, which would recapture the value of strong family relationships. The Family, Culture, and Religion series offers informed and responsible analyses of the state of the American family from a religious perspective and provides practical assistance for the family's revitalization.
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This chapter addresses questions concerning religious freedom, democracy, and human rights in international law. It discusses three particularly controversial issues that have become the focus of international attention and international... more
This chapter addresses questions concerning religious freedom, democracy, and human rights in international law. It discusses three particularly controversial issues that have become the focus of international attention and international law: proselytism (or evangelization in Christian terms); conversion (especially when conceived as apostasy); and blasphemy (recent reconceived as “defamation of religions”). Each of these three issues are among the most hotly contested religious freedom issues today, and arise particularly when religious traditions and religious believers confront each other in the current global resurgence of religion.
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The modern human rights revolution has catalyzed a great awakening of religion around the globe. But it has also created a new "war for souls" between Western religions and local religious groups, many of them trying to recover... more
The modern human rights revolution has catalyzed a great awakening of religion around the globe. But it has also created a new "war for souls" between Western religions and local religious groups, many of them trying to recover from decades of political oppression. Particularly Orthodox Christians in the former Soviet bloc and Muslims in sub-Saharan Africa have resented the sudden rise of a Western marketplace of religious ideas, and have turned to the state to impose new restrictions on foreigners. They have also highlighted the sharp differences between Western voluntarist views of religious conversion that feature easy-in/easy-out religion and non-Western views that tie religious identity and practice to blood, soil, and family. After surveying the juxtaposed free exercise rights of proselytizers and the liberty of conscience claims by proselytizees, this Article advocates self-restraint and respect on the part of foreign proselytizing faiths, even a moratorium for a ti...
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This Article was written at a time when international discussions of religion, human rights, and religious freedom were just beginning to blossom. The Article documents the paradox that the modern human rights revolution has catalyzed a... more
This Article was written at a time when international discussions of religion, human rights, and religious freedom were just beginning to blossom. The Article documents the paradox that the modern human rights revolution has catalyzed a new religious awakening around the globe but has also triggered sharp new interreligious conflicts. This has led many to argue that religion should be excluded from the human rights paradigm. This Article argues that religion and human rights need each other. Not only were Christianity and other faith traditions essential historical sources of many modern rights ideas, but all faith traditions today provide essential resources for a human rights culture to flourish. The Article thus calls for a new human rights hermeneutic that respects religious contributions to human rights, that induces religions to confess their rights violations, and that encourages reconciliation between religions that are fighting over issues of proselytism, blasphemy, and more.
Research Interests: Religion, Sociology, Law, Human Rights Law, International Law, and 15 moreHuman Rights, Political Science, Law and Religion, Freedom of Religion, Religious Conversion, Protestantism, Orthodox Christianity, Catholicism, Social Science Research Network, Church and State, Proselytism, Religious Conflict, Liberty of conscience, Religious Freedom, and Human Rights Hermeneutic
Our contemporary debates about the nature of sex, marriage, and family life are not new. A half millennium ago, the Protestant Reformation set off a comparably tumultuous sexual revolution that bitterly divided the Catholic and Protestant... more
Our contemporary debates about the nature of sex, marriage, and family life are not new. A half millennium ago, the Protestant Reformation set off a comparably tumultuous sexual revolution that bitterly divided the Catholic and Protestant worlds. Over the next cen- tury, jurists and theologians used various natural law theories to de- velop a common foundation for Western family law. In this Essay, I sample the writings of Dutch jurist Hugo Grotius (1583--1645) and English jurist John Selden (1584--1654)----two leading Protestant nat- ural law theorists whose seminal writings helped to shape the Conti- nental civil law and the Anglo-American common-law traditions re- spectively. These two scholarly giants knew and respected each other, but they differed in their approach to natural law and its applications to family law and other legal questions. Grotius based his theory of natural law on rational self-evidence----the rational inferences that can be drawn from human intuition and in...
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Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex... more
Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex crimes and the roles of churches in maintaining sexuality morality. But sexual misconduct remains a perennial reality in modern societies, including notably within churches, and sex crimes inflict some of the deepest scars on their victims. Modern liberal states must thus maintain a basic standard of sexual morality in its criminal law as a restraint on harmful behavior and as a bulwark against a sexual state of nature where life is often "brutish, nasty, and short" for the most vulnerable. And liberal societies should encourage its citizens and churches to pursue a higher morality of aspiration that views sex and the sexual body as a special gift for oneself and others.
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This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and... more
This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and in the century to follow. More commonplace was Adams' view that balanced the freedom of all peaceable private religions with the "mild and equitable establishment" of one public religion. Adam's model of religious liberty dominated much of nineteenth-century law and culture, Jefferson's model a good bit of twentieth-century law and culture. In its most recent cases, the U.S. Supreme Court seems to be developing a new model of religious liberty that draws on the insights of both Jefferson and Adams, but rejects their respective calls for the privatization or the establishment of religion. The Court's formula is that both private and public forms of religion deserve constitutional freedom and support, though neither may be g...
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This Article argues that Martin Luther's classic tract, Freedom of a Christian (1520) had a shaping influence on modern theories of human dignity, liberty, and equality. For Luther, the essence of human dignity lies in the... more
This Article argues that Martin Luther's classic tract, Freedom of a Christian (1520) had a shaping influence on modern theories of human dignity, liberty, and equality. For Luther, the essence of human dignity lies in the juxtaposition of human depravity and human sanctity. Human dignity is something of a divine fulcrum that keeps our depravity and sanctity in balance. The essence of human freedom is our right and duty to serve God, neighbor, and self, and to do so with the ominous assurance of divine judgment. Human freedom is the divine calling that keeps our individuality and community in balance. While Luther did not draw out the radical implications of his theory for law, politics, and society, later Protestants did, eventually rendering Protestantism a formidable force for the construction of modern Western theories of law, liberty, and democracy.
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This chapter explains how the sixteenth-century Protestant reformer, John Calvin, transformed the Western theology and law of sex, marriage, and family life. Understanding marriage as a divine covenant with distinct and discernible goods... more
This chapter explains how the sixteenth-century Protestant reformer, John Calvin, transformed the Western theology and law of sex, marriage, and family life. Understanding marriage as a divine covenant with distinct and discernible goods and goals, Calvin gave new grounds to old rules prohibiting illicit sexual unions, polygamy, adultery, prostitution, concubinage, pre-marital sex, and non- marital cohabitation. But Calvin also set out new teachings on the proper treatment of religious differences between spouses, sexual dysfunction, post- menopausal sex, and the right to separate and divorce for adultery or family desertion. These new grounds for old teachings and new teachings from old grounds were applied not only in formal theological tracts but also in the many statutes and cases that Calvin shaped for sixteenth-century Geneva. This chapter, introducing a multi-volume series on sex, marriage and family life in early modern Geneva, reveals the debt Western theology, jurisprudenc...
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In many areas of law and society, religion and law exercise "overlapping jurisdictions." Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling;... more
In many areas of law and society, religion and law exercise "overlapping jurisdictions." Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals. But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family...
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This Article analyzes the recent covenant marriage movement in America, and its deep roots in biblical teachings. It shows that the Hebrew Prophets, especially Malachi, described the covenant between God and his chosen people of Israel as... more
This Article analyzes the recent covenant marriage movement in America, and its deep roots in biblical teachings. It shows that the Hebrew Prophets, especially Malachi, described the covenant between God and his chosen people of Israel as a model for human marriages, featuring courtship and public celebration of the marriage, mutual love and faithful monogamy, procreation and nurture of children, and limited divorce and an openness to reconciliation. This idea of marriage as a covenant of the whole community is much more prominent in the Bible than the idea of marriage as a sacrament of the church, and it provides a better bridge concept between theology and law, traditional and modern accounts of the institution of marriage. Recent Catholic and Protestant statements alike now use the covenant idea of marriage, which has resonance in Jewish and Islamic contexts as well.
Research Interests: Philosophy, Calvinism, Monogamy, Protestantism, Marital Communication, and 15 moreSecond Vatican Council, Book of Ezekiel, Procreation, Divorce, Book of Hosea, Mutuality, Code of Canon Law, Covenant, Mosaic law, The Book of Malachi, Fidelity, Covenant Marriage, Sacrament of Marriage, Covenant in the Bible, and Marital liturgies
This Article argues that religion is an important source and dimension of modern human rights, and it surveys the historical and contemporary rights contributions of each of the major world religions – Hinduism, Buddhism, Confucianism,... more
This Article argues that religion is an important source and dimension of modern human rights, and it surveys the historical and contemporary rights contributions of each of the major world religions – Hinduism, Buddhism, Confucianism, Judaism, Christianity, and Islam. It then surveys the place of religion in modern international human rights norms, and calls for stronger protections, especially for minority faiths.
The Lutheran Reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Martin Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church,... more
The Lutheran Reformation transformed not only theology and the church but law and the state as well. Beginning in the 1520s, Martin Luther joined up with various jurists and political leaders to craft ambitious legal reforms of church, state, and society on the strength of Luther’s new theology, particularly his new two kingdoms doctrine. These legal reforms were defined and defended in hundreds of monographs, pamphlets, and sermons published by Lutheran writers from the 1520s to 1550s. They were refined and routinized in hundreds of new reformation ordinances promulgated by German cities, duchies, and territories that converted to the Lutheran cause. By the time of the Peace of Augsburg (1555)—the imperial law that temporarily settled the constitutional order of Germany—the Lutheran Reformation had brought fundamental changes to theology and law, to church and state, marriage and family, criminal law and procedure, and education and charity. Critics of the day, and a steady stream ...
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The Lutheran Reformation transformed not only theology and the Church but also law and the State. Despite his early rebuke of law in favour of the gospel, Martin Luther eventually joined up with various jurists and political leaders to... more
The Lutheran Reformation transformed not only theology and the Church but also law and the State. Despite his early rebuke of law in favour of the gospel, Martin Luther eventually joined up with various jurists and political leaders to craft ambitious legal reforms of Church, State and society on the strength of his new theology, particularly his new two-kingdoms theory. These legal reforms were defined and defended in hundreds of monographs, pamphlets and sermons published by Lutheran writers from the 1520s onwards. They were refined and routinised in equally large numbers of new Reformation ordinances that brought fundamental changes to theology and law, Church and State, marriage and family, criminal law and procedure, and education and charity. Critics have long treated this legal phase of the Reformation as a corruption of…
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For more than 2,500 years, the Western tradition has embraced monogamous marriage as an essential institution for the flourishing of men and women, parents and children, society and the state. At the same time, polygamy has been... more
For more than 2,500 years, the Western tradition has embraced monogamous marriage as an essential institution for the flourishing of men and women, parents and children, society and the state. At the same time, polygamy has been considered a serious crime that harms wives and children, correlates with sundry other crimes and abuses, and threatens good citizenship and political stability. The West has thus long punished all manner of plural marriages and denounced the polygamous teachings of selected Jews, Muslims, Anabaptists, Mormons, and others. John Witte, Jr carefully documents the Western case for monogamy over polygamy from antiquity until today. He analyzes the historical claims that polygamy is biblical, natural, and useful alongside modern claims that anti-polygamy laws violate personal and religious freedom. While giving the pro and con arguments a full hearing, Witte concludes that the Western historical case against polygamy remains compelling and urges Western nations t...
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The study of law and religion has exploded around the world. This article, prepared in celebration of the silver jubilee of the Ecclesiastical Law Society, traces the development of law and religion study in the United States. Despite its... more
The study of law and religion has exploded around the world. This article, prepared in celebration of the silver jubilee of the Ecclesiastical Law Society, traces the development of law and religion study in the United States. Despite its long tradition of strict separation of Church and state, and despite its long allegiance to legal positivism and intellectual secularisation, the United States has emerged as a world leader of the new interdisciplinary field of law and religion. Hundreds of American scholars, from different confessions and professions, are now at work in this field, and two dozen major research centres and journals have been established at American law schools. After canvassing some of the main themes and trends in American law and religion scholarship today, this article concludes with a brief reflection on some of the main challenges before Christian scholars who work in the field of ecclesiastical law.1