Perry Dane
Perry Dane is a Professor of Law at the Rutgers Law School. He was previously on the faculty of the Yale Law School, and served as a law clerk to William J. Brennan, Jr., Associate Justice of the United States Supreme Court.
Professor Dane is a graduate of Yale College (1978) and the Yale Law School (1981). His research and teaching interests include religion and the law, conflict of laws, constitutional law, jurisdiction, American Indian law, the law of charities, the jurisprudence of Jewish law, legal pluralism, comparative constitutionalism, the debate on same-sex marriage, the Canadian legal system, and the Middle East peace process.
Professor Dane received the Inaugural Dean’s Award for Scholarly Excellence at the Rutgers School of Law - Camden in 2011.
In January 1997, Professor Dane was a Distinguished Visiting Professor at the University of Toronto Faculty of Law, teaching an intensive course on Religion and the Law. More recently, in January 2008, he taught a course on Religion and the State in Cross-National Perspective as a visiting professor at the University of Western Ontario Faculty of Law. During the 2000-01 academic year, Professor Dane was a faculty fellow at the Rutgers Center for the Critical Analysis of Contemporary Culture during their program on “Secularism.” He is presently a Faculty Affiliate of the Rutgers Institute for Law and Philosophy. He has also been a member of the national seminar of the Project on Religious Institutions at Yale University’s Program on Non-Profit Organizations, a guest of the Shalom Hartman Institute In Israel, and a participant in a variety of scholarly conferences around the nation and the world. During the 2010-11 academic year, Professor Dane was a full-time resident fellow at the Tikvah Center for Law & Jewish Civilization at the New York University Law School.
Phone: 856-225-6004
Address: 217 North Fifth Street
Camden, NJ 08102
Professor Dane is a graduate of Yale College (1978) and the Yale Law School (1981). His research and teaching interests include religion and the law, conflict of laws, constitutional law, jurisdiction, American Indian law, the law of charities, the jurisprudence of Jewish law, legal pluralism, comparative constitutionalism, the debate on same-sex marriage, the Canadian legal system, and the Middle East peace process.
Professor Dane received the Inaugural Dean’s Award for Scholarly Excellence at the Rutgers School of Law - Camden in 2011.
In January 1997, Professor Dane was a Distinguished Visiting Professor at the University of Toronto Faculty of Law, teaching an intensive course on Religion and the Law. More recently, in January 2008, he taught a course on Religion and the State in Cross-National Perspective as a visiting professor at the University of Western Ontario Faculty of Law. During the 2000-01 academic year, Professor Dane was a faculty fellow at the Rutgers Center for the Critical Analysis of Contemporary Culture during their program on “Secularism.” He is presently a Faculty Affiliate of the Rutgers Institute for Law and Philosophy. He has also been a member of the national seminar of the Project on Religious Institutions at Yale University’s Program on Non-Profit Organizations, a guest of the Shalom Hartman Institute In Israel, and a participant in a variety of scholarly conferences around the nation and the world. During the 2010-11 academic year, Professor Dane was a full-time resident fellow at the Tikvah Center for Law & Jewish Civilization at the New York University Law School.
Phone: 856-225-6004
Address: 217 North Fifth Street
Camden, NJ 08102
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The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions.
This Article does not try to referee between them. Instead, it takes aim at a third set of views – theories of “original public meaning” – that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.
The method of original public meaning has a distinct, deadly, bit of intractable incoherence: It is, uniquely, largely useless in interpreting the meaning of contemporaneous legal enactments. If we, today, are trying to figure out the meaning, not of a provision enacted years ago, but of a text enacted today or recently, then looking to original public meaning will usually be a circular, empty, effort. After all, we – the interpreters of a contemporaneous text – are the original public.
This hole in the fabric of original public meaning theory is roughly analogous to the chasm at the heart of variants of predictive legal realism. Just as defining the law as a prediction of what judges will do is of no help to judges themselves in deciding what the law is, defining the meaning of the law by reference to the views of the original public is of no help to the original public in deciding what the meaning of the law is.
That small hole ends up unraveling the entire fabric of original public meaning. If the original public cannot look to original public meaning to decide the meaning of a contemporaneous legal texts, it must have some other way to determine legal meanings. The original interpreters of older texts were readers, just like us. They had a way of reading contemporaneous texts, as do we. We can conclude that they applied their own method incorrectly. We can also decide that our way of reading – which continues to whisper in our ear even when we read older texts – is better suited to the task of understanding those texts.
There is a sort of hydraulic relation between the doctrines of religious exemptions and freedom of expression. Any behavior can be religious; that is why even those of us who support robust free exercise protections should admit that they can be anomalous and normatively difficult. Only certain, conventionally ratified, behaviors are legally cognizable as expressive; that is an important limit, but it is also why freedom of speech can be powerful without being anomalous.
This short essay focuses on the obvious question arising out of the free speech side of this hydraulic relation: How, exactly, do we draw those boundaries around protectable expression? It tuns out, that religious threads are woven into the details of that complex normative fabric. Those threads arise out of specific religious traditions and histories and specific religious normative worlds. Indeed, if some of our stereotypical ideas about “religious” behavior center on practices such as praying, worshiping, attending church, or engaging in religious rituals, some of our central assumptions about the scope of free expression are grounded in another religious litany that includes, among other things, vigorous argument, ritual silence, and asking for alms. The consequences of this relationship are important both theoretically and practically.
Download at https://ssrn.com/abstract=4054968
One of the great principles of Deuteronomy, as is dramatically evident in the injunctions contained in the section called Parshat Re’eh, is the centralization of worship in a city that God will choose, which later turns out to be Jerusalem. The explicit reason for this concentration of ritual life was to banish idolatry. But another reason might have been to inspire an urban faith, a faith centered on a place of concentrated energy, both good and bad, with complex and even explosive spiritual consequences.
This D’var Torah was first delivered in the wake of the tragedy of Hurricane Katrina in New Orleans. It is a tribute to cities – New Orleans, Jerusalem, and many others. But it also tries to give a clear-eyed account of their potential for decay and disaster. The essay ultimately suggests the need for a theology of the city that also encompasses the non-city.
A coda to the original D’Var Torah very briefly discusses the profound facture between cities and non-cities during our current polarized age and especially during the current COVID pandemic.
The book of Deuteronomy narrates Moses’s extended speech to the people of Israel at the end of their forty-year wandering through the desert. At the beginning of the portion of Deuteronomy called Eikev, Moses describes the land that the people are about to enter as a potential Eden. Yet his oratory seems to turn disjointed and disconnected. Moses rambles. And he contradicts himself.
A central theme of these passages is the importance of defeating the Canaanite inhabitants of the land, lest the Israelites be tempted to imitate their sinful ways. Yet it turns out that success creates its own perils, for prosperity can lead the people to become proud and forget God. Moses also suggests both that the conquest of the land will occur quickly and, in a decidedly odd line, that “You will not be able to destroy them quickly, lest the beasts of the field outnumber you.”
This D’var Torah suggests that the Canaanites, the war against them, and the image of the “beasts of the field” can all be read metaphorically. Ironically enough, the Canaanites are in a deep sense forces of civilization. They hold disorder at bay. Most important, they bear God’s image. To rid the land of them too quickly is to unleash the beast.
Religious traditions need to ask some vital questions about their view of the civic order, especially the ostensibly secular civic order. These questions include: Is civil government legitimate? If so, what is the proper scope of its concerns and authority? How should the civic order and communities of faith relate to each other? Religious communities must also ask questions about other religions. Are they legitimate? Are they worthy of respect, politically or theologically or interpersonally? How should they relate to each other? And how should faith traditions collectively relate to the civic order?
David VanDrunen’s "Politics after Christendom: Political Theology in a Fractured World," is a rich, fine-grained, effort to grapple with the first sets of questions just outlined: the legitimacy and role of the civic state and the place of the religious order and religious believers. The book’s arguments are often compelling. Many should be reassuring to those of us in different religious traditions. They also resonate nicely with legal pluralism and with a jurisdictional view of religious liberty and religion-state dispensations. Some of the book’s insights also break new ground.
Yet there is something off here, like an appealing melody sung just slightly off key. Furthermore, VanDrunen’s book has little to say about the last set of questions, on interreligious relations. This turns out to be a problem.
This essay – a draft of a contribution to an upcoming Book Review Roundtable in on VanDrunen’s book in the Journal of Law and Religion – canvasses VanDrunen’s answers to some of the questions that every religious nomos must ask as it tries to overcome its own temptation to solipsism. The essay discusses VanDrunen’s account of the state and civil society and outlines his view of how Christian believers should understand their role in politics. It then homes in on the matter of interreligious encounter.
The essay concludes, provocatively perhaps, with a Kabbalistic coda.
American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.
This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?
The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?
The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.
This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.
Readers of the Book of Genesis have come to take for granted that the primordial history of the Jews would begin with a single pair of founders – Abraham and Sarah – and then pass through a very narrow line of successions – to Isaac and Rebekah and then Jacob and his wives – before it finally spreads out to an entire family that eventually becomes the large nation that leaves Egypt in the second founding story told in the Book of Exodus.
Less clear, though, is why this should be. One Midrashic tradition, after all, claims -- not implausibly in the light of the history of religious movements -- that Abraham and Sarah gathered converts from the very start. And even if the narrative must focus on genealogical inheritance, why wait until the fourth generation before an entire cohort of siblings can share a single familial and then national identity?
This talk suggests several possible explanations. The first is social and arguably feminist. The second is theological. The third is existential. Abraham and Sarah and a select few of their immediate descendants were for a time the only Jews on Earth, and the future of the whole enterprise hung by a thread. There is surely a lesson in this, and even an experiential imperative.
This talk explores the image of divine Kingship that is central to the liturgy of the Jewish High Holidays. The divine King is our sovereign and judge, and that image might even suggest a God Who is painfully transcendent and even austere. But the metaphor is much richer and multi-layered than that. The notion of divine Kinship emphasizes God’s immanence as much as God’s transcendence. It is a token of God’s engagement with the world and of God’s responsibility to the world. Moreover, in the Kabbalistic imagination, the attribute of “Malkhut,” divine Kingship, is associated with the Shekinah, the indwelling presence of God, the part of God that lives with us in exile, usually thought of as the feminine aspect of God. And it is at least worth noting that the Anglo-Saxon root of king – “cyning” – just meant “member of the kindred.”
This text ends with a postscript that further explores the image of divine Kingship in the context of our contemporary sensibilities about gender hierarchies and the understandable aversion to employing apparently unapologetic masculine language about God.
The first mystery is familiar. What does it mean to say “Adonai Echad”, which literally means something like “God One”? The most familiar translation of the phrase is “God is one,” thus understanding it as a declaration of monotheistic belief. But this customary interpretation is both trivial and misleading. Some Biblical scholars translate the phrase as “God alone” so that it is a vow of loyalty to only one God. Or it might mean “God is unique.” Jewish mystics have taken “Adonai Echad” to be a token of the Unity between God and the universe. Or, as I suggest, Echad might be one of the names of God, a descriptive name to be sure, but not merely a description.
The second mystery is why the first paragraph of the Shema is the piece of scripture inscribed in mezuzot and included (along with other passages) in tefillin. The standard answer is that these are the very passages that describe the commandments of mezuzot and tefillin. But we’re so used to this that we might not realize how odd it is. These are instructions about how to remember and memorialize God’s commandments. And we claim to obey those instructions by reciting and inscribing and packaging the instructions. In some sense, the Shema is like a Quine, a self-replicating computer program, or like an Escher staircase that goes up and up and lands on itself. It is an infinite regress.
The talk tries to connect these two mysteries of the Shema to each other, and then to the commandments to love God and love our neighbors as ourselves.
The D’var Torah on Parshat Bamidbar explores the power and meaning of names and numbers.
The Hebrew name of the second book of Exodus, the second book of the Torah, is Shemot – Names. The English name of the fourth book of the Torah is Numbers. One of its Hebrew names (alongside the more familiar “Bamidbar”) is Sefer HaPikudim, the Book of Numberings.
On the most obvious level, that transition from names to numbers seems straightforward, marking the transformation of the single small clan of Jacob and his sons into the large nation that escaped Egypt and wandered through the dessert. But nothing is that simple, textually, historically, or symbolically.
Numbers are not just mathematical countings. They can be as loaded with meaning as names. In some contexts, numbers can also be names. The Seventy. The Twelve. The Six Million. As numbers, they might be approximate. As names, they are resoundingly precise. Meanwhile, it turns out that to know somebody’s name is easy, even trivial. The challenge is to know somebody by name, to know a person’s mind and soul and heart.
Names can just be labels. Names at their best are the tokens of our individual uniqueness. Numbers can just be arithmetical exercises. Numbers at their best are one way we come to understand our collective sense of ourselves. We live in a world of names and numbers, sometimes colliding, sometimes dancing together, sometimes transforming back and forth.
The Torah understands all this, better than most of us do.
I originally presented a version of this talk at a gathering in the city of Sighet, Maramures County, in Transylvania, Romania. Sighet once had a large and vibrant Jewish community, making up almost half the population of the city. In May 1944, the Jews of Sighet were deported to Auschwitz, where most were gassed on arrival. Elie Wiesel was also born in Sighet. He survived the death camps and insisted that the world never forget.
Jewish tradition has long tried to suppress the sort of “cult of the dead” found in other cultures. Indeed, Parshat Emor emphasizes that the kohanim, the religious functionaries of pre-Rabbinic times, were ritually excluded from involvement with the rituals of death.
There is one momentous exception, however, to this Jewish diffidence about death. That exception is collective tragedy. The horrors that have too often blasted their way into Jewish history have all powerfully and poignantly shaped Jewish religious life, ceremony, and liturgy. Yet there is something remarkable about the Jewish rituals of collective tragedy. They are never left to marinate in their own bitterness. The tradition consistently juxtaposes them against expressions of hope or even redemption.
These juxtapositions are profoundly mysterious. Our expressions of hope do not negate our tragedies. They do not elevate them. Nothing can perfume over the stink of death. We must not fall into the heresy of claiming that tragedy and horror and suffering are somehow redemptive. But Jewish tradition does demand that we attach them, however hard and paradoxical it is, into a larger story of redemption.
In exploring this theme, my talk engaged with Elie Wiesel’s insistence that, even in our despair over the Holocaust, we “must invent a thousand and one reasons to hope.” It also called on important insights from Rabbi Joseph B. Soloveitchik, the Czech Christian theologian Tomáš Halík, and the American philosopher Josiah Royce.
This essay will appear as part of a symposium issue on Stephen Smith's new book, “Pagans and Christians in the City.”
Much of the Smith’s book is compelling, even lyrical. His account of the religious sensibility is powerful and convincing. Smith’s book is also more nuanced and hedged-about in its historical and theoretical claims than one would suppose from a headline account that would focus only on his two chapters near the end that drill down on contemporary issues in the so-called culture wars.
Nevertheless, some deep ironies and puzzles run through the text of “Pagans and Christians.” Smith is too careful and subtle to ignore these undercurrents entirely. But it is worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nit-pick. But I do try by the accumulation of details to suggest a fundamental worry that goes to the most charged words and phrases at the heart of the book’s title — “pagans” and “culture wars.”
What, in the religious imagination, was the point of the Ten Commandments and their dramatic revelation to Israel at Mount Sinai? After all, most of the Ten Commandments consist of the sort of general rules of conduct that the Israelites already knew. In any event, the Torah strongly suggests that Moses began receiving legal revelations from God even before Sinai. One obvious answer is that Sinai was not just an occasion to pass down the law. It was a theophany, a rare, awe-filled, direct encounter with the divine, an appearance of God to human beings. But that just provokes a further question: Why did the theophany at Sinai have to be filled with law?
This D’var Torah’s tentative answer to these questions is that the Israelites did indeed bring their common-sense ideas about right and wrong to Sinai and then learned, amid the thunder and lighting, that the divine reality on the other side of the curtain includes those truths too: that the inner life of the universe is founded on straightforward principles of justice and truth, in addition to love and redemption. That is a revelation worth noting, and celebrating.
Keywords: Ten Commandments, Sinai, theophany, Parshat Yitro, Michael Kinsley, Christopher Hitchens, Midrash, Reformed Epistemology, Scottish Common Sense Philosophy, Alvin Plantinga, Nicholas Wolterstorff, Maimonides, Noachide Laws
This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover’s account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state’s own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.
This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.
The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?
This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.
The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.
Jury nullification is the ability of juries to acquit criminal defendants even against the apparent weight of the law and the facts. This commentary asks whether jury nullification is a “bug” or a “feature” of the American criminal trial, a question separate, for example, from whether it is good or bad. The commentary concludes, tentatively, that jury nullification, on one understanding, might be a “feature.” It might reflect the jury’s authority, in exceptional cases, to particularize the applicable law by way of its existential engagement with a live defendant and the unique circumstances of a case. The possibility of jury nullification might therefore represent the legal system’s implicit recognition that law can have a granular as well as a global quality. A determination of granular law does not subject the rule of law to an abstract principle such as “justice” or the “democratic will.” It rather zooms in to expose the otherwise-unseen gaps or possibilities beyond the formality of the rule.
This power to uncover the granularity in the facts of a criminal trial is understandably and even necessarily controversial. The article looks for analogues in religious normative systems, examining the authority of Jewish legal decisors and the dispute over the meaning and legitimacy of Pope Francis’s Apostolic Exhortation Amoris Laetitia. Such analogues are only suggestive, however. At the end of the day, the embrace of an understanding of jury nullification along the lines outlined here would require both a deeper vision of the jury and a more adequate and more complex theory of law.
In the standard binary of justice and mercy, we often assume that justice is the mark of order, proportion, and balance, while mercy is disorderly, out of proportion, and imbalanced. The Biblical account of the ancient Yom Kippur ritual casts a different light on the matter, however. It suggests that the orderly machinery of the universe dispenses both justice and mercy. Mercy, too, is part of the architecture of the cosmos, natural and balanced.
The synagogue liturgy of Yom Kippur, as it has developed over the centuries, mutes the Bible’s impersonally efficacious account of mercy. It focuses instead on the spiritual, the sacred, and the transformative dimensions of the day. But there is also power and beauty in the notion that magic can be invoked by an act of magic – a mechanical, automatically efficacious act of wiping the slate clean.
The ritual of the Azazel was in some sense a “performative” in the philosophical sense – a gesture that did not so much convey a thought as do a thing. Yom Kippur is rightly a time of doubt, anxiety, and terror. The trick is to know the terror, but also let the magic work.
One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church.
With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “‘The State is not in the Church, but the Church is in the State” – does not.
This short essay tries to make sense of the Biblical description of the ancient Yom Kippur ritual in which a scapegoat was dispatched to Azazel to carry away the sins of the people.
In the standard binary of justice and mercy, we often assume that justice is the mark of order, proportion, and balance, while mercy is disorderly, out of proportion, and imbalanced. The Biblical account of the ancient Yom Kippur ritual casts a different light on the matter, however. It suggests that the orderly machinery of the universe dispenses both justice and mercy. Mercy, too, is part of the architecture of the cosmos, natural and balanced.
The synagogue liturgy of Yom Kippur, as it has developed over the centuries, mutes the Bible’s impersonally efficacious account of mercy. It focuses instead on the spiritual, the sacred, and the transformative dimensions of the day. But there is also power and beauty in the notion that magic can be invoked by an act of magic – a mechanical, automatically efficacious act of wiping the slate clean.
The ritual of the Azazel was in some sense a “performative” in the philosophical sense – a gesture that did not so much convey a thought as do a thing. Yom Kippur is rightly a time of doubt, anxiety, and terror. The trick is to know the terror, but also let the magic work.
The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions.
This Article does not try to referee between them. Instead, it takes aim at a third set of views – theories of “original public meaning” – that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.
The method of original public meaning has a distinct, deadly, bit of intractable incoherence: It is, uniquely, largely useless in interpreting the meaning of contemporaneous legal enactments. If we, today, are trying to figure out the meaning, not of a provision enacted years ago, but of a text enacted today or recently, then looking to original public meaning will usually be a circular, empty, effort. After all, we – the interpreters of a contemporaneous text – are the original public.
This hole in the fabric of original public meaning theory is roughly analogous to the chasm at the heart of variants of predictive legal realism. Just as defining the law as a prediction of what judges will do is of no help to judges themselves in deciding what the law is, defining the meaning of the law by reference to the views of the original public is of no help to the original public in deciding what the meaning of the law is.
That small hole ends up unraveling the entire fabric of original public meaning. If the original public cannot look to original public meaning to decide the meaning of a contemporaneous legal texts, it must have some other way to determine legal meanings. The original interpreters of older texts were readers, just like us. They had a way of reading contemporaneous texts, as do we. We can conclude that they applied their own method incorrectly. We can also decide that our way of reading – which continues to whisper in our ear even when we read older texts – is better suited to the task of understanding those texts.
There is a sort of hydraulic relation between the doctrines of religious exemptions and freedom of expression. Any behavior can be religious; that is why even those of us who support robust free exercise protections should admit that they can be anomalous and normatively difficult. Only certain, conventionally ratified, behaviors are legally cognizable as expressive; that is an important limit, but it is also why freedom of speech can be powerful without being anomalous.
This short essay focuses on the obvious question arising out of the free speech side of this hydraulic relation: How, exactly, do we draw those boundaries around protectable expression? It tuns out, that religious threads are woven into the details of that complex normative fabric. Those threads arise out of specific religious traditions and histories and specific religious normative worlds. Indeed, if some of our stereotypical ideas about “religious” behavior center on practices such as praying, worshiping, attending church, or engaging in religious rituals, some of our central assumptions about the scope of free expression are grounded in another religious litany that includes, among other things, vigorous argument, ritual silence, and asking for alms. The consequences of this relationship are important both theoretically and practically.
Download at https://ssrn.com/abstract=4054968
One of the great principles of Deuteronomy, as is dramatically evident in the injunctions contained in the section called Parshat Re’eh, is the centralization of worship in a city that God will choose, which later turns out to be Jerusalem. The explicit reason for this concentration of ritual life was to banish idolatry. But another reason might have been to inspire an urban faith, a faith centered on a place of concentrated energy, both good and bad, with complex and even explosive spiritual consequences.
This D’var Torah was first delivered in the wake of the tragedy of Hurricane Katrina in New Orleans. It is a tribute to cities – New Orleans, Jerusalem, and many others. But it also tries to give a clear-eyed account of their potential for decay and disaster. The essay ultimately suggests the need for a theology of the city that also encompasses the non-city.
A coda to the original D’Var Torah very briefly discusses the profound facture between cities and non-cities during our current polarized age and especially during the current COVID pandemic.
The book of Deuteronomy narrates Moses’s extended speech to the people of Israel at the end of their forty-year wandering through the desert. At the beginning of the portion of Deuteronomy called Eikev, Moses describes the land that the people are about to enter as a potential Eden. Yet his oratory seems to turn disjointed and disconnected. Moses rambles. And he contradicts himself.
A central theme of these passages is the importance of defeating the Canaanite inhabitants of the land, lest the Israelites be tempted to imitate their sinful ways. Yet it turns out that success creates its own perils, for prosperity can lead the people to become proud and forget God. Moses also suggests both that the conquest of the land will occur quickly and, in a decidedly odd line, that “You will not be able to destroy them quickly, lest the beasts of the field outnumber you.”
This D’var Torah suggests that the Canaanites, the war against them, and the image of the “beasts of the field” can all be read metaphorically. Ironically enough, the Canaanites are in a deep sense forces of civilization. They hold disorder at bay. Most important, they bear God’s image. To rid the land of them too quickly is to unleash the beast.
Religious traditions need to ask some vital questions about their view of the civic order, especially the ostensibly secular civic order. These questions include: Is civil government legitimate? If so, what is the proper scope of its concerns and authority? How should the civic order and communities of faith relate to each other? Religious communities must also ask questions about other religions. Are they legitimate? Are they worthy of respect, politically or theologically or interpersonally? How should they relate to each other? And how should faith traditions collectively relate to the civic order?
David VanDrunen’s "Politics after Christendom: Political Theology in a Fractured World," is a rich, fine-grained, effort to grapple with the first sets of questions just outlined: the legitimacy and role of the civic state and the place of the religious order and religious believers. The book’s arguments are often compelling. Many should be reassuring to those of us in different religious traditions. They also resonate nicely with legal pluralism and with a jurisdictional view of religious liberty and religion-state dispensations. Some of the book’s insights also break new ground.
Yet there is something off here, like an appealing melody sung just slightly off key. Furthermore, VanDrunen’s book has little to say about the last set of questions, on interreligious relations. This turns out to be a problem.
This essay – a draft of a contribution to an upcoming Book Review Roundtable in on VanDrunen’s book in the Journal of Law and Religion – canvasses VanDrunen’s answers to some of the questions that every religious nomos must ask as it tries to overcome its own temptation to solipsism. The essay discusses VanDrunen’s account of the state and civil society and outlines his view of how Christian believers should understand their role in politics. It then homes in on the matter of interreligious encounter.
The essay concludes, provocatively perhaps, with a Kabbalistic coda.
American law clerks often draft opinions for their judges. Yet American legal culture is remarkably diffident about that simple fact. The role that law clerks play in drafting opinions is not a secret. Far from it. But it might qualify to be somewhere in the outer vicinity of being an “open secret.” And it continues to be controversial.
This essay explores a set of questions about opinion-writing by law clerks. The first major question is meta-normative. The goal is not to decide whether the practice of law clerks drafting opinions is proper or improper, but why it is occluded and controversial in the first place. Specifically, why is there so much more diffidence and doubt about the role of law clerks than about the work of aides in the other branches of government such as Presidential speechwriters and Congressional staff?
The second question is hermeneutic. Should the fact that judges might not always draft their own opinions lead us to read and interpret those opinions differently, especially when we draw conclusions about the “jurisprudence” of this or that judge or Justice or the way that legal doctrines often seem to be shaped by longstanding, dialectical, debates among judges or Justices?
The discussion of both questions tries to shed some light on broader constitutional and jurisprudential questions, including the distinctly metonymic relationship between the “President” and the rest of the Executive Branch and the complicated connections between judicial reasoning, the exercise of judicial authority, and the identity of the individual judge.
This essay was written as part of symposium marking the hundredth anniversary of the formal institution of Supreme Court law clerks.
Readers of the Book of Genesis have come to take for granted that the primordial history of the Jews would begin with a single pair of founders – Abraham and Sarah – and then pass through a very narrow line of successions – to Isaac and Rebekah and then Jacob and his wives – before it finally spreads out to an entire family that eventually becomes the large nation that leaves Egypt in the second founding story told in the Book of Exodus.
Less clear, though, is why this should be. One Midrashic tradition, after all, claims -- not implausibly in the light of the history of religious movements -- that Abraham and Sarah gathered converts from the very start. And even if the narrative must focus on genealogical inheritance, why wait until the fourth generation before an entire cohort of siblings can share a single familial and then national identity?
This talk suggests several possible explanations. The first is social and arguably feminist. The second is theological. The third is existential. Abraham and Sarah and a select few of their immediate descendants were for a time the only Jews on Earth, and the future of the whole enterprise hung by a thread. There is surely a lesson in this, and even an experiential imperative.
This talk explores the image of divine Kingship that is central to the liturgy of the Jewish High Holidays. The divine King is our sovereign and judge, and that image might even suggest a God Who is painfully transcendent and even austere. But the metaphor is much richer and multi-layered than that. The notion of divine Kinship emphasizes God’s immanence as much as God’s transcendence. It is a token of God’s engagement with the world and of God’s responsibility to the world. Moreover, in the Kabbalistic imagination, the attribute of “Malkhut,” divine Kingship, is associated with the Shekinah, the indwelling presence of God, the part of God that lives with us in exile, usually thought of as the feminine aspect of God. And it is at least worth noting that the Anglo-Saxon root of king – “cyning” – just meant “member of the kindred.”
This text ends with a postscript that further explores the image of divine Kingship in the context of our contemporary sensibilities about gender hierarchies and the understandable aversion to employing apparently unapologetic masculine language about God.
The first mystery is familiar. What does it mean to say “Adonai Echad”, which literally means something like “God One”? The most familiar translation of the phrase is “God is one,” thus understanding it as a declaration of monotheistic belief. But this customary interpretation is both trivial and misleading. Some Biblical scholars translate the phrase as “God alone” so that it is a vow of loyalty to only one God. Or it might mean “God is unique.” Jewish mystics have taken “Adonai Echad” to be a token of the Unity between God and the universe. Or, as I suggest, Echad might be one of the names of God, a descriptive name to be sure, but not merely a description.
The second mystery is why the first paragraph of the Shema is the piece of scripture inscribed in mezuzot and included (along with other passages) in tefillin. The standard answer is that these are the very passages that describe the commandments of mezuzot and tefillin. But we’re so used to this that we might not realize how odd it is. These are instructions about how to remember and memorialize God’s commandments. And we claim to obey those instructions by reciting and inscribing and packaging the instructions. In some sense, the Shema is like a Quine, a self-replicating computer program, or like an Escher staircase that goes up and up and lands on itself. It is an infinite regress.
The talk tries to connect these two mysteries of the Shema to each other, and then to the commandments to love God and love our neighbors as ourselves.
The D’var Torah on Parshat Bamidbar explores the power and meaning of names and numbers.
The Hebrew name of the second book of Exodus, the second book of the Torah, is Shemot – Names. The English name of the fourth book of the Torah is Numbers. One of its Hebrew names (alongside the more familiar “Bamidbar”) is Sefer HaPikudim, the Book of Numberings.
On the most obvious level, that transition from names to numbers seems straightforward, marking the transformation of the single small clan of Jacob and his sons into the large nation that escaped Egypt and wandered through the dessert. But nothing is that simple, textually, historically, or symbolically.
Numbers are not just mathematical countings. They can be as loaded with meaning as names. In some contexts, numbers can also be names. The Seventy. The Twelve. The Six Million. As numbers, they might be approximate. As names, they are resoundingly precise. Meanwhile, it turns out that to know somebody’s name is easy, even trivial. The challenge is to know somebody by name, to know a person’s mind and soul and heart.
Names can just be labels. Names at their best are the tokens of our individual uniqueness. Numbers can just be arithmetical exercises. Numbers at their best are one way we come to understand our collective sense of ourselves. We live in a world of names and numbers, sometimes colliding, sometimes dancing together, sometimes transforming back and forth.
The Torah understands all this, better than most of us do.
I originally presented a version of this talk at a gathering in the city of Sighet, Maramures County, in Transylvania, Romania. Sighet once had a large and vibrant Jewish community, making up almost half the population of the city. In May 1944, the Jews of Sighet were deported to Auschwitz, where most were gassed on arrival. Elie Wiesel was also born in Sighet. He survived the death camps and insisted that the world never forget.
Jewish tradition has long tried to suppress the sort of “cult of the dead” found in other cultures. Indeed, Parshat Emor emphasizes that the kohanim, the religious functionaries of pre-Rabbinic times, were ritually excluded from involvement with the rituals of death.
There is one momentous exception, however, to this Jewish diffidence about death. That exception is collective tragedy. The horrors that have too often blasted their way into Jewish history have all powerfully and poignantly shaped Jewish religious life, ceremony, and liturgy. Yet there is something remarkable about the Jewish rituals of collective tragedy. They are never left to marinate in their own bitterness. The tradition consistently juxtaposes them against expressions of hope or even redemption.
These juxtapositions are profoundly mysterious. Our expressions of hope do not negate our tragedies. They do not elevate them. Nothing can perfume over the stink of death. We must not fall into the heresy of claiming that tragedy and horror and suffering are somehow redemptive. But Jewish tradition does demand that we attach them, however hard and paradoxical it is, into a larger story of redemption.
In exploring this theme, my talk engaged with Elie Wiesel’s insistence that, even in our despair over the Holocaust, we “must invent a thousand and one reasons to hope.” It also called on important insights from Rabbi Joseph B. Soloveitchik, the Czech Christian theologian Tomáš Halík, and the American philosopher Josiah Royce.
This essay will appear as part of a symposium issue on Stephen Smith's new book, “Pagans and Christians in the City.”
Much of the Smith’s book is compelling, even lyrical. His account of the religious sensibility is powerful and convincing. Smith’s book is also more nuanced and hedged-about in its historical and theoretical claims than one would suppose from a headline account that would focus only on his two chapters near the end that drill down on contemporary issues in the so-called culture wars.
Nevertheless, some deep ironies and puzzles run through the text of “Pagans and Christians.” Smith is too careful and subtle to ignore these undercurrents entirely. But it is worth bringing them to the surface, not only for their own sake but because they might help suggest an alternative to Smith’s most rough-edged claims. My aim in this essay is not merely to nit-pick. But I do try by the accumulation of details to suggest a fundamental worry that goes to the most charged words and phrases at the heart of the book’s title — “pagans” and “culture wars.”
What, in the religious imagination, was the point of the Ten Commandments and their dramatic revelation to Israel at Mount Sinai? After all, most of the Ten Commandments consist of the sort of general rules of conduct that the Israelites already knew. In any event, the Torah strongly suggests that Moses began receiving legal revelations from God even before Sinai. One obvious answer is that Sinai was not just an occasion to pass down the law. It was a theophany, a rare, awe-filled, direct encounter with the divine, an appearance of God to human beings. But that just provokes a further question: Why did the theophany at Sinai have to be filled with law?
This D’var Torah’s tentative answer to these questions is that the Israelites did indeed bring their common-sense ideas about right and wrong to Sinai and then learned, amid the thunder and lighting, that the divine reality on the other side of the curtain includes those truths too: that the inner life of the universe is founded on straightforward principles of justice and truth, in addition to love and redemption. That is a revelation worth noting, and celebrating.
Keywords: Ten Commandments, Sinai, theophany, Parshat Yitro, Michael Kinsley, Christopher Hitchens, Midrash, Reformed Epistemology, Scottish Common Sense Philosophy, Alvin Plantinga, Nicholas Wolterstorff, Maimonides, Noachide Laws
This short talk focuses on three aspects of Robert Cover's brand of legal pluralism: First, Cover’s account of legal pluralism went beyond the simple recognition of non-state legal orders; just as important for him was the claim that non-state communities could generate and defend distinct readings of the state’s own legal order. Second, Cover's jurisprudence assigned a central role to state violence and non-state communities' resistance. Violence and resistance were vital to his account not only because they are the way of the world but because they help render legal pluralism real. Third, Cover's well-known focus on the narrative dimension of the law was intertwined with his famous image of the law as a bridge between the present world and the ideal. Both the real and the ideal are narratives – stories – and that law is, in a sense, the feat of engineering that connects these two separated narratives.
This essay on Corporations is a chapter in an upcoming volume on economic theology edited by Stefan Schwarzkopf.
The secular study of corporations has long regularly focused on three sets of concerns: (1) Is the idea of corporate “personhood” only a convenient shorthand for a complex set of relationships among human beings or are corporations in some important sense “real entities” with rights, duties, interests, or even intentions of their own? (2) How do the various aspects of corporate personhood differ from the qualities of human personhood? (3) What are the proper purposes or missions of for-profit and not-for-profit corporations?
This essay examines these perennial questions through a distinctive theological lens. It considers, among other topics, doctrines in Jewish and Islamic law about the religious meaning of secular corporations, debates about the spiritual worth and moral responsibilities of for-profit corporations, and ideas in several faith traditions about the ontological status of religious communities.
The essay also discusses the role of the fraught idea of “idolatry” in conversations about corporations. And it ends by looking to Buddhist philosophy, contemporary neurological research, and secular theories of public choice and group decision-making to question the reigning assumption that there is a fundamental difference between “natural persons” such as human beings and “artificial persons” such as corporations.
Jury nullification is the ability of juries to acquit criminal defendants even against the apparent weight of the law and the facts. This commentary asks whether jury nullification is a “bug” or a “feature” of the American criminal trial, a question separate, for example, from whether it is good or bad. The commentary concludes, tentatively, that jury nullification, on one understanding, might be a “feature.” It might reflect the jury’s authority, in exceptional cases, to particularize the applicable law by way of its existential engagement with a live defendant and the unique circumstances of a case. The possibility of jury nullification might therefore represent the legal system’s implicit recognition that law can have a granular as well as a global quality. A determination of granular law does not subject the rule of law to an abstract principle such as “justice” or the “democratic will.” It rather zooms in to expose the otherwise-unseen gaps or possibilities beyond the formality of the rule.
This power to uncover the granularity in the facts of a criminal trial is understandably and even necessarily controversial. The article looks for analogues in religious normative systems, examining the authority of Jewish legal decisors and the dispute over the meaning and legitimacy of Pope Francis’s Apostolic Exhortation Amoris Laetitia. Such analogues are only suggestive, however. At the end of the day, the embrace of an understanding of jury nullification along the lines outlined here would require both a deeper vision of the jury and a more adequate and more complex theory of law.
In the standard binary of justice and mercy, we often assume that justice is the mark of order, proportion, and balance, while mercy is disorderly, out of proportion, and imbalanced. The Biblical account of the ancient Yom Kippur ritual casts a different light on the matter, however. It suggests that the orderly machinery of the universe dispenses both justice and mercy. Mercy, too, is part of the architecture of the cosmos, natural and balanced.
The synagogue liturgy of Yom Kippur, as it has developed over the centuries, mutes the Bible’s impersonally efficacious account of mercy. It focuses instead on the spiritual, the sacred, and the transformative dimensions of the day. But there is also power and beauty in the notion that magic can be invoked by an act of magic – a mechanical, automatically efficacious act of wiping the slate clean.
The ritual of the Azazel was in some sense a “performative” in the philosophical sense – a gesture that did not so much convey a thought as do a thing. Yom Kippur is rightly a time of doubt, anxiety, and terror. The trick is to know the terror, but also let the magic work.
One of the great puzzles in the law of “religion and law,” considered normatively, is the profound and dramatic diversity, even among Western nations, of the basic norms governing religious establishment and disestablishment and the institutional, financial, and expressive relationships between religion and state. One challenge, then, is to articulate a sort of normative minimum that respects that diversity but also provides a language by which we might begin to assess specific religion-state dispensations. The principles of liberal democracy, including religious liberty, are one important pillar in constructing that normative minimum. But this essay argues that we also need to look elsewhere, to a different perspective that is both older and broader than the discourses of democracy and rights. In that view, religion and state are distinct sovereign realms engaged in an existential encounter. The encounter can take various forms. Nevertheless, church and state must, in a deep sense, respect each other’s essential independent dignity. The church should not subsume the state, and the state should not subsume the church.
With this master idea in mind, we can at least begin to appraise specific religion-state dispensations by the spatial metaphors at their heart. Thus, both American separationism – with its metaphor of a “wall” between church and state – and English religious establishment – which has been described as taking the form of an “interlocking jigsaw” – fare well, at least in principle. But French laïcité, whose roots go back in part to a different metaphor – “‘The State is not in the Church, but the Church is in the State” – does not.
This short essay tries to make sense of the Biblical description of the ancient Yom Kippur ritual in which a scapegoat was dispatched to Azazel to carry away the sins of the people.
In the standard binary of justice and mercy, we often assume that justice is the mark of order, proportion, and balance, while mercy is disorderly, out of proportion, and imbalanced. The Biblical account of the ancient Yom Kippur ritual casts a different light on the matter, however. It suggests that the orderly machinery of the universe dispenses both justice and mercy. Mercy, too, is part of the architecture of the cosmos, natural and balanced.
The synagogue liturgy of Yom Kippur, as it has developed over the centuries, mutes the Bible’s impersonally efficacious account of mercy. It focuses instead on the spiritual, the sacred, and the transformative dimensions of the day. But there is also power and beauty in the notion that magic can be invoked by an act of magic – a mechanical, automatically efficacious act of wiping the slate clean.
The ritual of the Azazel was in some sense a “performative” in the philosophical sense – a gesture that did not so much convey a thought as do a thing. Yom Kippur is rightly a time of doubt, anxiety, and terror. The trick is to know the terror, but also let the magic work.