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Full-Text Articles in Law

Taking Conflicting Rights Seriously, Netta Barak-Corren Sep 2020

Taking Conflicting Rights Seriously, Netta Barak-Corren

Villanova Law Review

No abstract provided.


Halakhah Between Historicism And Dogmatism, Christine Hayes Jan 2020

Halakhah Between Historicism And Dogmatism, Christine Hayes

Villanova Law Review

No abstract provided.


Defining Law, Tal Kastner Jan 2020

Defining Law, Tal Kastner

Villanova Law Review

No abstract provided.


Introductory Remarks To The 2019 Shachoy Symposium, Daniel Mark Jan 2020

Introductory Remarks To The 2019 Shachoy Symposium, Daniel Mark

Villanova Law Review

No abstract provided.


The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan Grant Cohen Jan 2020

The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan Grant Cohen

Villanova Law Review

No abstract provided.


The Challenge Of Halakhah, Kevin L. Hughes Jan 2020

The Challenge Of Halakhah, Kevin L. Hughes

Villanova Law Review

No abstract provided.


"Turn It And Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah:The Rabbinic Idea Of Law, Cathleen Kaveny Jan 2020

"Turn It And Turn It, For All Is In It": Reflections On Chaim Saiman's Halakhah:The Rabbinic Idea Of Law, Cathleen Kaveny

Villanova Law Review

No abstract provided.


Reading Halakhah As A Secularist, Sanford Levinson Jan 2020

Reading Halakhah As A Secularist, Sanford Levinson

Villanova Law Review

No abstract provided.


The Expressive Power Of Rabbinic Law, Richard H. Mcadams Jan 2020

The Expressive Power Of Rabbinic Law, Richard H. Mcadams

Villanova Law Review

No abstract provided.


Implications Of The Rabbinic Idea Of Law For The History Of Halakhah: Dialetics,Apologetics, Fractalization?, Tamara Morsel-Eisenberg Jan 2020

Implications Of The Rabbinic Idea Of Law For The History Of Halakhah: Dialetics,Apologetics, Fractalization?, Tamara Morsel-Eisenberg

Villanova Law Review

No abstract provided.


Jurisprudence, Halakhah, And Moral Particularism, Amy J. Sepinwall Jan 2020

Jurisprudence, Halakhah, And Moral Particularism, Amy J. Sepinwall

Villanova Law Review

No abstract provided.


Review Of Chaim Saiman's The Rabbinic Idea Of Law, Suzanne Last Stone Jan 2020

Review Of Chaim Saiman's The Rabbinic Idea Of Law, Suzanne Last Stone

Villanova Law Review

No abstract provided.


Temple,Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman Jan 2020

Temple,Talmud, And Sacrament: Some Christian Thoughts On Halakhah, Nathan B. Oman

Villanova Law Review

No abstract provided.


Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard H. Weisberg Jan 2020

Binaries: Remarks On Chaim N. Saiman's "Halakhah", Richard H. Weisberg

Villanova Law Review

No abstract provided.


Donald A. Gianella Memorial Lecture - What Is Religious "Persecution" In A Pluralist Society?, Susan J. Stabile Sep 2014

Donald A. Gianella Memorial Lecture - What Is Religious "Persecution" In A Pluralist Society?, Susan J. Stabile

Villanova Law Review

No abstract provided.


The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan Oct 2013

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a ...


Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan Sep 2013

Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Mckinley Brennan

Working Paper Series

This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of ...


“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan Jul 2013

“Religious Freedom,” The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Working Paper Series

The Health and Human Services' regulatory requirement that all but a narrow set of "religious" employers provide contraceptives to employees is an example of what Robert Post and Nancy Rosenblum refer to as a growing "congruence" between civil society's values and the state's legally enacted policy. Catholics and many others have resisted the HHS requirement on the ground that it violates "religious freedom." They ask (in the words of Cardinal Dolan) to be "left alone" by the state. But the argument to be "left alone" overlooks or suppresses the fact that the Catholic Church understands that it is ...


“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan Jul 2013

“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Mckinley Brennan

Working Paper Series

John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's ...


No Compelling Interest: The "Birth Control" Mandate And Religious Freedom, Helen M. Alvare May 2013

No Compelling Interest: The "Birth Control" Mandate And Religious Freedom, Helen M. Alvare

Villanova Law Review

No abstract provided.


"Religious Freedom," The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan May 2013

"Religious Freedom," The Individual Mandate, And Gifts: On Why The Church Is Not A Bomb Shelter, Patrick Mckinley Brennan

Villanova Law Review

No abstract provided.


The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan Jan 2013

The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce ...


Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan Nov 2012

Subsidiarity In The Tradition Of Catholic Social Doctrine, Patrick Mckinley Brennan

Working Paper Series

This chapter is an invited contribution to the first English-language comparative study of subsidiarity, M. Evans and A. Zimmerman (eds.), Subsidiarity in Comparative Perspective (forthcoming Springer, 2013). The concept of subsidiarity does work in many and varied legal contexts today, but the concept originated in Catholic social doctrine. The Catholic understanding of subsidiarity (or subsidiary function) is the subject of this chapter. Subsidiarity is often described as a norm calling for the devolution of power or for performing social functions at the lowest possible level. In Catholic social doctrine, it is neither. Subsidiarity is the fixed and immovable ontological principle ...


Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang, Patrick Mckinley Brennan Jun 2012

Two Cheers For The Constitution Of The United States: A Response To Professor Lee J. Strang, Patrick Mckinley Brennan

Working Paper Series

This article is an invited response to Professor Lee Strang’s article Originalism and the Aristotelian Tradition: Virtue’s Home in Originalism, 80 Fordham L. Rev. 1997 (2012). Strang defends original public meaning originalism from a virtue theoretic perspective that he traces to the “central Western tradition” and ultimately to Aristotle. I reply that those committed to that tradition do better (1) to reject original pubic meaning originalism, (2) to embrace some version of original intent originalism, and (3) to defend the original intent meaning of the U.S. Constitution only with important reservations and on certain conditions. The original ...


Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan Jan 2012

Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Mckinley Brennan

Working Paper Series

This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.


Conceptualizing Shari'a In The Modern State, Khaled Abou El Fadl Jan 2012

Conceptualizing Shari'a In The Modern State, Khaled Abou El Fadl

Villanova Law Review

THIS Article addresses the animated and evolving role that Shari'a, i.e., the system of Islamic jurisprudence collectively or generally, and Shari'a conceptions play in the contemporary world. There are various manifestations of this evolving role in the often dynamic, subtle, highly negotiated, and far from formalistic ways that Shari'a is animated in today's world. There are three main points that I will address in this Article. First is to provide some insight into the various ways that Shari'a has been manifesting in the recent revolutions sweeping through the Arabic-speaking world, while at the same ...


Are Catholics Unreliable From A Democratic Point Of View? Thoughts On The Occasion Of The Sixtieth Anniversary Of Paul Blanshard's American Freedom And Catholic Power, Patrick Mckinley Brennan Feb 2010

Are Catholics Unreliable From A Democratic Point Of View? Thoughts On The Occasion Of The Sixtieth Anniversary Of Paul Blanshard's American Freedom And Catholic Power, Patrick Mckinley Brennan

Working Paper Series

From 1949 to 1950, Paul Blanshard’s American Freedom and Catholic Power dominated the New York Times best-seller list for eleven months, having captured the attention of American intelligentsia with its claim that “the Catholic problem is still with us” and its call for the formation of a “resistance movement.” Sixty years later, Blanshard’s bigotry is no longer defended in educated circles. Questions remain, though, concerning why Blanshard’s ideas made progress in some of the smartest American minds and throughout much of the culture. Was Blanshard onto something subversive about Catholics? Are Catholics’ commitments not compatible with the ...


Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan Feb 2010

Are Legislation And Rules A Problem In Law? Thoughts On The Work Of Joseph Vining, Patrick Mckinley Brennan

Working Paper Series

Written for a conference at Villanova Law School held to celebrate and explore the work of Joseph Vining over forty years, this paper considers the adequacy of Vining’s phenomenology of law. Specifically, it inquires into the accuracy of Vining’s startling claims that “legislation is a problem in law, not central to law” and “rules are nowhere to be found” in law. The argument of the paper is that when -- but only when -- law is understood to be an ordinance of reason in the mind of him or them who have care of the community, for the common good ...


Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan Jul 2009

Self-Love And Forgiveness: A Holy Alliance?, Patrick Mckinley Brennan

Working Paper Series

Forgiving is not pardoning, excusing, condoning, forgetting, or reconciling, nor is forgiving just about a change in emotions on the part of a victim. This paper pursues a virtue-theoretic account of the human person in the context of the theology of Thomas Aquinas, arguing that human forgiveness is the form love takes by an offended toward her offender. The paper argues, first, for the priority of the offended person's self-love and, second, for such self-love's extension into love of the offender as another self. The paper explores in depth the challenges of seeing one's enemy as "another ...


Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan Mar 2009

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the ...