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Faith and Law: How Religious Traditions from Calvinism to Islam View American Law

EDITED BY Robert F. Cochran
Copyright Date: 2008
Published by: NYU Press
Pages: 299
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  • Book Info
    Faith and Law
    Book Description:

    The relationship between religion and the law is a hot-button topic in America, with the courts, Congress, journalists, and others engaging in animated debates on what influence, if any, the former should have on the latter. Many of these discussions are dominated by the legal perspective, which views religion as a threat to the law; it is rare to hear how various religions in America view American law, even though most religions have distinct views on law.In Faith and Law, legal scholars from sixteen different religious traditions contend that religious discourse has an important function in the making, practice, and adjudication of American law, not least because our laws rest upon a framework of religious values. The book includes faiths that have traditionally had an impact on American law, as well as new immigrant faiths that are likely to have a growing influence. Each contributor describes how his or her tradition views law and addresses one legal issue from that perspective. Topics include abortion, gay rights, euthanasia, immigrant rights, and blasphemy and free speech.

    eISBN: 978-0-8147-7292-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xii)
  4. Introduction
    (pp. 1-10)
    Robert F. Cochran Jr.

    In his bookAmerican Lawyers and Their Communities,Thomas Shaffer envisions a downtown street. On one side of the street is a house of worship; on the other is a courthouse. According to Shaffer, law schools train lawyers to look at the religious congregation from the courthouse—that is, to analyze the problems that the religious congregation creates for the law. Law schools ignore the possibility that there might be a view of the courthouse from the house of worship—that the law might create problems for the religious congregation.

    Prophetic witness is discounted in law teaching. Our part of...

  5. PART I The Augustinian Framework:: The City of God and the City of Man

    • Chapter 1 Augustine Augustine and Law
      (pp. 13-30)
      Elizabeth Mensch

      The Augustinian perspective on justice raises paradoxes deeply rooted in Augustine’s description of self, society, and world. Augustinian reality is darkly tragic, inevitably riddled with signs of human sin; yet it is also, simultaneously, a world shot through with surprising signs of abundant grace. For the Augustinian, this radical intermixture of sin and grace marks every aspect of human life.

      Augustine points to an unrelenting darkness of indescribable depth. “Whose eloquence,” he asks, could “number and weigh the woes of this mortal condition?” (CG XIX 4 ).¹ Deformity and disease sap strength from mind and body; treachery and cruelty may...

  6. PART II Reformation Faiths

    • Chapter 2 Calvinists Neo-Calvinism and Science: A Christian Perspective on Post-Daubert Law/Science Relations
      (pp. 33-47)
      David S. Caudill

      In any survey of the potential contributions of religious thought to contemporary legal theory and practice, some connections are more obvious than others. For example, one might expect scholars who work within identifiable religious traditions to help “secular” courts and commentators understand the nature of religion, the significance of certain religious practices, the organizational structure of a “church” or similar association, and so forth. One can also easily identify policy arguments from a religious perspective, addressing legal controversies over the death penalty, abortion, freedom of expression, same-sex marriage, taxation of charitable enterprises, the meaning of pluralism in a democracy, or...

    • Chapter 3 Lutherans A Lutheran Perspective on Legal Ethics
      (pp. 48-63)
      Robert W. Tuttle

      I have a confession to make. For the past decade, I have been teaching Lutheran ethics to the students of George Washington University Law School. This confession will come as something of a surprise to my students and colleagues. GW is not, after all, a religiously affiliated law school, much less a Lutheran one; and the course in question is supposed to be the school’s standard, two-credit class in professional responsibility.

      Of course, in the twenty-odd times that I have taught the course, no one seems to have objected to, or perhaps even noticed, this religious character. One might sensibly...

    • Chapter 4 Anabaptists Anabaptist Law Schools
      (pp. 64-76)

      There are no Anabaptist¹ law schools.² There are a few Mennonite colleges, none with a law school attached. An association has been formed in North America of Mennonite lawyers who studied at law schools operated by a province or state or by associations not affiliated with an Anabaptist church. Although there are no Anabaptist law schools, we think it would be useful to imagine an Anabaptist law school as a way to help lawyers think about what one kind of sure-enough religiously affiliated law school³ would be up to. One way or another, believers who are in law schools need...

    • Chapter 5 Baptists Toleration and Dogmatism: The Contribution of Baptists to Law
      (pp. 77-88)
      Timothy L. Hall

      Hot Sundays still remind me of funeral fans, with pictures of the Good Shepherd or the lush green banks of the Jordan River where John baptized Jesus. The fans were made of stiff cardboard with a picture on one sideand an advertisement for a local funeral parlor on the other. The cardboard was fastened to a flat piece of wood that soaked up perspiration from hands that glided back and forth through the summer heat, parting the heavy air like Moses parted the Red Sea. Funeral fans swirled the air of my childhood summers and mingled the warmth rising off...

  7. PART III Home-Grown American Faiths

    • [Part III Introduction]
      (pp. 89-90)

      Whereas North America was the destination of the Protestant groups discussed in the previous section, it was the womb of many other religious groups, especially in the early nineteenth century. The Second Great Awakening, generally dated from the Cane Ridge Revival in 1801, added greatly to the number of evangelical churches, often at the expense of Congregationalist, Presbyterian, Reformed, and Episcopalian congregations.¹ It also “introduced to the American scene a host of newly minted faiths—Adventists, Christian Scientists, Disciples, Holiness Churches, Jehovah’s Witnesses, Mormons, Pentecostals, Unitarians, and Universalists.”²

      Many of these faiths place a strong emphasis on personal salvation and...

    • Chapter 6 Evangelicals Evangelicals, Law, and Abortion
      (pp. 91-115)
      Robert F. Cochran Jr.

      For most of the twentieth century, evangelical Christians, though accounting for a third of the population of the United States, had little noticeable impact on public life. They seemed to be content to remain in their families and churches and allow others to run America’s public institutions. But things changed. Evangelical Jimmy Carter was elected president in 1976 , andNewsweekmagazine declared that the “year of the evangelical.”¹ Over the next thirty years, three evangelicals (Carter, Clinton, and George W. Bush) served as president, and evangelicals were widely credited with having elected the other two (Reagan and George H....

    • Chapter 7 African-American Churches “Go Down, Moses!”: Law through the Eyes of the African-American Religious Tradition
      (pp. 116-129)
      Anthony V. Baker

      When considered from the perspective of the African-American religious tradition,¹ the central topic of this book—American law viewed through the “eyes” of discrete religious faiths—might appear straightforward and clear. One needs only recall the American civil rights iconography of the last third of the twentieth century to find its unquestioned answer. Riddled through with religious imagery and energy— clergy abounding, the Southern Christian Leadership Conference, the Birmingham church bombing, and so on—that movement highlighted the intersection of law and religion in the African-American context. This is true, but it is by no means the whole of this...

    • Chapter 8 Churches of Christ Reason, Freedom, and Apocalyptic Vision: Churches of Christ and the Practice and Teaching of Law
      (pp. 130-148)
      Thomas G. Bost

      Churches of Christ trace their American origins to two principal nineteenth-century leaders, Barton W. Stone and Alexander Campbell.¹ In fact, the religious movement of which Churches of Christ are a part is generally known as the “Stone-Campbell Restoration Movement” or, more simply, the “Restoration Movement.” Two other churches, the Disciples of Christ and the Independent Christian Churches, arose out of this movement as well. These three religious bodies are the primary representatives of one of the largest Christian movements of American origin.²

      Barton Stone, born in Maryland and educated in North Carolina, was a pietistic Presbyterian minister, who was fundamentally...

    • Chapter 9 Latter-Day Saints Footings of Mormon Conceptions of Law: Vantage Points for Understanding Constitutional Law and the Law of Religious Freedom
      (pp. 149-172)
      W. Cole Durham Jr., Michael K. Young and Brett G. Scharffs

      Law holds a central place in both the theology and the historical experience of the Church of Jesus Christ of Latter-Day Saints.¹ The Bible as well as other texts accepted by the Church as scripture² contain countless passages relating to law,³ as do numerous statements from successive presidents of the Church, who are sustained by Latter-Day Saints as prophets. More generally, church leaders and scholars with LDS roots have frequently addressed the significance of law, both on ceremonial occasions⁴ and in the course of grappling with practical legal problems,⁵ as well as in the context of giving religious guidance to...

  8. PART IV Catholicism

    • [Part IV Introduction]
      (pp. 173-174)

      At the founding of the United States, Americans were predominantly Anglo-Saxon Protestants. Toward the end of the eighteenth century, approximately 1 percent of the population was Catholic, perhaps forty thousand in a population of four million. But during the nineteenth century, waves of Catholic immigrants from Ireland and Eastern Europe joined the American conversation about law. Between 1820 and 1865, 1.9 million Irish immigrants, nearly all of whom were Catholic, came to the United States.¹

      In a democracy, numbers can translate into political power, but influence on law also comes through membership in the legal profession. This was especially the...

    • Chapter 10 Catholic Natural Law Sovereign States? The State of the Question from a Catholic Perspective
      (pp. 175-194)
      Patrick McKinley Brennan

      No matter how many times one may read the Constitution of the United States, one will not find the word “sovereign” therein.¹ What Justice James Wilson said in 1793 of the Constitution with ten amendments is equally true today of the Constitution with twenty-seven amendments: “To the Constitution of the United States the term sovereign is totally unknown.”² Sovereignty — “it was over this issue that the Revolution was fought,”³ and when the time came for the colonists who had repelled Parliament’s claims of sovereignty to frame a constitution for themselves, they left it out.

      Somehow, however, sovereignty has slipped in...

    • Chapter 11 Catholic Social Thought Catholic Social Thought and Immigration
      (pp. 195-208)
      José Roberto Juárez Jr.

      On the morning of April 16, 2004 , the caretakers of Our Lady of the Rosary Cathedral in San Bernardino, California, discovered that the cathedral had been vandalized. A forum to discuss legislation authorizing the issuance of driver licenses to undocumented immigrants had been scheduled in the cathedral that evening. Martin Hill, a Catholic pro-life activist, had faxed a letter to San Bernardino bishop Gerald Barnes asking that the event be canceled because the sponsor of the legislation, California state senator Gilbert Cedillo, whose support of abortion and embryonic-stemcell research conflicted with official Catholic teaching, was scheduled to speak at...

  9. PART V Judaism

    • Chapter 12 Orthodox Jews Self-Incrimination in Jewish Law, with Application to the American Legal System
      (pp. 211-222)
      Samuel J. Levine

      Law serves a central role in Jewish faith and tradition. Indeed, Jewish law comprises a legal system that has developed over thousands of years, exploring and regulating every form of human endeavor and experience. Thus, it may be unsurprising that American courts and legal scholars have increasingly turned to Jewish legal tradition for insights into various issues confronting the American legal system. Jewish law has provided an alternative and, at times, contrasting model that some have found particularly helpful in illuminating complex, controversial, and unsettled areas of American law.

      In light of these developments, this essay aims to consider the...

    • Chapter 13 Reform Jews Reform Judaism, B’tzelem Ehlohim, and Gay Rights
      (pp. 223-238)
      Ellen P. Aprill

      Reform Judaism, the North American branch of progressive Judaism, has the largest membership of any American Jewish denomination.¹ Its synagogue arm, the Union for Reform Judaism (“Union”),² consists of over nine hundred congregations encompassing 1.5 million members; its rabbinic arm, the Central Conference of American Rabbis (CCAR), has a membership of over eighteen hundred rabbis; its college arm, Hebrew Union College–Jewish Institute of Religion (HUC-JIR), has campuses in Cincinnati, New York, Los Angeles, and Jerusalem.³

      The official positions of the Reform movement, whether on civil or on religious matters, tend to be liberal. The movement frequently takes stands on...

  10. PART VI New Immigrant Faiths

    • [Part VI Introduction]
      (pp. 239-240)

      Immigration to the United States was heavily restricted from 1924 to 1965. With the reopening of substantial immigration, the United States became a haven for people from a wide variety of religious faiths. Hindus, Buddhists, and Muslims have reached sufficient numbers to be influential players in the American conversation about law.

      Some people have questioned whether there is sufficient common ground between the Christian and Jewish faiths and the new immigrant faiths for a fruitful conversation. Will Herberg, in his path-breaking 1955 book, Protestant, Catholic, Jew, was one of the first to see the prospects for Jewish-Christian dialogue, but the...

    • Chapter 14 Hindus A Hindu Perspective on Euthanasia and Physician-Assisted Suicide
      (pp. 241-253)
      Kisor K. Chakrabarti

      Physician-assisted suicide (PAS) and euthanasia (where the final act ending life is performed not by the patient but by someone else, such as a physician or a nurse) present some hotly debated issues of modern medical ethics. This essay considers the perspective that the Hindu faith might bring to the legal issues raised by these procedures.

      PAS and euthanasia have become prominent mainly because of the availability of new medical technology since the 1960 s whereby a patient who would have otherwise been dead can be kept alive for years and sometimes even decades on artificial life support. For example,...

    • Chapter 15 Buddhists Interdependence and Victim Compensation: Views from Buddhist Tibet and Post-9/11 United States
      (pp. 254-271)
      Rebecca R. French

      On the morning after his enlightenment under a pipala tree in Bodhgaya, the Gotama Buddha faced a dilemma that tradition states he then spent the next four weeks considering. Sitting throughout the previous night in full lotus position, he had been tormented by Mara, the tempter, a god from the fringes of the sixth heaven. Mara created the illusion of everypossible desire in the form of sexual fantasies, incredible tastes and tactile sensations, delicious smells, and music to tempt the future Buddha. Mara’s minions brought on hunger and thirst, torpor and sloth, jealousy and competition, cravings of all kinds, fear...

    • Chapter 16 Muslims Enhancing Democracy, Respecting Religion: A Dialogue on Islamic Values and Freedom of Speech
      (pp. 272-290)
      Anver M. Emon

      The first months of 2006 presented the world with an example of how Samuel Huntington’s “clash of civilizations”¹ thesis can be used to describe and create an apparent chasm of understanding between communities of meaning, religious or otherwise.² The world watched as Muslims in various nations protested the publication of cartoons negatively depicting the Prophet Muhammad. Muslims were outraged that a Danish newspaper would insult their Prophet, while liberal advocates were equally outraged that Muslims showed no respect for fundamental liberal values like the freedoms of speech and press. The fundamentalist tenor in their calls to vindicate their respective civilizational...

  11. Contributors
    (pp. 291-294)
  12. Index
    (pp. 295-299)