The Western legal tradition was formed in the great revolutionary upheaval of the late eleventh and early twelfth century, when the papacy established its independence from imperial and royal control and its political and legal supremacy over the clergy of Western Christendom. It was then that there was first developed the modern Western belief in the autonomy of law, its professional character, its integrity both as a system of institutions and as a body of learning, its capacity for organic growth over generations and centuries, its conscious historicity, and its ultimate supremacy over political authorities. It was then, too, that the modern Western concept of subjective rights was first adumbrated—the rights of corporate bodies and persons to property and to liberties against other corporate bodies and persons, and even against superiors.

Politically, the Western legal tradition was rooted in the dualism of ecclesiastical and secular authorities and in the pluralism of secular polities—kingdoms and principalities, feudal domains, autonomous cities—within the ecclesiastical unity. Theologically, it was rooted in a concept of salvation, and of law as part of God's plan of salvation.

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 hard to have a casual discussion on the issue of “religious liberty” because discourse on the subject is often highly charged, and rightly so. The stakes involved are weighty, and they include such fundamentally important matters as the individual's personal and immediate accountability to God, the Church's mission to preach the gospel, and responsibility to maintain purity of conscience and conduct at all levels. One's views on religious liberty also affect the way one understands relations of morality and law, of ethics and human government, and tensions that arise between the moral purposes of government and moral limitations that should restrain the state's use of coercive power.

Upon examination, the term “religious liberty” includes several different foci that can, and very often do, result in contrary views regarding the concept itself. Thus, while they are debating or defending “religious liberty, ” it is easy for parties to talk past one another so completely they may find themselves agreeing or disagreeing, and supporting or opposing one another, for reasons unrelated to the actual circumstances with which they think themselves engaged. Lack of clarity at critical moments of negotiation can be embarrassing, but may even become dangerous, if mis-understanding by one party is used to manipulate acceptance of measures that should be opposed, or if blind assumptions obscure opportunities by which opposing factions might otherwise reach agreement. It is precisely because religious liberty concerns are so charged that the subject must be approached with a careful understanding of how the term is intended in a given circumstance.

Disputes over the nature, basis, and enforceability of human rights go back to early 1947, when the drafting of the Universal Declaration of Human Rights (UDHR) first began. Nor were the disputes limited to the drafting process. Intense arguments emerged among social scientists, philosophers, religious leaders, legal thinkers, and public figures around the world over the very idea of human rights, namely, the notion that human beings possess legally enforceable entitlements to certain protections and opportunities simply because of their common humanity.

Early in John Updike's exquisite historical novel In the Beauty of the Lilies, a Presbyterian pastor named Clarence Wilmot, whose faith has deserted him, calls upon a certain Elias Orr, a member of his flock who lies on his deathbed. Orr asks his pastor whether he—Orr—is among the elect or headed to eternal damnation in the flames of Hell. Clarence, searching for words of comfort, tells him, “I should estimate your chances to be excellent.” The dying man is unpersuaded. If the order of salvation was laid down by God at the moment of creation, he demands, “[w]hat can we poor bodies down here do?”

Free exercise jurisprudence is unique in constitutional law. Because direct regulation of religious activity almost never occurs, the litigation surrounding free exercise addresses only incidental and inadvertent regulation of religious conduct. For this reason, the issue in a free exercise challenge typically is not whether a law is constitutional; the law under attack is usually constitutionally unassailable outside of its incidental effect on religious practice. Rather, the issue is whether certain individuals should be exempted from otherwise valid, neutral laws of general applicability solely because of their religious conviction. The jurisprudence of free exercise, in short, is the jurisprudence of the constitutionally compelled exemption.

There are a number of tensions underlying the notion of constitutionally compelled exemption and underlying the constitutional treatment of religion and religious belief, that make free exercise jurisprudence a particularly difficult subject for coherent analysis. First, because special exemptions of any kind raise concerns of undue favoritism, they are normally suspect as violating fundamental constitutional principles of equal treatment. Thus, as the Court noted recently, the conclusion that the Constitution may require the creation of an exemption directly contradicts the constitutional norm.

Commercial transactions are often characterized by asymmetric information between the buyer and seller: one side of the market, usually the seller, knows more about the quality of the product or service offered than the other side. In his 1970 seminal article, George Akerlof predicted that unless counteracting forces are in place, this asymmetric information phenomenon will cause the volume of transactions in this marketplace to shrink to the point where only the most inferior version of the product, called a lemon, will be traded.

Practically speaking, numerous institutions mitigate the asymmetrical information problem so that the marketplace does not deteriorate into a lemons market. These countervailing forces include seller guarantees, brand names, product liability laws, consumer screening, third-party comparisons, and the institution of standards and certification by the government or consumer and industry groups.

My purpose here will be to analyze one aspect of the lemons problem from the perspective of an imagined society governed entirely by Jewish law and ethics. I will refer to this society as a Torah society. Specifically, I will show how Jewish warranty law counteracts the lemons problem and compare its solutions to those of American warranty law as well as state lemon laws in the U.S.

Warranty law works best to counteract the lemon problem if it operates in an environment of trust. As I will show, Jewish law puts the task of moral education in the hands of parents and teachers with the goal of producing the character trait of trustworthiness.

Using examples of ritual slaughter recognized by different religions in Africa, this paper examines the regulated and unregulated exercise of the right to ritual slaughter as a manifestation of the right to freedom of religion in three constitutional traditions in Africa.

This article commences with an evaluation of the existence of the right to ritual slaughter either as a freestanding right or a derivative right from the right to freedom of religion in the bills of rights of African constitutions. The article argues that the ritual slaughter at this stage of constitutional development in Africa is at best a derivative right partly anchored on the communal dimensions of the right to freedom of religion. The article closely examines the bearers and content of the right to ritual slaughter through a brief overview of the practices of ritual slaughter recognized by African traditional religion and Islam. In addition, the syncretic nature of religious practice in Africa identified as the multiple or concurrent witness to different faiths is also considered to provide a realistic account of ritual slaughter in Africa.

Since the right to ritual slaughter is identified as a derivative right from the right to freedom of religion, the article examines different constitutional traditions in Africa to determine how religion is conceived in constitutional governance that in turn affects the feasibility of the right to ritual slaughter within constitutional designs and capacity of other public interests such as animal welfare to limit the exercise of the right to ritual slaughter.

Three constitutional designs of the role of religion in constitutional governance are identified in this regard. The article concludes on a number of points, including the recognition of the importance of the articulation of the human rights that underpin animal welfare concerns and the fact that a regulated right to ritual slaughter appears feasible in a number of African countries.

This essay considers the vexed relationship between belonging and identity. Belonging is not an objective or unreflective association but rather an emotional assertion of attachment. That emotional connection is an indispensable component of identity, which, as Joseph David argues in Kinship, Law and Politics: An Anatomy of Belonging, is a relationship charged with meaning. Accordingly, the distinction between belonging as a privately held sentiment and the politics of belonging overlooks the fact that the emotions associated with belonging define group membership. Belonging is not a private matter but an emotional relationship that shapes social life, reinforces a group’s identity politics, and finds expression in a group’s practices. Analysis of two case studies from ancient Judaism—the writings of Philo of Alexandria and the sectarian Dead Sea Scrolls—demonstrates the emotional, social, and discursive dimensions of belonging and the role it plays in producing identity. Belonging is not a stable concept but is rather one that assumes different forms depending on the emotional orientation of the group and the particulars of identity politics. For Philo, belonging reflects a universalistic love for all humanity that helps shape an identity embracing Jewish practice and Greek virtue. By contrast, the Dead Sea sect’s antipathy toward all other Jews requires that a sense of belonging express not only love for fellow sectarians but also hate for all outsiders.

This comment on Chaim Saiman's illuminating comparison between rabbinic and Christian approaches to religious texts that are in some sense authoritative focuses on what we can fairly infer from the sharp difference he describes. I believe there is much more to be said on this fascinating topic, and I now write with large gaps in my understanding of relevant subjects. I concentrate here on the question whether the Christian view that Professor Saiman describes actually has strong logical implications for what one should regard as desirable interpretive and legislative strategies for the (secular) law of large diverse societies. On that crucial point, I am more skeptical than Saiman appears to be.

I begin with a few preliminary observations, and then pose some other questions about connections between religious perspectives and views about ordinary legal interpretation before tackling my main topic.

This article describes the culture of activist black Christian congregations that propelled campaigns to dismantle legalized racial segregation and advocate for equal justice. Historically, as the imperfections of American democracy were exposed, the most marginal people in the society acted persistently and repeatedly to extend the benefits of democracy to all citizens. The article highlights the distinctive social and intellectual contributions of the secular activist W. E. B. Du Bois and social gospel minister Martin Luther King. The author sees the contemporary discussion and faith-based mobilization around reversing mass incarceration as an outgrowth of the civil rights movement. Finally, the article suggests that leadership for the next global human rights revolution is likely to emerge from students and young leaders who are committed to radically inclusive conceptions of democracy, equality, and social justice.

This article examines the influence of the Magna Carta on the development of rights and liberties in the Anglo-American common law tradition, especially in the seventeenth century. Originally issued by King John of England in 1215, the Magna Carta set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. The Magna Carta served as an inspiration for seventeenth-century English jurists, like Sir Edward Coke, and Puritan pamphleteers, like John Lilburne, who advocated sweeping new rights reforms on the strength of the charter. It also inspired more directly the new bills of rights and liberties of several American colonies, most notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, which anticipated many of the constitutional rights formulations of eighteenth- and nineteenth-century America.

In the course of researching the attitudes of nineteenth-century rabbis about American slavery, David Cobin found that the name Sabato Morais featured prominently among rabbis who had publicly expressed strong anti-slavery sentiments. This information sent Cobin to the American Jewish History Library where some of Morais's papers are archived to find original documents on the matter. There he found sermons from 1861 to 1862 with English script title pages and text all written in Pitman Shorthand, presumably by Morais himself. One of these, an undated document entitled The Slavery of the Bible, described as a lecture, seemed to be exactly on point. Cobin's first hurdle, however, was transcribing Morais's lecture. After a significant search he found Dorothy Roberts, who had become an expert on Civil War Pitman Shorthand specifically in order to engage in this kind of scholarly transcription. It was soon clear, however, that transcribing a more than one hundred and forty year-old shorthand written for oneself was not a simple matter. There were obsolete words, partial words, undecipherable words, words left out, references to obscure incidents, incomplete quotations, and words in multiple languages. Cobin enlisted the collaboration of his colleague Earl Schwartz as co-editor, and together they partnered in the transcription process with Dorothy Roberts. Roberts transcribed the shorthand as best she could. Cobin and Schwartz then researched the history, filled in the Judaic references and mined old dictionaries and their own imaginations for language of the times to fit the words Roberts could not fully transcribe. Roberts always made the final decision on the appropriateness of the editors' suggestions in light of the shorthand. This work yielded the transcribed lecture, The Slavery in the Bible that indeed spoke about slavery in the time of the Bible, but not about American slavery. Morais's focus was on a humane form of slavery in contrast to slavery in Sparta and Rome. Unlike Rabbi Morris Raphall's discourse on The Bible View of Slavery January 15, 1861 that was used by Southerners as a defense of slavery, Morais's lecture provided little material to fuel the conflagration then raging. The editors have concluded that Morais's lecture was likely delivered as a response to Raphall's widely publicized discourse. The Slavery of the Bible is included with the four transcribed Sabbath sermons published here.

During the latter part of the twentieth century, Islamic law or shari'a has had an increasingly practical influence on the types of cases adjudicated in American courts. As the Muslim population continues to grow, the American legal system will inevitably face interesting, complex family law questions that are intertwined with Islamic law. While religious denominations have a genuine and continuing interest in marriage and its rights and obligations, religious laws are clearly subordinate to state secular law. A religious marriage is valid only to the extent that it complies with a state's statutory requirements. Likewise, state statutes regulate divorce and designate specific state courts as the forum for the divorce proceeding. Since marriage and divorce are controlled by secular state law, it is insufficient for Muslims to adhere solely to the shari'a on these matters. However, as the state continues to cede some of its traditional authority in favor of increased private ordering of the institution of marriage, religious adherents are looking to contracts as a means to abide by religious precepts and secular law. These contracts provide methods whereby “parties agree to internal (religious law) resolutions of marital disputes, but the agreement itself is enforceable by the external authorities.”