 This program is brought to you by Emory University. Ladies and gentlemen, good morning. Welcome back to the second day of celebration of our Silver Anniversary Conference. We had a glorious day yesterday. Thank you so much to our distinguished speakers and to this wonderful audience for contributing to such a robust success. We just go from strength to strength in this second day of wonderful presentations. This morning we begin with a topic which law and religion by definition converge. Looking at the internal legal systems and internal legal advocacy of the three children of Abraham, Judaism, Christianity, and Islam. We have three experts, two of whom are here, and the third will no doubt show up in the course of this early morning. But I did want to note that notwithstanding my terrible reputation for punctiliousness, the record must show that it's 9.03 and I have generously relaxed the rules for two minutes and waiting for Babar Johansson who doubtless will be here. The chair of our panel this morning is a dear friend and dear colleague and a vital member of our Law and Religion Center, a senior fellow professor Stephen Tipton, a world-class sociologist of religion. He has served as professor of religion and longtime director of the Graduate Division of Religion He is the author of A Number of Learned Tomes, not least a forthcoming title from the University of Chicago Press on Public Pulpates, which I commend to you very warmly. He is also co-author with others of the two great books headed by Robert Bella, Habits of the Heart and the Good Society, and also as a recent editor of the Robert Bella Reader. There's no better person to lead us in our conversation this morning and to direct this first panel on issues of Islamic, Jewish, and Christian legal studies. Professor Tipton. And let me thank all of you and welcome you this morning to this session on the future of Jewish, Christian, and Islamic legal studies. In a present where the laws, norms, and moral visions of these three religious traditions are being contested by arms as well as arguments, we welcome both the comparative and dialogical dimensions of this shared inquiry. We hope to explore them both vigorously, if briefly, by inviting our speakers to question one another after all three have presented, and then we'll open things up for all of you to join in. First, we'll assess the future of Jewish law and legal studies with Professor Elliott Endorf. Then we'll turn to the future contests of Islamic law and politics with Professor Barbara Johansson. Finally, we'll weigh the unbearable lightness of Christian legal scholarship with Professor David Scale. First to present then is Elliott Dorf. He holds a PhD from Columbia University with a rabbinical degree from Jewish Theological Seminary. He is the Saul and Endorf Distinguished Professor of Philosophy at the University of Judaism in Los Angeles. He also serves as a visiting professor at UCLA School of Law. His specialties include Jewish bioethics, social ethics, and personal ethics, Jewish theology, and the theory and practice of Jewish law. His many books on these topics include A Living Tree, The Roots and Growth of Jewish Law, and The Unfolding Tradition Jewish Law After Sinai. Professor Dorf. Any discussion of the future of Jewish legal studies and Jewish law must first locate such studies in the varied contexts in which Jewish law currently functions in comparison to the settings in which it functioned in the past. For otherwise, the future direction of Jewish legal studies will not make sense. In what I'm about to do then, I will first describe several contexts in which Jewish law functions today, and then I will turn to describing two genres of Jewish legal studies that have emerged in these very contexts, namely rabbinic rulings on specific questions and academic scholarship and to exploring what the future holds for them, even though I am sorely tempted to say what Amos said, Lo Navi Anohi Volo Ben Navi, I'm neither a prophet nor the son of a prophet. I'm actually the son of an engineer, so I don't know what that does. First then, three things about the Jewish past, in terms of the past of Jewish law that are going to be important for our talking about its present and future. One of the things is that until the Enlightenment, Jews living under Persians, Romans, Muslims, and then Christians were often self-governing. That is, the government would allow the Jewish community to govern itself with Jewish police officers, judges, and the like as long as they provided money for in taxes and men for the army. And what that meant was that Jewish law was fully enforced on Jews for much of the last 2,500 years and with the government as a backup. When the Enlightenment occurred, Jews were no longer members of a community that governed itself. They were individual citizens governed by the government. And that, on the one hand, was a real boon for Jews in the sense that Jews were able to get involved in university life and business and government and medicine and all kinds of other things. But what it did mean for Jewish law is that it was no longer enforced, which then, of course, leads to the second issue that I think is important for you to understand, namely questions of authority. What if enforcement is not going to be the reason why Jews obey the law, then what is? Those Jews who believe that God commanded the law and enforces it will, of course, think that they must obey it regardless of whether human agents enforce it as well. Even those who question God's authorship or enforcement of Jewish law may find it authoritative for other reasons. After all, every legal system, including those enforced by government officials, can only function as the vast majority of citizens obey it for reasons other than being forced to do so or even threatened with such force. Prohibition is a good example of this. Even when most people obey a law and even when it is backed up by the full force of the United States police and military powers, it is unworkable as law if even a small percentage of the population does not comply. Only if 98 or 99 percent of the citizenry adhere to the law for some reason can the police enforce it on the remaining one or two percent who violate it. Even without government enforcement, Jewish law can gain its authority from some of the same sources that other systems of law use. For example, that the law is moral or practical or to one's liking or it helps to define us as a nation or it is an expression of patriotism or gratitude to one's nation. Think of the selective service system as well as some sources of authority that only religious legal systems can draw upon such as God commands it or it helps us to become God like. Thus even in enlightenment nations, some Jews have continued to see Jewish law as binding on Jews at least in certain areas. All Jews these days submit to the civil law governing commercial and criminal matters, but in rituals and family matters, Jewish law still governs in the latter case along with civil law. This is true for orthodox and conservative Jews although adherents of those two movements understand the history, theology and methodology of the law differently and this leads to some discrepancies in their understanding of the content of the law as well. Even reconstructionist and reformed Jews however who do not see Jewish law as binding may nevertheless follow considerable parts of it in these ritual and family matters for reasons of continuity community, aesthetics and possibly even a sense that God requires specific actions. Furthermore, although commercial and criminal matters are governed by civil law Jews of all denominations are increasingly studying classical Jewish texts and law for guidance on a number of moral issues in business, medicine, society and interpersonal relations. Thus, the degree of attention paid by Jews to Jewish law, the extent to which they see it as authoritative and the reasons they adhere to it to the extent that they do and the way they interpret it and apply it are all matters of dispute and difference among contemporary Jews. Moreover, and this is the third thing I think that you have to understand, namely the issue of coherence. The first issue was being individual citizens versus being members of a group. Second, the issues of authority and now the third issue, the issues of coherence. Jews are spread out all over the world and there has been since the dissolution of the Sanhedrin in 361 of the Common Era, there has not been one single universal court to make decisions in Jewish law. Instead, individual rabbis make decisions for their own communities and there is no guarantee that they agree. On the contrary, this is a tradition that is feisty to its core. Not only do Abraham, Moses, Jeremiah and Job all argue with God, but the rabbis continue this practice and even more pervasively, they argue with each other. Almost every page of Talmud, in fact, is one argument after another. The standard Jewish joke is that where you have two Jews, you have at least three opinions, but somebody came up to me about two years ago and said, do you really need two Jews for three opinions? That's the the issue that arises, of course, is there any kind of coherence to this kind of a legal system if you've got everybody disagreeing with each other. I think that the answer to that is yes, as a matter of fact I probably could describe to you sort of mainstream views on a whole series of legal issues, by the way also theological issues, but if I were going to be thorough, I would have to say that some do it this way and some do it that way, they understand this particular issue in these varying ways for the following sorts of reasons. Until yesterday, actually, I thought that there was one issue where everybody absolutely agreed because Moshe Tendler, Rabbi Moshe Tendler wrote a response on embryonic stem cell research for the orthodox world. I wrote one for the conservative movement and Mark Wachowski wrote one for the reform movement and all three of us say that embryonic stem cell research is not only permissible in Jewish law but is actually something we should be aggressively doing. So I, until yesterday would say that if you want to know whether Jews agree about anything yes, we agree about embryonic stem cell research. But then David Novak who's here said to me that he just published a book in which he does not agree. So we are off and running again. Now this of course can make somebody who likes order absolutely crazy. And the rabbis actually recognized this problem with coherence and with this argumentative tradition. They say for example, less the person say since some scholars declare a thing impure and others declare it pure some pronounce a thing to be forbidden and others pronounce it to be permitted, some disqualify an object while others uphold its fitness how can I study Torah under such circumstances? Scripture states they are given from one shepherd, Ecclesiastes. One God has given them one leader Moses is uttered them at the command of the Lord of all creation as it is said and God spoke all these words. You then should on your part make your ear like a grain receiver and acquire a heart that can understand the words of the scholars who declare a thing impure as well as those who declare it pure, the words of those who declare a thing forbidden as well as those who pronounce it permitted, and the words of those who disqualify an object as well as those who uphold its fitness. Although one scholar offers his view and another offers his view the words of both are all derived from what Moses the shepherd received from the one Lord of the universe. Thus one has to have an immense tolerance for disorder and pluralism to be part of this tradition and yet somehow Jews then and now feel that it is coherent and I think that that feeling is well founded. So those are the three introductory pieces and now I want to move to rabbinic rulings which is one genre in which Jewish law works on specific issues. One very clear demonstration that Jewish laws taken seriously today is that all three of the largest denominations of American Judaism have established ways to interpret and apply it. This is one form of Jewish legal scholarship and has produced a considerable body of literature in both Hebrew and English. The reform movement which according to the 2000 national Jewish population study counts for 39% of American Jews affiliated with synagogues has a response to committee to respond to questions about Jewish practice. This may seem surprising given that the reform ideology prizes individual autonomy and does not see Jewish law as binding but I have been assured by its current chair Rabbi Mark Wyshowski that the committee gets many many questions asking for advice if not for an authoritative ruling. Moreover reform movement publications and programs have increasingly tried to educate reform Jews in various aspects of Jewish moral and ritual laws. This should not seem as strange as it might as Rabbi Stephen Passimannik, professor of rabbinics at Hebrew Union College in Los Angeles pointed out in a lecture I heard him give in 1973 classical reform ideologues of the 19th century rejected many Jewish rituals that modern reform Jews are now practicing but even the early reform leaders accepted the traditions moral guidance and so one should expect that rabbinic rulings on moral issues should flourish in a reform context. With increasing traditionalism among reform Jews that now applies to ritual matters as well. Wyshowski has written a recent book summarizing reform positions on a variety of topics and many of the response have been published in book form and are now available online. Conservative Judaism which accounts for 33% of America's affiliated Jews from its beginning been rooted in the desire to study how Judaism actually functioned in the past and to reproduce that historically authentic form of Judaism in both content and methodology. For the last 2,000 years legal questions were most often decided by the local rabbi, the Mara de Atra. The rabbis gained that authority from two sources their ordination as a rabbi which attested to their knowledge of the tradition and personal commitment to live by it and secondly their election by a community as their rabbi. In line with this precedent with the exception of only 3 issues that have been made standards of rabbinic practice within the conservative movement the local rabbi enjoys ultimate authority to decide all other legal questions for his or her community. In some times and places however there were international or national organizations of rabbis that decided matters for the entire region. This was true for example of the San Hedron in the first 4 centuries of the common era, the synods in France and Germany during the Middle Ages and the committee of 4 lands in Eastern Europe between 1650 and 1850. In line with this historical precedent conservative rabbis who think that the movement as a whole should discuss a given issue may send their questions to the movement's committee on Jewish law and standards. After one of the 25 rabbis on the committee or any other conservative rabbi writes a response or a legal ruling on the issue it is discussed, revised and ultimately voted on. Most of the time only one position is approved but sometimes two or more positions are validated as acceptable options. Then it is up to the local rabbi to choose among them the one that best suits his or her community. Except for the 3 standards of rabbinic practice that have been adopted even when the committee approves only one option rabbis may on their own authority choose to do otherwise. So for example rabbis were committing women to take roles in worship long before the committee officially sanctioned that. The response of the committee have been published in book form and are also available online. In addition the conservative rabbinic in Israel they're called Masorti or traditional Judaism has established its own committee on Jewish law its Van Halacha originally to deal with issues that are specific to life in Israel such as matters concerning army service there but now treating any subject that arises. Its response are also available in both book form and online. The Orthodox community which accounts for 21% of America's affiliated Jews and if you've been counting the percentages it doesn't lead to 100 because there are some who are affiliated with renewal Judaism or some other forms or just Jewish but these are the major ones and then there's Reconstructionism which is about 3% and so on but I'm just taking the major three. The Orthodox community which accounts for 21% of America's affiliated Jews is not unified as a movement. Rather several different groups of Orthodox Jews exist each with its institutional structure. These includes the modern or centrist Orthodox Goudat Yisrael and a variety of Hasidic groups of which Habad is probably the most well known. Among Orthodox Jews the pattern is for individual rabbis to write response whose authority depends on their fame within a given segment of the Orthodox community for their knowledge and wisdom. In the mid to late 20th century Rabbi Joseph Baer Salavachek was the preeminent Rabbi to whom modern Orthodox Jews turned for legal decisions. Rabbi Moshe Feinstein served in that role for Agoudat Yisrael and its ultra Orthodox constituents and Rabbi Menachem Mendel Schneersen was the person to whom Chabad Jews turned. In all three groups since their deaths nobody has yet achieved their undisputed authority to determine matters of law for that group. The modern Orthodox however have a committee on Jewish law and Agoudat Yisrael has a council of Torah sages to render Jewish legal decisions on behalf of and authoritative for their particular group. In Israel there are two separate government sponsored chief rabbinates for the Ashkenazic and Svartic Orthodox communities and each chief rabbi issues response. This certainly does not prevent other Orthodox rabbis from doing so as well. The Israeli Supreme Court has established a database of response ancient medieval and modern with some 300,000 response included and that serves as an important resource for both rabbis writing response now and for scholars studying the past and present of Jewish law. Only in Israel is any part of Jewish law enforced by government authorities. Specifically matters of personal status for Jews but not for anyone else. The Israeli Supreme Court has narrowed to conversions, marriages and divorces among Jews that take place in Israel insisting that the government recognize legitimacy of such ceremonies that take place elsewhere. Furthermore because the current law has increasingly meant that more and more Israelis are going to creed or to other nations to be married so as not to have to deal with the Orthodox rabbinate there are now increasingly frequent calls for instituting the possibility in Israel of civil marriages for Jews without religious participation. We are looking for enacting a separation between the state and religious authorities in all matters although perhaps with government funding for religious schools thus making Israel structure similar to that of the United States, Canada or one of the European countries. Outside of matters of personal status in Israel the extent to which lay Jews are interested or affected by any rulings in Jewish law varies tremendously from Jew to Jew. An old saw in Jewish legal practice is that if you do not want to hear it, do not ask the question in the first place. As the Catholics are fond of saying it is easier to get forgiveness afterwards than permission beforehand. Still in all expressions of Jewish life rabbis are being asked a plethora of questions about all kinds of subjects. These rabbis in turn sometimes consult other rabbis who are known to have expertise in the matter at hand but as the local rabbi who in the end must decide whether to accept and quote what the consultant says or whether to tell the congregant something else based on his or her own sense of the matter. Ultimately those Jews who ask legal questions of their rabbi generally take their rabbis' answer seriously at least as advice to be considered and often is what Jewish law would require them to do. What is most remarkable about all of this is not just that forms for deciding matters of Jewish law actively function in every Jewish movement but also that the subjects they are asked to confront include issues from all types. One might have expected questions in areas of life that enlightenment philosophy designates as strictly religious and thus as matters of individual conscience. Things like religious rituals for worship and for life cycle events. The questions being discussed in all of these forms certainly include such matters and well they should. After all rituals mark and give meaning to important occasion in one's life and to group identity and thus deserve attention and care. Particularly in the extent of the context of new technology in food production for example and the new acceptance of women and homosexuals in Jewish life in non-Orthodox circles many are asking about how old rituals should be applied or revised. This is definitely not the whole of the story however for contemporary Jewish legal work like that of the past also consists of a full-blooded and full-bodied use of Jewish law to give contemporary Jews moral guidance in every area of life. This includes issues in family law, business and medical ethics and interpersonal relations. The most recent meetings of the conservative movements committee on Jewish law and standards for example included papers arguing for a specific position based on Jewish sources regarding copyrights and whistle-blowing as well as removing life support from non-heart beating donors who still have some brain function. In December 2006 the committee discussed and voted on five papers presenting different positions on our dating homosexuals and this is definitely not what some early reformers derogatorily called pots and pans Judaism, concerned only with the details of Jewish dietary laws and other rituals. I fully expect that this use of Jewish law to guide us in moral matters will grow exponentially in the years and decades to come as Jews like people of other faiths strive to know how to act morally in the increasingly complex and murky moral waters of the multicultural interfaith and electronically connected world in which we live. Academic legal scholarship constitutes a very different genre of Jewish legal studies for the authors intend both a different result and a different audience. Specifically the intent of this literature is not to decide a specific question in Jewish law but rather to study the corpus of Jewish law from its beginnings to the present day in order to trace trends in it or variations within it, compare its approach to a given issue to those of other legal systems or describe the methodology and philosophical foundations of Jewish law. Philosophers would call this literature meta-law for it exists at one level more abstract than the law itself and American legal scholars would recognize this genre as the kind of product that finds its way into law journals and books on law. As such its audience is not rabbis or lay Jews who are seeking to know what Jewish law requires them or suggest to them depending on one's view of the authority of the law but rather other legal scholars as well as some interested rabbis and lay people, Jewish people who want to know not what to do but rather how Jewish law functions. The goal is intellectual more than practical. Specifically readers of this literature seek to comprehend the broad trends of Jewish law in a given area to compare it to what other legal systems do in that area or even more abstractly to understand the philosophical foundations of Jewish law including questions of authority, methodology, morality, theology, and goals. A significant percentage of this scholarship especially the non-philosophical kind is done in Israel in Hebrew and in the paper I talk about where you can find it. Much of it though is also in English and one can find it in places like the Jewish law annual and Jewish law association studies in addition the Journal of Jewish Law and Religion and Interfaith Journal published by Hamline University Law School regularly features articles on Jewish law, articles about Jewish law also appear in journals connected to specific movements. On a yet more abstract level articles and books articulating various theories of Jewish law have appeared in increasing numbers in recent years. In part this is simply a continuation of the philosophical treatments of the nature and authority of Jewish law that stretches far back as Philo of Alexandria in first century Egypt and includes such medieval greats as Sadie Ka'on and Maimonides. Philosophical work about Jewish law got a major boost in the 19th century as the Enlightenment made it possible for Jews to abandon Jewish law altogether leading those interested in maintaining it to formulate arguments as to why one should still follow it. This discussion continued in the 20th century in all expressions of Judaism and continues in our own day as the possibility of Jews assimilating into the general culture has become ever more a matter of fact as well as theory. Increasingly though the audience is no longer just Jews but also scholars of other fates and legal systems as scholars of Jewish law engage in sophisticated treatments of Jewish law as a legal system and compare it to other legal systems. So for example in the book that I edited the unfolding tradition I discussed no less than 15 different theories of Jewish law that have emerged within the conservative movement alone nine of them written since 1970 and then compare these conservative theories to some orthodox and reform theories as well as the two that are to the left of the reform rabbinate. Only clearly Jewish law is a matter of interest and concern. This is not surprising the increasing need that people living in highly in the highly individualistic western societies feel to root themselves in a community of the past present and future has led to new interest in ritual and family law and the immensely important and yet morally murky decisions that each of us make in what are often radically new circumstances drive people to seek moral guidance from their religious traditions. Because such guidance in ritual and moral matters cannot usually be derived from simply quoting chapter and verse from some previous text. The philosophical and method methodological foundations of a religious legal system like that of Judaism is also of keen interest. May this renewed interest in Jewish law and in other religious legal systems and the research and learning it produces help us to resolve the problems of living in an increasingly alienated alienating and complex modern world so that we can flourish in a context that our ancestors never dreamed of. Thank you Dr. Dorff. Now let's turn to the future contest of Islamic law and politics with Professor Robert Johansson. He took his PhD at the Free University in Berlin. He is professor of Islamic studies at Harvard University and its Divinity School. He also teaches at Harvard Law School where he directs the Islamic legal studies program. His research and teaching focus on the relationship between religion and law in the classical and modern Muslim world. He is particularly interested in the role that religious and legal systems assign to the practices of lay people for the influence that exerts on the interpretation of sacred norms. His published works include Islam on Stat and Islamic Law on Land Tax and Rent. He's also published some 60 articles in international journals. Professor Johansson. Good morning. Let me start by saying how pleased and honored I am to be at this center and since yesterday I'm deeply impressed by the way in which this center on law and religion unites the disciplinary and disciplining aspects of both disciplines law and religion to control time and and and therefore I will go very quickly over the first part of my lecture and then concentrate on the other three parts which are dedicated to the development of Islamic Law in the 20th century in Egypt and Pakistan. Islamic Law the first part of my paper is mainly a discussion of a very widespread attitude that I quote from a book that otherwise I very much admire that is Saiget and Kurtz's introduction to comparative law that has a chapter on Islamic law starting with a sentence that Islamic law is a complex of divinely revealed rules and therefore and concludes from this sentence that it's immutable because it's divinely and it's a historic because it doesn't cannot move from there anywhere and I think it's necessary to take the time to say it's a jurist's law it's a law that is developed by jurists interpretation is in the very center of this law it's not a political legislation that creates the norms it's legal it's debate among jurists that has over thousand years created the norms of this law therefore it is a law that has its own classification of acts, needs and thoughts and a parallel development on the rules of ethical and legal behavior and the idea that you can simply take the Quran and then say this is written in the Quran therefore it's the law is very often misleading I give one example the Quran in one of the verses says the polytheists are impure now you could expect that from this verse there would be a whole definition of purity in the ritual of purity and impurity in fact the jurists have decided that this was a metaphorical speech and that all living beings are pure and that there is no purity impurity along the lines of belief or unbelief or religious affiliation but the line is between the living and the dead and therefore this ritual creates for them a possibility to accept all human beings as actors in the law with full rights and then discuss how in this group of actors in full rights specific restrictions exist for non-believers in the political community of Islam but the fact that legal interpretation plays such a role is important to keep in mind I had given a long quotation in this sense from well 11th century central Asian jurist who insists that until the last hour new problems will be posed to the jurist and that he cannot rely on the revealed texts only because they are already closed they are fined in number but the problems that the jurist has to solve are infinite they are never ending and they will last until the last hour and he refers to the necessity for the jurist to find new arguments for the rules that he develops and sketched out in the written text the different legal harmonitical rules that are based on the jurist's speech act theory and on a comprehension of language and are basically deductive there is an other set of methods that goes from the analyzing of individual rules with similar characteristics and functions in order to find the general principles underlying all these rules and then with these general principles develop new rules finally there is what the jurist call the aims of the sharia that is to take all the rules of the sharia and find out what is it what is it that the sharia wants to attain with these rules and they all agree on five basic aims the preservation of religion life, reason, descent property but there are many others it's a debate that has lasted 800 years and it's still continued today in the jurisprudence of major courts the jurists were not only responsible for the methods they created and for the interpretation of texts but they were also responsible for the creation of the norms in the law in this creation of the norms a law for an immense amount of descent and the popular saying among jurists says that the descent of the jurists is a mercy of God for his community but the descent contingency in the creation of norms and in the creation of methods is an accepted fact throughout the history of Islamic law now this Islamic law based on a chasmistic method of question discussions then referred to basic principles or to verses in the holy texts ordered along inductive and deductive methods and developed in debates between jurists and schools of law lost its public functions in a dramatic way during the colonial period from the 18th to the 20th century the method of its production changed law was no longer produced in jurist debates and writings but enacted by a political legislator in the 18th century the hierarchy of norms changed the legal norms were recognized not because they referred in the last instance to the Quran and the Sunnah or to recognized methods of norm justification but because they were promulgated by the political legislator the content changed the norms were largely adapted from European codes the form changed they were no longer to be found the authority of Islamic law changed in most cases it was reduced to the laws of family and succession endowments, wills and bequests and was replaced in the other parts of the law by European norms when the end of the colonial period approached the creation of a national law was high up in the agenda of most of the Arab states as it was in Pakistan but in the Arab world the idea of reintroducing Islamic law is the dominant law even fewer thought it useful to reproduce Islamic law as a jurist's law with its two levels of legal and ethical discussions the debate between jurists is the means of non-production and the interpretation of the different points of view expressed in the legal literature by a judiciary that was not hierarchically ordered the efforts were rather concentrated on the creation of national codes and the hierarchically ordered judiciary law was thought of generally and is for a majority until today as codified law enacted by the political legislator what is at stake today is the content of these codes this question is decided in the situation where the religious scholars have lost the control over the normative structure of Islam a democratization of interpretation of Islamic law and religion has taken place jurists trained in modern law schools sociologists and anthropologists in short, academically trained intellectuals of all sorts interact with the public on the question what is the normative structure of Islam what is it that we want to see realized by Islam the debates take place no longer between factions and schools of religious scholars and different religious movements within the civil society and also outside and against the civil society there is no other instance representing consensus and authority than the public at large one of the earliest and most successful efforts to develop a modern civil law was undertaken by Egyptian jurist like Abdelazzaq Al-Sanhoori who were well trained in Islamic and French law and who used the means of the comparative law to analyze the aims and functions of the norms of modern European and Islamic law they constructed the Egyptian civil law code that has served as the basis for a common Arab civil law that is much more unified than the European civil law I quote Zweigert and Kurtz since 1949 the Egyptian civil code has been received by almost all states in the Arab League Iraq 1951 Libya 1953 Qatar 1971 Sudan 1971 Somalia 1973 Algeria 1975 Jordan 1976 and Kuwait 1980 I quote this success is best explained I think as a choice by the modern national states of a code of modern law that contains the most efficient legal norms that modern law could offer and the same time comparative law methods for a comparison between Islamic and European norms and principles Islamic and European legal principles established a new legal tool for the analysis of Islamic law that opened the horizon for a reconstruction of Islamic law as an instrument for a new form of Islamic legality this explains the great attraction of comparative law for a whole generation of the best Arab jurists the end of the colonial era also brought to the newly independent Arab countries and to newly founded Pakistan an era of constitutionalism colonial administrators had little interest in encouraging constitutionalist movements and constitutional forms of government the newly independent national states found in constitutions a welcome symbol of independence and statehood during the first 20 years or so most countries changed constitutions quickly and often most of the time in the context of Qudita since the early 70s a certain stabilization of government authority and states is accompanied by a longer life of constitutions more importantly the demise of military junters with ambitious military social and industrializing programs has left most states in a situation where the promise of a glorious future no longer mobilizes the citizens the states are therefore latest since the 70s increasingly looking for a legitimacy in Islam as well as in the national and the religious past of the society and the polity that they represent constitutional law plays a major role for such a policy in the 70s the constitutions of Kuwait, Syria and Egypt in the 90s the Sudan in 2003 the Palestinian draft constitution defined the competencies of a constitutional court in their countries to be defined and regulated by law in the 80s and 90s Morocco, Tunisia, Algeria, Lebanon created constitutional councils following the French model Jordan in the 80s created a high reputation of the constitution most of the eastern Arab countries add to their constitution an article that declares the principles of the Islamic Sharia to be either a principle or the principle source of legislation in 1979 the Pakistani general and dictators Iaul Haq created in addition to the supreme court and the four provincial high courts that existed in Pakistan since its foundation a new federal Sharia court that was entitled to invalidate laws that it deemed to be unislamic and that together with the Sharia bench of the supreme court has become the most effective instrument for an Islamization of Pakistani law that did not involve the parliament much as in western Europe and in other parts of the world the foundation of such a constitutional judiciary brings about a growing control of the elected legislator by the nominated high judges but the effect of this change depends very much on the institutional setting in which and the political background before which it takes place I will choose two examples Egypt's supreme constitutional court constituted in 1979 on the one hand and the federal Sharia court and the high courts in Pakistan on the other I choose Egypt's supreme constitutional court because it is an impressive example for the political importance of a constitutional court that follows the demise of a discredited dictatorship that has failed in its economic, social, political and military strategies in the demise of this regime the government has lost its credit in the country and outside the country the constitutional court has the task of inspiring confidence in the rule of law the judiciary as a controlling force and the contractual obligations of the government vis-a-vis foreign partners the court has become by far the most important and influential constitutional court in the Arab world it publishes its decision 14 days after their pronunciation and the official bulletin in addition it publishes each year a volume of selected decisions that over the last years regularly exceed 1500 pages its success is at least partly due to the fact that there is no rival court deciding on questions of the compatibility of Egyptian law and Islamic law it is generally recognized by all that the constitution is the highest norm in the country's legal system the constitutional court therefore has acquired the role of the supreme interpreter of Islamic law as far as its influence on state law and state authorities is concerned while this does not make it a religious instance it makes it the highest mediating instance between positive law and Islamic law in the country only the constitutional court is entitled to declare unconstitutional laws and decrees in 1979 the year in which the court was constituted the government had set up a committee to draw the consequences of article 2 for the parliament the committee provided the legislator with a rather conservative instruction if a project of legislation is envisaged the legislator has to look for firm norms for norms of the classical legal and ethical system that are clearly based on revealed texts if one of these fits the project purpose it has to be applied if not he can choose among the norms that the different schools of Muslim law developed in the past if none of these fits the purpose the legislator has to base his legal norm on general principles of Muslim law and he should in particular follow the rules of legal harmonetic the roots of legal comprehension the legislator is not according to the committee tied to any particular school doctrine one can freely choose between them the norms based on the legal reasoning of the legislator cannot acquire the status of absolutely certain rules because they are not based on clear and unequivocal revealed texts as far as constitutional rights are concerned Dr. Adel Omar Sharif the present deputy chief justice of the constitutional court as some 20 years ago in an interesting book summarized the position of the committee in saying that the constitution guarantees to the people of the book and we have here a limit of the freedom of religion the people of the book are Jews and Christians guarantees to the people of the book the application of their own religious norms as far as personal status is concerned and that they are also guaranteed access to public office freedom of belief and freedom to perform their cult any attempt to deprive them of these rights or to diminish them is a clear violation of the constitution even more a statement with such an interpretation is incompatible with the duty to preserve national unity by which each and every Egyptian is bound according to the clear text of article 60 of the constitution after discussing the debates among Egyptian and Pakistani jurists on these matters Dr. Sharif concludes that the principles of the Sharia are super legislative norms that in the hierarchy of norms take an intermediate place above the legislators laws but below the text of the constitution the constitution is the basic norm and all legal norms have to be compatible with its texts the principles of the Islamic Sharia therefore have to be interpreted in a way that does not contradict the public private freedoms that the constitution guarantees to all citizens I quote again Dr. Sharif consequently the principles of the Islamic Sharia occupy an intermediate rank between the constitution and the law they are qualified and restricted by the constitutional principles such as the principle of equality the freedom of belief the freedom to perform their religious cult these principles are considered as restrictions of the Sharia principles binding character much as the principles of the Islamic Sharia qualify and restrict the legislative texts which the legislature enact within these limits the principles of the Islamic Sharia are considered as source for the judiciary control of the constitutional character of the legislative texts I quote the principles of the Islamic Sharia therefore are super legislative norms but they are not above the context of the constitution they have to be harmonized with the public and private freedoms guaranteed by it constitutional court has developed a doctrine on interpretation in which the classical principles of legal harmonetic the doctrine of the aims of the Sharia the reference to principles of the Sharia and the difference between norms that are unchangeable because they are based on unequivocal revealed texts of reasoning constantly occur in the texts of the decisions the court uses them to legitimize its own reinterpretation of Islamic law in other words norms such as defined by Sarasi the jurists that I quoted in the beginning of my paper are constantly used by the court in order to render compatible its conception of Islamic law and the texts of the Egyptian constitution this does at no moment prevent the court to quote the jurisprudence of international and national courts such as the one developed by the Supreme Court of the USA or constitutional courts and councils of European countries or of South Africa or international conventions such as the international convention of human rights to support this interpretation of the Egyptian constitution the Supreme Court has been very successful in imposing a strict conception of due process of law on Egyptian courts it has struck down hundreds of law entirely or partly ranging from election laws laws that granted the administration immunity from judicial control diminished the security of private property it has on the other hand defended dress rules for girls in public schools that were attacked as un-Islamic because they were not veiling the girls over the years it has become the right association in Egypt who often successfully bring their cases before the court it has on the other hand always avoided to enter into open conflict with the executive power over security matters such as the rule of the country over more than two decades under emergency law military courts judging civilians chosen by the president of the republic or torture used by the Egyptian police or prison guardians the court's policy has been one of restricted liberalization its methods of reasoning a mixture of different styles and methods of different origins it seems now as if the executive power finds it difficult to put up any longer with the liberal jurisprudence of the court since the last eight years the president of the republic no longer respects the practice followed since 1979 and until the end of the 90s he was nominating the chief justice from among the justices of the court he also follows a policy of court packing that raised the number of the court's justices from 9 to 16 over the last years with chief justice justices and more than 40% of the judges coming from other institutions the liberal tradition of the constitutional court survives with increasing difficulty the judiciary situation and outlook is different in Pakistan after the country's foundation in 1949 its high courts including the supreme court passed decades discussing in Kelsenian terms whether the highest norm in Pakistan was the constitution or the objective resolution that is a declaration passed on March 7 1949 by the constituent assembly and concluding from the religious raison d'etre of the new state on the Islamic aims that it had to realize the constitutions of 1956 and 1962 while containing articles on the Islamization of state and law did not make these articles actionable as tools to invalidate laws enacted by the parliament let alone to render null and void the constitution and the various attempts of provincial high courts and supreme court justices to raise the objective resolution to the status of Pakistan's supreme norm remained unsuccessful until the middle of the 70s the situation changed dramatically with the military push of general Ziaul Haq in 1977 who ruled through martial law from 1977 to 1985 his coup d'etat toppled the government of Zulfi Karbotto whom he had executed in 1979 Pakistan's supreme court not only in 1977 legitimated Ziaul Haq's push by the doctrine of necessity but also approved in 1979 of the hanging of the imprisoned former prime minister Ziaul Haq in 1984 organized a referendum that made him Pakistan's president for the next five years in 1985 he announced the 8th amendment of the 1973 constitution an amendment that gave the president the right to dissolve the parliament which was necessary and thus decidedly weakened the legislative power vis-a-vis the president during his office as chief martial law administrator from 1977 to 1985 Ziaul Haq pursued a very active policy of Islam Islamizing Pakistan's legal system and in particular its judiciary in 1979 he enacted the Hadood ordinance that introduced into Pakistan's penal law the capital and bodily punishments of classical Islamic law for robbery, theft, illicit sexual intercourse calumny from the same delict and wine drinking in 1985 he introduced an article 2A into the text of the constitution of 1973 that made the objectives resolution of 1949 an integral part of the text of the constitution and at the same time declared immune against all judicial interference all acts ordered by Ziaul Haq between 1977 and 1985 several of the high courts defended in the years that followed the thesis that now the objectives resolution has become a supraconstitutional norm that could be relied on to declare legislative texts but also parts of the constitution repugnant to Islam and therefore nil and void the Supreme Court resisted this reasoning until 1997 when it finally gave into this doctrine in 1999 after the push of General Musharraf the Supreme Court confirmed its decision to recognize the objectives resolution as the element that forbade the chief of the executive to amend the constitution in its central parts Ziaul Haq also brought about the specific structure of Pakistan's judiciary through creating in 1979 the federal sharia court of Pakistan through all these measures he weakened the political legislator also vis-à-vis the judiciary in particular vis-à-vis the Islamic courts on the results of these measures I quote Martin Lau on from his new book the role of Islam in the legal system of Pakistan it is the setting up of an quote it is the setting up of an institutional mechanism to Islamize the legal system independently from parliament which can be identified as the main contribution of Ziaul Haq to the Islamization of laws for the first time a specialist court existed having been set up with the express purpose of judicially reviewing certain parts of the legal system so as to determine whether these parts were in accordance with Islamic law the creation of the federal sharia court led to a bifurcation of the legal and judicial system into an Islamic and a secular wing unquote the role of the federal sharia court was strengthened in 1983 when it was given the power to examine all existing laws on their compatibility with an Islamic legal system implying a further step in the disempowerment of the elected legislator in favor of the appointed justices of the federal sharia court the constitution of 1973 had tied the investigation into the compatibility of legislative texts with Islam to the condition that the Quranic texts and the reports from the prophet should constitute the test by which their compatibility should be measured the federal sharia court instead developed its own approach it formulated general principles such as equality general principles of justice the right to be heard by the judiciary whenever one is accused or diminished in one's rights it would appear that the court used an inductive rather than a deductive approach to the law starting from clusters of individual norms generalizing the principles which are decipherable in their analysis the court was sharply called to order for this approach by the supreme court and requested to base its legal opinion concerning the repugnancy of legislative texts to Islam on specific verses of the Quran and on specific reports from the prophet the federal sharia court's application of the principles so derived was in no way universal the principle of equality is clearly not applied to gender relations decisions on women under the hudud ordinances are often breaking the law and the constitution by their shocking disrespect of the woman's status as autonomous legal actors in many cases do they fall below the standard of the more than thousand years old doctrine of the Hanafi school of Sunni law that was dominant on the Indian subcontinent this doctrine gave women the right to marry themselves without the permission or interference of a legal guardian a right that is increasingly called into question by the federal sharia court also the right to be heard was not extended to this fear of religion where capital punishment for blasphemy are often pronounced even if mostly not executed and an automatic identity of certain religious doctrines with blasphemy is automatically and without any further procedure established the Ahmadis are all considered blasphemies in questions of social equality the record is mixed on the other hand the court has a strong record in the defense of private or collective rights against arbitrary government interference so there is an element of a human rights conception also in the federal sharia courts jurisprudence I do not have the time to go into a detailed discussion of all this but it seems to me to come finally to my subject to the title of my lecture that a comparison between Egypt's supreme constitutional court and Pakistan's federal sharia court shows important differences in style methods and results the Egyptian court was brought into existence in a historical moment when a military dictatorship had lost all credibility it succeeded in the difficult task assigned to it to guarantee the protection of individual rights, public and private contracts, public liberties and state obligation it has taken seriously the task to redefine principles of the Islamic sharia that are compatible with the understanding of the law as it develops in other cultures and societies it has always held that such principles take an intermediate rank between the text of the constitution and the legislative texts it has within the narrow limits of an authoritarian presidential regime contributed to the liberalization of Egypt's political and legal system in the name of the constitution and a reinterpreted Islamic law Pakistan's federal sharia court on the other hand comes into being after a coup d'etat under martial law in the context of a policy aimed at weakening the parliament vis-a-vis the martial law administrator the high courts and the federal sharia court the Islamic law as conceived by this court is much as the one expounded by the Egyptian constitutional court a reconstruction of general principles it has most of all the function to uphold and defend the religious and indigenous identity of Pakistan's legal system and the protection of the values of the male Muslim population the support of democratic structures that is evident in the Egyptian court's activities is absent from the Pakistani discussion the recurrent support of the supreme court the high courts and the federal sharia courts for the constitutional policies of generals arriving to power via military pushes is a clear indicator of their political outlook the federal sharia court in matters of gender relations and freedom of religion shows no willingness to create a more subtle legal framework but uses the objective's resolution as a tool to increase the judiciary's power vis-a-vis the parliament where the Egyptian court assigns the principles of the Islamic sharia an intermediate rank between the texts of the constitution and the laws many of the Pakistani high courts and finally even the supreme court assign the Islamic law a supraconstitutional ranking to judge from this example I will venture to do one prediction on the future contests of Islamic law and politics this future will very much depend on the political and cultural conditions under which Islamic law will be reformulated in different societies not only internal conditions are relevant also the foreign policy of the big powers will exert its influence on the way in which the reconstruction of Islamic law is understood it will determine whether identity indigenous and religious identity in a defensive way dominate the approach or whether cooperation and compatibility with other forms of law will characterize the interpretation of Islamic law and its new forms I thank you very much for your attention thank you now let's turn at last to the unbearable lightness of Christian legal scholarship with David Scale he holds a JD from the University of Virginia an arched professor of corporate law at the University of Pennsylvania law school an expert in bankruptcy in corporate labor law he's the author of Icarus in the boardroom and Deaths Dominion the history of bankruptcy law in America and a number of articles in these areas in matters of sovereign debt law religion and poetry and the law and presumably the poetry of the law I suppose I'm the last representative of the three great monotheistic faiths on this panel it goes without saying I think that I am uniquely unqualified to be the representative of my tradition I'm the only one on this panel who's not a theologian so when I refer as Stephen has done twice now to the unbearable lightness you can assume I'm referring to myself in saying that and because of my unbearable lightness I brought with me a quiz to try to keep you awake for at least a couple of minutes that's this this is a historical quiz I'll get to in just a second I also want to like many before me just thank John Whitty in this center for putting on this celebration and for putting on the reason for the celebration this is just an amazing conference an amazing center and everything that I'm going to be asking for and calling for in the way of Christian legal scholarship is taking place right here and this is perhaps the best illustration of it the history of 20th century Christian legal scholarship really the absence of Christian legal scholarship in America's elite law schools can be told as a tale of two emblematic clashes the first an intriguing historical footnote the second a brief explosive war of words the first came from rural Nebraska courthouse circa 1890 the council for the plaintiff in the case a routine toward action against a railroad was the man on the front of your little quiz does anybody know who this is all of the pictures are the same man William Jennings Bryan that was the easier of the two parts of the quiz a rising Nebraska politician who would soon be elected to congress in 1896 would become the democratic presidential nominee for the first of three times the harder part the council for the plaintiff was this man a few years later a few decades after the moment I'm talking about anybody have any idea who that is wow this is a very sophisticated audience Roscoe Pound indeed the council for the plaintiff Roscoe Pound would follow the circuit court in Nebraska for a few more years before joining the law faculty at the University of Nebraska and eventually moving east to Harvard where he served as dean of the law school for several decades Pound won that case his first victorious jury trial but he lost his share of others he later he later quipped that the initials JP which stood for justice of the peace a position Bryan held at the time were popularly taken quote to represent judgment for the plaintiff partly because the plaintiff was wise enough to select for a defendant a party who could pay the costs in the waning years of a century in which judges had unselfconsciously treated Christianity as a foundation of the common law the elite American law schools led by Harvard dean Christopher Columbus Langdell had begun to conceive of legal scholarship in scientific terms Langdell's innovation was a systematic case oriented approach that distilled the key principles of each area of law from the existing cases so that these abstract principles could be applied to any subsequent controversy Langdellian legal science like the similar reforms taking place elsewhere in American higher education quite explicitly excluded religious perspectives which were seen as insufficiently scientific and inappropriately sectarian so it's ironic as was mentioned yesterday that Langdell was later derided as a legal theologian that was the worst form of scholarly derision Roscoe Pound was a product of the Langdellian system he took his legal training from Harvard in 1889 in 1890 but he was also one of its earliest critics according to Pound Langdell's system with its single-minded focus on previously decided cases was too narrow and formalistic a quote mechanical jurisprudence Pound insisted that lawyers and legal scholars needed to fully understand the role of the law an approach or excuse me needed to take into account the insights of sociology economics and political science to fully understand the role of the law an approach he called sociological jurisprudence sociological jurisprudence that's with a T rather than an NCE according to Pound looked to the working of the law rather than its abstract content they regard law as a social institution involving both finding by experience and conscious making an institution which may be improved by conscious human effort Pound was not himself religious but he traveled in the same progressive circles as advocates of the social gospel the liberal Protestant movement that married modern critical theology with an optimistic program for social reform and Pound unlike Langdell and subsequent movements such as legal realism which emerged in the 1930s included morality although not religion as a central concern of the law William Jennings Bryan Pound's adversary in that Nebraska courthouse was no intellectual his sympathetic biographer suggests he was quote rather a simple man who showed little interest in literature, art or philosophy and Bryan was much more theologically conservative than the social gospel theologians but he was fond of many of the leading social gospelers and would later join forces with them on issues like prohibition thus there was at most one degree of separation between Bryan and Pound it's tempting to imagine how things might have been different if a friendship had taken root in that Nebraska courthouse if Bryan had included people like Pound among his advisors their friendship might one can at least dream have sown the seeds for an early 20th century Christian legal scholarship but it didn't Bryan the nation's leading evangelical at the end of the 19th century crafted his appeal for the untutored quote common man keeping a wary distance from secular intellectual elites like Pound Pound returned the favor Pound disdained the populist movement that Bryan represented lacing his later speeches with dismissive references whenever the occasion seemed to call for a laugh line he found the raw protest of lower-class reform distasteful as his biographer puts it it lacked dignity it was not respectable and its arguments were unsound Pound's and Bryan's disinterest in one another and in the perspective each man represented was emblematic of the historical forces that would shape Christian legal scholarship for most of the 20th century evangelicals who might have generated a Christian legal scholarship themselves were like Bryan often anti-intellectual for various reasons we can talk about later and after 1925 the year of the scopes trial and of Bryan's death many evangelicals began to turn their back on American culture altogether at the same time the legal elites of the time had little religious perspectives both Langdallian legal science and the movements that succeeded it Pound's sociological jurisprudence and legal realism which shared many of the same cross-disciplinary aspirations treated religion as irrelevant to the scientific study of law if the conflict between Pound and Bryan was one emblematic clash in the last 100 years the other came 50 years later in the early 1940's a dispute over the legacy of Supreme Court justice in eminent legal scholar Oliver Wendell Holmes by the 1930's Holmes had achieved revered status in American legal academia he was viewed as a patron saint by both Pound and by legal realists such as Carl Llewellyn and others out of nowhere in my use of the word nowhere Mr. Dettel as will become quickly clear came a blistering attack writing in 1942 shortly after America's entrance into World War II two Jesuit scholars each condemned Holmes's bad man theory of law and his skepticism of morality Holmes's claim that the law has no room for morality they argued would leave no moral resources for combating the horrific totalitarian regimes that had sprouted in Europe this much may be said for realism as the second of the articles put it if man is only an animal realism is correct Holmes was correct Hitler is correct a subsequent article in the ABA journal cast off decorum still further believe it or not the fact that Holmes was a polished gentleman who did not to storm trooper knocking people down and proclaiming the supremacy of the blonde beast should not blind us to his philosophy that might makes right that law is the command of the dominant social group in 1951 Harvard law professor and future Holmes biographer Mark DeWolf Howe rallied to Holmes's defense in the pages of the Harvard law review arguing among other things that Holmes's most notorious statements which seemed to reflect a thoroughgoing positivism had been misconstrued by his critics for present purposes two aspects of the clash between the Catholic scholars and Holmes's defenders are especially noteworthy the first is that unlike with evangelicals who produced little serious scholarly reflection on legal issues for much of the 20th century there was a much better developed Catholic legal scholarship much of it drawing on natural law principles this scholarship which was nourished by the writings of theologians and scholars outside of legal academia was reflected in the founding of several new legal journals at mid-century including the Catholic lawyer in 1955 in natural law forum in 1956 second it is not accidental that this Catholic legal scholarship took place almost entirely outside the elite American legal journals it was Howe's article not those of Holmes's critics that appeared in the nation's flagship law review and the Howe article can fairly be read as dismissive of the religious dimension of the attack on Holmes I should put a footnote here particularly given what I'm about to say I'm a big fan of Howe's work as a scholar but I'm about to make a somewhat critical point about him as I said the Howe article can fairly be read as dismissive of the religious dimension of the attack on Holmes it would have required no special insight he wrote to predict 20 years ago that Jesuit teachers of law would find Holmes's skepticism philosophically unacceptable Howe also warned that if quote an eagerness to accept the implications of divine authority becomes predominant in our philosophy we shall be obliged once more to free ourselves from the old shackles in short unlike evangelical scholarship Catholic legal scholarship did exist but it rarely rarely saw the light of day in the top law reviews in a survey of the elite law reviews from 1900 to 2000 I found only a handful of articles prior to 1990 that reflected a discernible Christian perspective for much of the 20th century there simply was no real Christian legal scholarship in America's leading law reviews by the 1970s evangelicals had fully emerged from their cultural slumber and would soon flex their political muscles on issues like abortion the tax exemption for religious schools and gay rights as we talked about some yesterday but Christian legal scholarship lagged well behind although there were important exceptions such as work by Michael McConnell and others on the religion clauses of the First Amendment and a revival of natural law theory that is generally associated with John Finnis there was precious little Christian legal scholarship especially in the leading law reviews even as of the early years of this century year and a half ago I wrote the first draft of an article that Steven has mentioned twice that I entitled perhaps with a little too much bombast the unbearable lightness of Christian legal scholarship I fully stand by the assessment of that article but there is also is increasing evidence that a real renaissance may finally be underway given the new vitality in Christian legal scholarship until the fourth great awakening comes to an end as Douglas Laycock was predicting yesterday I propose so I want to talk fast I could be ending as I stand up here I could be ending it I propose to spend the remainder of my time looking mostly forward rather than back to organize the discussion I will ask three very basic questions what, who, and how what are the most promising directions for Christian legal scholarship who is a Christian legal scholar and how can Christian legal scholarship best be facilitated let me start with the what question by which I mean as I just mentioned what are some of the most promising directions for the next generation of Christian legal scholarship the short answer in my view is that seeking to do Roscoe Pound sociological jurisprudence first cousin legal realism all over again but with religious perspectives included would be a worthy mission for the next several decades of Christian legal scholarship Christian legal scholarships Christian legal scholars in my view should quote, look to the working of the law rather than solely its abstract content and they should regard law as a social institution involving both finding by experience and conscious making I can imagine at least three forms such a project might take others can no doubt imagine more and the best scholarship may well mix two or three of these approaches or perhaps others the first might be described as historical retrieval this has been the strategy of choice for much of the existing Christian legal scholarship in the religion clause literature McConnell and other scholars have explored the history of the Framers era including the religious perspectives that helped to shape the First Amendment in family law scholars like John Whitty have traced the complex historical relationship between Christian and secular regulation of marriage and related issues at its best this work can have a prophetic quality keeping in mind some of the warnings Kathleen Cavani gave us yesterday about the nature of prophecy and this scholarship can use the past to point the way forward a second promising strategy is to develop a normative analysis of the proper role of law many of the most important legal developments of the 20th century such as the emergence of the administrative state and the expansion of federal criminal law have been largely unstudied by Christian legal scholars scholarship that marries theological perspectives with sophisticated institutional analysis seems long overdue once again there is evidence of this sort of scholarship out there and emerging right now much of it drawing on natural law theory and other resources a third approach is in a sense to turn inward and to examine the nature of Christian influence on American and international law when the progressives and legal realists vowed to pursue a more genuinely scientific approach to law what they had in mind was a careful empirical study of how law was made and implemented this same strategy can be used to explore for instance the influence theologically conservative Christians have had in particular areas such as gambling abortion and my favorite international debt relief there is now a great deal of recent work by sociologists and political scientists and economists as well that could be used to inform this scholarship when I first tried out some of these ideas on a friend his first reaction was what about philosophy in suggesting that the next step for Christian legal scholarship may be to appropriate many of the aspirations of pound and the legal realists I would not for a second want to downplay the importance of more traditionally philosophical approaches there is no question that philosophy is and will be the base but of the Christian legal scholars who have emerged in the past decade surely 80 or 90 percent can be characterized as focusing on philosophy the first amendment religion clauses or some combination of the two other areas have received far less attention for the decade to come there may be something to be said for if not reversing those percentages entirely at least shifting what the second question I would like to consider is who or whose work are we talking about when we talk about Christian legal scholarship the particular question here is whether a scholar must be a Christian to write Christian legal scholarship I suppose the obvious answer to this would be yes one must be a Christian to produce Christian legal scholarship it says so right on the label but I don't think this is correct perhaps the answer depends on just what one means by Christian legal scholarship in my view Christian legal scholarship is scholarship that does two things first it provides either a normative theory derived from Christian scripture or tradition or descriptive theory that explains some aspect of the influence of Christianity on law or of law and Christianity and two it seriously engages the best secular scholarship treating the same issues now the reality is that the vast majority of scholarship that satisfies this standard will come from scholars who are themselves professing Christians but one can imagine work that satisfies the two criteria I have just outlined yet issues forth from the word processors of scholars who do not identify themselves as believing Christians a fascinating recent article by John Jeffries and Jim Ryan that argues that the recent gap brush more between evangelicals and theologically conservative Catholics will have a significant impact on the Supreme Court's religion clause jurisprudence is in my view an example of precisely this the final question is how how can the renaissance of Christian legal scholarship be facilitated let me start with a word of warning about what has been perhaps the most popular legal strategy of theologically conservative Christians in the past several decades legal defense funds inspired in part by the calls of Francis Schaefer and others in the 1980s Christians started a number of legal defense funds to litigate cases on the religion clauses and related issues one of the earliest was the Rutherford Institute which was founded by a protege of Schaefer and others have followed these defense funds have been very successful in many levels but they are not in my view a promising seed bed for Christian legal scholarship they are designed to defend Christian positions rather than to wrestle with or debate the appropriateness of the particular position at least since the mid-19th century as historian Mark Knoll has pointed out the activism of evangelicals has usually discouraged rather than encouraged religious reflection a much more promising development from the perspective of Christian legal scholarship in my view is the emergence or rededication of faith oriented law schools among Protestants scholars at law schools like Pepperdine and Regent are producing increasingly valuable Christian legal scholarship the Catholic side has seen both the formation of new law schools and the renewed focus on faith perspectives at long established schools like Notre Dame Boston College and Villanova. I have several other strategies that I go through but in the interest of time I will just briefly mention that I think that foundations and Christian think tanks and centers like this one are going to be an important source of Christian legal scholarship looking forward and I also make an argument for targeted scholarships for students and professors. Scholarships and higher education for students coming from a Christian perspective and chaired professorships such as the ones that several folks here at Emory have for Christian law professors and I'm sure there are a number of us here right now who will stand in line if any of this happens in the coming years. It is important not to overstate the potential effect of Christian legal scholarship. Law Christians believe is not what saves us. Only God's grace can do that. But if the history of Christian legal scholarship in the 20th century is depressing there is reason for cautious optimism looking forward. It may be that the William Jennings Bryan and Roscoe Pound of the 21st century will participate in the same conversations and that the Mark DeWoof Howe of the new century won't feel the need to warn about the old shackles of religious perspectives on the law. Thank you. Thank you David. And Elliott. It is indeed 10.30. I don't know that Dutch Calvinist grant papal indulgences but if we can have one for a few minutes let me very briefly invite questions or comments from our presenters and then if we can take a question or two. A quick question for Elliott and that is this may be going beyond your paper and be an unfair question but I'm curious as to one of the things that's debated a lot in law school circles is the proper use of international law and how nations should look at international law or the law of other nations. I'm curious as to whether you believe Jewish history and the nature of the logical debate has insights into that kind of an issue. Well actually since 1974 I've been teaching a course at the law school at UCLA on Jewish law that originated because some students at the law school was asking that exact question. We're asking that exact question namely can a Jewish heritage of law that deals not only with ritual matters but also with civil law and procedure and everything else whether that can give some insights into some real problems in American law and I think over the course of the years some of the answers have been yes sometimes no. I mean every legal system is ultimately a human product however you understand the divine input into it and human beings have a system however you define it. But certainly some of the things we were talking about yesterday in terms of the Jewish understanding of marriage and of children and of divorce is very very different from the American understanding of it at the moment. Similarly in terms of issues of fairness in civil matters I mean very different from Oliver Wendell Holmes here right moral issues come to the to the fore much more easily in Jewish law than they do in American law so yes I think there can be some real insights in that kind of comparative approach. I would say that it's not only Jewish law that could do it. I mean I think virtually comparing it to any other legal system also might give you some insights because I think part of the reason why the other legal system why all legal systems exist is because somebody found some real worth in them. I was going to ask you about Iran in particular which I take it as much closer to Pakistan than to Egypt. Iran is different in that of course it has a first of all it has a revolutionary origin not a push origin the new government. It came to power in an alliance with parts of the left which lasted about one year or so it has created very refined theological and political constructs it is right now I have right now I feel a bit worried that something I wrote 20 years ago may in fact become true that is that the you will have an alliance between let's say those who were largely excluded from the productive process from the modern sector of the process and those who preach a very strong religious populist policy and is not a learned scholar he this is really a man of populist origins in the populist organizations where he made his name and I am afraid that with these two perspectives not being totally compatible with those of the business society with those of the intellectuals who we see from time to time going into the very centers of power but them being excluded very quickly Khadivar who was in Harvard for a few years ago has now recently been fired from the university and was managed for a moment at least with a very dangerous apostasy reproach so this is a the different power factions are very different construed the history is one in which is more transparent you know who has fought whom you know what is at stake it's generally accepted that there is a dissent in those who brought about the revolution and those who tried to find a position in the new structure of the state in the new structure of society so there is much more of an open debate even if the repressive power is used brutally by the government there is a much stronger awareness of the possibilities of change of inclusion I mean I'm intending to go to Pakistan next year so I will try and and no no no not for any not for any this is you have to be on the there to discuss the people and to discuss the major people in the legal system to find out how they view things from the far from far as I'm this is how I see I see many Iranian friends who have gone into Iran at one given moment who have come back because they couldn't stay in there but who still follow with great interest what is happening they are not just in dis dissociation of that process they are still in it even if they are out of it then I wanted to ask you and this is really based on almost the last line that you said given that there is no salvation through works I'm trying to distract attention that's right this is the second time in Iran given that there is no salvation through works then what's the interest of Christians in law altogether is it just giving to Caesar that which is Caesar's well we believe that most Christians believe in an already not yet theology that suggests the full kingdom of heaven will come in the future when Christ returns but the Christ having come here has brought his kingdom in an already sense as well and so there is absolutely a commitment or there ought to be needs to be a commitment to effecting that kingdom that we can on earth now and one of the reasons why there was so little evangelical legal thought and intellectual thought in the first half or two-thirds of the 20th century is that that was not the predominant Christian theology the predominant Christian theology was a very eschatologically oriented theology but in my view that's a wrong theology so another way to answer your question would be to say there's something of a debate about that within the Christian traditions my very very strong view is that we have an obligation to do what we can to try to make our laws reflect the views of the man who has set the prisoners free and came to usher in the kingdom of God one more quick question to comment aimed at Elliott and yes, no? I was going to ask Michael Mr. Steele Michael I was going to ask precisely if you look at the American situation now what would be the aim of this normative theory of the law based on Christian tradition what would be the change that you expect from this and to Mr. Dorf the Jewish integration in the American society could of course in many ways be a model for let's say Islamic forms of integration in the American society could you say something about that I'll just say yes absolutely and I'll say maybe that's sort of the question what change would the perspective I'm outlining suggest and this is shifting from a general statement about Christian legal scholarship to my own particular normative views in Christian legal scholarship the biggest change it seems to me is one directed to my fellow Christian believers and that is that it seems to me this echoes some comments that Jean L. Stain made yesterday in a slightly different context that we have a tendency in this country and also among Christians in this country to be too optimistic about what the law can do and how much can be done with the secular law and I would just refer back to my final lines the law isn't what saves us and we sometimes forget that we must I fear beg your indulgence now and move from papal indulgence to papal intervention John Witte John Witte John Witte John Witte John Witte Thank you to my dear friend and brother Steve Tipton for leading a wonderful panel to get us started this conversation amongst the three children of Abraham continues in the next session where we'll deal with Islamic Jewish and Christian perspectives on human rights that panel begins at 11 o'clock thank you so much and join us for the break and thank you for your wonderful opening presentation