Realism Revisited in Law and Religion Conference in Santa Clara
I returned on a redeye flight from Santa Clara just this morning, meaning that if I am unusually incoherent, or perhaps unusually coherent, as the case may be, there is a reason. In any event, the conference itself was splendidly organized by Santa Clara University students with the SCU Journal of International Law. I often wonder what precisely the good achieved is of us faculty meeting at all places around the country to bat around ideas, as stimulating a pursuit as that often may be. But when one sees a set of students so eager to organize such an event, host it, and participate in it, I really do feel as if we might just be fulfilling our educational mission.
My function was to comment on a piece by Lama Abu Odeh, and I was uncharacteristically accused of being far too soft, even though I did find my comments to be challenging and requiring consideration. If the critiques were politely and respectfully delivered, it was out of respect not only for Professor Abu Odeh's substantial body of admirable work, but also because I have been told more and more forcefully that my writing is too vituperative, and that I must tone it down or risk making too many enemies. Now, the question is asked where the fire and rage has gone. I confess I am feeling a bit like Aesop's ass, ride the ass, and Aesop is told by onlookers this is a form of animal cruelty. Dismount, and he is asked why in heaven's name he would be walking if he already has an ass. My conclusion in the end is that law professors are not terribly unlike students. They want professors to be sharp, and critical and cut people off and tell them to get back on subject rather than politely let them continue with nonsense--but only, that is, when they deserve it, such determinations made on a case by case basis. I am beginning to wonder if, like Aesop, I am too worried about reactions in any event.
A challenge was issued to my Realist position during the conference, just after our panel, as to the limits of Realism, by a smart and well read friend, that I thought was worthy of blog consideration as it relates to comments exchanged between me and Professor March in an earlier post. As I understood the argument, it went something like this:
That said. this isn't an example of such limits because it doesn't show sacred text limiting an actor's preference, it shows particular contingent developments of sacred text regarded now (but not previously) as core doctrine doing that. What I mean by this is that I think my nameless interlocutor (nameless because our conversation was not broadcast and so it isn't my place to identify) believed that if a party recognizes that its material position runs contrary to its understanding of sacred text, then that understanding of sacred text is somehow immune from "nonlegal" factors. It would have to be or surely the party would have not come out to favor a position that is in opposition to its material interests, it would developed the nonlegal factors in a way that favors its own interests.
The problem is, the community that runs the mosque might believe in these nonlegal factors even if in this one case it might be contrary to its interest to do so. It is, in other words, a deep normative commitment, and one not derived wholly from outside of religious doctrine, nor wholly within it, but certainly connected to both. And certainly, the notion of racial equality is a perfect example of such a normative commitment. There are ample resources within Muslim sacred text to adopt that commitment, and once adopted, it is not easily displaced. It colors readings of the sacred text in deeply fundamental fashions. You yell at the head of an Arab mosque that he is ignoring the black Muslims in need in his midst, and even if he'd rather keep doing that, he does pause, and he does listen, and he is shamed. But it's not because, or rather let me say it's not ONLY because of resources within the religious tradition, and the sacred texts themselves. It's also because of a normative commitment to racial equality that lies in general harmony with those texts, but which is not necessary to believing in them, and the reason I know that is that it is not necessary is because it is empirical fact that rather distinguished people, among them Ibn Khaldun, held to theories of racial hierarchies, and maintained that blacks were naturally fit for slavery. Freamon has done the most work on this.
If I might be permitted an American analogy, if a school in Seattle today was resisting a redistricting that would involve increasing black students by 20% for whatever reason, then we know where they THINK their material interests lie and it is against this move. We also know that they aren't going to argue that segregation is permissible under the 14th amendment, and that's NOT because the 14th amendment precludes such an interpretation (bulk of academic authority, McConnell not agreeing, suggests that this is exactly what the drafters had in mind), and it's not for the purely instrumental reason that they will lose in court, it's because it violates core normative commitments that exist today in America, which the school board surely holds in good faith. They might even be shamed into acting against their perceived material interests if they are too worried about looking racist. I assure you Bull Connor would not have felt similarly.
Same sacred texts, same religious belief systems and structures, same basic religious doctrine, but you tell Bull Connor or Ibn Khaldun he is ignoring the plight of blacks in his society, you won't shame him. Their normative commitments, then, were sufficiently different that the shaming wouldn't work, it would just provoke an impassioned debate respecting racial equality that would span sacred text interpretation, empirical data, and the basis for varying conclusions deriving from each. Nobody, however, would be ashamed of their positions, they'd view them as consonant with law. It's only when the normative commitment runs deeper, to be shared by everyone, or virtually everyone, that shaming begins to work..
Thus, taking normative commitment as being partially constructed beyond sterile doctrinal exegesis--as, that is, a form of external influence on religious law--leads to the conclusion that Realism may well have its limits, but they ain't here.
HAH
My function was to comment on a piece by Lama Abu Odeh, and I was uncharacteristically accused of being far too soft, even though I did find my comments to be challenging and requiring consideration. If the critiques were politely and respectfully delivered, it was out of respect not only for Professor Abu Odeh's substantial body of admirable work, but also because I have been told more and more forcefully that my writing is too vituperative, and that I must tone it down or risk making too many enemies. Now, the question is asked where the fire and rage has gone. I confess I am feeling a bit like Aesop's ass, ride the ass, and Aesop is told by onlookers this is a form of animal cruelty. Dismount, and he is asked why in heaven's name he would be walking if he already has an ass. My conclusion in the end is that law professors are not terribly unlike students. They want professors to be sharp, and critical and cut people off and tell them to get back on subject rather than politely let them continue with nonsense--but only, that is, when they deserve it, such determinations made on a case by case basis. I am beginning to wonder if, like Aesop, I am too worried about reactions in any event.
A challenge was issued to my Realist position during the conference, just after our panel, as to the limits of Realism, by a smart and well read friend, that I thought was worthy of blog consideration as it relates to comments exchanged between me and Professor March in an earlier post. As I understood the argument, it went something like this:
Realism has its limits. Professor Abu Odeh conflated Arab society and Muslim issues surrounding national security, you caved by not challenging it more, and Arabs everywhere tend to think of themselves as insulated from other Muslims, or at least black Muslims, You are right if you say that all of these phenomena can be explained by social and political factors separate from doctrine. But the limitation is that I have been able to shame some of these Muslims in Arab only mosques by quoting the Qur'an and the fact that the African American Muslims are their brethren, and this matter, this doctrine, can force changes in behavior even when other, material considerations point in the opposite direction.Well, first, Realism does have its limits, I'll acknowledge that, i've come to accept that, and credit Andrew March and Mohammad Fadel, Sherman Jackson and Feisal Istrabadi, for their valuable (to me) interactions which has caused me to scale back some of my claims. There is, it seems to me, a difference between a civil rights organization arguing for same sex rights under due process (or a gun rights organization arguing for bazooka rights under the Second Amendment for that matter) and a president seeking to reinterpret the Constitution so as to get a six year term. That distinction is crucial, and does play a role in my upcoming Iraq Constitution book. More on it later.
That said. this isn't an example of such limits because it doesn't show sacred text limiting an actor's preference, it shows particular contingent developments of sacred text regarded now (but not previously) as core doctrine doing that. What I mean by this is that I think my nameless interlocutor (nameless because our conversation was not broadcast and so it isn't my place to identify) believed that if a party recognizes that its material position runs contrary to its understanding of sacred text, then that understanding of sacred text is somehow immune from "nonlegal" factors. It would have to be or surely the party would have not come out to favor a position that is in opposition to its material interests, it would developed the nonlegal factors in a way that favors its own interests.
The problem is, the community that runs the mosque might believe in these nonlegal factors even if in this one case it might be contrary to its interest to do so. It is, in other words, a deep normative commitment, and one not derived wholly from outside of religious doctrine, nor wholly within it, but certainly connected to both. And certainly, the notion of racial equality is a perfect example of such a normative commitment. There are ample resources within Muslim sacred text to adopt that commitment, and once adopted, it is not easily displaced. It colors readings of the sacred text in deeply fundamental fashions. You yell at the head of an Arab mosque that he is ignoring the black Muslims in need in his midst, and even if he'd rather keep doing that, he does pause, and he does listen, and he is shamed. But it's not because, or rather let me say it's not ONLY because of resources within the religious tradition, and the sacred texts themselves. It's also because of a normative commitment to racial equality that lies in general harmony with those texts, but which is not necessary to believing in them, and the reason I know that is that it is not necessary is because it is empirical fact that rather distinguished people, among them Ibn Khaldun, held to theories of racial hierarchies, and maintained that blacks were naturally fit for slavery. Freamon has done the most work on this.
If I might be permitted an American analogy, if a school in Seattle today was resisting a redistricting that would involve increasing black students by 20% for whatever reason, then we know where they THINK their material interests lie and it is against this move. We also know that they aren't going to argue that segregation is permissible under the 14th amendment, and that's NOT because the 14th amendment precludes such an interpretation (bulk of academic authority, McConnell not agreeing, suggests that this is exactly what the drafters had in mind), and it's not for the purely instrumental reason that they will lose in court, it's because it violates core normative commitments that exist today in America, which the school board surely holds in good faith. They might even be shamed into acting against their perceived material interests if they are too worried about looking racist. I assure you Bull Connor would not have felt similarly.
Same sacred texts, same religious belief systems and structures, same basic religious doctrine, but you tell Bull Connor or Ibn Khaldun he is ignoring the plight of blacks in his society, you won't shame him. Their normative commitments, then, were sufficiently different that the shaming wouldn't work, it would just provoke an impassioned debate respecting racial equality that would span sacred text interpretation, empirical data, and the basis for varying conclusions deriving from each. Nobody, however, would be ashamed of their positions, they'd view them as consonant with law. It's only when the normative commitment runs deeper, to be shared by everyone, or virtually everyone, that shaming begins to work..
Thus, taking normative commitment as being partially constructed beyond sterile doctrinal exegesis--as, that is, a form of external influence on religious law--leads to the conclusion that Realism may well have its limits, but they ain't here.
HAH
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