The July 14, 2006, issue of Commonweal carried an article by Michael J. Perry, entitled The Morality of Human Rights: A Problem for Nonbelievers?. In that article, as in his books The Idea of Human Rights: Four Inquiries, and Toward a Theory of Human Rights: Religion, Law, Courts, Perry argues that a plausible nonreligious foundation for the idea of human rights has yet to be articulated—that this idea, therefore, appears to be unavoidably religious. He expresses concern that “the growing marginalization of religious belief in many societies that have taken human rights seriously—in particular, in many liberal democracies… may leave those societies bereft of the intellectual resources to sustain the morality of human rights.”

Nicholas Wolterstorff shares Perry's judgment. “It is impossible to develop a secular account of human dignity adequate for grounding human rights. Or to speak more cautiously: given that, after many attempts, no one has succeeded in developing such an account, it seems unlikely that it can be done.”

“We have it in our power to begin the world over again.” Thomas Paine, pamphleteer of the American Revolution and defender of the French Revolution, captures in this phrase a central insight conveyed in the idea of human rights: we have it in our power to begin the world again. The sentiment is cast in simple declarative form. As such it may seem naive. We are, after all, constrained—are we not—by the inheritance of a world already accomplished, a world whose structures bind us in untold ways? But the intention of Paine's statement is more than aspirational. It affirms a vision of what is possible—and what is desirable—given the deepest character of who we are and what we might become. If we comprehend the full dialectic between self and world, then we have it in our power to begin the world again even as the world is the matrix—the source and the condition—of our power. That's a central insight conveyed in the idea of human rights which has stirred up such controversy, philosophical and political, since it emerged at the beginnings of the modern era.

Religious issues and clergy played a prominent and now largely forgotten role in the defeat of President Franklin D. Roosevelt's controversial 1937 proposal to add six Justices to the U.S. Supreme Court. Although many prominent Protestant, Roman Catholic, and Jewish clergy and lay persons shared Roosevelt's frustration with the Court's obstruction of legislation to ameliorate the ravages of the Great Depression and reform the nation's economic system, many of the New Deal's most ardent supporters feared that Roosevelt's plan threatened religious liberty by making the Court vulnerable to political pressure. Opposition to Court-packing among clerics and lay persons, who warned that it could subject religious minorities to majoritarian tyranny, may have contributed heavily to the plan's defeat. The prevalence of these fears that diminution of judicial independence would threaten religious freedom helps to demonstrate that the Supreme Court already was widely regarded as an important guardian of personal liberty on the eve of the Court's transition from its long-time role as a defender of property rights to its modern role as a protector of personal rights.

The distinctive contribution of Roman Catholic moral theology to public policy discourse has been to insist that it be open to conversation partners representing quite diverse religious and philosophical traditions. Thus Catholicism has what might well be considered a peculiar way of addressing “religiously” both civil rights and legislation: it dissociates the legitimation of rights and laws from specifically religious commitments. A key category in the Catholic approach is “common good,” as a normative description of social coherence; and its corollaries, including “justice” as its standard, mutual “rights” and “duties” as its constituents, and “public authority” and “law” as its guarantors. It is to the possible context and meanings of these terms that I wish to devote attention. Despite the fact that they are the focus of virtually all social theory in Catholic tradition, there is far from unanimity on their interpretation and implementation. I will focus on contemporary Catholic social thought, though I will refer briefly to some of its origins, especially in Thomas Aquinas.

The history of Church-State relations in seventeenth and eighteenth century America is the account of the process by which the arguments of those who asked for exemptions from contemporary Church-State practices became the accepted norms for society at large.

There is an essential distinction, however, between the demand for exemptions in that period and modern claims for exemptions on account of religion. In our time, religious people ask for exemptions from laws that society generally sees as inherently secular; and they generally ask for exemptions for themselves or their group, but do not specifically attack the laws and usually have little difficulty with others being bound by them. In the seventeenth and eighteenth centuries, laws such as proclamations of days of prayer and fasting, or laws for the financial support of clergy, were essentially religious in nature but were passed for the secular purpose of bolstering the moral fabric of society. Moreover, although those opposing them were often willing to settle for exemptions only for themselves, they usually attacked the legislation as bad for society, as a violation of religious liberty.

Scientists are sometimes tempted to use data collected by Nazi researchers in the infamous death camps. Recently, scientists interested in hypothermia have attempted to use data from extensive studies on the effects of cold that took place in 1942 at the Dachau concentration camp. About 300 persons, mostly Jews, were placed in near-freezing water for varied periods of time, and then warmed by different techniques. About one third of the victims died. Should scientists use this data on what happens to people when they get cold, and how they can be warmed? Some German and Canadian scientists already have. By contrast, the United States Environmental Protection Agency recently refused to republish Nazi data on the toxic gas phosgene.

Ethicists have not found common ground for agreement on the question of using morally tainted data. Philosopher Arthur L. Caplan, a bioethicist at the University of Minnesota, argues that the Nazi data can be used so long as the purpose is an important one, and the data is presented with a clear moral denunciation of how it was obtained. The moral repugnance of the data source might be overruled, suggests Caplan, by the possibility of saving lives. On the other hand, Jay Katz of Yale University Law School disagrees with Caplan's position. The data, argues Katz, should be condemned to oblivion and never used by science, although the descriptions of the experiments can be republished as a reminder of the Nazi horror.

Religious accommodation analysis often takes the form of a tripartite test. One of the factors in such a test is the presence of burden, the current judicial understandings of which have been inadequate to capture a wide range of impact that government regulations have on the individual or community practice of religion. This article considers and compares the jurisprudence of the high courts of the United States and Canada and the European Court of Human Rights and argues for an expansive understanding of the burden requirement in the evaluation of religious accommodation claims, namely to consider burden as (1) coercion, (2) impact, and (3) ratification. I argue that it is imperative to acknowledge different kinds of burden before proceeding to determine its gravity. This approach takes religion more seriously than prevailing approaches and provides for a more equitable distribution of the burden of proof in religious accommodation claims.

The purpose of this survey is to note important caselaw developments in the state and lower federal courts concerning religious liberty during 1985. Purposely omitted are the widely reported United State Supreme Court opinions, as well as cases where the high court has granted review during its 1985-86 term. The focus here is to collect significant cases that may otherwise escape broad attention. Only the facts and rationale of each court's decision is recorded. No editorial comment on the merits of these cases is intended.

One of the most striking images of God, both in the Bible and in Jewish tradition generally, is that of judge: “The judge of all the earth.”In this sense, one may describe God as He who holds in His hands all legal authority: He is the legislator, He is the judge, and He is the one who executes judgment. Alongside God's judgment, the Bible recognizes the existence of a human system of judgment, in which human beings act as judges; indeed, it even commands it: “You shall appoint judges and officers in all your gates.”What is the relation between God, the judge of all the earth, and those human beings who fulfill the function of judges? The majority of classical Jewish sources in the Bible and in Rabbinic literature that deal with law and the legal system reflect a certain relationship between human judgment and divine justice. Thus, we find in the Bible the notion that God emanates His authority to the judges who perform this function. In this spirit, Moses commands the judges whom he has appointed: “judge righteously… for the judgment is God's.”The relation assumed here between God and human judgment finds expression in different ways, extending over a considerable spectrum. At one end, one might describe God as the transcendent source of authority of the legal system, whose practical significance is limited. On the other end, one might describe it as a Divine Presence that inspires the judges and even allows them to appeal to God and to involve Him in the legal decision.

Since the founding of the Journal of Law and Religion, burgeoning numbers of distinctively interdisciplinary approaches have appeared in the study of law including feminist jurisprudence, sociological jurisprudence, critical and postmodern legal studies, and law and religion. These approaches enrich the theoretical and practical dimensions of law. Nevertheless, in response to such conversations, the legal academy has been buffeted by disciplinary impulses toward marginalization, tribalism, and balkanization. These impulses can attenuate the prospects for interdisciplinary conversations by simplifying plural realities and multifarious foci into dichotomies (“us” and “them”) or totalities (“us”).

They reflect the conceptual challenges of the complexity of culture, which, according to theologian David Tracy, includes “a diminishment of belief in the possibility of authentic civic discussion in the community.” This diminishment of belief in discussion on a broader civic level has also contributed to facile assumptions about the unlikelihood of interdisciplinary conversations between law and religion.

A widely held view on the purpose of criminal law is that it is designed to maintain social order. Assuming this view to be correct, how does criminal law achieve its purpose? The standard answer is by deterring crimes through the threat of penalties, and by incapacitating or rehabilitating criminals so that they cannot or will not engage in future crimes. Sociologists, however, have a somewhat different answer: criminal law maintains social order by branding deviant behavior as criminal. Society, it is argued, is constructed through opposition and contrast: it creates and preserves its identity, its distinct structure and unique shape, by emphasizing the differences between its own characteristics and practices and the characteristics and practices of the Other, the deviant. Deviance, in this view, is essentially a relative phenomenon. The definition of deviance, which changes from era to era and from place to place, is just that characteristic which society designates to establish, through it and in contrast to it, its identity and boundaries. Whatever the society, the deviant in that society is one who “represents the forces excluded by the group's boundaries,” informing society “as it were, what the evil looks like, what shapes the evil can assume.” In doing so, the deviant shows society “the differences between kinds of experience which belong within the group and kinds of experience which belong outside it.”

When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA), sadly missing in the flurry of commentary was Dworkin's assessment of the case. Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.

The great and chief end … of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property (John Locke).

The transformation of scattered private property, arising from individual labour, into capitalist private property is, naturally, a process incomparably more protracted, violent, and difficult, than the transformation of capitalist private property, already practically resting on socialized production, into socialized property. In the former case, we had the expropriation of the mass of the people by a few usurpers; in the latter, we have the expropriation of a few usurpers by the mass of the people. (Karl Marx).

Conditions of the common life of peoples have undergone a radical transformation from the seventeenth century to the present. The character of daily work, the form of family life, the structure of nations and empires in our times are fundamentally unlike those of three centuries ago. In the economic sector, property is among the categories of thought and practice whose features have been transfigured during the period.