Hollis-Brusky & Wilson, "Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture"

 Oxford University Press has published Separate but Faithful: The Christian Right's Radical Struggle to Transform Law & Legal Culture (Oct. 2020), by Amanda Hollis-Brusky (Pomona College) and Joshua C. Wilson (University of Denver). A description from the press:

Fueled by grassroots activism and a growing collection of formal political organizations, the Christian Right became an enormously influential force in American law and politics in the 1980s and 90s. While this vocal and visible political movement has long voiced grave concerns about the Supreme Court and cases such as Roe v. Wade, they weren't able to effectively enter the courtroom in a serious and sustained way until recently. During the pivot from the 20th to the 21st century, a small constellation of high-profile Christian Right leaders began to address this imbalance by investing in an array of institutions aimed at radically transforming American law and legal culture.

In Separate But Faithful, Amanda Hollis-Brusky and Joshua C. Wilson provide an in-depth examination of these efforts, including their causes, contours and consequences. Drawing on an impressive amount of original data from a variety of sources, they look at the conditions that gave rise to a set of distinctly "Christian Worldview" law schools and legal institutions. Further, Hollis-Brusky and Wilson analyze their institutional missions and cultural makeup and evaluate their transformative impacts on law and legal culture to date. In doing so, they find that this movement, while struggling to influence the legal and political mainstream, has succeeded in establishing a Christian conservative beacon of resistance; a separate but faithful space from which to incrementally challenge the dominant legal culture.

Both a compelling narrative of the rise of Christian Right lawyers and a trenchant analysis of how institutional networks fuel the growth of social movements, Separate But Faithful challenges the dominant perspectives of the politics of law in contemporary America.

Advance praise:

"Separate But Faithful is a fascinating, exhaustively researched, and highly readable story of the rise and challenges faced by three ultraconservative religious law schools-Ave Maria, Liberty, and Regent-and their mission driven faculty and students. It is also theoretically rich, focusing especially on 'support structure' theory in relation to social movements and law, and full of insights about legal hierarchies, the structure of legal education, and the role of law in social change. In short, it is a superb contribution as narrative and theory-builder." -- Bryant Garth

"Hollis-Brusky and Wilson's book, Separate But Faithful, is a comprehensive account of a legal movement on the rise, and one that has obtained significant positions of authority in government, including the courts. Their book is a must read for those seeking to understand the direction of the courts and the law, and how legal change happens." -- Leah Litman

More information is available here. And you can listen to an interview with the authors here, at New Books Network.

-- Karen Tani

Symposium on Breen and Strang's "A Light Unseen"

A year ago, the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John’s University School of Law, hosted a symposium to discuss the manuscript for the book A Light Unseen: A History of Catholic Legal Education in the United States, by John M. Breen and Lee J. Strang.  The symposium is now out in The Journal of Catholic Legal Studies.  Contributors include Anthony Nania, Matt Dean, Kathleen M. Boozang, Angela C. Carmella, Teresa Stanton Collett, Richard W. Garnett, Jeffrey A. Pojanowski, Vincent Rougeau, William Michael Treanor, Amelia J. Uelmen, and Robert K. Vischer. 

--Dan Ernst

Ernst on the Mayflower Compact

Julia L. Ernst, North Dakota Law, has published The Mayflower Compact: Celebrating Four Hundred Years of Influence on U.S. Democracy, North Dakota Law Review 95 (2020): 1-136.  From the introduction:

NYPL

The year 2020 marks the 400th anniversary of the Mayflower Compact, signed by the Pilgrims aboard the Mayflower anchored just offshore from the land that would become Plymouth Colony. This manuscript would become the historical precedent for future seminal documents in the formation of the American governmental system, including the Fundamental Orders of Connecticut, the U.S. Articles of Confederation, the Virginia Declaration of Rights, the Northwest Ordinance, and particularly the U.S. Constitution. As the nation commemorates the quadricentennial of the landing of the Pilgrims in 1620, this paper explores the influence the Mayflower Compact has had on the evolution of democracy in the United States over the past four centuries, tracing both the document’s precursors and its legacy. As many leaders in our country historically and today have endeavored to increase civic virtue and to foster broader participation in the democratic process, this article calls for a greater emphasis in law schools and other educational institutions on the Mayflower Compact and other additional formative documents that have helped shape our constitutional establishment of government.

–Dan Ernst (no relation)

Duggan's Essays on Medieval Canon Law

We’ve recently learned of the publication of A. J. Duggan, Popes, Bishops, and the Progress of Canon Law, c.1120–1234, ed. T.R. Baker (Brepols, 2020).   Anne J. Duggan is Emeritus Professor of Medieval History and Fellow of King’s College London; Travis R. Baker (D.Phil, Oxford, 2017) is a private scholar living in the Diocese of Orange:

This book considers the role of popes and bishops in the development of the law of the Church between 1120 and 1234. Although historians have traditionally seen the popes as the driving force behind the legal transformation of the Church in the twelfth and thirteenth centuries, the primary argument of this book is that the functioning of the process of consultation and appeal reveals a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia.

Bishops have always played a central role in the making and enforcement of the law of the Church, and none more so than the bishop of Rome. From convening and presiding over church councils to applying canon law in church courts, popes and bishops have exercised a decisive influence on the history of that law.

This book, a selection of Anne J. Duggan’s most significant studies on the history of canon law, highlights the interactive role of popes and bishops, and other prelates, in the development of ecclesiastical law and practice between 1120 and 1234. This emphasis directly challenges the pervasive influence of the concept of ‘papal monarchy’, in which popes, and not diocesan bishops and their legal advisers, have been seen as the driving force behind the legal transformation of the Latin Church in the twelfth and early thirteenth centuries. Contrary to the argument that the emergence of the papacy as the primary judicial and legislative authority in the Latin Church was the result of a deliberate programme of papal aggrandizement, the principal argument of this book is that the processes of consultation and appeal reveal a different picture: not of a relentless papal machine but of a constant dialogue between diocesan bishops and the papal Curia, in which the ‘papal machine’ evolved to meet the demand.

–Dan Ernst.  TOC after the jump.

Astorri on Lutheran Theology and Contract Law in Early Modern Germany

Here's a 2019 publication that we missed somehow: Lutheran Theology and Contract Law in Early Modern Germany (ca. 1520-1720) (Verlag Ferdinand Schoningh, 2019), by Paolo Astorri (post-doc at the Center of Privacy Studies, University of Copenhagen; faculty member at the Catholic University of Leuven). A description from the Press:

It is clear that the Lutheran Reformation greatly contributed to changes in theological and legal ideas – but what was the extent of its impact on the field of contract law? Legal historians have extensively studied the contract doctrines developed by Roman Catholic theologians and canonists; however, they have largely neglected Martin Luther, Philip Melanchthon, Johann Aepinus, Martin Chemnitz, Friedrich Balduin and many other reformers. This book focuses on those neglected voices of the Reformation, exploring their role in the history of contract law. These men mapped out general principles to counter commercial fraud and dictated norms to regulate standard economic transactions. The most learned jurists, such as Matthias Coler, Peter Heige, Benedict Carpzov, and Samuel Stryk, among others, studied these theological teachings and implemented them in legal tenets. Theologians and jurists thus cooperated in resolving contract law problems, especially those concerning interest and usury. 

H/t New Books Network, where you can find an interview with the author.

-- Karen Tani

Weekend Roundup

• In the op-ed pages of the New York Times: John Fabian Witt (Yale Law School) writes about how courts have historically responded to challenges to public health laws -- and how they are doing so today ("Republican Judges Are Quietly Upending Public Health Laws").

• In the Washington Post's "Made by History" section: Bruce J. Shulman (Boston University) on how "Court-packing — and other radical constitutional reforms — might save America"; Daniel S. Luck on how "Originalism threatens to turn the clock back on race"; and more.
  

• Via Religion & Politics: Ronit Y. Stahl (University of California, Berkeley) on "The Book of Ruth: Justice Ginsburg on Religious Freedom."
  

• The David Berg Foundation Institute for Law and History at Tel Aviv University has recently updated its bibliography of the history of Israeli law to expand its coverage down to 1977.  The compilers write that they have consulted Palestinian and Arabic-language sources and would be very happy to receive further references.
  

• We’ve previously noted that Linda Kerber will deliver the 2020 Charles Homer Haskins Prize Lecture from the College and Law at the University of Iowa at 3:00 PM Eastern Time on Wednesday, October 28 and our now please to pass along word that Constance Backhouse, ASLH delegate to the American Council of Learned Societies and a former ASLH president, and former ASLH Treasurer, Craig Klafter, nominated Professor Kerber was nominated for this prize.
  

• A recording of the 2020 Roger Trask Lecture of the Society for History in the Federal Government, delivered by Bill Williams, formerly Chief of the Center for Cryptologic History at the National Security Agency, is here.

• We just wanted to make sure you all knew about Aaron Sorkin’s The Trial of Chicago 7.  We still recall our viewing of the documentary William Kunstler: Disturbing the Universe, by the famous radical lawyer’s daughters.  

• The 14th Annual South Asia Legal Studies Workshop happened online this week, hosted by the University of Wisconsin Law School. It included a good crop of legal history papers (program here).

• "100 Years After the 19th Amendment: Their Legacy, and Our Future,” a traveling exhibit of the American Bar Association, opens at the University of Kentucky J. David Rosenberg College of Law on October 18.  Several events are planned, and the UK Law Library has created an accompanying website.  More.
  

• ICYMI: Jack Rakove on originalism and Judge Barrett (WaPo).  Sara Georgini, series editor for The Papers of John Adams, On the Peaceful Transfer of Power: Lessons from 1800 (AHA Perspectives).  Michael Koncewicz, Tamiment Library & Robert F. Wagner Labor Archives, on Loyalty and Duty in the Federal Bureaucracy, From Nixon to Trump (HNN).
  

• Update: Over at IEHS Online, the website of the Immigration and Ethnic History Society, Jane Hong interviews Lucy Salyer about Under the Starry Sky. (Also: it does have legs: I discussed Laws Harsh as Tigers in class this semester, too!  DRE.)
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Prifogle, "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971"

Emily Prifogle (University of Michigan Law) has posted "Legal Landscapes, Migrant Labor, and Rural Social Safety Nets in Michigan, 1942-1971." Here's the abstract:

In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. This article uses Michigan as a case study to examine the informal safety net those rural women created and how it ultimately strengthened the very economic and legal structures that left agricultural workers vulnerable. From the 1940s through the 1960s, federal, state, and local law left large gaps in labor protections and government services for migrant agricultural laborers in Michigan. In response, church women created rural safety nets that mobilized local generosity and provided aid. These informal safety nets also policed migrant morality, maintained rural segregation, and performed surveillance of community outsiders, thereby serving the farmers’ goals of having a reliable and cheap labor force. 

The full article is available here. (h/t @WomenKnowLaw)

-- Karen Tani

A Lost World? Jewish International Lawyers and New World Orders

[We have the following announcement.  The full--and footnoted--call is here.  DRE]

 Call for proposals: A Lost World?: Jewish International Lawyers and New World Orders (1917-1951)

The International Law Forum of the Faculty of Law at the Hebrew University of Jerusalem together with the Leibniz Institute for Jewish History and Culture –Simon Dubnow, at Leipzig and the Jacob Robinson Institute at the Hebrew University of Jerusalem are inviting proposals for papers to be presented at an international conference to be held mostly or partly online on 24-25 May 2021 (depending on the prevailing public health conditions). The conference will include invited speakers and other participants.

David's "Kinship, Law and Politics"

Joseph E. David, Sapir Academic College, Israel, has published Kinship, Law and Politics: An Anatomy of Belonging in the Law in Context series of Cambridge University Press:

Why are we so concerned with belonging? In what ways does our belonging constitute our identity? Is belonging a universal concept or a culturally dependent value? How does belonging situate and motivate us? Joseph E. David grapples with these questions through a genealogical analysis of ideas and concepts of belonging. His book transports readers to crucial historical moments in which perceptions of belonging have been formed, transformed, or dismantled. The cases presented here focus on the pivotal role played by belonging in kinship, law, and political order, stretching across cultural and religious contexts from eleventh-century Mediterranean religious legal debates to twentieth-century statist liberalism in Western societies. With his thorough inquiry into diverse discourses of belonging, David pushes past the politics of belonging and forces us to acknowledge just how wide-ranging and fluid notions of belonging can be.

Some endorsements:

'Not since Charles Taylor have scholars seen such a profound inquiry into the sources of selfhood and the nature of belonging in community. Joseph David draws on a stunning range of ancient and modern, familiar and forgotten figures to probe the depths of human nature and our essential bonds of marriage and family, friendship and faith, property and state. This is interdisciplinary and interreligious scholarship of the highest caliber.'

John Witte, Jr. - Director of the Center for the Study of Law and Religion, Emory University

'Joseph David’s book is an immensely erudite and deep exploration of the meaning of belonging and identity. David’s brilliant examination of the belonging and identity in their different layers and in diverse historical settings, is of fundamental importance to the understanding of the complexity of the concept and the vital role it plays in contemporary political and cultural life.'

Moshe Halbertal - New York University

--Dan Ernst

How the Law Treats Hate

We have word of a Zoom conference,  How the Law Treats Hate: Antisemitism and Anti-Discrimination Reconsidered, sponsored by the University of Virginia’s Religion, Race and Democracy Lab, in partnership with UVA’s Jewish Studies Program and Karsh Center for Law and Democracy.  It takes place on September 10, 12:15 pm - 5:30 pm.

The global upsurge in antisemitism has triggered intense public debates about the role of law in combatting religious and racial hatred. This conference brings together leading scholars of law, history, and Jewish Studies to rethink pressing contemporary questions about antisemitism’s relationship to other forms of discrimination, the proper boundaries between hate speech and free speech, and the Jewish relationship to American civil rights and international law

--Dan Ernst

Rakove's "Beyond Belief, Beyond Conscience"

Jack N. Rakove, the William Robertson Coe Professor of History and American Studies Emeritus at Stanford University, has published Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, with Oxford University Press:

Today, Americans believe that the early colonists came to the New World in search of religious liberty. What we often forget is that they wanted religious liberty for themselves, not for those who held other views that they rejected and detested. Yet, by the mid-18th century, the colonists agreed that everyone possessed a sovereign right of conscience. How did this change develop? In Beyond Belief, Beyond Conscience, Pulitzer Prize-winning author Jack Rakove tracks the unique course of religious freedom in America.

He finds that, as denominations and sects multiplied, Americans became much more tolerant of the free expression of rival religious beliefs. During the Revolutionary era, he explains, most of the new states moved to disestablish churches and to give constitutional recognition to rights of conscience. These two developments explain why religious freedom originally represented the most radical right of all. No other right placed greater importance on the moral autonomy of individuals, or better illustrated how the authority of government could be limited by denying the state authority to act. Together, these developments made possible the great revival of religion in 19th-century America.

As Rakove explains, America's intense religiosity eventually created a new set of problems for mapping the relationship between church and state. He goes on to examine some of our contemporary controversies over church and state not from the vantage point of legal doctrine, but of the deeper history that gave the U.S. its own approach to religious freedom. In this book, he tells the story of how American ideas of religious toleration and free exercise evolved over time, and why questions of church and state still vex us.

--Dan Ernst

Katz, "'Racial and Religious Democracy': Identity and Equality in Midcentury Courts"

Elizabeth Katz (Washington University in St. Louis) has posted "'Racial and Religious Democracy': Identity and Equality in Midcentury Courts." The article appears in Volume 72 of the Stanford Law Review. Here's the abstract:

In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of how race and religion coexist in both perpetrators and victims of discrimination. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality.

Drawing from extensive archival research, this Article unearths forgotten yet formative connections between racial and religious antidiscrimination efforts, at the local through federal levels, from the 1930s through the 1950s. To examine these links, this account centers on the Domestic Relations Court of the City of New York, an unusually influential and high-profile trial court. In the 1930s, the Domestic Relations Court welcomed the most diverse bench ever assembled in the United States by the time (including women and men; blacks and whites; and Protestants, Catholics, and Jews), a development celebrated as bolstering American democracy and countering Nazi bigotry abroad. Several judges held leadership positions in the National Association for the Advancement of Colored People and the American Jewish Congress, pathbreaking civil rights organizations with legal arms headquartered in New York City.

The city's family court served as a testing ground for identity-related legal arguments that later rose to the national level because of its judges’ views and the fact that it merged two antidiscrimination focal points: public institutions’ treatment of children and the application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion, an approach one prominent commenter argued should be eliminated in order to promote "racial and religious democracy." By the 1940s, a coalition of black and Jewish judges regarded both types of identity matching as unlawful segregation. These judges successfully fought against their white Christian colleagues to end race matching, but their challenge to religion matching proved more difficult, both legally and politically. While the opponents of religion matching perceived the practice to be discriminatory and a violation of the separation of church and state, its supporters saw it as a lawful and beneficial protection for religious identity.

Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases—such as McCollum v. Board of Education and Brown v. Board Education—the family court judges and their allies both anticipated and influenced doctrine and norms that remain with us today. This history complicates and raises important questions about ongoing issues ranging from the significance of judges’ racial and religious backgrounds to the scope of religious groups’ involvement in child welfare services and penal contexts. This Article also calls for additional studies that free racial civil rights and First Amendment religion scholarship from their current silos in order to better understand the concurrent development of these crucial and contested areas of law.

Read on here.

-- Karen Tani

Woeste on Trump and Ford

Victoria Woeste, the author Henry Ford's War on Jews and the Legal Battle against Hate Speech, has  posted threaded tweets on Ways that Donald Trump is just like Henry Ford, And Why That’s Not Good for American Democracy.

Update: An expanded version of Woeste's thread now appears on HNN.

--Dan Ernst

Faulkner on Love, Adultery, and Marriage Reform in Nineteenth-Century America

We missed this 2019 release from the University of Pennsylvania Press: Unfaithful: Love, Adultery, and Marriage Reform in Nineteenth-Century America, by Carol Faulkner (Syracuse University). The book is part of the Haney Foundation Series. A description from the Press:

In her 1855 fictionalized autobiography, Mary Gove Nichols told the story of her emancipation from her first unhappy marriage, during which her husband controlled her body, her labor, and her daughter. Rather than the more familiar metaphor of prostitution, Nichols used adultery to define loveless marriages as a betrayal of the self, a consequence far more serious than the violation of a legal contract. Nichols was not alone. In Unfaithful, Carol Faulkner places this view of adultery at the center of nineteenth-century efforts to redefine marriage as a voluntary relationship in which love alone determined fidelity.

After the Revolution, Americans understood adultery as a sin against God and a crime against the people. A betrayal of marriage vows, adultery was a cause for divorce in most states as well as a basis for civil suits. Faulkner depicts an array of nineteenth-century social reformers who challenged the restrictive legal institution of marriage, redefining adultery as a matter of individual choice and love. She traces the beginning of this redefinition of adultery to the evangelical ferment of the 1830s and 1840s, when perfectionists like John Humphrey Noyes, founder of the Oneida Community, concluded that marriage obstructed the individual's relationship to God. In the 1840s and 1850s, spiritualist, feminist, and free love critics of marriage fueled a growing debate over adultery and marriage by emphasizing true love and consent. After the Civil War, activists turned the act of adultery into a form of civil disobedience, culminating in Victoria Woodhull's publicly charging the Reverend Henry Ward Beecher with marital infidelity.

Unfaithful explores how nineteenth-century reformers mobilized both the metaphor and the act of adultery to redefine marriage between 1830 and 1880 and the ways in which their criticisms of the legal institution contributed to a larger transformation of marital and gender relations that continues to this day.

Advance praise:

"Unfaithful engagingly focuses on a set of progressives bent on delegitimizing loveless marriages at a time when lifelong indissoluble marriage was the deep-rooted norm. Carol Faulkner unearths a wealth of new detail about the personal lives of individuals struggling to recast patriarchy in intimate life and to promote new values of choice, love, and women's autonomy in the sexual realm."—Patricia Cline Cohen

More information is available here. You can listen to Professor Faulkner talk about the book here, via her department's podcast series.

-- Karen Tani

Funk on Oathtaking in American Law

Kellen Funk, Columbia Law School, has posted The Swearer's Prayer:

Police Court, 1912 (NYPL)

At the time elite Americans abandoned or modified Christian theologies of perdition, American procedural law relied ever more strongly on the traditional link between law and the theology of divine punishment: the testimonial oath. While conventional histories of American evidence law tell a rather straightforward modernization story of a move from premodern sacral modes of prooftaking to rational forensic modes of examination, this paper shows that oathtaking did not diminish under modern law reform but significantly expanded with the influence of New York's code of 1848. For the first time in America, procedure codes required all pleadings to be sworn by the parties, and all parties and interested witnesses were made competent to take the oath and testify on the stand. Lawyers at first expected the dread of cross examination to deter perjury, but they quickly adjusted their theories in practice to detect lying under oath, which they believed had become rampant under the codes. The lawyers' faith in their ability to detect truth were stymied as racialized witnesses came before the bar. In order to account for racial disqualifications on testimony in a world increasingly open to party testimony (and perjury), lawyers revived an older theology of perdition, swirling together supposedly premodern and rational modes of investigation well into the twentieth century.

--Dan Ernst

Barclay on Judical Religious Exemptions

Stephanie H. Barclay, BYU Law School, has posted The Historical Origins of Judicial Religious Exemptions, which is forthcoming in the Notre Dame Law Review:

The Supreme Court has recently expressed a renewed interest in the question of when the Free Exercise Clause requires exemptions from generally applicable laws. While scholars have vigorously debated what the historical evidence has to say about this question, the conventional wisdom holds that judicially created exemptions would have been a new or extraordinary means of protecting religious exercise — a sea change in the American approach to judicial review when compared to the English common law.

This Article, however, questions that assumption and looks at this question from a broader perspective. When one views judicial decisions through the lens of equitable interpretation, one finds historical evidence of widespread judicially created exemptions that have been hiding in plain sight. Indeed, the judiciary’s ability to modify statutes to cohere with higher law principles like constitutional rights was widely accepted in the early Republic. Though the judiciary did not always use modern language of exemptions, this was functionally what judges were doing on a large scale throughout the country and across a host of personal rights. The mode of analysis courts used to create these equitable exemptions also provides an important historical antecedent for modern strict scrutiny analysis.

An understanding of wider historical judicial practices helps avoid the trend of treating free exercise judicial remedies as an island in the law, and it also provides additional support for an original understanding in favor of religious exemptions. Thus, contrary to the conventional view, this Article demonstrates that judicially created religious exemptions are well within our constitutional traditions of judicial review, and may have more historical support than the Court’s current approach.

--Dan Ernst

Byrne's "Justice and Mercy"

Apologies for having missed this one.  Philippa Byrne has published Justice and Mercy: Moral Theology and the Exercise of Law in Twelfth-Century England (Manchester University Press, 2018):

This book examines one of the most fundamental issues in twelfth-century English politics: justice. It demonstrates that during the foundational period for the common law, the question of judgement and judicial ethics was a topic of heated debate - a common problem with multiple different answers. How to be a judge, and how to judge well, was a concern shared by humble and high, keeping both kings and parish priests awake at night. Using theological texts, sermons, legal treatises and letter collections, the book explores how moralists attempted to provide guidance for uncertain judges. It argues that mercy was always the most difficult challenge for a judge, fitting uncomfortably within the law and of disputed value. Shining a new light on English legal history, Justice and mercy reveals the moral dilemmas created by the establishment of the common law.

–Dan Ernst

Culter on the Single Tax and The Hebrew Bible

Joshua Cutler, University of Houston, C.T. Bauer College of Business, has posted A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible:

Henry George (NYPL)

Henry George sparked a vast popular movement following the publication of his classic work Progress and Poverty. Seeking to explain why poverty always seemed to increase along with progress, George proposed that, as societies advanced, land owners were able to capture an increasing share of wealth. To remedy this, George proposed a “Single Tax” on the unimproved value of land, which would prevent land speculation and hoarding and make land available for all who desired to work it. While George was ostensibly an economist, he is best understood as an ethical-religious figure, and his most devoted followers were a diverse array of religious leaders and reformers. However, the actual religious substance of George’s ideas has been largely unexplored. I propose that George’s program was inspired by Jewish ideas and institutions originating from the Hebrew Bible. In Hebraic thought, by virtue of creating the earth, God is the only rightful owner of land. This principle was embodied in the Hebrew Bible’s land laws that ordained an equal distribution of land along with institutions to maintain this distribution over time. Centuries before George, I discuss how medieval Jewish rabbis had already derived a taxing power from the Hebraic land laws. These biblical land laws would also come to have a strong influence on European political thought through an intellectual tradition known as the “Hebrew Republic.” I attempt to understand Henry George’s thought as an unwitting revival of this tradition, with his Single Tax as an innovative adaption of the Hebraic institutions. The Hebraic understanding of land ownership continues to offer potential inspiration for alternative systems of taxation and economic regulation.

–Dan Ernst

Dew, The Aliites: Race and Law in the Religions of Noble Drew Ali

We missed this book release from 2019: The Aliites: Race and Law in the Religions of Noble Drew Ali (University of Chicago Press), by Spencer Dew (Denison University). A description from the Press:

“Citizenship is salvation,” preached Noble Drew Ali, leader of the Moorish Science Temple of America in the early twentieth century. Ali’s message was an aspirational call for black Americans to undertake a struggle for recognition from the state, one that would both ensure protection for all Americans through rights guaranteed by the law and correct the unjust implementation of law that prevailed in the racially segregated United States. Ali and his followers took on this mission of citizenship as a religious calling, working to carve out a place for themselves in American democracy and to bring about a society that lived up to what they considered the sacred purpose of the law.

In The Aliites, Spencer Dew traces the history and impact of Ali’s radical fusion of law and faith. Dew uncovers the influence of Ali’s teachings, including the many movements they inspired. As Dew shows, Ali’s teachings demonstrate an implicit yet critical component of the American approach to law: that it should express our highest ideals for society, even if it is rarely perfect in practice. Examining this robustly creative yet largely overlooked lineage of African American religious thought, Dew provides a window onto religion, race, citizenship, and law in America.

A few blurbs:

“In this remarkable book of personal and communal atonement, Dew honors what he calls ‘the intellectual aikido’ of Aliite thinkers across a hundred years of insistent devotion to the ideals of American citizenship. Placing the Aliites in the proud company of American freethinkers, Dew lays before us an alternative tradition of American democracy—of civic engagement as religion—from the founding of utopian communities to the courting of FBI surveillance. The Aliites introduces us to a fecund and vital vernacular legal imagination, one that could only be American.” -- Winnifred Fallers

“A genuinely original work, The Aliites makes significant contributions to the study of religion, religion’s relationship to the law in the United States, and larger themes and patterns among Aliites. Dew’s organization of the book around elements of the Great Seal is creative and generative, foregrounding his excellent study of the centrality of the law and practices of citizenship in Aliite thought. This book offers the best interpretation currently available of many practices that contribute to outsiders’ evaluations of some of the modern groups as criminal, making it an enormously valuable work.” -- Judith Weisenfeld

More information is available here.

H/t: New Books in Law, where you can listen to an interview with the author.

-- Karen Tani

Max Planck Studies in Global Legal History of the Iberian Worlds

[We have the following announcement from our friends at the Max Planck Institute for European Legal History.  DRE]

The Max Planck Institute for European Legal History has a new publications series: Max Planck Studies in Global Legal History of the Iberian Worlds (MPIW) will present legal historical research on the Iberian worlds of the early modern and modern periods. Its volumes will cover not only regions that were part of the Spanish and Portuguese empires or stood in direct contact with them, but also examine the globalisation and localisation of normative knowledge throughout Europe, America, Asia and Africa. A particular emphasis lies on the investigation of cultural translation processes and phenomena of multinormativity. The series, edited by Thomas Duve, is published in Open Access, and in print as a hardcover edition by Brill.

The first volume now published - Knowledge of the Pragmatici: Legal and Moral Theological Literature and the Formation of Early Modern Ibero-America - is devoted to a long underestimated genre of normative literature that was of great significance for the formation of normative orders in early modern Ibero-America: small handbooks written for practical use. These could contain legal texts, but moral theological works and confession manuals were also among these widely used media, which were particularly important for the everyday practices of norm production.

The definition of this genre, as well as its function, dissemination and use from the 16th to the 18th century are the focus of the eleven contributions to this volume, which brings together the results of a collaborative research project (SFB 1095). A number of contributions focus on the methods of norm generation in the early modern period, in particular the role of pragmatic literature in these processes and the practices of epitomisation characteristic of this genre. The volume also includes studies on important authors (such as Martín de Azpilcueta) and on the circulation of books and knowledge. Further chapters analyse the presence and use of pragmatic literature in regional contexts from Mexico to South America.

The authors, almost all of whom are members of the MPIeR, come from Argentina, Brazil, Colombia, Germany, Italy, Peru and Spain. The volume, edited by Thomas Duve and Otto Danwerth, has just been published in Open Access; the hardcover version will become available at the end of April.  More information on the website of the MPIeR or on brill.com.