Divinity, Law, and the Legal Turn in the Study of Religions

Concepts of Law in the Sciences, Legal Studies, and Theology; ed. Michael Welker and Gregor Etzelmüller, 2013

This article analyzes the shifting concepts of law in Western law and thought in early modern times and today. It first shows how the modern movement of interdisciplinary legal studies emerged as a corrective to the narrow positivist concepts of law that prevailed before the 1960s. It then shows how, in anticipation of modern methods, earlier Protestant legal thinkers had already worked hard to reconcile biblical and human laws, natural and positive laws, canon and civil laws, cases and legal codes in pursuit of a more integrated jurisprudence.

The Encyclopedia of Christianity, ed. Erwin Fahlbusch, 2003

This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed Enlightenment of the eighteenth and nineteenth centuries. It shows how major shifts in dominant religious ideas transformed the legal ideas and institutions of their day. It concludes that, although recent secular movements have removed traditional forms of religious influence on Western law, contemporary Western law still retains important connections with Christian and other religious ideas and institutions.

2015

Peter W Edge. "The very expression "law and" paradoxically signifies both law's welcoming of other disciplines and its continued separation from them" (Balkin, 1996 at 950). Introduction. John Witte has recently surveyed the field of law and religion within the United States (Witte, 2012). His "interim report" makes essential reading for anyone interested in scholarship from this globally significant set of jurisdictions. My focus in this chapter is partly on contemporary European scholarship, albeit only that part available in English, but also more specifically on the contribution that legal scholarship can make to interdisciplinary work on the interaction of law and religion. I begin by discussing what sort of discipline law is, and how it can interact with other disciplines. I then attempt to consider the contours of legal scholarship as they may appear to an outsider, seeking to bring out the key characteristics which need to be considered when placing a piece of legal scholarship on law and religion in its disciplinary context. I conclude by a brief consideration on what to expect from a legal scholar during interdisciplinary dialogue on law and religion. What sort of discipline is law? Posner argued, in a provocatively titled article, for "[t]he decline of law as an autonomous discipline, 1962-1987" (Posner, 1987; see also Posner, 1988). Schlag expressed the same scepticism by a lively comparison of the discipline to law to that of phrenology (Schlag, 1997). One may be sceptical about the autonomy of legal scholarship without thereby invalidating the existence of a community of legal scholars (van Zandt, 2003), or necessarily concluding that there is nothing distinctive about the work of such scholars (Bix, 2003). Nonetheless, the standing of law as a distinctive discipline is not uncontested. That said, I follow Vick in seeing a core to the academic study of law which "broadly corresponds with a doctrinal approach involving the use of particular interpretative tools and critical techniques in order to systematise and evaluate legal rules and generate recommendations as to what legal rules should be" (Vick, 2004 at 165). Using the United States terminology, this will be termed Langdellian, after the influential Dean of Harvard Law School, although scholars within this tradition frequently do not identify themselves explicitly (Posner, 1988). Within this tradition, especially in the common law, Anglophone, world, the legal scholar begins with the study of authoritative (typically public domain) legal texts, and then moves from knowledge of those texts to apply "the power of logical discrimination and argumentation that came from close and critical study of them" (Posner, 1987 at 763). The latter is crucial to understanding even that Langdellian scholarship which focuses on authoritative texts very closely. Such scholars rarely simply aim to summarise the current state of play in the authoritative sources. Rather "the Langdellian scholar [aims] to discover

Jewish Studies Quarterly, 2009

There are a great many things which cannot withstand the implacable, bright light of the constant presence of others on the public scene; there, only what is considered to be relevant... can be tolcrated, so that the irrelevant becomes automatically a private matter. This, to be sure, does not mean that private concerns are generally irrelevant; on the contrary... there are very relevant matters which can survive only in the realm of the private."1 Jewish law has been an unmistakable presence in American legal scholarship. In her comprehensive and incisive article, "In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory,"2 Suzanne Last Stone traces and accounts for this phenomenon, attributing it to, among many other factors, the reception of Robert Cover's "tour de force,"3 which represents a "significant turning point in the growth of this new literature in American law and Judaism" and which "made it respectable to draw on the Jewish tradition in public discourse."4 Cover's work may be seen as a cornerstone of the "law and literature" movement with its emphasis on the central role of narrative in the construction of the nomos-and it has not only drawn

SSRN Electronic Journal, 2000

2011] AFTERWORD 1041 influence of "law and" in their resort to synchronic analyses of relational conjunction and disjunction, to which they add diachrony in order to reveal the effect of law, or to explain its reality, by assessing change in its relation to other phenomena over time. Unsurprisingly, the animating hypotheses of twentiethcentury legal history embrace the same broad relational problematics that have preoccupied twentieth century "law and" theory: instrumentalism, relative autonomy, mutual constitutiveness, legal construction, autopoiesis, and indeterminacy. 10 The shift to "law as. . ." suggests something else, something distinctive. Concretely, it suggests that explanations of law are not to be found, either necessarily or sufficiently, in its relations to other things. As Shai Lavi notes, with justification, the shift affords an opportunity to think beyond long-familiar Weberian categories and trajectories. 11 It is not determinedly programmatic, a route to the next big concept, but open-ended (hence the ellipsis). Yet it would be idle to pretend that "law as. . ." takes no position, that it is not historically situated. Blithely unaware of it at the outset, the conveners of the conference where the essays here were first presented have discovered that we are on a path that others are also following. We find ourselves riding a wave, one reverberating in both legal 12 and historical 13 scholarship. The wave owes its existence to developments in both history and law. As to the latter, it has never been more of a "hypostatized construct" than at present. 14 We return to this observation below. 15 But what of the former? It, too, hypostatizes itself, though in a more limited sense, being a professional practice with less instrumental reach. Still, as a professional practice, contemporary history, like law, is full of talk of itself. History's talk is of what history has to offer the present. 16 One offering is the narrative history that has become something of a staple of literary nonfiction. Narrative history represents history as edifying stories of the past. As Gordon 10.

Social Analysis, 2009

Religion has always been intimately connected to law. Conversely, modern secular law, born of the separation of lex naturae from lex dei, has always been deeply theological. However, with transformations in the construction of the nation-state and changes in the sociopolitical scaffolding of the global order, the mutual infusion of law and religion appears to be extending both in scope and in substance-notwithstanding the ever more strident assertion of secularism by some nation-states. Counter-intuitively, the law itself appears to be ever more suffused with the sacral, while, across the planet, the sacral is reconstructing constitutional jurisprudence, administrative law, and much more besides. How do we account for this, for the rise of expansive cultures of theo-legality? Where is it leading? And with what implications?

Jewish History (2017) 31: 1–6, 2017

Catholic University of America Press eBooks, 2019

Pardes, 2020