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Link Roundup, Happy Holidays

December 23rd, 2010

Ancient Traditions, New Conversations will be taking the next two weeks off. We will return during the second week of the New Year.  Happy Holidays!

Link Roundup, legal formalism

December 23rd, 2010

Was the age of legal formalism really all that formalistic? Brian Tamanaha doesn’t think so.

Link Roundup, Public Accommodation of Islam in Liberal Democracy

December 23rd, 2010

Mohammad Fadel, University of Toronto Faculty of Law, is publishing Public Accommodation of Islam in Liberal Democracy in Politics and Religion.  From the Abstract: This article raises the question of what kinds of commitments to gender equality and democratic decision-making are sufficient for a democratic order, and whether modernist Islamic teachings manifest a satisfactory normative commitment in this regard. It uses the arguments of two modern Muslim reformist scholars – Yūsuf al-Qaradāwī and ‘Abd al-Halīm Abū Shuqqa – as evidence to argue that if the relevant degree of commitment to gender equality is understood from the perspective political rather than comprehensive liberalism, doctrines such as those elaborated by these two religious scholars evidence sufficient commitment to the value of political equality between men and women.

Link Roundup, Establishment Clause

December 23rd, 2010

Do public schools violate the Establishment Clause when they give off some religious holidays, but not others?

Are Soldiers Morally Culpable?

December 21st, 2010

by Shalom Carmy

Review of Killing in War by Jeff McMahan, (Oxford University Press, 2009) 250 pages.

The traditional doctrine of just war rests on distinction between jus ad bellum, the justification of war, and jus in bello, what is permissible in war. Individual soldiers are responsible only for violations of jus in bello, how they behave in war; responsibility for the decision to enter war is the government’s. The corollary is the doctrine of moral equality of combatants: soldiers serving a government engaged in unjust war are no more liable for killing enemy soldiers than the enemy is in killing them. Here war differs from other forms of violence: when police are justified in shooting at criminals, criminals have no reciprocal right to kill the police. McMahan challenges the assumption that killing in an unjust war is morally different from other unjustified homicide. He rejects justifications based on consent—examining inter alia, analogies to boxers or gladiators who choose or are compelled to kill or be killed. He argues that there are no good epistemic grounds to believe, as a matter of course, that the individual can rely on contemporary governments to decide the moral issues of going to war correctly. In every war, at least one and often both sides are wrong. Hence, McMahan argues, the soldier fighting an unjust war is responsible for doing so, and the liability of a soldier to be killed in war is connected to his putatively immoral engagement. In the second half of the book McMahan recognizes the practical difficulties in holding soldiers legally responsible for acts done as part of an unjust war. While the primary argument of the opening chapters makes it difficult for a soldier to fight in good conscience, the later discussion explores a variety of excuses and limitations on liability of those who fight without adequate justification. This book has been justly praised by many philosophers for the acuity and thoroughness of its reasoning. How much his reasoning provides guidance at a practical level is another matter. Though McMahan places some hope in the United Nations as a potential authority capable of offering guidance to the soldier in doubt, this seems a bit utopian. At best, McMahan’s arguments may help in cases where the government is clearly untrustworthy or evil. McMahan also focuses the justification of war on physical self-defense. If there are things worth fighting for other than physical survival itself – such as political freedom for a nation, or the ability to practice religious commitment – then the state, or some analogous entity, may in fact be the most representative and responsible custodian of communal judgment and the individual would then ordinarily be justified in joining its decision. In such struggles, it may also be the case that, contrary to McMahan’s view, both sides to the conflict may be able to justify their resort to war, and the traditional judgment that honors soldiers of both sides may be less paradoxical than McMahan and other liberals of his stripe take it to be. Shalom Carmy is the co-chair of the Jewish Studies Department at Yeshiva College, where he teaches Jewish Studies and Philosophy.  He is also the editor of Tradition, as well as an affiliated scholar at the Cardozo School of Law.

Link Roundup, Call for Papers

December 20th, 2010

Call for Papers: Abstracts for the 2011 meeting of the American Society for Legal History are due on February 11, 2011. The ASLH invites proposals on any facet or period of legal history, anywhere in the world.

Link Roundup, challenges to religious arbitration

December 20th, 2010

Law, Religion, and Ethics has a fascinating post on potential challenges to religious arbitration in contemporary United States.

Link Roundup, Secularism and the Limits of Community

December 20th, 2010

Jeremy Waldron, of NYU Law School, has published a working paper titled Secularism and the Limits of Community. The abstract follows: This paper addresses two issues: (1) the use of religious considerations in social and political argument; and (2) the validation of the claims of community against markets and other aspects of globalization. It argues that we should be very wary of the association of (1) with (2), and the use of (1) to reinforce (2). The claims of community in the modern world are often exclusionary (the word commonly associated with community is "gated") and hostile to the rights of the poor, the homeless, the outcast, and so on. The logic of community in the modern world is a logic that reinforces market exclusion and the disparagement of the claims of the poor. If religious considerations are to be used to uphold those claims and to mitigate exclusion, they need to be oriented directly to that task, and to be pursued in ways that by-pass the antithetical claims of community. Religious considerations are at their most powerful in politics - and are most usefully disconcerting - when they challenge the logic of community.

Link Roundup, Sovereignty and Conquest in the Hebrew Bible

December 16th, 2010

Geoffrey P. Miller of New York University School of Law has published Sovereignty and Conquest in the Hebrew Bible as a Public Law Research Paper.  The abstract follows: This article examines the Hebrew Bible’s theory of sovereignty with special reference to the book of Joshua. The author conceives of sovereignty as the exclusive and absolute control over territory. The sovereign is “all Israel” – the biblical analogue to “we the people.” The territory is the land promised to the Patriarchs and partially conquered by Joshua in the war of conquest. Israel’s title to this territory is established vis-à-vis foreign nations by boundary agreement (Aram), partition (Ammon and Moab), abandonment (Edom), and renunciation (Egypt); its right to dispossess the prior inhabitants is based on theories of conquest, capacity, appropriation, grant, promise, purchase and contract. Israel’s control over territory is explored in narratives describing the allocation of the Promised Land. The author’s approach is pragmatic rather than programmatic, stressing the value of fair procedures and recognizing arguments for distributive justice based on merit, equality, productivity, expectations and need. The author argues that a property distribution, even if fair ex ante, must also be accepted as reasonable ex post.

Link Roundup, HewbrewBooks JTS Library collection

December 16th, 2010

HebrewBooks has digitized all of the microfilms of the JTS Library collection. That new site is now available, and offers a massive collection of diverse texts. Among other works in the collection, Hebrewbooks has digitized all of the microfilms from the JTS Library collection.