Showing papers in "The journal of law and religion in 1999"
47 citations
TL;DR: In Search of a Descriptive Human Equality as discussed by the authors is a collection of essays about human equality and its application in the context of the Repaving project, Part II: An Equal Opportunity Creator.
Abstract: Acknowledgment and ApologyForewordIntroduction: In Search of a Descriptive Human Equality3Pt. IHuman Equality: What does it Mean?171What Has Been Said?222The Host Property393Making the Host Property Uniform66Pt. IICould the Philosophers Believe in Human Equality?914Could the Enlightenment Believe? Individualism, Kant, and Equality1015Nature, Natural Law, and Equality123Pt. IIICould the Christians Believe in Human Equality?1456The Framework for a Christian Obtensionalism1487Repaving the Road to Hell: The Pelagian Issues1648The Repaving Project, Part II: An Equal-Opportunity Creator191Pt. IVGood Persons and the Common Good2159Harmonies of the Moral Spheres21810Harvests of Equality232Notes261Index349
43 citations
TL;DR: The history of the emergence of human rights within the Western Christian tradition, recognises that religions develop in interaction with other social and cultural forces in society, and argues in what follows that the relationship between Christianity and the human rights tradition can only enrich society to the extent of the relationship is sustained by mutual critique and correction.
Abstract: The historic relationship between Christianity and human rights is an ambiguous one. For hundreds of years the Christian Church actively promoted religious intolerance and persecuted those who failed to accept its moral values and customs. Many of these values and practices are today rejected as contrary to a human rights culture and moral decency. Max Stackhouse argues that while “[t]he deep roots of human rights ideals are rooted nowhere else than in the biblical tradition,” these values “remained a minority tradition (within the Church) for centuries.” James Woods, in turn, argues that “religion and freedom have not been natural allies.”The affirmation of human rights emerged painfully and belatedly in the Christian Church. The “deep biblical roots of human rights ideals” have, however, periodically been acknowledged and retrieved throughout the history of the church in an attempt to correct wrongs, repudiate theological support for abuses, and to pursue a more humane society. The history of the emergence of human rights within the Western Christian tradition, recognises that religions develop in interaction with other social and cultural forces in society. I argue in what follows that the relationship between Christianity and the human rights tradition can only enrich society to the extent that the relationship is sustained by mutual critique and correction.
30 citations
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22 citations
TL;DR: It is an inexhaustible fount of evil; it breaks the body and the spirit of the submerged, it perpetuates itself as hatred among survivors, and swarms around in a thousand ways, against the very will of all, as thirst for revenge, as moral capitulation, as denial, as weariness, as renunciation as mentioned in this paper.
Abstract: [T]his is the awful privilege of our generation and of my people, no one better than us has ever been able to grasp the incurable nature of the offence, that spreads like a contagion. It is foolish to think that human justice can eradicate it. It is an inexhaustible fount of evil; it breaks the body and the spirit of the submerged, it perpetuates itself as hatred among survivors, and swarms around in a thousand ways, against the very will of all, as thirst for revenge, as a moral capitulation, as denial, as weariness, as renunciation.
15 citations
TL;DR: Perry's claim that human rights presuppose a natural law should be understood as a theoretical claim as discussed by the authors, and the relation between belief in natural law and human rights is one of presupposition; that is to say, a doctrine of natural rights presupposes the moral realism which in his view is the central core of natural law theories.
Abstract: Near the beginning of The Idea of Human Rights, Michael Perry states that “One of my principal goals … is to clarify and address the unusually murky subject of ‘moral relativism’—and to do so from the perspective of what can properly be called ‘natural law.”” This he defines, following D.J. O'Connor, as a view according to which “basic principles of morals and legislation are, in some sense or other, objective, accessible to reason and based on human nature.” Subsequently, he explains that the relation between belief in natural law and in human rights is one of presupposition; that is to say, a doctrine of natural rights presupposes the moral realism which in his view is the central core of natural law theories.As his discussion makes clear, Perry's claim that human rights presuppose a natural law should be understood as a theoretical claim. At the same time, it raises interesting historical issues. That is, when we examine classical accounts of the natural law, are these explicitly linked with doctrines of natural or human rights, or something recognizably similar? (Throughout this paper, I treat the terms “human” and “natural” rights as synonyms.) And more generally, what can we learn from the ways in which our forbears drew connections, or failed to do so, between a natural law and human rights?
14 citations
TL;DR: Perry as mentioned in this paper argues that there is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.
Abstract: The heart of Michael Perry's argument lies in his claim that “every human being is sacred” and, that being the case, it follows that there are “some things that ought never (for example, under any circumstances or conditions) to be done to any human being or some things that ought always (under all conditions) to be done for every human being?” The “foundational” claim is that every human being, because sacred, is owed a certain regard and that this regard, in our time, has taken shape as, and congealed around, the idea of human rights. The dignity of the person, in other words, is a necessary prior assumption from which rights derive. The ontological claim, or to put it in a similar if not identical way, certain anthropological presuppositions, necessarily ground any sustainable human rights argument. It is possible, certainly, to make human rights claims on purely conventional grounds or, in more “Rortyesque” language, as just the way we do things around here. But that claim is not sustainable over time, argues Perry. It follows that “there is no intelligible (much less persuasive) secular version of the conviction that every human being is sacred; the only intelligible versions are religious.”
13 citations
TL;DR: One of the more beautiful and impressive structures in Washington, D.C., is the neo-classical Supreme Court building, located just east of the Capitol as discussed by the authors, where one's eyes are inevitably drawn to the frieze that borders the ceiling some fifty feet above.
Abstract: One of the more beautiful and impressive structures in Washington, D.C., is the neo-classical Supreme Court building, located just east of the Capitol. Upon entering the marble columned courtroom, a hallowed place where notions of law and justice have been defined for more than sixty years, one's eyes are inevitably drawn to the frieze that borders the ceiling some fifty feet above. Encircling the courtroom from a lofty perch, as if symbolizing a heavenly host, are the carved images of eighteen great law-givers, ranging from Hammurabi and Justinian to Blackstone. In the very center of the relief, high over the seat of the Chief Justice, is a symbolic figure balancing a rounded tablet containing ten Roman numerals. The image is as unmistakable as the message it portrays: the Ten Commandments, a religious document central to Jewish and Christian faiths, is being offered as a primary source of American law.It is axiomatic that many of the principles contained in the Ten Commandments are fundamental to the Western legal tradition. Prohibitions on murder, theft, and perjury are found in nearly every legal code. Notions of respect for one's parents and admonitions against adultery are also implicit, if not explicit, in the quasi-legal realm of normative rules that order many societies. Few people, if any, would dispute that the Ten Commandments—and its parallels from other ancient cultures—as well as other directives contained in the Pentateuch of the Hebrew and Christian Scriptures, inform our notions of right and wrong and, as such, have influenced the development of Western law of which the American legal system is part.
11 citations
TL;DR: On the grounds of an (essentially) Roman Catholic moral theology and political philosophy, Michael J. Perry as mentioned in this paper argues for positions that vindicate the accent of recent popes on human rights as both a matter of faith and of reason.
Abstract: On the grounds of an (essentially) Roman Catholic moral theology and political philosophy, Michael J. Perry states and argues for positions that vindicate the accent of recent popes on human rights as both a matter of faith and of reason—positions I believe to be largely valid and that could gain even stronger support from a Reformed Christian philosophical theology. This should not be surprising, for the Catholic tradition was the common tradition for centuries, it deeply stamped the legal structure of the West that gave rise to “rights talk,” and those strands which led to human rights in its modern form were implicitly in it, even if they were strengthened by the struggles of Protestants to establish a right to convert and, later, to advocate the freedom of religion on spiritual, intellectual, and organization grounds. Perry knows, as most Catholic and Protestants believe, that social morality is unavoidably linked to religion, that these matters can be discussed in public discourse, and that it is fateful for politics, law, social well-being and international relationships to do so. These matters are made clear not only in this book, but also in his earlier Love and Power: The Role of Religion and Morality in American Politics, The Constitution and the Courts: Law or Politics and Religion in Politics: Constitutional and Moral Perspectives. In the present book, as in the other remarkable products of this decade, we find Perry engaged not only with contemporary political philosophy and jurisprudence, which are largely secular in outlook, but with a number of scholars who are concerned with what David Tracy has called “public theology,” a term which several Protestants as well as Catholics have adopted—although in somewhat different ways.
7 citations
TL;DR: The dialectical opposition and interaction of the secular and the spiritual realms of life has deep roots in Christian thought as mentioned in this paper, and the concept of "the law of the spirit" has been applied to the society in which he lived, drawing a sharp contrast between the sinful and indeed, Satanic character of the temporal "earthly city" and the purity of the eternal "city of God".
Abstract: The dialectical opposition and interaction of the secular and the spiritual realms of life has deep roots in Christian thought. Jesus enjoined his challengers to “render unto Caesar the things which are Caesar's and unto God the things that are God's” (Matt 22:21). To his disciples he said, “That which is born of the flesh is flesh, and that which is born of the Spirit is spirit” (John 3:6), and “except a man be born of … the Spirit, he cannot enter the kingdom of God.” (John 3:5).St. Paul, in turn, contrasted “the inward man,” who delights in “the law of God,” with one who is “in the flesh,” the law of whose “members” wars against “the law of the spirit” (Rom 7:5-7, 22-23). He listed among the “spiritual gifts” implanted by God in followers of Christ the gifts of wisdom, of knowledge, of faith, of healing, of miracles, and of prophecy (1 Cor 12:1-7). The spiritually minded inner-directed follower of Christ fights against the materialism of the unredeemed age, the time-bound world, into which he was born.Four centuries later St. Augustine applied this concept to the society in which he lived, drawing a sharp contrast between the sinful and, indeed, Satanic character of the temporal “earthly city” and the purity of the eternal “city of God.” For St. Augustine, both the church and the empire lived in an evil age, in hoc maligno saeculo, in which the true Christian, whether priest or layman, was, in effect, an alien. In Peter Brown's words, “For Augustine, this saeculum is a profoundly sinister thing. It is a penal existence … it wobbles up and down without rhyme or reason.” In the City of God, on the other hand, Christian spirituality, for St. Augustine, was effectuated through the “vestiges” of the tri-une God implanted in human memory and imagination, human reason and understanding, and human desire and love.
TL;DR: The authors argue that an accommodationist approach to Church-State relations provides the most appropriate interpretation of the Irish Constitution, however this accommodationist interpretation is however incompatible with Ireland's system of almost exclusively denominational education, in which denominational schools of all the Churches are funded.
Abstract: In this article I argue that an accommodationist approach to Church-State relations provides the most appropriate interpretation of the Irish Constitution. This accommodationist interpretation is however incompatible with Ireland's system of almost exclusively denominational education, in which denominational schools of all the Churches are funded.
TL;DR: In this article, Asad's argument can be demonstrated in Sri Lanka, where the implantation of a "secular government" during colonial times by the British profoundly altered the relationship between Buddhism and the inhabitants of Sri Lanka.
Abstract: In order to understand the changes that occurred in the Buddhist Sangha (monastic community) in Sri Lanka during and after colonialization by the British, it is first necessary to understand the situation of Buddhism prior to colonialization as well as the relationship of Buddhism to secular power and the idea of civil law.Location is crucial to understanding the position of Buddhism in Sri Lanka. Sri Lankan Buddhism definitively changed the Indian model's relationship of the Sangha to the political order. From the earliest times Sri Lankan Buddhism was connected to kingship and to the geographic space of the island of Sri Lanka, in a way that seems unique in Buddhist history. In Sri Lanka the Buddhist king was not answerable to a ‘god’, but was elected by the Sangha and other high ministers and was required to patronize the Sangha and enforce social stability.In his critique of Clifford Geertz, Talal Asad claims that religion is not just a symbolic system but a system of power, in many cases, one that is totalizing in character. Asad's argument can be demonstrated in Sri Lanka, where the implantation of a ‘secular government’ during colonial times by the British profoundly altered the relationship between Buddhism and the inhabitants of Sri Lanka. The modern idea of religion as divorced from power succeeded in dislodging the influence that Buddhism had over Sri Lankan politics, but only for a short time.
TL;DR: A two thousand year old Palestinian legend tells of a wouldbe pagan convert approaching the two great sages of the day, Shammai and Hillel, and asking both in turn to capture the essence of Judaism while standing on one foot as mentioned in this paper.
Abstract: A two thousand year old Palestinian legend tells of a wouldbe pagan convert approaching the two great sages of the day, Shammai and Hillel, and asking both in turn to capture the essence of Judaism while standing on one foot. Shammai snapped at the arrogant young man and drove him off with a stick. Hillel accepted the challenge: "What is hateful unto you, do not unto your neighbor. The rest is commentary-now go and study."** Were the exhortation to forebear conduct toward others that
TL;DR: The notion of ts'aqah is derived from the Hebrew word for "justice" as mentioned in this paper, and it is often misapplied by Jews to describe any contribution to a not-for-profit organization (including taxes), regardless of how the contribution is actually used.
Abstract: It is often noted that the term “ts'daqah” is derived from the Hebrew word for “justice.” However, this observation is rarely accompanied by a historically valid definition of the sort of justice assumed to inform Jewish sources on the issue. The dichotomizing of “ts'daqah” and “charity,” commonly offered in place of such a definition, oversimplifies the complex connotations of both terms. The observation that “justice” is “obligatory” or “compulsory,” whereas “charity” is a voluntary act of love, also falls short. It is true that halakhah tends to be expressed in terms of obligations rather than rights, and that this tendency has played a major role in shaping rabbinic sources on support of the poor. As Moshe Silberg notes in the course of his analysis of the moral underpinnings of Jewish law, “[the halakbah] is not primarily concerned with the indebtedness to the claimant, but with the obligation to the debtor, with his religio-moral obligation … and it is only as though in a side effect, as a secondary result of the process, does the claimant receive his money.” Nevertheless, “obligatory giving” is by itself an incomplete characterization of the conceptual structure of ts'daqah.Moreover, beyond these theoretical considerations, confusion concerning the meaning of ts'daqah also has practical implications. The term is frequently misapplied by Jews to describe any contribution to a not-for-profit organization (excluding taxes), regardless of how the contribution is actually used. Jewish communal fund-raisers regularly refer to contributions to sundry funds and projects as ts'daqah, whether the ultimate destination of a contribution is assistance to poor people, construction of a new swimming pool at a Jewish community center, or the salary of a fund administrator.
TL;DR: Perry's The Idea of Human Rights as mentioned in this paper is a major contribution to the clarification of the idea of human rights, which he considers to be, for many, the most difficult of all the influential moral ideas to take center stage in the twentieth century.
Abstract: Michael J. Perry's The Idea of Human Rights. Four Inquiries is a major contribution to the clarification of the idea of human rights, which he considers to be, for many, the most difficult of all the influential moral ideas to take center stage in the twentieth century. He argues that it is, "in one form or another," an "old idea" and opens his Introduction with a quotation from Leszek Kolakowski dismissing the assertion that "the idea of human rights is of recent origin." For someone who is as ready to admit being a "secular enthusiast of human rights" as the author of this comment, Perry's denial of the fact that human rights constitute a recent phenomenon certainly "poses a problem."'1 The problem is really essential with regard to Perry's foundational conviction advanced in Chapter I, where he claims that the idea of human rights is ineliminably, inescapably, religious, and that so is the view that "every human being is sacred."
TL;DR: Perry as mentioned in this paper argues that the idea of human rights is ineliminably religious and that human rights require affirming that each person is "sacred in relation to a holistic view of the world and its meaning, so that there are certain things that should not be done to and that should be done for any person".
Abstract: Michael Perry has written a nuanced, insightful, provocative, often sensible, frequently convincing, and ultimately perplexing book. I am not sure what his thesis is. Since he titles the book as a series of “inquiries,” perhaps he doesn't have a unified thesis, or need one. And as an extended set of ponderings over the complexities of defining and defending human rights, this book certainly “works.”The book's apparent thesis is set out in the introduction and repeated frequently thereafter: that it is not possible to understand talk about human rights, such as that contained in the International Bill of Human Rights, in secular terms. Instead, “the idea of human rights is … ineliminably religious.” This is so because the idea of human rights requires affirming that each person is “sacred” in relation to a holistic view of the world and its meaning, so that there are certain things that should not be done to and that should be done for any person. The only sort of view of the world and of the person within it that can ground the idea of human rights is a religious view, Perry suggests; there is no secular equivalent.
TL;DR: The authors make no claim to represent the Islamic position on Affirmative Action and do not claim to be a member of the Islamic community. But they do claim to have a common scriptural heritage and to a significantly lesser extent, a common intellectual one.
Abstract: This essay must begin with a point of clarification that is critical for those unfamiliar with Islam. While it is my belief that the view I present represents an Islamic position on Affirmative Action, I make no claim to represent the Islamic position. For far from constituting a monolith, as American public perception has it, the Muslim population in the United States is a heterogeneous amalgamation of somewhere around six million people. And while it is true that as Muslims—immigrant and native-born—they share a common scriptural heritage and, to a significantly lesser extent, a common intellectual one, it is also true that their lives, and hence their priorities and thinking, are informed by historical, cultural, political and social realities that are in many instances unrelated to each other and in some instances diametrically opposed. On such recognition, it should not stretch credulity to imagine a Muslim adopting a position on a topic like Affirmative Action that is, on the one hand, diametrically opposed to my own yet, on the other hand—at least prima facie —equally justified in its claim to be Islamic. In the present atmosphere, where Western ignorance and bias only adds to the tendency among Muslims to react in ways that promote rather than discourage stereotyping and essentialist readings of Islam, it would seem only fitting to insist that before we rush to catalogue the Islamic position on a matter like Affirmative Action, we first hear from a lot more voices from within the Muslim community.
TL;DR: The idea of human rights as traditionally understood has been examined in the last half of the 20th century as mentioned in this paper, and the latter half of this century has witnessed both the rise of human-rights language in international law, and the erosion, if not the collapse, in the intellectual sphere of the theoretical underpinnings of human human rights.
Abstract: Michael Perry's The Idea of Human Rights raises important and difficult issues. One such issue, reformulated, is whether the latter half of the twentieth century has witnessed both the rise of human rights language in international law, and the erosion, if not the collapse, in the intellectual sphere of the theoretical underpinnings of human rights as traditionally understood. This is part of a broader tension, in which the advance of broadly liberal values has coexisted with increasing skepticism about the objectivity of ethics, freedom of the will and genuine moral responsibility, meaningfulness in a natural order, and the irreducibility of mind.
TL;DR: In the mid 1970s, I attended one of the early conferences on Alternative Dispute Resolution (ADR). It was held in Stanton, Virginia in the heart of Mennonite country as discussed by the authors.
Abstract: In the mid-1970s, I attended one of the early conferences on Alternative Dispute Resolution (ADR). It was held in Stanton, Virginia in the heart of Mennonite country. At that point, very few people had heard of ADR, but almost all acknowledged that the civil litigation system was broken. The bar establishment was willing to look almost anywhere for help. There were American Bar Association representatives at the conference, and their attitude was one of curiosity that disputes might be resolved outside the traditional litigation and negotiation processes. At the conference, some of the leading speakers were members of Mennonite dispute resolution groups. They seemed to many lawyers as if they had stepped off of another planet, but they told of a history of dealing with disputes through alternate means. They served as teachers to the ABA and the rest of us. Since then, of course, everything has changed. ADR has swept the country. It would probably be malpractice for a lawyer to not consider alternative means for resolving civil disputes.
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TL;DR: The human rights claim asserts that every human being has certain moral rights as discussed by the authors, and that a human right denotes an area in which the individual is supreme and inviolable: one's right to life ought not be sacrificed simply because a majority or its interests, so demand.
Abstract: The human rights claim asserts that every human being has certain moral rights. There are two ideas here. The first is the universality of the claim: every human being, no matter how weak, detested or criminal, counts morally. The second idea concerns how they count. Unlike a person's vote, which counts but can be disregarded if outnumbered, a human right denotes an area in which the individual is supreme and inviolable: one's right to life ought not be sacrificed simply because a majority, or its interests, so demand. Any theory of human rights, then, must account for both of these aspects. It must give the right sort of answer to the two questions, “who counts morally” and “how do we count them?”
TL;DR: The question whether a given pronouncement is infallible or not is itself debatable, and can generally not be infallibly resolved as mentioned in this paper. But for most pronouncements no such claim is made, and we are confronted with an array of assertions of varying provenance to which we are expected to give some measure of credence, even though we have no guarantee that they are true, or even that their authors are particularly well-informed.
Abstract: Petruchio: I will not go today; and ere I do It shall be what o'clock I say it is. Hortensio: Why, so, this gallant will command the sun. Scrope, C.J.: I remember it well, but I can have no knowledge of it in my capacity as judge. The Catholic Church claims a wide authority to make pronouncements on faith and morals, and have them respected by members of the church. The nature and extent of the respect to be accorded them is subject to considerable debate, some of it both extensive and acrimonious. It is claimed, to be sure, that certain pronouncements are infallible; if so, they are obviously beyond debate. But for most pronouncements no such claim is made. Furthermore, the question whether a given pronouncement is infallible or not is itself debatable, and can generally not be infallibly resolved. We are confronted, therefore, with an array of assertions of varying provenance to which we are expected to give some measure of credence, even though we have no guarantee that they are true, or even that their authors are particularly well-informed. They take their authority from that of the church, which in its corporate capacity is the repository of God's Revelation, and the beneficiary of His guidance.
TL;DR: Schmidt was one of the first Jehovah's Witnesses to lose his job at the Pittsburgh Plate Glass Works No. 12 in Clarksburg, West Virginia, for refusing to salute the flag.
Abstract: Paul Schmidt "came to work uneasy about what might happen."1 To avoid losing his job, he had done as much as his conscience would allow. Now on December 19, 1941, faithful to his beliefs as a Jehovah's Witness, Schmidt refused to salute the flag in order to keep his well-paying job. He was a journeyman window-glass cutter at the Pittsburgh Plate Glass Works No. 12 in Clarksburg, West Virginia. The day before, workers at the plant had conducted a flag-salute ceremony at the end of the workday, and the company's managers encouraged all employees to attend. Schmidt and five other Jehovah's Witnesses, in an effort to avoid a conflict, left work before the ceremony started.2 Schmidt was first of those workers to lose his job for adhering to his beliefs; over the next several days, the other Jehovah's Witnesses were fired or resigned under pressure because others in the plant refused to work with them.3 On December 24, Schmidt's son, Bernard, was the last Jehovah's Witness to be fired.4 The firing of Paul Schmidt and his struggle to defend his religious liberty provide a valuable case study of a citizen