20 November 2014

Human Rights and Religion

Only a few days ago I posted come comments, here, about John Witte's analysis of civil and ecclesiastical responses to issues of sex and marriage in Reformation Geneva. Witte's latest piece, Religious Sources and Dimensions of Human Rights (download here) moves from the granular and historical to the general and contemporary.

Witte begins by covering familiar ground when he surveys the Classical, Medieval and Reformation Christian, and Enlightenment contributions to the contemporary notion of human rights. He them segues into the contemporary human rights scene with a brief recounting of developments since the United National Declaration of Human Rights in 1948.

What is not familiar to most human rights activists is the historical grounding (or at least development) of the concept of human rights in the Christian tradition. Those who want to know more than you'll find in Witte's piece can read my article, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).

What was not familiar to me were the increasing protections of "religion" in more recent and less well-known human rights documents. Witte begins with the 1981 Declaration on Religion and Belief and progresses through the U.N. Convention on the Rights of the Child, the 1989 Vienna Concluding Document, the 1992 Minorities Declaration, and the 2007 U.N. Declaration on the Rights of Indigenous Peoples. Who outside the limited circle of human-rights insiders knew there was so much about religion? And who inside this circle is happy there's so much about religion?

The extensive consideration of "religion" in the context of human rights begs a question that Witte addresses: Is protection of religion, apart from liberty generally, warranted? In other words, are Western, elite secularists correct that religion is no more than a private caprice that should be tolerated but not overly-protected?

It is with respect to this question that Witte's contribution in Religious Sources and Dimensions of Human Rights is most significant. He describes five reasons why "religion" is unique among human endeavors and thus deserving of unique consideration as a human right. First, as I argued in Looking for Bedrock, Witte asserts that "human rights norms and cultures need religious ideas, institutions, and right claims to survive and thrive. Without religion, many rights are cut from their roots." And cut flowers, no matter how pretty, don't live long.

Second, as I also argued, "without religion, the regime of human rights becomes infinitely
expandable." Indeed, the human rights regime already has expanded its reach and made demands beyond anything that can meaningfully be understood as a right.

Third, I'll let Witte speak for himself:
Without religion, human rights become too captive to Western libertarian ideals. Many religious traditions—whether of Buddhist, Confucian, Hindu, Islamic, Orthodox, or Traditional stock—cannot conceive of, nor accept, a system of rights that excludes, deprecates, or privatizes religion. Religion is for these traditions inextricably integrated into every facet of life. Religious rights are, for them, an inherent part of rights of speech, press, assembly, and other individual rights as well as ethnic, cultural, linguistic, and similar associational rights. No system of rights that ignores or deprecates this cardinal place of religion can be respected or adopted.
Fourth, "without religion, the state is given an exaggerated role to play as the guarantor of human rights." In other words, by reducing rights to those of individuals over against the state, human rights activists strangely fall into a libertarian understanding of politics, something against which I have inveighed more than once.

"Finally, without religion, human rights norms have no enduring narratives to ground them." Witte might have said that without (a true) religion, the whole scheme of human rights is a sky hook floating in mid-air but that would have been impolitic. In any event, Witte's piece is a fine introduction to the tradition of human rights, an even better survey of the place of religion in the contemporary human rights system, and a fine defense of the singular place of religion in that system.

19 November 2014

The Democratization of America

Go here to download an excellent article by Gerald Leonard, Jefferson's Constitutions. Abbreviating Leonard's abstract:

Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, Jefferson retained much of the elitist, law-oriented, anti-party, slavery-protective (though not pro-slavery) convictions of most of the Framers. In practice, his constitutional politics as Republican leader in the 1790s and president in the 1800s built an important bridge to the democratic Constitution of his successors, even if he never fully embraced that development. The ascendancy of the Jacksonian Democratic party would entrench essentially Jeffersonian constitutional principles of states’ rights and slavery protection but would substitute democratic will for reason and law at the foundation of the Constitution.
I believe Leonard's thesis is amply supported by excellent contemporary historical research. See, for example, Gordon S. Wood's Empire of Liberty: A History of the Early American Republic, 1789-1815 (an earlier post here), Charles Sellers's The Market Revolution: Jacksonian America, 1815-1846, and Susan Dunn's little-known monograph, Dominion of Memories: Jefferson, Madison and the Decline of Virginia (previous post here).

In other words, even accounting for Jefferson, the "Founders" were most certainly anti-democratic but it was Jefferson's inconsistent elitism that paved the way the early nineteenth century "revolution from below." And it's that revolution--the democratic one--whose success bathes all current political thought in the antinomies of democratic constitutionalism.

18 November 2014

Someone Else's Thoughts About Kids

I've posted several times on the long-term risks posed by declining birthrates. You can read some of them here, here, and here. Slightly more than two years ago Jordan Ballor posted a short, trenchant observation titled The Hopes and Fears of All the Years here. A teaser:
Arthur Brooks, the president of the American Enterprise Institute, put it this way in a lecture earlier this year: “As you get past a certain level of prosperity, it will become not cost-effective to have children. If you don’t have beliefs that transcend your life you won’t have [children] anymore.” Brooks describes instead a society in “which people dedicate themselves to a higher purpose, most notably to God,” and in which therefore “people will live on into the next generation. The future of a prosperous society depends on a lot of things, but the fundamental currency of the success of any society is people, is humans. When you stop having the humans, your life is limited and your prosperity is doomed.”
Ballor adds several valuable insights of his own. I recommend it.

17 November 2014

"For the Healing of the Nations"

Product DetailsThe initial publishing foray of The Davenant Trust is a great one. The collection of papers presented at the Convivium 2014 is subtitled Essays on Creation, Redemption, and Neo-Calvinism. To give you a flavor of the papers, you can read a pre-Convivium post here and my concluding thoughts here and here.

The published versions of the conference papers are uniformly excellent. Each demonstrates a deep scholarly familiarity with its subject matter and an even deeper concern to address topics relevant to a wide sweep of neo-Calvinist thought in America. While every reader will not be equally interested in each essay, collectively the essays are important to anyone who takes seriously the effects of thinkers such as Dutchmen Abraham Kuyper and Herman Bavinck as well as Americans who followed in their tradition including Cornelius Van Til and Rousas Rushdoony.

Other papers are not so inside-neo-Calvinist baseball. Topics range from Patristic use of pagan sources to English reformer Richard Hooker to John Calvin's nuanced understanding of the eschatological restoration of all things. Finally, the volume contains two essays by James Bratt, the Convivium's featured speaker, which together provide an excellent introduction to and summary of his magisterial biography Abraham Kuyper: Modern Calvinist, Christian Democrat (about which I last blogged here).

"For the Healing of the Nations" is well-edited and its print layout is clear. In other words, it is easy on the eyes. I highly recommend it and look forward with anticipation to what comes from next year's Convivium.

Comparative Security

I have taught in and directed Regent Law School's Summer Program in International Human Rights on several occasions. In fact, I expect to be in Strasbourg directing the program in the summer of 2015. You can go here to read about the program. And go here  for how to register. (Feel free to share the links with any law students you might know.)

In any event, I usually teach a class in comparative contract law. I haven't taught comparative secured transactions law because virtually no European countries have a unified law of personal property security. The United Kingdom has a un-unified system of personal property security but countries on the Continent make it difficult to grant a security interest in personal property.

It was thus with excitement that I downloaded Tibor Tajiti's new article, Could Continental Europe Adopt a Uniform Commercial Code Article 9-Type Secured Transactions System? The Effects of the Differing Legal Platforms (you can download yours here). Tajiti, professor of law at the Central European University in Budapest, Hungary, compares Australia's new unitary system of personal property security to its progenitor, the American Uniform Commercial Code Article 9 and then to various proposals for a unitary  system in Europe.

With regret I must report that matters don't look good. As Tajiti puts it:
The prohibitive complexity generated by Continental Europe’s colourful legal systems suggests that things will only change for pressing economic reasons. At the moment nothing foreshadows such a scenario; rather, the overall climate is unfavourable to the cause. Casting a favourable word on the Unitary Model in Europe today is an almost certain recipe for being perceived as a harbinger of United States legal hegemony.
Almost humorous to think that rationalizing law is perceived as a "harbinger of United States legal hegemony." But quite sad that improving economic activity through rationalization of the law is apparently irrelevant to European law makers. And quite ironic that the center of legal rationalization--Germany--can't seem to take this step.

13 November 2014

John Witte: Sex, Marriage, and Family in Calvin's Geneva

John Witte has done well for all who take seriously the historical accuracy of our knowledge of the law in action in Reformation Geneva. Witte's book chapter, Church, State, and Family in John Calvin's Geneva: Domestic Disputes and Sex Crimes in Geneva's Consistory and Council can be downloaded here.

Witte does an excellent job of explaining the sometimes-complicated relationships between Geneva's newly-created Consistory, made up of the pastors of each of Geneva's churches as well as a dozen lay representatives ("elders") elected annually by the church-member citizens of the city, and the three levels of civil government--the Small Council, the Council of Two Hundred, and the General Council. As he goes on to explain, the relationship between the Consistory and the everyday city government provided through the Small Council was particularly important because their jurisdictions overlapped. In other words, ecclesiastical and civil governments were separate, as were their sanctions, but their concerns were substantially the same: the prohibition of vice and the inculcation of virtue.

Virtue in Geneva, as Witte explicates, was explicitly biblical and included reconciliation. In other words, while the Consistory could exclude persons from communion or refer the unrepentant to the civil arm of the Council, it more often used persuasion and pastoral advice to bring contending parties or "sinners" back to the fold. I found the many examples and depth of Witte's explanations of the the Consistory's work to be especially interesting.

Church, State, and Family in Calvin's Geneva is also a great resource by which to check the ambitions of those who believe that the application of "biblical law" is a straightforward matter of transposing text of Torah to contemporary society, even if the society in question was far more homogeneous and monolithic than any in today's world. It should particularly check arm-chair theologians who don't know the law. If even one of the greatest theologians in the Reformed tradition struggled to apply the reformulated laws of a small city to real-life messes, how much more should those who think they can apply biblical "principles" to modern life take care. A lengthy excerpt should give the flavor of Witte's perceptive analysis:
It was one thing for Calvin, the theologian, to insist that marriages should be publicly celebrated with parental consent. It was quite another to decide whether a secretly married couple with a brand new child should be separated and their child thereby illegitimated and reduced to a public ward. It was one thing to thunder loudly from the pulpit that adulterers of all sorts should be stoned in accordance with the Bible. It was quite another to decide whether an engaged couple caught in heavy foreplay in their own bedroom on the eve of their wedding should be executed. It was one thing to declare anathema on interreligious marriages. It was quite another thing to deal with the hundreds of desperate new emigrants who poured into Geneva with spouses of various confessions on their arms. It was one thing for Calvin to say that married couples must live together at all costs, save in cases of adultery or desertion. It was quite another to insist on such reconciliation when a battered wife, already bent and lame from her husband’s repeated savageries, stood before him with newly blackened eyes.
In other words, then as now, wisdom should accompany the application of the law. But it's at this point that I have a small nit to pick with Witte's work: it pays insufficient attention to Calvin's explicit use of the classical notion of equity as a means of tempering unthinking application of a black-letter rule to a complex situation. Far more than any other work, Witte's shows how Calvin used equity to achieve restoration in light of law, but he doesn't back up to the the theory by which Calvin did so. Perhaps Witte simply chose not to address the topic; after all, it is his book. Yet some reference to the Roman-law concept of aequitas would have been helpful.

Interested readers can find an in depth-consideration of Calvin's use of equity in Gene Haas's The Concept of Equity in Calvin's Ethics. Haas's book is not easy to find so for a short introduction you can download my article, God's Bridle: John Calvin's Application of Natural Law here.

11 November 2014

Free At Last: Detroit's Bankruptcy Plan Confirmed

As most have heard, bankruptcy judge Steven Rhodes confirmed Detroit's Chapter 9 plan of adjustment. You can read a nice account here. That the plan was confirmed should not surprise my readers. I predicted as much here although I was off in the timing by a week.The New York Times Dealbook has an excellent article about the financial pipe dream of the plan here. In short, one of principal reasons for Detroit's flight to bankruptcy--its underfunded pensions--remains:
But the pension system that the settlement leaves behind has some of the same problems that plunged the city into crisis in the first place — fundamental problems that could also trip up other local governments in the coming years. Like many other public systems, it relies on a funding formula that lags behind the true cost of the pensions, and it is predicated on a forecasted investment return that the judge, Steven W. Rhodes, himself sharply questioned.
I've harped on the issue of the underfunded pension of state and local (and federal, for that matter) governments for years. With some contribution by its retirees, from the state of Michigan, and some big hitters, Detroit's plan has kicked the can of insolvency down the road by a decade or two, but it didn't solve the problem. Of course, no one's going to come knocking the judge's door in 2035 and ask him about it, much less any of the politicos who pushed the case through. Which, come to think of it, is the quintessential American way.

(For some more scholarly analysis, read my article Municipal Bankruptcy: When Doing Less Is Doing Best (download here).

10 November 2014


What do you get when a largely-forgotten actor who formerly played a superhero played by a not-forgotten-but-no-longer-top-draw actor who formerly played a superhero? Who's haunted (or is it a recurring hallucination?) by the the deep voice of his superhero past? Who sets out to write, direct, and star in a Broadway adaptation of a short story by mid-twentieth century American writer Raymond Carver about what we say about love, when he's never loved?

You get Birdman or (The Unexpected Virtue of Ignorance). Starring Michael Keaton as Riggan Thomson, the washed up and broke former star of the Bird(not Bat)man superhero series of films, Birdman is a very dark comedy sending up the pretensions of millionaire Hollywood stars, affected Broadway actors, and pretentious New York Times theater critics. I have no idea if any of these folks are as dysfunctional as represented but even if only half as vicious as portrayed, it's a sick world out there.

The film's crudity and vulgarity, although appropriate for its vision of the worlds of screen and stage, are off-putting. It's culminating vision--suicide after reconciliation--is hardly comedic in the classical sense. Yet the screenplay, acting, directing, and editing are superb. Extraordinarily well crafted in the service of a vision of life saved from thorough-going tragedy in death, Birdman is a powerful film that most certainly is not for everyone.

07 November 2014

Viva Arbitration!

Outside the law school academy, most would not know of the existence of opposition to the growing use of arbitration. Arbitration between parties is generally believed to be quicker and cheaper than litigation. Others suggest that arbitration's real benefit, at least in the world of consumer transactions, is either to keep bad merchant practices under wraps or to steer the disputes to arbitrators who are biased in favor of the sellers of goods and services. Or both.

I have no dog in this fight. There are very good arguments on each side. But there are other reasons parties might agree to arbitrate rather than litigate.

Go here to read Arbitration's Counter-Narrative: The Religious Arbitration Paradigm (download here). About a year and a-half ago I posted with approval another of Michael Helfand's articles. You can read those posts here and here. And I'm pleased to commend this one to my readers' attention.

Cribbing from Michael's abstract:
Arbitration theory and doctrine is dominated by an overarching narrative that conceptualizes arbitration as an alternative to litigation. Litigation, on the one hand, is more procedurally rigorous, but takes longer and costs more; arbitration, on the other hand, is faster and cheaper, but provides fewer procedural safeguards. But notwithstanding these differences, both arbitration and litigation ultimately serve the same purpose: resolving disputes. 
This Article, however, contends that this exclusive focus on arbitration’s standard narrative has left unexplored a competing arbitral narrative — a counter-narrative of sorts — that examines the contexts in which arbitration differs from adjudication because it aims to promote an alternative set of values beyond simply resolving disputes.
This Article considers a paradigmatic example of arbitration’s counter-narrative: religious arbitration. When parties agree to religious forms of arbitration, they select religious authorities to resolve disputes in accordance with religious law. And, as a result, these forms of arbitration are embraced not solely as a utilitarian mechanism to resolve a dispute, but because they enable parties to resolve a dispute in accordance with shared religious principles and values.
In other words, arbitration can serve important non-pecuniary goals such as either the application of religiously-identified rules of law or arbiters who share the religious faith of the parties. Or both.

The Christian organization, Peacemakers Ministries, does precisely what Helfand describes. So too would Catholic courts of canon law and a Jewish bet din. Helfand's article thus serves to inform a wider audience of the non-utilitarian virtues of arbitration.

06 November 2014

Time For A Rerun

While I frequently link to earlier posts, I try to do so in the context of something new. Today my "new" contribution is merely a link to an excellent post by David Koyzis, The Death of the Parish. A sample to whet your appetite:
The most important consequence of [inexpensive transportation by automobile] is that the gathered church—as distinct from the church as corpus Christi, which is all-encompassing—has been reduced to a mere voluntary association of like-minded individuals who can join and quit, or come and go at their discretion. The church, like any other commodity in the marketplace, exists only to serve the needs of its individual members.
My earlier thoughts to a similar effect can be found in my post, The Communion of the Saints.

Consideration Lives!

By "consideration" I mean the doctrine of the law that gives certain promises legal sanction. In other words, what turns a mere agreement into a contract. Or, in yet other words, as my students would (or at least should) express it, the bargained-for exchange.

Friend and professor at South Texas College of Law Val Ricks continues his virtually one-man effort to keep the doctrine of consideration at the conceptual center of contract law. You can download his latest foray, Consideration and the Formation Defenses here.

Val's article is rather deep for those who aren't conversant in the common law of contracts. (The civil law has its own doctrinal device for identifying legally-sanctionable contracts.) And, as usual, I am extremely pleased to read the historical studies that always inform Val's work. Nonetheless, I haven't been persuaded that his reconfiguration of contract law around consideration rather than assent plus consideration is sufficiently useful to cause me to throw out the casebook I currently use when teaching contracts. But perhaps I'm merely lazy.

In any event, if you count yourselves among the contract law cognoscenti, then Val's article is for you. And, if you want to show me some love, you might go on to read my analysis of consideration in Consideration in the Common Law of Contracts: A Biblical-Theological Critique (download here).

05 November 2014

Snowpiercer. Seriously.

I watched Snowpiercer on a return flight from Hawaii in October. (Life imitating irony.) I didn't review it because, frankly, I didn't think it was worth the effort. Apparently I was wrong. Many folks are taking the film more seriously than I did. And not just cinemaphiles but folks whom I respect like Joe Carter (here) and Jonah Goldberg (here). 

Without giving away much of the plot, suffice it to say that Snowpiercer is a Korean, post-apocalyptic, sci-fi pic set on board a train that circles a frozen earth every year and whose passengers are the only human beings remaining alive after a failed attempt to stop global warming. I found the plot to be exceptionally implausible even for science fiction.

I'm not going to recount any more of the plot because I don't have the time and both Carter and Goldberg do a good job of it. (Spoiling the movie, however, for anyone who might want to see it.) The acting was often stilted but, I suppose, appropriate for the film's self-important view of its theme. I should hasten to point out, however, that the staging and cinematography (or CGI) were exceptional. Well done schlock, IMHO. A good way to kill some time cooped up in a plane but little more.

Both Carter and Goldberg (along with many others) believe the film has much more to say than how human beings are their own worst enemies. And the planet's. I'm not so sure. I do want to point out, however, that the film has a "happier" ending than Carter believes. In other words, I believe the film hold open the possibility that the only survivors of the climactic train wreck can survive to repopulate the earth because they don't immediately freeze to death and turn into human popsickles like previous escapees from the train. Now if that doesn't want to make you see the movie, I don't know what will.