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Dedek, “Duties of Love and Self-Perfection: Moses Mendelssohn’s Theory of Contract”

June 26th, 2013

Helge Dedek (McGill University – Faculty of Law) has posted Duties of Love and Self-Perfection: Moses Mendelssohn’s Theory of Contract (Oxford Journal of Legal Studies 32:4 [2012]: 713-39) on SSRN. Here is the abstract: In his Doctrine of Right, Immanuel Kant calls Moses Mendelssohn, the towering figure of the German and the Jewish Enlightenment, a ‘Rechtsforscher’ – a legal scholar. Yet not only Kant, but numerous scholars of natural law in the eighteenth and nineteenth centuries, refer to and reflect on the juridical aspects of Mendelssohn’s work, in particular his thoughts on the law of contract. In this paper, I hope to shed some light on this hitherto rather unexplored facet of Mendelssohn’s oeuvre. Mendelssohn develops his theory of contract from the starting point of the officium amoris: the unenforceable ‘duty of love’ to exercise beneficence. Mendelssohn’s theory knows nothing yet of the modern contrast between altruism, distributive justice, and ‘freedom of contract’. By exploring Mendelssohn’s theory, we will, thus, be able to catch a glimpse of the birth pangs of the modern Western discourse on the ‘freedom of contract’, which formed the backdrop, as well as the jumping-off point, of the development of a ‘liberal’ will theory of contract. Since this ‘liberal’ model is still the paradigm of how contract is mostly perceived today, Mendelssohn’s theory also exemplifies the possibility of an alternative to our own conceptualizations of contract that inescapably shape the way we think.

Geitner, “Social Architecture and the Law: Law, Through the Lens of Religion

June 21st, 2013

Lorin Geitner, Claremont Graduate University, has published Social Architecture and the Law: Law, Through the Lens of Religion. Here is the abstract. How can we account for the differing popular images of attorney in various countries? One way of doing so may be to bring a paradigm developed in religious studies to examine the most publically accessible and prototypical venue for attorneys, the courtroom. Specifically, applying the model of critical spatial studies developed by Lefebvre and Soja in order to examine religious ritual space to bear on a different kind of ritual space, the courtroom, its structure, organization, and use may illuminate both societal understandings of how the law relates to the citizen, but also inform the differing perception and status of lawyers in the United States, Britain, and China.

New book on Feminism, Law, and Religion

June 20th, 2013

Ashgate Publications has just published Feminism, Law and Religion as part of its series on Gender in Law, Culture and Society, edited by  Marie Failinger, Lisa Schiltz, and Susan Stabile.  From the publisher's blurb:
With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women’s rights and the place that religious law has assigned to women in ecclesiastic life.
Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.
Here is the table of contents:
Part I Feminist Legal Theory Religious and Secular Encounters: A contemporary Catholic theory of complementarity, Elizabeth R. Schiltz; Deconstructing equality in religion, Cheryl B. Preston; The Catholic Church and women: the divergence between what is said and what is heard, Susan J. Stabile; What is the matter with Antigone?, Emily Hartigan. Part II Theological Insights Applied to Dilemmas of Women’s Social Existence Privatizing diversity: a cautionary tale from religious arbitration in family law, Ayelet Shachar; From third wave to third generation: feminism, faith, and human rights, M. Christian Green; A meditation on mahr, modernity and Muslim marriage contract law, Asifa Quraishi-Landes; Co-creating the family: a Lutheran view of marriage and divorce law, Marie A. Failinger; With compassion and lovingkindness: one feminist Buddhist’s exploration of feminist domestic violence advocacy, Deborah J. Cantrell; ‘Men are the protectors of women’ negotiating marriage, feminism and (Islamic) law in American Muslim efforts against domestic violence, Juliane Hammer; Why Muslim women are re-interpreting the Qu’ran and Hadith: a transformative scholarship-activism, Nimat Hafez Barazangi. Part III Feminist Readings of Scriptural Texts on Women and Women’s Rights Modesty disrobed – gendered modesty rules under the monotheistic religions, Frances Raday; Jewish law: the case of wife-beating, Naomi Graetz; Competing approaches to rape in Islamic law, Hina Azam. Part IV Women’s Leadership and Standing within Religious Communities Catholic women and equality: women in the code of Canon Law, Sara Butler; Daughters of the Buddha: the Sakyadhita movement, Buddhist law and the position of Buddhist nuns, Rebecca Redwood French; Chinese women lawyers and judges as priests, Mary Szto.

Review of Leiter, Why Tolerate Religion?

June 18th, 2013

Review of Brian Leiter, Why Tolerate Religion? Princeton: Princeton University Press, 2013. 192 pp.  $24.95. By Alexander Kaye The US Constitution protects the free exercise of religion. Brian Leiter wants to know why. More precisely, although Leiter acknowledges that a history of religious conflict was the reason the framers wanted to protect religion in the eighteenth century, he wants to know why the constitution should continue to single out religion for protection even today. In this short book, Leiter examines the arguments for what he calls “principled toleration” to assess whether any of them pertain specifically to religion. He ultimately concludes that they do not. Leiter considers three kinds of arguments for principled toleration of a group or practice. The first is the moral argument which claims, in Rawls’ formulation, that toleration of conscience follows from the “principle of equal liberty.” (For Rawls everyone in the “original position” would acknowledge the principle of freedom of conscience for fear that they would end up in a persecuted minority.) The second kind of argument is utilitarian. It maintains that human good is maximized if all people, within appropriate limits, are free to believe what they like and to act how they want. On these grounds, religion should be protected for the sake of the greater collective good. Finally, Leiter considers an epistemic argument. His model for this argument is John Stuart Mill, who advocated toleration because it helps us to discover the truth. The best way to find the right way to live, Mill maintained, is to allow as many possible ways of life to flourish so that the best one can be identified. These arguments all have their strengths and weaknesses but, Leiter claims, none of them justify the protection of religion per se. To the extent that any of these arguments hold water, they should advocate for the protection of all matters of conscience, not religion alone. Yet the First Amendment protects Catholics and Muslims but not Marxists or committed vegans. Is there any philosophical justification, then, for the constitution to single out religion for special protection? To address this question, Leiter embarks upon an attempt to define the features of religion, concluding that nothing about religions – not their claim to issue categorical demands independent of reason, nor their metaphysical speculations, nor their offers of existential consolation – should single them out for special constitutional protection. If anything, he insists, the features of religion, particularly their self-insulation from reasons and evidence, should make them less deserving of legal exemptions, not more. He is particularly unimpressed with assertions by people like Martha Nussbaum’s that religion particularly merits “respect.” Furthermore, Leiter points out, religious exemptions from the law have a cost. People who are exempt from paying taxes on religious grounds, for example, shift their burden for taxation onto others who have no religious objection to taxes (even if they may object on other grounds).  As a result, Leiter advocates the end to religious exemptions. “Toleration may be a virtue, in individuals and in states, but its selective application to the conscience of only religious believers is not morally defensible.” (133) Leiter has a discursive style that is accessible but nonetheless rigorous. The book is a worthwhile introduction to some important currents in First Amendment scholarship, especially if the reader makes use of the endnotes. From an analytical perspective, his arguments seem to be sound, though I will leave an assessment of them to trained philosophers. The book is also refreshing in that it is an undisguised, though reasoned, polemic. Leiter is open about his positions and does his best to convince the reader to agree with him. Certain aspects of the book weaken its impact. Leiter’s prose occasionally veers from the assertive to the pugnacious. It is difficult to imagine that Leiter’s conservative detractors would be swayed by a passage like this one: “…If we really thought there were some connection between religious belief and support for the likes of [President G. W.] Bush, then even toleration would not be a reasonable moral attitude to adopt toward religion… there would be no reason ex ante to think that Bush’s human carnage is something one should tolerate.” (83) Furthermore, Leiter’s representation of religion leaves a little to be desired. He assumes throughout the book that religion is primarily, or even exclusively about belief. (Is “a Jewish prayer before Friday evening dinner” only “a case of … belief”? (77)) This leaves little  room for an appreciation of the role of ritual and community-based meaning-making activities which  are often more characteristic of religious activity than creed. Even where Leiter might have good substantive claims, this approach to religion weakens his ability to assess (and to reject) the claim of another constitutional expert, (John Witte Jr.,) that “religion is a unique source of individual and personal identity.” (32) This concern is magnified when Leiter indicates his feelings about the effect of religious-inflected practice, calling in-school readings from the King James Bible “ludicrous Bible-reading rituals.” (127) Leiter’s preference for philosophical speculation over a historical documentation of legal change in practice (a legitimate preference, to be sure) means that cursory readers of the book might not come to appreciate that its central question – whether religion should be granted more protection than other matters of conscience – has for a long time been a matter of intense discussion in the American judiciary and legislature. Indeed, a number of Supreme Court cases have broadened the boundaries of what counts as “religion” in ways that Leiter would presumably favor. In United States v. Seeger (1965), for example, the defendant refused to serve in the armed forces because of his convictions that were not explicitly religious. The court ruled, however, that he was exempt from conscription because “the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers.” The decision went on to quote the theologian Paul Tillich, whose definition of religious belief is quite different from that of Leiter: “And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God.” Despite this trend in the judiciary, Leiter may have been motivated to write this book now in view of more recent events. Perhaps the book is an implicit response to Congressional resistance to the Supreme Court’s movement away from the “strict scrutiny” test for determining violations of the free exercise clause. (Against earlier precedent, and, again, presumably in line with what Leiter would approve of, Employment Division v. Smith (1990) ruled that “neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.” Congress pushed back with Religious Freedom Restoration Act (1993) and the battle between the legislature and the judiciary over this issue continued for years.) Or perhaps Leiter understood his book as an intervention in the contemporary multifaceted debates over “religion” and “secularism” in American discourse. Whatever the motivation for the book, it remains, for all its shortcomings, a lucid, cogent argument and is worthy of engagement by those interested in its topic.

Kirsch on “Proust Between Aggada and Halakha”

June 17th, 2013

The Jewish Review of Books has an interesting piece by Adam Kirsch on "Proust Between Aggada and Halakha."

Woolf, “French Halakhic Tradition in the Late Middle Ages”

June 13th, 2013

The most recent issue of Jewish History includes an article by Jeffrey Woolf entitled "French Halakhic Tradition in the Late Middle Ages." Here's the abstract (the full article requires a subscription): This study examines the legal writings of the two leading rabbinic figures in French Jewry in the mid-fourteenth and early fifteenth centuries. It characterizes their legal and Talmudic methodology and argues that fifteenth- and sixteenth-century French scholars in Italy were generally following in the footsteps of their predecessors in France. Furthermore, it argues for the ongoing existence of a uniquely French subtradition within the larger Ashkenazic tradition in the late Middle Ages. The table of contents for the issue can be accessed here.

Conference: New World(s) of Faith: Religion and Law in Historical Perspective, 1500-2000

June 13th, 2013

Conference: New World(s) of Faith: Religion and Law in Historical Perspective, 1500-2000

(Via Legal History Blog)
Yesterday and today the University of Pennsylvania Law School hosts a mini-conference on "New World(s) of Faith: Religion and Law in Historical Perspective, 1500-2000." The event is co-sponsored by the University of Pennsylvania Department of History; the American Society for Legal History; the University of Michigan Law School; the University of Chicago Law School; the University of Minnesota Law School and Department of History; and the University of Illinois School of Law. Here's the line-up:
June 12:
Faith and Outsiders in Spanish America
Kif Augustine-Adams, Brigham Young University Counting Chinese in a Catholic Country: The 1930 Mexican Census and Religious Difference Orlando Rivero-Valdés, University of Pittsburgh Afro-Cuban Religions and Brujería in Post-Colonial Cuba, 1898-1938 Commentators: TBA
Keynote Address and Reception
Dylan Penningroth, Northwestern UniversityFaith and Property in African American History
June 13:
Faith and Freedom in Nineteenth Century United States
Abigail Cooper, University of Pennsylvania
“A Mere Form”: Marriage Rites and Lived Religion in the Refugee Camps of the American Civil War
Lucas Volkman, University of Missouri Turmoils and Temporalities: The Slavery Question and Church Property Disputes in Missouri Christopher Tomlins, University of California, Irvine Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion Commentators: William Novak, University of Michigan
Faith and Citizenship in a Secular Polity
Winston Bowman, Brandeis University A Civil Death: Mormon Disenfranchisement in the Mountain West Kellen Funk, Princeton Univeristy “This Stone Which I Erect Shall Be a House of God”: Disestablishment and Religious Corporations in New York, 1784-1854 Jeffrey Perry, Purdue University “For the Peace of Society”: Baptist Church Discipline and Legalities in Early Kentucky Commentators: Sarah Barringer Gordon, University of Pennsylvania
Faith and Government in Modern America
Kathleen Holscher, University of Minnesota School Prayer, Bible Reading, and the Catholic Vocabulary of Religious Freedom in Mid-Century America Ronit Stahl, University of Michigan Basic Training: The Unintentional Consequences of the Education Requirements for Military Chaplains Commentators: Barbara Young Welke, University of Minnesota

Review of Studies in Medieval Jewish Intellectual and Social History: Festschrift in Honor of Robert Chazan

June 10th, 2013

Studies in Medieval Jewish Intellectual and Social History: Festschrift in Honor of Robert Chazan, David Engel, Lawrence H. Schiffman, and Elliot R. Wolfson, eds. Leiden: Brill, 2012. $176.00.[1] By Marc Herman The goal in shaping a Festschrift is to celebrate the honoree and assemble articles that touch on his oeuvre, and Robert Chazan is a worthy recipient but also presents a formidable challenge. In the forty-five years since his first academic publication, there are few topics in the field of medieval European Jewry that have not benefited from Chazan’s erudition, and in this volume some of the best historians of the period have come together to celebrate Chazan’s work. As a tribute, this work succeeds admirably. Even so, no single volume can touch on the many themes of Chazan’s one hundred twenty-six item bibliography, let alone testify to his long career as a teacher, builder, and leader within the academy, both at NYU and beyond. Many of the contributions to this volume are important contributions to the study of medieval European Jewry in their own right, and the articles herein will undoubtedly be cited for years to come. In this review I will attempt to connect some of the themes that run through this volume, as while each article addresses a single topic, they do have much in common. One subject treated by many contributors is the complex and multifaceted Jewish-Christian relationship in the medieval period. This is not surprising, given the seminal contributions Chazan has made to this field throughout his career. Both Elliot Wolfson and David Berger point to instances of the larger Christian environment shaping Jewish thought. Wolfson shows that despite the complete rejection of the idea of incarnation, this doctrine nevertheless left a deep impact on Abraham Abulafia’s almost ecumenical messianism and Abulafia’s understanding of the kabbalistic concept of the divine malbush.[2] Similarly, Berger demonstrates how in a Christian environment, Jews intentionally ignored or denied the literal meaning of a midrash that says that the messianic age is not a period of Torah. Like Wolfson’s argument, Berger points out how Jewish thinking was molded by outside pressures. Two other contributions address changing Christian approaches to Jews and Judaism in this period. Brigitte Miriam Bedos-Rezak argues that medieval Christian debates over whether or not Jews were created in the image of God were an outlet for Christians to think about their own corporeality. Precisely in the twelfth century, a period that Jeremy Cohen has identified as one in which the Jews lost their uniqueness in the eyes of Christians due to the latter’s expanded intellectual and physical borders, ideas of imago Dei moved from particularistic to universal, reducing the place Jews had as the sole “other” in Latin Christendom. Finally, Anna Sapir Abulafia shows that the twelfth century witnessed renewed Christian consideration of conversion and demanded increasingly exacting standards of converts. At the same time, however, Christians felt increasing urgency to convert the Jews. Concurrently, this paradox overlapped with the crusader choice between baptism and death. Jewish recidivism even after baptism then, only served to support the idea that Jewish conversion to Christianity was (almost) impossible. A second thread that connects several essays in this volume is the study of Rashi. Here, the editors are to be particularly commended for including an important debate about Rashi’s knowledge of and interaction with contemporaneous Christian theology and exegesis. While it is obvious that Jewish exegetes in the period following Rashi explicitly engaged Christian thought, the question of to what extent, if any, Rashi himself did has recently come to the fore.[3] Avraham Grossman, both in this volume and elsewhere, champions the view that anti-Christian polemic is “intrinsic” (47) to Rashi’s biblical commentary. Citing manuscript versions of Rashi’s commentary to Isaiah, the printed version of which has been censored, Grossman argues that in Isaiah specifically, Rashi was sensitive to the concerns of Christian exegesis. According to Grossman, Rashi added a polemical layer to the midrashic reading of this book, and often veered from his peshat-orientated commentary for admittedly polemical purposes. Daniel Lasker, on the other hand, maintains the traditional view that Rashi’s knowledge of Christian doctrine was scant and that any alleged impact of the Crusades on Rashi’s thought was simply too late in Rashi’s life to leave a mark (99 n7). While Lasker may be correct that there is “little evidence” that Rashi had direct knowledge of Christian doctrine, this does not preclude Rashi from polemicizing against what he saw as Christian thought. Furthermore, Lasker’s standards of evidence in this period may simply be too high – the experience of High Medieval Jewish polemic should not require historians to find similar knowledge on the part of earlier Jews. Here, Grossman’s evidence is quite compelling, but this too does not mean that every instance of a supposedly anti-Christian midrash cited by Rashi should be seen as “polemic,” animus, or even knowledge. On the question of how to read Rashi, Ivan Marcus presents an argument for reading Rashi as “an original medieval Jewish thinker” (29), not merely as an exegete.[4] Marcus specifically distinguishes his method from Bible scholars who are interested in the peshat-tradition and modern Jewish educators who highlight textual difficulties that “bothered” Rashi. Marcus argues that Rashi’s commentary on the Pentateuch should be viewed by historians as “rewritten midrash” that reflects the mentalité of medieval Jewry. In Marcus’ view, the historian should not focus on the scattered methodological statements within Rashi’s biblical commentaries but on (what he sees as) the widespread implicit polemic and the many instances of internal repetition. By unpacking how Rashi reshaped the midrashic tradition, this approach would reconsider Rashi as a figure who was shaped by his society and whose impact was acutely felt by all Jews who read his commentaries. Though the other essays in this volume are generally thoughtful essays, David Engel’s study of Salo Baron’s early works holds an important place for understanding Chazan’s own contribution to the anti-lachrymose understanding of medieval European Jewish life. Where some have claimed that it was the impact of American Jewish life that caused Baron to so forcefully reject the lachrymose reading of pre-modern Judaism, Engel convincingly shows that these ideas were evident in Baron’s two (!) doctoral dissertations (written in Poland), and even in his teenage writings. Already at 17, Baron had argued that for all of its profound freedoms, modernity weakened the medieval political structures that allowed Judaism to be so faithfully preserved. At that age, in an article published in a Krakow Hebrew periodical, Baron first formulated his objections to the idea that emancipation was a complete redemption from unending medieval horrors. Engel shows that Polish historians who were active in the second decade of the twentieth century, when Baron was a graduate student, largely shared the idea that the French Revolution marked the beginning of a period of decline for Poland, as centralization of power (even democratic power) led to a competition for territorial expansion among European states, to which Poland was quickly a victim (311). Like Baron would later write in “Ghetto and Emancipation,” the differentiated powers in medieval Europe prevented any one sovereign or authority from exercising complete control, allowing sub-communities to flourish. What is noteworthy about Baron then is not merely that he applied this approach to Jewish history, but that unlike contemporaneous Jewish historians, he sought to challenge received historiographic wisdom. Here too he was a model for Chazan. This volume is an ample and worthy testament to the honoree. Its contributions will be noted for many years to come.

[1] A full table of contents of this volume can be found at
[2] Wolfson points out that Moshe Idel disagrees with this reading, though Wolfson’s own position is quite nuanced (217 n119).
[3] Grossman cites Yitzhak Baer as an earlier historian who argued that Rashi engaged Christianity in his writings, but Baer was the exception in his time.
[4] An earlier version of this paper will appear in Midrash Unbound: Transformations and Innovations, Michael Fishbane and Joanna Weinberg, eds. (forthcoming, 2013).

Waldron, “Ronald Dworkin: An Appreciation”

June 10th, 2013

Jeremy Waldron (New York University School of Law) has posted Ronald Dworkin: An Appreciation on SSRN. Here is the abstract: This is a brief tribute to Ronald Dworkin and an overview of the contributions that he made to jurisprudence. It is a written version of remarks that were presented at the Memorial Service for Professor Dworkin, at St. John's Smith Square, London, on Wednesday, June 5, 2013. The remarks cover his view of adjudication, the right answer thesis, and the obligation that lawyers, scholars and judges have to the whole body of the law. It also covers the view – which I call the artery of Dworkin's jurisprudence – that legal reasoning is a form of moral reasoning. And it relates all this to the unifying ideas about dignity in "Justice for Hedgehogs."

Jütte, “Interfaith Encounters between Jews and Christians in the Early Modern Period and Beyond: Toward a Framework”

June 6th, 2013

Daniel Jütte has published "Interfaith Encounters between Jews and Christians in the Early Modern Period and Beyond: Toward a Framework" in the most recent issue of The American Historical Review. An extract of the article is available here.