Law and Religious Freedom

2014-2015

By Linda Arntzenius

The idea of beauty often comes up in conversations about art, literature, music, even mathematics. But when it comes to thinking about law and order, not so much. Mary Ellen O’Connell would like to change that. This year, at the Center of Theological Inquiry (CTI), the distinguished international law scholar is working on research that might ultimately cause a gestalt shift in thinking about law and order, which O’Connell is re-envisioning in terms of beauty, symmetry, harmony and peace. It’s a change that is sorely needed, she says, and one that could revolutionize her field.

O’Connell along with fellow law scholar Peter Danchin and CTI’s Director of Research Robin Lovin are the lead members of an international team of prominent and promising legal scholars and theologians embarking on the 2014-15 Inquiry on Law and Religious Freedom at the Center. The scholars come from Europe, from the United States, and, for the first time, from mainland China. Lovin is the senior research fellow in theology; O’Connell and Danchin in law.

Now the Robert and Marion Short Professor of Law and Research Professor of International Dispute Resolution at the University of Notre Dame, O’Connell grew up in Chicago during the Vietnam War era. As a young Roman Catholic, she was also aware of profound changes happening within the Church at that time. “From a very young age I was oriented to the international and to the idea of doing good in the world and I’ve been fortunate in being able to live out my faith through the work that I do. Thanks to CTI, I’ve been able to look at international law with the assistance of and in collaboration with theologians and moral philosophers,” she says.

O’Connell was a member of CTI’s 2006-2010 Inquiry on Theology and International Law. Until recently, her work focused on the use of armed force, so research into beauty constitutes quite a departure. The working title for her book-in-progress is The Beauty of Peace. She recalls the moment when her new approach presented itself: “Law is a cultural artifact, and the challenge for international law is to create laws that are not associated with any particular culture. I was considering this problem, looking for universals, when my husband, who is a photographer, mentioned a fact known to all photographers— there is a universal quality to the human face that works across all cultures: the more symmetry there is to the human face, the more beautiful we find it. It occurred to me that common access to a concept like beauty could be used to present the case for international law.”

Looking to contemporary theologians for insight, O’Connell mentions several working on aesthetic concepts as a way of “re-enchanting” the world with religion: Gordon Graham at Princeton Theological Seminary, for example, and O’Connell’s Notre Dame colleague Cyril O’Regan, who claims that “a theology without beauty is unpersuasive.” As theologians think of religion as a ladder to God, O’Connell began thinking of law as a ladder to beauty. “My challenge this year is to show how that is so,” she says. “Let’s think in a new way, a deeper way and perhaps we can re-envision law and compliance with the law as an attractive end, a beautiful thing. I find that idea exciting, a way of achieving the world that God wanted us to live in. Since the Enlightenment we’ve been used to thinking of law as a science, characterized by objectivity, reasoning from material facts, without the influences of emotion, but as theologians have pointed out, this limits important ways of knowing.”

Like O’Connell, international law scholar Peter Danchin came to his field at a young age. Growing up in South Africa under Apartheid, he gradually became aware of injustice. When he moved with his family to Australia, in the 1980s, he continued to develop a broader perspective. “In South Africa I was a privileged white; as a teenager in Australia I was an outsider, conscious of being ‘the other’  on the receiving end of cruelty and misunderstanding—and that sense has stuck with me” he says. In New York City, as a student of human rights at Columbia University, Danchin felt immediately at home: “In New York everyone is an outsider and I found it personally and intellectually energizing.” He studied with Louis Henkin who is credited with founding the study of human rights law. But by the late 1990s, Danchin was becoming increasingly unsettled by some of the assumptions in his field. He began working on questions concerning religious freedom, an interest thought to be rather esoteric and not politically relevant at the time. Then came 9/11. Danchin experienced the event as a resident of the East Village. Suddenly, questions about religion and religious freedom moved center stage.

At CTI, Danchin, who is now Professor of Law and Director of the International Comparative Law Program at the University of Maryland, will be working on two articles that consolidate earlier collaborative work on religious freedom and the right to religious liberty.

Assembling the Team

Team members bring perspectives on religious freedom in post-Soviet Russia, China, Western Europe, southern Africa and the Middle East to the Inquiry with projects that address such diverse subjects as the legal, political and theological foundations of the right to religious liberty of individuals and religious communities, ways of understanding and re-envisioning Christian and Islamic theology, and contemporary insights into the interpretation of constitutional and religious texts. Since legal systems are usually local or regional in scope, a multidisciplinary team with geographically and culturally plural perspectives is crucial for the 2014-15 Inquiry. The team includes a professor from the Pittsburgh Theological Seminary who has spent considerable time in Russia; a distinguished Hungarian scholar with expertise in Egyptian law; an ordained minister who is also a lawyer as well as a professor of theology at Princeton Theological Seminary; a Leiden law professor; an expert on Medieval Christian and Islamic thought; a Chinese scholar studying religious freedom in that country; and two recent Ph.D. graduates who join the team as junior research fellows.

In view of the contemporary legal and political struggle to negotiate individual and communal relations across lines of religious difference, CTI’s Inquiry on Law and Religious Freedom is a timely opportunity to engage pressing questions with critical thinking from a range of interdisciplinary perspectives. The applicant pool included a large number of law scholars.

Open and Supportive Interactions

“CTI is a place to explore religion and its intersection with global events and the world of ideas,” comments O’Connell. “Having scholars in both law and theology is already producing results unlikely if we were working separately.” As Danchin points out, CTI fosters a uniquely supportive and safe environment for open dialogue on subjects that can be deeply politically sensitive. “Such questions are challenging and require a lot of labor as well as openness to the world, so it is important to have someone as wise and as calm as Robin Lovin to ensure open dialogue. The weekly colloquium, where there are no outside visitors and the papers are not public, is a place to ask questions without fear of judgment.”

It is no accident that intellectual thinkers like Jeremy Waldron have found their way to CTI, says Danchin, who finds it discouraging that the kind of thinking fostered here is rarely encountered in the academy.

John Burgess agrees. Among the first presenters at the weekly colloquium, he was delighted by the constructive and supportive environment: “Much like contemporary society, the academic world today can very quickly become polarized, even oppositional, with people defending their points of view; at CTI there is a strong sense of collaboration and the interdisciplinary aspect is part of that-it’s a real treat to hear from legal scholars I don’t usually come into contact with. This will broaden my perspective and, since most of the legal scholars have done their thinking within the framework of Western philosophy, it is useful for them to see how some questions look from a different cultural context.”

During the last decade, Burgess, a practicing Presbyterian teaching at Pittsburgh Theological Seminary, where he is the James Henry Snowden Professor of Systematic Theology, has become an expert on the rebirth of the Orthodox Church in Russia. He’s spent extended time there on two occasions, in St. Petersburg and in Moscow: “For my first visit to St. Petersburg almost ten years ago, I learnt Russian; at the age of 48, I had my first lesson in a classroom with 18 and 19 year-olds and came to appreciate just how quickly their young minds worked in comparison to mine,” he laughs.

With facility in the language, Burgess immersed himself in Russian society and attended Christian Orthodox services with his family. “We could not, of course, receive the Eucharist, but the experience yielded insight into the role of Orthodox Christianity in Russian society and history-just as Protestantism has shaped the United States, even for non-Protestants, the Orthodox Christian Church in Russia has shaped Russian culture, society, music, literature, and politics. The more we immersed ourselves, the more extraordinary we found what was going on in Russia, where the Church is again trying to shape the culture. This is a unique moment in time. Some years after a deep process of de-Christianization, there is a vision of bringing church values and ways of thinking back into society.”

For Burgess, the Russian experience prompts questions about the persistence of religion in the modern world-even the enormous changes wrought by Communism could not eliminate deeply religious ways of thinking in Russia. He plans to use his time at CTI to present ten years of research in book form.

A Theoretical Framework for Religious Freedom

Here at CTI for only a few months, Silvio Ferrari, Professor of Canon Law at the University of Milan, is keenly aware of “privileged” time for concentrated research without teaching responsibilities, a luxury he hasn’t had since a 1998 sabbatical in England. “At CTI, it’s stimulating to be part of a team and have the opportunity for daily and productive discussion with people interested in my subject,” he says. “Peter Danchin, for example, is working on the same area but from a more philosophical perspective. Sometimes he mentions philosophers I’ve never heard of and that is very valuable for me, as is contact with scholars whose areas of interest are some distance from mine; John Burgess and his work on Russia comes to mind. Exposure to different points of view is the real opportunity here.”

Prompted by increasing levels of religious division in contemporary societies, Ferrari is pursuing a theoretical framework for religious freedom. At CTI, he will be examining cases brought before the European Court of Human Rights and the U.S. Supreme Court. In the former, he finds contradictory decisions regarding religious symbolism in public places, parallels of which he observes in the latter’s handling of public displays of the Ten Commandments.

As Ferrari points out, current news headlines across the globe indicate the pressing need for understanding law in the context of religion and religion in the context of law. While such hot button topics provide for dramatic media coverage, getting to the roots of the issues involved requires critical thinking about the nature and purpose of law and religious commitment. Interdisciplinary research and constructive effort by international scholars in both disciplines is a prerequisite for laws that preserve religious freedom in the context of many different religions. And that is what’s happening here at the Center of Theological Inquiry.

A young theologian at a formative stage in his career, Josh Mauldin finds CTI’s interdisciplinary approach an exciting contrast to the academic tendency toward hyper-specialization. He hopes that the Center’s approach will ultimately influence the broader academy. “In addition to expanding our understanding of the intersection of law and religious freedom, the research team has the opportunity to chart a way forward for interdisciplinary theological study,” he asserts. “CTI is at the forefront of interdisciplinary work in theology at a time when many would see theology as having retreated into a more defensive posture toward non-theological ways of knowing; the conversation at CTI is a two-way street-theology seeks to learn from other disciplines while also seeking to enrich those disciplines through encounter with religious traditions, ideas, and practices.”

Originally from Texas, the junior research scholar has a United Methodist background. As the son of a Methodist pastor, he lived in several places during his childhood. He has just completed his Ph.D. in religious studies at Southern Methodist University with a dissertation on Karl Barth and Dietrich Bonhoeffer. He is especially interested in questions that arose in the wake of World War II and the rise of totalitarianism.

Mauldin’s spring semester was spent in archival research in Germany’s Staatsbibliothek zu Berlin and he relishes the opportunity to interact with the eminent scholars assembled for this year’s Inquiry. Just weeks into the year, he has already found some unexpected benefit to working with individuals from another discipline.

Learning Each Other’s Language

Spending time with legal scholars, many of whom have backgrounds in religion as well as law, Mauldin is gaining a proficiency in the “language” of scholars outside his own field. He has observed several acting as “sort of interpreters” between the two groups. While being able to communicate with scholars outside one’s field is a good in itself, he says, another benefit stems from the need to avoid “inspeak,” to be clear about one’s ideas and convey them in simple language to a broader audience. For Mauldin, then, CTI is a proving ground for his ideas. “They say if you want to learn, teach; explaining my ideas to an interlocutor in law helps me to see where a particular idea might be insufficiently well-formed and might need more work. It can be a challenge but it is very rewarding.”

Apart from pursuing their own individual research in their studies at Henry R. Luce Hall, there is hardly a time when members of the team are not immersed in conversation with one another. “We never stop,” says Mauldin, who finds that constructive dialogue begins on his daily carpool commute between the Vella Handly Templeton Residences in Princeton and the Center. Conversations that may begin over morning coffee continue whenever and wherever CTI scholars encounter one another. “Just the other night, several of us had dinner together at a Chinese restaurant after which one of us needed to visit the hardware store nearby,” says Mauldin. “While one CTI scholar searched for light bulbs, two others, a law scholar and a theologian, waited by the checkout counter, deep into their conversation on reality, theology, and Kant’s view of the deity.”

The excitement of scholars immersed in new research, pursuing fresh ideas and holding them up to their own scrutiny and to that of others, can be heady stuff. And when team members gather for the weekly colloquium or tea-time conversation in the members’ lounge, that excitement is a palpable testament to the Center of Theological Inquiry as an environment for fresh thinking.