Paper Presentation during Journal of Law, Religion & State International Conference on ‘The Rule of Law – Religious Perspectives’, Bar-Ilan University, Ramat-Gan, Israel, 20-22 November 2016

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For the program of the conference, see:

The call for papers for the conference can be found here:

http://www.ssrn.com/update/lsn/lsnann/ann16021.html.

The original paper proposal which I submitted, read as follows:

Christianity, Liberalism, and the Rule of Law

During the last decade or so the discipline of constitutional law has changed considerably. It has become more comparative, interdisciplinary and theoretical. What has not happened yet, however, is that constitutional lawyers have become more (openly) aware of their philosophical presuppositions. Thus, it is still commonplace for central concepts of the discipline, such as the rule of law, to be treated as if they do not at least partly have their historical roots in religions like Christianity, or as if such religions currently no longer have anything to contribute to these concepts.

This is remarkable, given that for example Michel Rosenfeld has had to concede ‘that there is no consensus on what “the rule of law” stands for, even if it is fairly clear what it stands against. An important part of the problem is that “the rule of law” is an “essentially contestable concept,” with both descriptive and prescriptive content over which there is a lack of widespread agreement.’

In light of the above, the proposed paper will depart from the idea that the concept of the rule of law is somehow intimately connected with Western liberal tradition. As Michael W. McConnell has argued, the history of liberalism in turn goes back further than the Enlightenment of the 18th century. It is probably more accurate to regard the 16th century Reformation as having given rise to liberalism, with its emphasis on the idea of individual conscience.

McConnell has also elaborated upon the similarities between some of the core doctrines of liberalism and particular Christian theological principles. Of these different connections, the one between the notion of limited government and the idea of the separation of church and state will be singled out, i.e. libertas ecclesiae or the ‘freedom of the church’. As McConnell puts it, ‘[i]n this view, religious freedom comes into being not as a result of ontological individualism but as a result of the jurisdictional separation between these two sets of authorities. (…) While theological in its origin, the two-kingdoms idea lent powerful support to a more general liberal theory of government. The separation of church from state is the most powerful possible refutation of the notion that the political sphere is omnicompetent – that it has rightful authority over all of life. If the state does not have power over the church, it follows that the power of the state is limited.’

The proposed paper will argue that this prescriptive meaning ascribed to the concept of rule of law by Christianity takes on a renewed relevance at a time when sovereignty claims by religious institutions are increasingly regarded by their critics as incompatible with the idea of state sovereignty being the only legitimate source of sovereignty. Thus, it is unfortunately presented as if a clear choice will need to be made between the jurisdictional approach to religious freedom and the modern liberal view that sees sovereignty within the liberal democratic state as essentially monistic in nature.

Participant, The Ninth Annual John F. Scarpa Conference on ‘Catholic Legal Theory: Aspirations, Challenges, and Hopes’, Villanova University School of Law (2015)

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‘The Ninth Annual John F. Scarpa Conference on Law, Politics, and Culture will explore the topic “Catholic Legal Theory: Aspirations, Challenges, and Hopes.” The symposium will take place on Friday, April 24, from 9:15 a.m. to 4:15 p.m., in Room 201 of the Law School. This program is approved by the Pennsylvania Continuing Legal Education Board for 5 CLE credits (4 substantive, 1 ethics). (…)

CONFERENCE AGENDA

Welcome and Introduction: 9:15 a.m.

Patrick McKinley Brennan, Professor of Law and John F. Scarpa Chair in Catholic Legal Studies, Villanova University School of Law

Session 1: 9:30-10:45 a.m.

Robert Vischer, Dean and Mengler Chair in Law, University of St. Thomas School of Law: “How Should Catholic Legal Theory Matter to Catholic Legal Eduction in a Time of Retrenchment?”

John Breen, Professor of Law, Loyola University Chicago School of Law: “Catholic Legal Theory in Catholic Law Schools: Past and Present”

Elizabeth Schiltz, Professor, Thomas J. Abood Research Scholar, and Co-Director of the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy, University of St. Thomas School of Law: “‘You Talkin’ to Me?’ Who Are We Talking to? And Why Should They Listen to Us?”

Break

Session 2: 11:00 a.m.-12:15 p.m.

Michael A. Scaperlanda, Professor of Law and Gene and Elaine Edwards Family Chair in Law, The University of Oklahoma College of Law: “Challenging the Common Assumptions regarding Liberty”

Michael Moreland, Vice Dean and Professor of Law, Villanova University School of Law: “Pope Francis and the Project of Catholic Legal Theory”

Patrick McKinley Brennan: “Problematics of Catholic Legal Theory under the Roman Regime of Novelty (since 1965 or so)”

Lunch

Session 3: 1:15-2:45 p.m.

Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law: “The Relevance and Irrelevance of the Reformation to the Catholic Legal Theory Project”

Marc O. DeGirolami, Associate Professor of Law & Associate Dean for Faculty Scholarship, St. John’s University School of Law: “Tradition and Catholic Legal Theory”

Susan Stabile, Professor of Law and Faculty Fellow for Spiritual Life, University of St. Thomas School of Law: “Evangelii Gaudium and Catholic Legal Theory”

Kevin C. Walsh, Associate Professor of Law, University of Richmond School of Law: “Marius Victorinus at MOJ”

Break

Roundtable: 3:00-4:15 p.m.
The Catholic Legal Theory Project: Concepts and Goals

The annual Conference on Law, Politics, and Culture is named for John F. Scarpa, in recognition of his generous support of Villanova University School of Law through the John F. Scarpa Chair in Catholic Legal Studies.’

Source: https://www1.villanova.edu/villanova/law/newsroom/webstories/2015/0325.html.

About Villanova University:

‘Villanova University is a Roman Catholic institution of higher learning founded by the Order of Saint Augustine in 1842. Villanova provides a comprehensive education rooted in the liberal arts; a shared commitment to the Augustinian ideals of truth, unity and love; and a community dedicated to service to others.’