Galanis on Religion and Nature in the Enlightenment

Panagiotis Galanis, National Kapodistrian University of Athens, has published Religion and Nature in the Enlightenment. Here is the abstract.

The Enlightenment transformed the relationship between religion, nature and law. Nature ceased to function solely as an object of theological explanation and increasingly became a normative vocabulary through which political authority, rights and religious belief could be assessed. The appeal to nature took several distinct forms. Natural law provided a standard superior to positive command; natural rights located fundamental entitlements in the person prior to the state; natural religion sought religious truth accessible to reason independently of ecclesiastical revelation; and the scientific image of an ordered universe encouraged the idea that public reason could distinguish civil interests from theological claims. This study examines the legal significance of that transformation. It argues that the Enlightenment did not simply replace religion with secularism. Rather, it reorganised the relation among religion, nature and political authority. Locke used natural rights and limited government to restrict the magistrate's religious competence. Spinoza naturalised biblical interpretation and defended the freedom to philosophise. Voltaire connected natural reason with toleration and criticism of confessional persecution. Rousseau converted religion into a constitutional problem through the category of civil religion. Hume destabilised rational proofs of natural theology and thereby weakened claims to public coercion based upon metaphysical certainty. Kant relocated religion within the limits of reason and moral autonomy. These intellectual movements contributed to a legal transition from confessional government to constitutional freedom of conscience. The study further considers the constitutional crystallisation of this transition in the American Declaration of Independence of 1776, with its reference to the Laws of Nature and of Nature's God, and in the French Declaration of the Rights of Man and of the Citizen of 1789, which proclaims natural and inalienable rights while expressly protecting religious opinions. It concludes by analysing the continuing relevance of the Enlightenment synthesis for contemporary freedom of thought, conscience and religion under international and European human-rights law.

Download the article from SSRN at the link.

Witte's Foreword to Law and Christianity in Japan: The Legacy of the Great Jurists

John Witte, Emory University School of Law, is published "Foreword" to Law and Christianity in Japan: The Legacy of the Great Jurists (Grzegorz Blicharz, Kevin Doak, and Jonghyu Jeong, eds., Routledge, forthcoming 2026). Here is the abstract.

This is a brief foreword to the first comprehensive study in English of the interaction of law and Christianity in Japan over the past century and a half. The volume offers a score of case studies of major Japanese and European legal thinkers to illustrate the distinctive development of Japanese legal ideas and institutions-concerning civil and criminal procedural rights, natural law theory, rule of law, constitutional monarchy and democracy, separation of powers, and the delicate balance of protecting religious and cultural freedoms in a country where Christianity is still relatively young. What has helped to make Japanese law so distinctive is its remarkable transplantation and integration by inventive jurists of various legal norms and procedures of indigenous legal traditions, European civil law, and Anglo-American common law during a century or more of rapid and dynamic social transformation.

Download the foreword from SSRN at the link.

Mahardhika on The Spirit Before Law: A Philosophical Reconstuction of Javanese Spirits as Sacral Social Control

Jimmy Mahardhika, Inspired Research Collective, has published The Spirit Before Law: A Philosophical Reconstruction of Javanese Spirits as Sacral Social Control. Here is the abstract.

Javanese spirits function as pre-juridical institutions of sacral social control. Their philosophical significance lies in the claim that normativity can be topographical: place itself can command before law speaks. In the Javanese spirit-world, authority is not only spoken by elders, written into rules, or centralised in institutions; it is distributed across houses, graves, trees, watersources, village boundaries, forests, mountains, ritual sites, and zones felt as angker. Dhanyang, cikal-bakal, punden, ancestral guardians, and village rituals organise conduct by transforming space into obligation, ancestry into authority, ecological boundaries into moral limits, invisible sanction into self-regulation, and sacred atmosphere into social compliance. The method is structural-philosophical reconstruction rather than empirical genealogy: the central question is not what Javanese spirits are believed to be, but what they do as structures of normativity. Internal Javanese vocabularies—rasa, pamali, kualat, laku, eling-waspada, memayu hayuning bawana, and jagad cilik–jagad gedhe— ground the analysis in local categories while preserving its philosophical scope. Sacral social control is distinguished from Durkheim’s general theory of the sacred by specifying the mechanisms through which sacred force becomes operational: spatialised authority, atmospheric prohibition, ritual mediation, ecological hesitation, cultivated rasa, fear of kualat, and the threshold at which communal order becomes domination through monopoly of interpretation. The question is not whether spirits exist, but what kind of world becomes possible when land, ancestors, places, and prohibitions are experienced as watched, inherited, and dangerous.

Download the article from SSRN at the link.

Savage on Slavery and the Myth of Religious Liberty

Audra Savage, Wake Forest University School of Law, has published Slavery and the Myth of Religious Liberty at 51 BYU Law Review 1363. Here is the abstract.

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and—through hard work, perseverance, and righteous rebellion—built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America, with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the myth of religious liberty that has influenced the Supreme Court’s adjudication of constitutional claims related to the First Amendment Religion Clauses. This Article provides the missing gap in the Court’s religious liberty story by exploring the historical role played by law and religion in the development of slavery in America. It describes the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It ends with insight into the countervailing forces of establishing slavery while disestablishing religion at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article ensures that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Download the article from SSRN at the link.

Wieboldt on "Shall We Settle for Anything Less Than Complete Equality?" Catholic Power and the First National Fight for Parental Rights in Education, 1947-1962

Dennis J. Wieboldt, III, University of Notre Dame, is publishing "Shall We Settle for Anything Less Than Complete Equality?" Catholic Power and the First National Fight for Parental Rights in Education, 1947-1962 at 34 Rel. & Am. Cul.-- (2026). Here is the abstract.

After the Supreme Court incorporated the Establishment Clause against the states in Everson v. Board of Education (1947), raucous national debates broke out between Protestants, Catholics, and Jews about the constitutionality of government aid to parochial schools. This article offers the first account of how these interconfessional hostilities shaped the Catholic Church's parochial school litigation strategy after Everson. To undercut claims that government aid to parochial schools would perniciously enrich the (Roman) Catholic hierarchy, the Church's public spokesmen increasingly framed debates about parochial school aid after Everson as implicating the constitutional rights of American parents to direct the religious upbringing of their children. In so doing, these figures eschewed arguments made in the eighteenth and nineteenth centuries that the government has an obligation to fund institutional religion. Moreover, to prevent anti-Catholic prejudice from impacting the disposition of discrete church-state disputes, lawyers associated with the Catholic bishops' official episcopal organization sometimes refrained from publicly involving themselves in local litigation, all while privately supplying litigants with strategic counsel. In concluding, this article suggests that the Church's post-Everson approach to defending the constitutionality of parochial school aid was motivated by a consistent conviction that parents who sent their children to Catholic schools ought to be treated in the same manner as parents who sent their children to other nonpublic (but non-Catholic) schools. When the scope of government aid to nonpublic schools grew in later years, this argument could therefore be invoked to support parochial schools' equal inclusion in more robust aid programs.

Download the article from SSRN at the link.

Piano and Piano on The Medieval Origins of Spousal Consent

Clara Piano, University of Mississippi Department of Economics, and Enio Piano have published The Medieval Origins of Spousal Consent. Here is the abstract.

This paper examines the medieval origins of spousal consent, the norm requiring that marriages be contracted willingly and free from pressure from third parties. We argue that this norm resulted from the Catholic Church’s consolidation of legal authority over marriage in Western Europe in the 11th-12th centuries. Committed doctrinally to the belief that marriages could not be dissolved and that remarriage was therefore impermissible (i.e., marriage indissolubility), the Church was compelled to enforce high consent requirements to the formation of new unions. Using a simple theoretical model, we show that the Church’s optimal level of spousal consent is higher when remarriage is not allowed. Higher consent requirements mitigate the negative effect of indissolubility on the number of marriages contracted. The development of a theory of spousal consent marked a sharp break from pre-Christian practice, which gave parents substantial control over the choice of spouse. It also contrasted with Eastern Orthodoxy and Protestantism, both of which permitted remarriage after divorce. Our analysis suggests that the Church’s insistence on free consent was a necessary institutional complement to its unique stance on indissolubility, shaping marriage law and family structure in ways that reverberated throughout European history.

Download the article from SSRN at the link.

Call For Papers: The Law of the Liturgies and the Liturgies of the Law: Finding Common Ground Between Law and Religion in Ritual Speech and Performative Action

From Judith Hahn, University of Bonn, and Emory University, Center for the Study of Law and Religion:

As scholars with an interest in the intersection of law and ritual (or law and magic), I would like to draw your attention to the attached Call for Papers. Pamela Slotte Russo (Helsinki), Oliver Wright (Oxford), and I are organizing the conference (and edited volume), The Law of the Liturgies and the Liturgies of the Law: Finding Common Ground Between Law and Religion in Ritual Speech and Performative Action. The conference will take place 14–16 September 2026, at Magdalen College, University of Oxford. It may be of interest to you or others in your network who work at the broader intersection of law and ritual. We encourage submissions from emerging researchers and would be grateful if you could also share this call with your postdocs who might be interested in contributing. The conference is funded, so costs for accommodation and travel are covered. The call is open until 28 February 2026. Any questions, please do not hesitate to reach out.

          Judith Hahn 

Professor of Canon Law Seminar of Canon Law | University of Bonn Rabinstraße 8 | 53111 Bonn | Germany McDonald Distinguished Senior Fellow Center for the Study of Law and Religion | Emory University

New From Hart Publishing: Picart on Countering Jihadi Cool: Narrative, Law, and Philosophy Against Global Jihad (2025)

New from Caroline Joan "Kay" S. Picart, Countering Jihadi Cool: Narrative, Law, and Philosophy Against Global Jihad (Hart Publishing, 2025).

Here from the publisher's website is a description of the book's contents.

Using an aesthetic culture and techniques termed as jihadi cool, terrorist groups have been able to recruit members from around the world, so how do we begin to respond? This book analyzes the rhetorical and ethical dynamics of a culture of jihadi cool/chic, and why these rhetorical and aesthetic techniques have been such a powerful recruitment force for particular transnational terrorist groups. The author uses an evidence-based approach, with frameworks derived from law, politics, philosophy, rhetoric, feminist theory, and communication studies, to examine various attempts to construct counter-narratives to the jihadi cool master narrative. The book closes with an examination of how to begin to respond critically and effectively to the lure of jihadi cool.

Savage on Slavery and the Forgotten History of Religious Liberty

Audra Savage, Wake Forest University School of Law, is publishing Slavery and the Forgotten History of Religious Liberty in the BYU Law Review (2025-26).

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and, through hard work, perseverance and righteous rebellion, built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the Supreme Court’s reliance on the “history and tradition” of religious liberty when adjudicating constitutional claims related to the First Amendment Religion Clauses. This Article fills in the missing gap in the Court’s “historical practices and understandings” methodology by exploring the historical role played by law and religion in the development of slavery in America. It will describe the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It will then describe the legal and religious practices involving the enslavement of Africans. It will end with insight into the countervailing forces of bondage and freedom at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article will ensure that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Download the article from SSRN at the link.

ICYMI: Buckles on Bob Jones University v. United States: A Journey Through Scriptures and History

ICYMI: Johnny Rex Buckles, University of Houston Law Center, has published Bob Jones University v. United States: A Journey Through Scripture and History in Law and Religion: Cases in Context (Leslie C. Griffin ed., 2010). Here is the abstract.

In Bob Jones University v. United States, the United States Supreme Court held that two schools maintaining racially discriminatory policies as to students failed to qualify for federal income tax exemption as organizations described in section 501(c)(3) of the Internal Revenue Code. A contextual analysis of Bob Jones University offers insight into a politically charged, historically important controversy rooted in biblical and theological compromise under the pressures of Southern fundamentalist education in the twentieth century. Fundamentalist and segregationist impulses combined with an obsequious deference to founding visionaries to produce admissions policies that betrayed the schools’ underlying religious principles.

Download the chapter from SSRN at the link.

Cooper on A Sin for the Sake of Heaven: Vigilante Heroes in Law and Culture. An Old-New Paradigm

Levi Cooper, Bar-Ilan University Faculty of Law, has published A Sin for the Sake of Heaven: Vigilante Heroes in Law and Culture. An Old-New Paradigm עבירה לשמה: גיבורים נוקמים במשפט ובתרבות in Probing Human Dignity: Exploring Thresholds from an Interdisciplinary Perspective (Stephanie N. Ariel, Levi Cooper, and Vanessa Hellman, eds., Springer, 2024).

This article explores the halakhic concept of aveira lishmah (“a sin for its own sake”) as a theoretical lens for analysing cases where violations of human dignity are debated as morally justified in extreme circumstances, such as the “ticking time-bomb” scenario. The study examines two landmark German cases: the interrogation under duress of a child kidnapper to locate the victim and the Federal Constitutional Court’s decision to invalidate a provision in the Aviation Security Act that would have permitted the downing of hijacked passenger aircraft turned into weapons of terror, akin to the 9/11 attacks. While German law strictly prohibits such infringements on human dignity, these rulings provoked public and institutional dissonance: they were legally necessary yet emotionally unsatisfying. The article draws compelling parallels between these legal dilemmas and vigilante heroes in popular culture—Dirty Harry, Batman, Captain America, and Jack Bauer from 24—who embody a fundamental moral paradox: society officially condemns human dignity violations but emotionally invests in figures who employ such measures for ostensibly just ends. The concept of aveira lishmah offers a distinctive analytical perspective. Unlike traditional criminal law defences and justifications, it acknowledges that certain acts may be morally necessary while still requiring punishment. This paradox—where an action is simultaneously righteous and criminal—captures the tension in both real and fictional cases. The article concludes by critically assessing whether a version of aveira lishmah could be integrated into contemporary legal frameworks. The article ultimately argues that legal systems, committed to clarity and predictability, cannot sustain a category that simultaneously mandates action and imposes liability. Nonetheless, the concept provides a valuable lens for understanding deep-seated instinctive responses to extreme moral dilemmas. המאמר בוחן את הרלוונטיות של המושג ההלכתי "עבירה לשמה" כמסגרת תיאורטית להתמודדות עם פגיעות הכרחיות בכבוד האדם, כדוגמת תרחיש "הפצצה המתקתקת". המחקר נפתח בניתוח שני מקרים מהמשפט הגרמני: הראשון עוסק בחקירה תחת איומים ועינויים של חוטף ילד, במטרה לחשוף את מיקומו של הקורבן; השני דן בהחלטת בית המשפט החוקתי הפדרלי לבטל סעיף בחוק הביטחון האווירי שהתיר הפלת מטוס נוסעים חטוף שהפך לכלי טרור, בדומה לאירועי 11 בספטמבר. אף שהחוק הגרמני אוסר פגיעה בכבוד האדם בנסיבות אלו, ההחלטות עוררו ביקורת ציבורית. קופר משווה מקרים אלה לייצוגים תרבותיים פופולריים כגון דירטי הארי, באטמן, קפטן אמריקה וג'ק באואר בסדרה 24. דמויות אלו ממחישות את הדילמה המוסרית: בעוד הציבור דוחה פגיעה בכבוד האדם באופן עקרוני, הוא מזדהה עם גיבורים הנוקטים באמצעים אלו להשגת מטרות ראויות. המושג "עבירה לשמה" מציע זווית ראייה ייחודית לסוגיה. לפי פרשנויות מסוימות, מושג זה מכיר בנחיצות של מעשה אסור בנסיבות מסוימות, אך עדיין מחייב ענישה של מבצע העבירה. בניגוד להגנות המוכרות במשפט הפלילי, גישה זו מותירה את האחריות הפלילית על כנה, גם כאשר המעשה נתפס כמוצדק מבחינה מוסרית. המאמר מסתיים בבחינה ביקורתית של האפשרות ליישם גרסה מודרנית של "עבירה לשמה" במערכות משפט עכשוויות. קופר מעלה ספקות בדבר התאמתו של המושג למסגרת המשפטית המודרנית, מחויבת לעקרונות של ודאות משפטית ויכולת חיזוי של תוצאות משפטיות.

Download the chapter from SSRN at the link.

Bray and Keane on James Ussher (1581-1656)

Samuel L. Bray, Notre Dame Law School, and D. N. Keane, Georgia Southern University, are publishing James Ussher (1581-1656) in Christianity and the Making of Irish Law: Violence, Virtue, and Reason (David McIlroy ed., forthcoming 2025). Here is the abstract.

In the seventeenth century, James Ussher was the Archbishop of Armagh and Primate of the Church of Ireland. Now remembered for his risible dating of creation, in his lifetime he was widely regarded as one of the most learned persons in the British Isles if not in Europe. This chapter explores Archbishop Ussher's ideas that have significance for law. In particular, it considers his commitment to absolute monarchy, even as the tide was flowing toward a more assertive Parliament; his proposal for "reduced episcopacy," a form of conciliar ecclesiastical government; and his insistence that each national church have its own canon law. This chapter takes the measure of these contributions and also of their contributor. Ussher was a Janus-like figure of contradictions—staggering in how much he knew, and now remembered mostly for what he did not know; widely renowned in his time for his moderation, yet repressive to Irish Catholics; a royalist bishop who was deeply admired by both King Charles I and the rebels who beheaded him.

Download the essay from SSRN at the link. 

Funk on Sect and Superstition: The Protestant Framework of American Codification @kellenfunk.bsky.social @ColumbiaLaw

Kellen Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History (2024). Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Stolzenberg on The Legal Imagination and the Protestant (Dis) Establishment @nomideplume1 @USCGouldLaw

Nomi Maya Stolzenberg, University of Southern California School of Law, has published The Legal Imagination and the Protestant (Dis) Establishment. Here is the abstract.

The Legal Imagination is a quintessentially liberal imagination–or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern Establishment or, more significantly, the Protestant Establishment. In this essay, I take seriously the Protestant dimension and the intellectual dimension of “the Establishment” and the broader Protestant intellectual culture of which, I argue, White’s book is a part. I locate the book in the transformations that were taking place in American intellectual and political culture in the turbulent years of its birth (the 1960s and early 1970s), and in the longer history of religious disestablishment and of liberal Protestantism’s battles with non-mainline Protestantism, on the one hand, and Catholicism, on the other. Focusing on a pivotal event that took place on the Cambridge Common, whose phantom hovers entre les lignes of one of the readings that appears in the book—an anti-war protest that turned violent—this essay considers the extent to which the conservative legal movement has been shaped by the conservative attack on the liberal establishment that emerged in this time period, in particular, conservative Catholic and fundamentalist Protestant attacks on the liberal establishment and on the liberal (Protestant) imagination so beautifully rendered in James Boyd White’s instructional book.

Download the essay from SSRN at the link.

Wieboldt on Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 @DennisWieboldt @NotreDame

Dennis J. Wieboldt, III, University of Notre Dame, has published Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 at U. S. Catholic Historian 41 (2023). Here is the abstract.

Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.

Download the article from SSRN at the link.

Crowe on Natural Law With and Without God @drjoncrowe @unisqaus @AusJLR

Jonathan Crowe, University of Southern Queensland, School of Law and Justice, has published Natural Law with and without God at 4 Australian Journal of Law and Religion 17 (2024). Here is the abstract.

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.

Download the article from SSRN at the link.

Levine on Law and Redemption: Expounding and Expanding Robert Cover's Nomos and Narrative @TouroLawCenter

Samuel J. Levine, Touro University Law Center, has published Law and Redemption: Expounding and Expanding Robert Cover’s Nomos and Narrative at 34 Yale J. L. & Human. 253 (2023). Here is the abstract.

The article explores two interrelated themes that distinguish much of Robert Cover’s scholarship: Cover’s reliance on Jewish sources and his efforts to redeem American law and constitutionalism. These themes figure most famously, and in some ways most notably, in Cover’s groundbreaking Nomos and Narrative, published in 1983 and widely considered among the most significant law review articles ever written. Though less well-known, Cover’s unfinished and posthumously published book chapter, Bringing the Messiah Through the Law: A Case Study, expands upon these themes, relying more directly on Jewish law and legal history to illuminate Cover’s conceptions of legal redemption. The Article maintains that, taken together, these two pieces provide complementary views of Cover’s approach, demonstrating, at once, both the potential and the limitations of the redemptive power of law within the American legal system. The article begins with a close reading of Nomos and Narrative, noting Cover’s disappointment with American law’s failure to implement a redemptive response to the legal and societal wrongs of slavery and racial discrimination. The article then turns to Bringing the Messiah, which extends and applies Cover’s vision of law as a bridge to an alternative future, considered through the express lens of Jewish legal history. The article further examines the redemptive and transformative power of law in the context of both legal and narrative areas of Jewish tradition, suggesting that the law must acknowledge and respond to the faults of the past to allow for repentance and reconstruction toward a redeemed future. Finally, the Article closes with the proposition that perhaps Cover’s frustration with the redemptive failure of the American legal system reflects a failure of American law and society to undertake a full accounting of collective culpability for past wrongs, leaving unfulfilled a prerequisite for reconciliation, reconstruction, and redemption.

Download the article from SSRN at the link.

Akande on An Imperial History of Race-Religion in International Law @RabiatAkande @OsgoodeNews

Rabiat Akande, Osgoode Hall, has published An Imperial History of Race-Religion in International Law at 118 American Journal of International Law 1 (2024). Here is the abstract.

More than half a century after the UN’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination, a debate has emerged over whether to extend the Convention’s protections to religious discrimination. This Article uses history to intervene in the debate. It argues that racial and religious othering were mutually co-constitutive in the colonial encounter and foundational to the making of modern international law. Moreover, the contemporary proposal to address the interplay of racial and religious othering is hardly new; iterations of that demand surfaced in the earlier twentieth century, as well. By illuminating the centrality of race-religion othering to the colonial encounter and chronicling failed attempts by Europe’s “others” to secure international legal protections, this Article makes a case for crafting an attuned response in the present.

Download the article from SSRN at the link.

Oman on Property and the Latter-day Saint Tradition @nate_oman @WMLawSchool

Nathan B. Oman, William & Mary Law School, is publishing Property and the Latter-day Saint Tradition as a William & Mary Law School Research Paper. Here is the abstract.

The Mormon tradition is marked by a deep engagement with the idea of property. The Latter-day Saints have not yet developed anything as systematic as a theory of property, but there are themes that emerge from their legal tradition. The first is a deeply ambivalent stance toward the idea of property. In contrast to optimistic Lockean stories, Mormon scripture has a darker vision of ownership as a dangerous and frequently corrupting moral force. Property is something in need of redemption. The second theme of the Latter-day Saint tradition is the effort to redeem property by transforming it from the frontier of communal obligation into a nexus of duties toward others. Third, Latter-day Saint efforts to reconceptualize property led to legal conflicts in the 19th century, conflicts that forced changes on not only Mormon practices but on the very text of Mormon scripture. Fourth, while Latter-day Saints’ aspiration for Zion is utopian, their institutional engagement with property has been intensely practical and in its own way pragmatically creative. Indeed, its traces can still be seen within some corners of American law. The final theme has been the effort to turn 19th-century Mormonism’s utopian experiments into a useable past that can continue to inform the thinking of contemporary Latter-day Saints. At the heart of this project is a process that began as early as the 1840s by which what began as sacred law was transformed into sacred history.

Download the article from SSRN at the link.

Witte and Domingo, Preface, in Oxford Handbook on Christianity and Law @EmoryLaw @OUPLaw @RafaelDomingoO1

John Witte, Emory University School of Law, and Rafael Domingo, University of Navarra School of Law, are publishing Preface to Oxford Handbook on Christianity and Law in Oxford Handbook on Christianity and Law (John Witte and Rafael Domingo, eds., Oxford: Oxford University Press) (forthcoming). Here is the abstract.

This is the preface to a major new volume that tells the story of the interactions of Christianity and law -- historically and today, in the traditional heartlands of Christianity and now around the globe. Sixty new chapters by leading scholars show how Christianity helped to shape the core legal topics of public, private, penal, and procedural law and fundamental legal principles like justice, liberty, equality, and dignity. They also take up cutting edge legal issues of religious freedom, canon law, racial justice, environmental care, migration, and euthanasia. This is the first comprehensive global collection on Christianity and law and an indispensable single volume resource for scholars and students of law, religion, history, theology, politics, ethics.

Download the preface from SSRN at the link.