Law Commons^™

The Religious Rights Of Incarcerated Persons, Robert J. D'Agostino

Robert J D'Agostino

No abstract provided.

Chapter 03: Basic Concepts, Wolfgang Fikentscher

Wolfgang Fikentscher

Inclusive online updates jan10. Dealing with basic concepts of legal anthropology in Chapter 3, the presently much discussed (and practically important, see Chapter 13 V.1.), a focus is on the issue of ethnicity and cultural identity. Furthermore, Chapter 3 offers a freshly organized presentation of what may be called the issue of civilizational stages, in preparation of Chapter 9 where correlations between organizational, economical, religious and thought-modal traits are discussed. In Chapter 3, definitorial and functional aspects of basic concepts of anthropology are separated. For example, big man society, lineage, ramage, and clan structures are presented as such, and not …

Book Review: Michael J. Perry, Toward A Theory Of Human Rights: Religion, Law, Courts (2007), Mark C. Modak-Truran

Mark C Modak-Truran

This book review analyzes Michael J. Perry's most recent book Toward a Theory of Human Rights: Religion, Law, Courts. Perry's book brings together two previously separate aspects of his thoughtful and pioneering scholarship dealing with the proper relation of morality (especially religious morality) to law and human rights and the role of courts in protecting human rights. Perry's argument concentrates on three related issues: whether the morality of human rights has a religious or secular ground or both, the relation between the morality of human rights and the law of human rights, and the proper role of courts in protecting …

Introduction: Symposium On Religion, Religious Pluralism, And The Rule Of Law, Mark C. Modak-Truran

Mark C Modak-Truran

The articles and essays in this Symposium on Religion, Religious Pluralism, and the Rule of Law were presented for a Section on Law and Religion panel at the 2007 Annual Meeting of the Association of American Law Schools. The Symposium aims to move the debate about the relationship between law and religion beyond conflicts between secularists and religionists by focusing attention on presuppositions about religion, religious pluralism, and the rule of law. Focusing on these presuppositions helps get beyond the tendency of most legal scholars, judges, and lawyers to think through the law rather than about the law. The articles …

Beyond Theocracy And Secularism (Part I): Toward A New Paradigm For Law And Religion, Mark C. Modak-Truran

Mark C Modak-Truran

The continued vitality of religion has motivated many scholars in sociology, anthropology, political theory, international relations, and philosophy to revisit their assumptions about how religion relates to their disciplines. Despite this robust re-examination in other disciplines, two outmoded paradigms about the relationship between law and religion —theocracy (pre-modern) and secularism (modern)—continue to dominate legal theory. Under the modern paradigm, the secularization of law—that the law is or should be independent of any religious foundation or values—arguably constitutes the most widely-held but least-examined assumption in contemporary legal theory. My thesis is that two quandaries or crises for legal theory—legal indeterminacy and …

You Say You Want A Revolution: Interpretive Communities And The Origins Of Islamic Finance, Haider Ala Hamoudi

Haider Ala Hamoudi

Despite its currently conservative character, the modern practice of Islamic finance lies on a bedrock of social, cultural and economic revolution. Examination of these revolutionary origins and their attendant jurisprudential implications reveal much about the schizophrenia plaguing Islamic finance today, of a largely formalist practice repeating the functional aims of the early revolutionaries and falsely understood by substantial portions of the wider Muslim community to be achieving such aims. Though the revolution has not come to pass, some of the comparatively radical functional approaches conceived in the context of the anticipated upheaval, and in particular those of the Iraqi Shi'i …

The Holocaust, Museum Ethics, And Legalism, Jennifer Kreder

Jennifer Kreder

The attached article is a provocative analysis of the “Holocaust art movement.” The movement has led to significant and controversial restitutions from museums. This article focuses on two emotionally driven claims refused by the Auschwitz-Birkenau State Museum: One to recover a suitcase stolen from a murdered man, and the other to recover watercolors a woman was forced to paint for Josef Mengele to document his pseudo-scientific theories of racial inferiority and his cruel medical experiments. These claims provide insightful case studies to examine the emotional and ethical aspects of such disputes uncomplicated by the monetary issues in many of the …

Pacifist Aggressives Vs. The Second Amendment: An Analysis Of Modern Philosophies Of Compulsory Non-Violence, David B. Kopel

David B Kopel

This Article examines the strengths and weaknesses of modern pacifist religious philosophy. The Article suggests that some intellectual arguments for pacifism are logically solid (once certain premises are granted), while others have serious flaws. The article discusses five influential philosophical advocates of non-violence Thomas Merton, Stanley Hauerwas, Leo Tolstoy, Tony Campolo, and John Howard Yoder. In addition, the Article examines three real-world cases where the practice of non-violence was put into action: the Danish rescue of the Jews during WW II, the American Civil Rights movement in the South in the 1960s, and the invasion of the Chatham Islands—the home …

The Human Right Of Self-Defense, David B. Kopel, Paul Gallant, Joanne D. Eisen

David B Kopel

The United Nations Human Rights Council has declared that there is no human right to self-defense. Moreover, the Council has ordered all governments to enact very restrictive gun laws (more severe than those of Washington, D.C., or New York City, for example), and has declared that failure to enact such laws constitutes a human rights violation. Further, the HRC states that it is a human rights violation for a government to allow person to use a firearm in self-defense against a rapist or other criminal who is not attempting homicide.

This Article critically examines the HRC's claims by analyzing the …

Dhimmitude And Disarmament, David B. Kopel

David B Kopel

Under shari'a law, non-Muslims, known as dhimmi, have been forbidden to possess arms, and to defend themselves from attacks by Muslims. The disarmament is one aspect of the pervasive civil inferiority of non-Muslims, a status known as dhimmitude. This Essay examines the historical effects of the shari'a disarmament, based on three books by Bat Ye'or, the world's leading scholar of dhimmitude. As Ye'or details, the disarmament had catastrophic consequences, extending far beyond the direct loss of the dhimmi's ability to defend themselves. The essay concludes by observing how pretend gun-free zones on college campuses turn the adults there into 21st …

Natural Selection, Irreducible Complexity, And The Bacterial Flagellum: A Contrarian Approach To The Intelligent Design Debate, David Crump

David Crump

The subject is one about which many commentators have drawn battle lines, but this article is different. Even though the author concludes that natural selection is supported by overwhelming evidence, he maintains that teaching theories of irreducible complexity in public schools would be appropriate and desirable. Doing so would serve several secular purposes that would satisfy the first requirement of the Lemon test. First, irreducible complexity, which some proponents offer in support of theories of intelligent design, can be defended as scientific under some definitions of science, although not under others, and it therefore provides an ideal vehicle to address …

Excluding Religion Excludes More Than Religion, Richard Stith

Richard Stith

This Article contends that excluding apparently religious perspectives from public debate may inadvertently exclude non-religious perspectives as well, consequently impoverishing public discussion. This contention is demonstrated through an examination of the current debate over embryonic stem cell research, in which the pro-life position is often declared unacceptably religious. The truth is that those who envision the unborn as under construction in the womb do not find a human being present when gestation has just begun, while those who understand the unborn to be developing see an identity of being from conception. But neither view is based on religion. To disqualify …

The Aspiration To Be A Catholic Social Scientist In The Eyes Of Robert Coles: The Search For Wisdom In An Information Age, Randy Lee

Randy Lee

The Catholic social scientist seeks to understand his world so he can know his God. He is called by love to the questions that he addresses, and the answers he finds to those questions draw him to a call of service, a call to make a life other than his own at least a little better. One of the pre-eminent Catholic social scientists of our time is the psychiatrist, medical doctor, and “hard” scientist, Dr. Robert Coles. This article seeks to consider five pieces of advice that Dr. Coles offers to those aspiring to be Catholic social scientists. First, work …

Of Historiography And Constitutional Principle: Jefferson's Reply To The Danbury Baptists, Ian C. Bartrum

Ian C Bartrum

This article examines the ways that the Supreme Court has used Thomas Jefferson's letter to the Danbury Baptists ("a wall of separation between church and state") as a rhetorical symbol. It finds the letter at the heart of the Court's debate over competing theories of religious neutrality. The article then explores the treatment the letter has received in several leading academic histories, and concludes that professional historians have largely tailored their arguments to match the Supreme Court's ideological divide. The article concludes that, because the goals of historical argument and legal argument are fundamentally different, this "incestual" kind of relationship …

Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield

Andrew S Mansfield

This paper analyzes forty-five amicus curiae briefs filed by religious organizations with the Supreme Court since Brown v. Board of Education, 348 U.S. 886, decided in 1954, through the decision in Ayotte v. Planned Parenthood, 546 U.S. 320, rendered in 2006. The forty-five amicus curiae briefs were filed in nineteen cases and concern issues that are often identified as “moral.” Analysis of the amicus curiae briefs filed with the Supreme Court by religious organizations provides at least three crucial insights. First, the legal arguments presented by religious organizations, as reflected in amicus curiae briefs filed with the Supreme Court, provide …

Religion In The Workplace: Faith, Action, And The Religious Foundations Of American Employment Law, Thomas C. Kohler

Thomas C. Kohler

No abstract provided.

Unprofitable Lending: Modern Credit Regulation And The Lost Theory Of Usury, Brian M. Mccall

Brian M McCall

With almost daily news stories about the crisis in our credit markets, it seems inevitable that a new political and academic debate about credit regulation is commencing. With Americans paying billions of dollars in finance charges every year and some loosing their homes, it is time to ask fundamental questions about the liberality of credit supply and terms. Rather than readjusting usury limits or tinkering with disclosure requirements, it is time to reassess America’s philosophy of lending. Although the current socio-economic belief that more credit is better has held dominance for several centuries, history offers an alternative theory. Surprisingly, a …

Quas Primas And The Economic Ordering Of Society For The Social Reign Of Christ The King; A Third Perspective On The Bainbridge/Sargent Law And Economics Debate, Brian M. Mccall

Brian M McCall

How can it be that respected Catholic legal scholars can reach seemingly opposite conclusions about “Law and Economics?” Stephen Bainbridge has argued that both the descriptive and normative aspects of the Law and Economics movement are consistent with and even demanded by the Catholic understanding of the nature of the human person in a fallen world and our historical experience with totalitarian regimes. Mark Sargent, on the other hand, argues that at least the normative, and perhaps aspects of the descriptive, side of Law and Economics are not completely consistent with the nature and purpose of the human being as …