My second post on ID and Law is up at Science and the Sacred.
Category: Law and Policy
My first post in the “Law” series is up on Jesus Creed.
Last week we held the Religious Legal Theory: The State of the Field conference at the law school. I’m incredibly gratified at how the conference went. Organizing this conference was, in fact, one of the most satisfying projects of my professional career.
This was a unique conference in that we focused on legal theory from an ecumenically religious perspective. The keynote speakers included Christian, Jewish, and Muslim scholars, and presenters included Catholics, Evangelicals, Presbyterians, Mormons, Buddhists, and others. None of the speakers or presenters minimized their own faith distinctives — indeed, many of the presentations were explicitly theological — and yet we found common ground in the desire to develop legal theory that acknowledges, celebrates, and integrates religious distinctives. It was a thrill to see all these diverse scholars interacting with each other in peace. This mood was summarized nicely by a scripture I read at the start of the conference’s second day: And the word of the Lord came again to Zechariah: “This is what the Lord Almighty says: ‘Administer true justice; show mercy and compassion to one another. Do not oppress the widow or the fatherless, the alien or the poor. In your hearts do not think evil of each other.” (Zech. 7:8-10).
Categories
Religious Legal Theory Conference
Tonight kicks off the “Religious Legal Theory: The State of the Field” conference that I organized along with my colleagues Angela Carmella and John Coverdale. The conference will explore religious perspectives on legal theory from a variety of backgrounds, including Christian (both Catholic and Protestant), Jewish, Muslim, Mormon, Buddhist, and Hindu. I’m very excited about hearing from and meeting all our speakers.
“A Christian man is the most free lord of all, and subject to none; a Christian man is the most dutiful servant of all, and subject to every one.”
— Martin Luther, “The Freedom of a Christian”
For those interested in the similarities and differences between the Puritans and other Reformed-Calvinist groups in colonial and antebellum America, take a look at James Bratt’s essay, “The Prism of Calvin’s Political Legacy in the United States,” in the current issue of Perspectives: A Journal of Reformed Thought. I think Bratt does a good job of laying out the Puritan vision and comparing it to the Dutch and Scots Reformed in the North and the Southern Presbyterians. As Bratt notes, the Puritan churches “were state-supported to the exclusion of all others with the aim of thoroughly reforming not only church but also state and society.” I think there are obvious echoes of this, albeit in a different political and historical context, in Kuyper’s thought. During colonial times, Bratt notes, the Dutch reformed were mostly a sectarian lot, but along with German, Irish and Scots Presbyterians, they founded Princeton University and established what we now call the Old Princeton tradition, which of course deeply informs contemporary American Evangelicalism. It was the Southern antebellum Presbyterians who had a public ideology closest to the “withdraw from the public sphere” versions of contemporary fundamentalism, but for different reasons: they had to try to preserve the integrity of the Church without challenging the institution of slavery.
I’ve posted my current draft article, “Rational Competition Policy and Reverse Payment Settlements in Hatch-Waxman Patent Litigation,” on SSRN. Here is the Abstract:
This paper examines the problem of “reverse payment” settlements in patent litigation under the Hatch-Waxman Act. A reverse payment settlement involves a payment from a branded pharmaceutical company to a generic manufacturer, usually in return for the generic manufacturer’s agreement to delay market entry. Federal appellate courts, regulatory agencies and commentators are divided about the legality of such agreements. This paper argues that the importance of product market definition has been overlooked in existing treatments of the issue. The paper develops an empirically-based “Settlement Competition Index” that could be used by courts and regulatory agencies to evaluate reverse payment settlements. A formula to calculate the Settlement Competition Index is provided and tested with hypothetical and real-world examples.
Pope Benedict on markets and justice (Caritas in Veritate, para. 35):
In a climate of mutual trust, the market is the economic institution that permits encounter between persons, inasmuch as they are economic subjects who make use of contracts to regulate their relations as they exchange goods and services of equivalent value between them, in order to satisfy their needs and desires. The market is subject to the principles of so-called commutative justice, which regulates the relations of giving and receiving between parties to a transaction. But the social doctrine of the Church has unceasingly highlighted the importance of distributive justice and social justice for the market economy, not only because it belongs within a broader social and political context, but also because of the wider network of relations within which it operates. In fact, if the market is governed solely by the principle of the equivalence in value of exchanged goods, it cannot produce the social cohesion that it requires in order to function well. Without internal forms of solidarity and mutual trust, the market cannot completely fulfil its proper economic function. And today it is this trust which has ceased to exist, and the loss of trust is a grave loss. It was timely when Paul VI in Populorum Progressio insisted that the economic system itself would benefit from the wide-ranging practice of justice, inasmuch as the first to gain from the development of poor countries would be rich ones[90]. According to the Pope, it was not just a matter of correcting dysfunctions through assistance. The poor are not to be considered a “burden”[91], but a resource, even from the purely economic point of view. It is nevertheless erroneous to hold that the market economy has an inbuilt need for a quota of poverty and underdevelopment in order to function at its best. It is in the interests of the market to promote emancipation, but in order to do so effectively, it cannot rely only on itself, because it is not able to produce by itself something that lies outside its competence. It must draw its moral energies from other subjects that are capable of generating them.
This passage sets up an important contrast between “markets within a moral framework” and “markets as a moral framework.” Most “conservative” pundits today suggest that “markets” are the most moral form of economic structure because markets preserve individual liberty. It is true that individual liberty is an important value, and that free markets emody that value. However, that is not the end of the story, pace the conservative / libertarian wags. A truly Christian vision of the good society recognizes that individual liberty is only one virtue within a broader constellation of virtues. “The greatest of these is love,” St. Paul said (1 Cor. 13:13). Markets are only “moral” when liberty is governed by love.
John Patrick Daly’s book “When Slavery Was Called Freedom: Evangelicalism, Proslavery, and the Causes of the Civil War” should be required reading for anyone interested in the relationship between Christian faith and public policy in America.
Daly traces the ways in which evangelical Christians supported the pro-slavery cause in the antebellum South. As Daly notes, evangelicals in the North tended towards abolitionism, and used theological and Biblical arguments in support of their position. But evangelicals in the South overwhelmingly supported slavery, and likewise used theological and Biblical arguments in support of their views.
It’s tempting to make a “no true Scotsman” argument at this point: the Southern evangelicals, we would like to suggest, were using theology and scripture improperly, as a mask for their greed. In a sense, I would argue along these lines. Like nearly all Christians today, I think it’s clear that a properly developed Biblical theology must consider slavery a great evil.
However, in another sense, this kind of argument is anachronistic. The Southern preachers who supported slavery really believed that Divine Providence had ordained the institution of slavery in the American South for the benefit of both the white and black populations. Interestingly, according to Daly, they for the most part did not rely on earlier arguments from creation and geneology (i.e., the so-called “curse of Ham”), but rather mostly framed their arguments in terms of Providence. Moreover, the Southern preachers argued that the revivalistic fires of the Second Great Awakening burned hot in Southern states where slavery flourished. For many antebellum Christian leaders in the South, Providence and Revival confirmed the righteousness of slavery.
Of course, to us today (and to most Northern theologians at the time), this was a tragic, awful, horrid betrayal of Christian principles. The lingering question is, do we have the courage to question our own beliefs about how our faith ought to relate to the pressing issues of our day?
An extensive new Papal Encyclial was just issued concerning social teaching in light of the current economic crisis. This is an important document, which all Christians should carefully consider. I hope to do a number of posts on it. A taste:
We recognize . . . that the Church had good reason to be concerned about the capacity of a purely technological society to set realistic goals and to make good use of the instruments at its disposal. Profit is useful if it serves as a means towards an end that provides a sense of both of how to produce it and how to make good use of it. Once profit becomes the exclusive goal, if it is produced by improper means and without the common good as its ultimate end, it risks destroying wealth and creating poverty.