Critics argue that the politics of religious rights creates the problem of religious minorities instead of resolving it. The history of debate over conversion in India reveals that appeals to religious freedom can obscure and even suppress struggles against inequality and injustice.

As one of the world’s only constitutions to recognize Theravada Buddhism as the state religion yet not include a religious exemption to the universal franchise for its monastic community, Cambodia’s Constitution stands out as an anomaly. This article traces the ways in which the realities of this remarkably inorganic approach to religion—enshrined in Cambodia’s Constitution in 1993, pursuant to a heavily internationalized peace process—have subsequently been shaped by debates occurring within Cambodia’s Buddhist institutions, rather than judicial ones. Drawing on data derived from archival research and a series of ethnographic interviews conducted during 2017 and 2018, I home in on decades-old debates about the voting rights of Cambodian monks to show how individual monks justify their participation in electoral politics through a mixture of both secular and religious arguments. The on-the-ground reality of the extension of the franchise to the Buddhist clergy in Cambodia, in other words, is ultimately shaped by an ongoing contestation within the sangha, with proponents and opponents of a religious exception grounding their arguments simultaneously in constitutional and theological vocabularies. The article sheds light on a singular constitutional arrangement—a unique relationship between religious and state institutions that has so far received relatively little scholarly attention—and highlights an instance of constitutional practice that occurs beyond the reach of both judicial and other state institutions.

Getting our definitions straight is a necessary bit of throat-clearing before we get into the argument at hand. By law I mean the process that produces and sustains the formal and public rules by which we attempt to order our life together. Law is legislating, adjudicating, administering and negotiating the allocation of rights and duties, in the hope of preventing harm, resolving conflicts, and creating means of cooperation. So I am obviously speaking of law in a quite comprehensive sense.

As for transcendence, a number of other terms might be employed. We might speak of the ontological or metaphysical basis of law. Or, in the more classical tradition, we might prefer to speak of a hierarchy of goods from which law is derived and to which law is accountable. Whatever terminology we choose to employ, the point is that the law and laws are not self-legitimating. In fact, the very term “self-legitimating” is a nonsense term. Something can only be declared legitimate by reference to something else. Indeed, at the risk of seeming pedantic, it should be noted that the adjective “legitimate” is from the past participle of legitimare which means to make legitimate, and has as its first meaning to be lawfully begotten.

On February 10, 1947, the United States Supreme Court handed down Everson v. Board of Education of Ewing Township. For scholars of the First Amendment, Everson marks the beginning of the Supreme Court's modern era with respect to church-state relations. It is easy enough to state the reason for the decision's prominence, for it was in Everson where the Establishment Clause was first “incorporated” through the Fourteenth Amendment and made applicable to the actions of all state and local governments. But just what did it mean to take the restraints on federal power that comprise the principle of no-establishment and to make them limits on the governments of the several states, as well as on the thousands of municipalities, counties, and school districts that dot the land? In Part II of these remarks, I will focus on what has occurred downstream of Everson over these event-filled sixty years. As the reader will see, I am of the belief that Everson's new deal has resulted in more good than harm for religious freedom. Still the record is mixed, as it is with most major developments. However, before going there, in Part I of this extended essay, I look back in time to recapture just what was in the bundle of restraints that all nine of the Justices in Everson said they were bringing forward via the Fourteenth Amendment and making newly binding on the many unsuspecting state and local officials.

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on “religious lawyering” is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other insights of the religious lawyering literature.

A conception of the relevance of religion to lawyers' work need not begin with a critical view of professional norms and professionalism. On the contrary, one might start with the premise that the legal profession's expectations for law practice are socially and morally laudable, and perceive lawyers' religious convictions as providing support for good lawyering. This was the understanding expressed by Henry A. Boardman, a Presbyterian Minister, in an 1849 oration that was surely among the earliest recorded reflections on the relevance of religion to the work of U.S. lawyers.

The Kairos Document presents a theological response to the deepening political crisis in South Africa which has far-reaching consequences for the Christian community in South Africa. The Document is unique because prior to June 1985 the churches tended to reflect a typical, liberal response to the ongoing political crisis. Previous resolutions of the major denominations clearly evidence this viewpoint. The only exceptions to this pattern were the Christian Institute, the University Christian Movement and the Black Theology Movement in South Africa in the early seventies. When we met as a small group of Christians to respond to the deepening political crisis in South Africa, we were very much aware of the serious confusion within the Christian community. Moreover, we knew that the prevailing theologies of our churches exhibited inadequacies and limitations for helping the Christian community to engage in the struggle for liberation.

The destruction of the state, the end of law, the dissolution of society, in which terms we can sum up the political situation today, what are these if not the end of the bourgeoisie as a class capable of guaranteeing order, of creating and keeping alive a state?

Antonio Gramsci, quoted in

J. Joll, Antonio Gramsci 77

(1977).

Oppression, it has been said, breeds resistance and struggle. This is a basic law of human development from time immemorial. Like everybody else, the oppressed and exploited peoples of South Africa yearn for and dream of freedom and justice. Though the intensity of their struggle ebbs and flows, crucial junctures have occurred during which years are the equivalent of decades in terms of the intensity of their resistance. During these critical periods, illusions, which otherwise could linger and foster acquiescence, die. It is this state of affairs that has existed since September 1984 when the South African regime moved its troops into the black townships in an attempt to crush popular resistance to apartheid. Eight months later, having failed to do so, the South African government declared a state of emergency on July 21, 1985. Since then, with the exception of a brief period in early 1986, the country has been under continuous rule by emergency power. The powers themselves have been expanded and made more draconian as the regime attempted not only to suppress resistance but to destroy alternative structures organized by the resistance.

John Calvin's (1509-64) theology, as expounded in his definitive work, the Institutes of the Christian Religion, and in his topical theological treatises, biblical commentaries and sermons, may be accurately described as a lifelong meditation on the law of God. And, as was true for the Psalmist David (Psalm 119), his meditation is characterized by delight, praise, and thanksgiving for the law, in all its various forms and uses; as a blessing, a gift of a gracious God solicitous of the welfare of his chosen people.

In order to teach this positive view of the law properly and to evoke a similar response of appreciation for the law from Christians, Calvin attempts in his theology to present “the whole doctrine of the law” or “the whole office of the law.” He takes care, therefore, to avoid some of the more common partial theological interpretations of the law of his day. Specifically, in his theology he strives: not to place inordinate emphasis on the negative, punitive function of the law, as Luther was prone to do; not to ignore the punitive function of the moral law, as the “papists” were wont to do; not to reject the benefits of civil law, as the Anabaptists tended to do; and finally, not to reject the law altogether, as the Libertines did. In response he carefully constructs a balanced and nuanced view of the law that incorporates a variety of forms and a variety of uses (both negative and positive) of the law. The following presentation of his understanding of the law in relation to creation, sin, justification, and sanctification is an attempt to summarize that complex position.

Death comes to us all. It is a reality that grips us all because we become separated from our loved ones. In all cultures, there is the hope that when death comes, it will be swift and will allow us to depart without prolonged suffering. There is also a social dimension to this inevitable event in human life: we hope that our death will not force hardship on family and friends, making them pay both financially and emotionally due to an uncertain condition that is created by a lingering spirit that does not sever its ties to the body. It is at such moments that we realize the importance of having a clear definition of death.

Brain death as a way of measuring when death comes is an issue that has recently been under scrutiny throughout the world of medicine, but it has also been hotly debated in Islamic jurisprudence as well. Thanks to advanced medical technology, it has now become possible to transplant body organs of a person suffering from brain death into the body of a needy ill person, but for the most part, successful transplantation must take place before the emergence of traditional death symptoms. Physicians and ethicists have struggled with the difficulty in offering a medical definition for brain death. The question that has arisen for Muslim jurists is whether, from the point of view of Islamic jurisprudence, someone suffering from brain death should be considered as dead for purposes of permitting transplantation of organs, or whether Muslims must treat a brain-dead patient as a living person from a legal and ethical perspective.

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.

My own beliefs about human rights have always been grounded on very concrete icons and images. Around my neck, for example, I wear a pendant made by a political prisoner in Chile. I have been privileged to meet, through Amnesty International or church connections, prisoners of conscience such as Mr. Babu, the former vice-president of Tanzania, who testify to the efficacy of human rights advocacy from a center in the first world. In Zambia and Peru, I have seen little children, whose subsistence rights have been denied, being treated for malnutrition by staff from missionary clinics. These human images and icons have led me to concrete commitments which include active membership in two international human rights organizations: Amnesty International and the Roman Catholic church as a transnational human rights network of advocacy (I am referring not only to the Vatican's participation in the United Nations and its world-wide orchestration of refugee services through Catholic Relief Services but also to more local human rights networks such as, for example, the Vicariate of Solidarity in Santiago, Chile, or, in our country, the church-sponsored sanctuary movement for refugees from El Salvador and Guatamala).

In his article, Keown articulates what I see as a basically valid reading of the implications of the texts of the Pali Canon on the issues at hand. I particularly like his formulation, ‘to deny death and cling to life is wrong, but equally wrong is to deny life and seek death.’ As the aging Arahat Sariputta says in the vv. 1002-03:

Keown focuses a fair amount of his discussion on the suicide of a few near Arahats. Though I broadly agree with his analysis of these cases, they do pertain to rather rare and exceptional types of people, while for the ordinary person, various central Buddhist values and considerations straightforwardly make it clear that suicide is highly inadvisable. While Buddhism emphasizes that there is much suffering in life, this can, paradoxically, help dissuade a Buddhist from giving in to despair. If suffering of various kinds, gross or subtle, is to be expected in life, then there is less reason for a person to take particular problems so personally—as if the world is conspiring against him or her.

A Christian state or mundus Christianus is not easy to define. It is perhaps one where the public, legal and constitutional institutions are “Christian”. (I shall leave to one side for a moment the problem of defining precisely what I mean by Christian.) T. S. Eliot believed that the Christian state was “the Christian Society under the aspect of legislation, public administration, legal tradition and form.” The “state” can refer to the country, nation, society or culture as a whole or, only to the set of governmental institutions within a country. The latter, narrower meaning is the one I wish to adopt here. I shall define the state as “the set of distinctive institutions whose authority is recognised as legally binding within the territory.”

A theocracy is undoubtedly a Christian state, indeed one par excellence. I shall refer to theocracy as a “type 1” Christian state, for here both form and substance coincide. By theocracy I mean the situation where there is ecclesiastical supremacy and the state machinery is used to further particular religious interests. The early Jewish nation, Geneva under Calvin and various Islamic states around to the world today are examples of type 1 states. In this monistic polity, membership of the church (using that as a generic term for a religious organisation) and membership of the state are coterminous. Full rights as a citizen turn upon whether one is member of the church; those outside the church are second-class citizens. But a Christian state need not necessarily be a theocracy.

In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmore's exposé of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself.

Arthur Corbin—Gilmore's mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

Several highly critical theological responses to political liberalism have appeared in recent years. John Milbank, continuing his onslaught on all things modern, complains that political liberalism's “empty heart” suffers from a “totalitarian drift” toward “an increasingly joyless and puritanical world.” For Oliver O'Donovan, liberalism is “a false posture of transcendence” and modernity is “conceived as Antichrist, a parodie and corrupt development of Christian social order.” Robert Song warns against “the partial and limited character” of liberalism's freedoms and proclaims that “a responsible theology will learn to articulate its ‘No’” to liberal political society. Other commentators offer critiques of particular aspects of political liberalism, often suggesting revisions based on their own theological perspectives. These critical voices join others such as Stanley Hauerwas, one of liberalism's most outspoken theological critics for more than a quarter century, and they continue a line of critique that extends back through Reinhold Niebuhr and Karl Barth.

Not all the theological voices are critical. Christophe Insole, for example, finds that “politically liberal principles are compatible with a full-blooded and theologically main-stream Christian commitment.” Several Roman Catholic theologians have commented on the increasing mutuality between liberal democracy and Roman Catholic political and social teachings. Paul Sigmund notes that “the relation between Catholicism and liberal democracy has now become a positive and, one would hope, a mutually reinforcing one, even if there are a number of continuing tensions between them.” And Daniel Dombrowski offers a general defense of Rawlsian liberalism against claims that it is hostile to religion.

The U. S. Forest Service has proposed oil and gas development for wildlands adjacent to the Blackfeet Indian Reservation, Glacier National Park, and the Bob Marshall wilderness. In response, traditional Blackfeet tribesmen have argued that these Badger-Two Medicine wildlands are sacred and essential to their traditional religion. In this essay, I document the Blackfeet Tradition and explore the religious significance of these wildlands. Investigating several myths germane to the Badger-Two Medicine wildlands, I conclude that the area is sacred and essential to traditional Blackfeet religion.

In cautioning the planners of cities, Plato declared that particular locations possess ecological and spiritual qualities which markedly affect human character development. This ancient observation contains an essential wisdom for contemporary land use planners, as they consider an area in northwestern Montana along the eastern slopes of the continental divide, just southeast of Glacier National Park, an area known as the Badger-Two Medicine. In 1855, these wildlands were retained in reservation status via a treaty between the United States and the Blackfeet Indians. An agreement was subsequently reached between the parties ceding the Badger-Two Medicine wild-lands to the United States. In this agreement, the Blackfeet reserved rights “to go upon” these lands, to hunt and fish thereon, and to harvest timber therein for personal and domestic use. The Badger-Two Medicine later became a unit within the Lewis and Clark National Forest.

Expressive punishment is popular at the voting booth and in academic journals. Yet concerns remain about expressive punishment's pathological tendencies.

The work of René Girard explains the popularity of expressive punishment and diagnoses its pathology. Girard's analysis of violence, including the lawful violence categorized as punishment, is religious, anthropological, and literary. He posits that the mimetic and conflictual nature of human desire creates crises of undifferentiated violence that are resolved by “sacred violence.” Violence becomes sacred when it regenerates lost meaning, binds the community, and provides a temporary peace. Archaic religion, with its prohibitions, rituals, and myths, was a social mechanism for pragmatically managing that violence. Viewing the legal system as the heir to that tradition, that is, viewing law as our modern social technology of violence, illuminates the practice of expressive punishment.

Before turning to Girard's thought, I will survey some legal scholarship to develop a broad outline of the nature of expressive punishment. Then I will make an inductive argument, following Girard, that expressive punishment is a morally problematic mechanism for both controlling and dispensing sacred violence. Finally, I will explore some implications of that argument.