Were the exhortation to forebear conduct toward others that is hurtful to oneself not so often ignored in real life, its reiteration here would be wearisome. But phrased as Hillel—or as Matthew—does, it remains mostly an aspiration. In this essay, I place the prescription front and center by asking what it might mean, even in theory, to urge love for one's neighbors as for oneself in a pluralist, liberal democratic society. Is it even theoretically possible to achieve? Does it matter? Could it be realized if we treat everyone in exactly same way, and do so from within the same internally constructed frameworks that we bring to the rest of the world? Such a conclusion hardly seems likely, if love of one's neighbor contains a universal prescription for peaceful co-existence; we seem ill-prepared as a public to facilitate the norm. Hillel's vision, rooted in Leviticus, thus partakes of both the trivial and the majestic: of the trivial because it appears as a vaguely-worded, uselessly abstract appeal devoid of substance; but at the same time there's deceptive majesty because the genuine enduring sovereignty of the idea, though often heavily weighed down by the earth's sometimes dreary trappings, is undeniable.

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.

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.

In The Moral Tradition of American Constitutionalism H. Jefferson Powell relies on the work of philosopher Alasdair MacIntyre to argue that American constitutional discourse is an intellectual tradition which has reached an unresolvable epistemological crisis. Accepting this crisis, Powell narrates a Christian theological response to that crisis. This article continues to struggle with the questions that Powell's work has raised, seeking to add to Powell's arguments regarding a significant breakdown in constitutional adjudication, to consider what might be labeled as “MacIntyrian responses” to that crisis, and, finally, to present a further Christian theological response to the crisis.

In the first section, I will make the argument that there has been a significant breakdown in the constitutional tradition. This claim is supported by a summary of Powell's argument regarding an epistemological crisis in constitutional law, consideration of the Court's recent trend towards acting with a politicized understanding of adjudication, and analysis of the Court's establishment clause jurisprudence. Section II presents three proposed tradition-dependent responses to constitutional interpretation: the first, a self-styled Aristotelian mode of adjudication; the second, Yale constitutional scholar Jed Rubenfeld's “commitmentarian theory” of adjudication; and finally Phillip Bobbitt's Wittgensteinian rejection of justificatory theories themselves. In considering these responses critically, I will maintain that each fails insofar as they remain at the level of theoretical abstraction without suggesting what substantive community, other than the tradition-rejecting tradition of liberalism, could inform a tradition-dependent mode of adjudication.

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.

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.

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.

To present all the details of this argument requires a lengthy, at times detailed, at other times an only too brief summary of features of Irish law and the educational establishment. The key points to bear in mind during this presentation are the following.

The schools which educate most children until the age of 18 are usually owned by different religious bodies, and have a particular denominational ethos. In Ireland we term these “denominational” schools. Only a small number of schools are multi-denominational or non-denominational. All schools, provided they have adequate local support, and adhere to national curricula and standards, receive State funding on a non-discriminatory basis. Even though they are owned by private bodies, there is massive State involvement. The State pays for almost all of the current running costs of these schools, and makes a significant contribution to the capital costs. The State also plays a major role in designing curricula and syllabi for the courses.

This educational system, which has developed along these lines ever since 1831, has only recently come under sustained legal scrutiny. The 1937 Irish Constitution provides for judicial review and our judges have often been active in using constitutional rights and principles to correct public policy, which strays from the constitutional path. However it offers no clear answer to the obvious moral issues raised by the educational system: the text recognises the right to education, the right to religious freedom, the principle of non-endowment of religion. However it also endorses state deference to parental wishes in the field of education, and explicitly sanctions state aid for denominational schools.

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.

Paul Schmidt “came to work uneasy about what might happen.” 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. 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. On December 24, Schmidt's son, Bernard, was the last Jehovah's Witness to be fired.

The firing of Paul Schmidt and his struggle to defend his religious liberty provide a valuable case study of a citizen pursuing his rights in the face of seemingly insurmountable odds. Schmidt, a journeyman glasscutter and a factory worker, was clearly intelligent, but not an intellectual. He was not a theologian or philosopher pondering the meaning of religious doctrine; he was an ordinary working man striving to practice his beliefs in daily life. His efforts to regain his job demonstrated how legal rights can be expanded by a non-lawyer, by someone who was concerned not with points of law, but with the pursuit of justice. He aggressively sought legal protection for his right to freely exercise his beliefs and was undaunted by the ineffectiveness of most of the avenues he pursued. Schmidt's insistent, unflagging demands resulted in an unprecedented use of administrative law to expand protection for religious liberties.

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.

As a “liberal natural lawyer,” I take a good amount of ribbing from colleagues in the legal academy. I'm told my self-description is either an oxymoron or just my own “language game.” But from such a perspective, I was recently provoked to examine the post-modern enterprise by an exchange I had with an eminent Jesuit philosopher who was giving an address at a local Catholic seminary on some conflicting currents in neoscholastic philosophy.

In his formal remarks, the renowned Thomist took a rather hard swipe at post-modernism, singling out Michel Foucault and Richard Rorty for special scorn. Afterwards, in a personal chat, I asked him what he found so troubling about the outlooks of those influential, contemporary thinkers. He gave the succinct response that I should have expected from such an erudite Aristotelian. “People like Focault and Rorty,” he said “have destroyed the sense of wonder.”

Given the gentleman's stature, I took his criticism quite seriously. However I'd like to offer a broader reading of those two most notable post-moderns-commending them for the valid and important contributions they've made. But I'd also like to point out where they come up short and may even be searching themselves for something beyond the conventional understandings of their works.

Foucalt and Rorty represent two quite different strains of post-modernism. Foucault is the pre-eminent French post-structuralist while Rorty, an American, is often reviled by such radicals as a decadent moderate and an apologist for the North Atlantic bourgeoisie.

Over the past four hundred years, international law has increasingly distanced itself from the theological discourse that was once at its core. Today there is some evidence of a renewed conversation between international lawyers and those with theological expertise or concerns. But that conversation is far from advanced. With notable exceptions, theologians, within the Christian tradition at least, have implicitly heeded Albert Gentili's late 16th century warning—“Let the theologians keep silence about a matter which is outside of their province”—to the point of letting international law go its own way. At least the relationship of theology to international law is not a frequent topic at meetings of theologians, or of the books and articles which they write. As for the manner in which international law treats religion and the theological discourse that it spawns, the current vice president of the International Court of Justice remarks that, “in the twentieth century, international law has so far distanced itself from religion that the latter receives scarcely a mention in the standard treatises.” Gone are the days when those who shaped modern international law, such as Suarez and Vitoria, were also highly trained theologians. Thus from the sides of both theology and international law, there is a long way to go if we are to get back to—and move beyond—the way things once were.