You don't have to be a postmodernist—and I am not—to take the view that the reading of ancient texts by legal historians cannot be “innocent.” All meaning is constructed: texts do not “make sense;” we attribute sense to them. And the sense we attribute is in part a function of the resources we bring to that process. Necessarily, we bring culturally contingent assumptions. We may not be able to rid ourselves of such assumptions, and restore ourselves to that state of innocence which traditionally has been identified with “objectivity.” But we can seek to lay bare those assumptions to the maximum possible degree, so that we can subject them to some process of evaluation (a process, no doubt, whose own assumptions should be subjected, equally, to critical examination).

If we ask what kind of assumptions the legal historian brings to ancient texts, the most ready answer would, no doubt, be assumptions regarding typical models of legal development. We can certainly identify the operation of assumptions of this kind in the modern literature relating to biblical law. The argument of this paper, however, will be that it is not sufficient to confine ourselves, for this purpose, to “models of legal development.” That very notion encompasses more general issues—what is law? what is development?—which themselves fall for examination.

In his article, Unspeakable Ethics, Unnatural Law, Arthur Leff laments the death of God in jurisprudence. According to Leff, divine commands are the only source of law that is ultimately justifiable. “[T]he pronouncements of an omniscient, omnipotent, and infinitely good being are [by definition] always true and effectual,” he writes. “God's will is binding because it is His will that it be.” In the modern era, however, God's authority has been overthrown by our desire to decide for ourselves the standards of right and wrong. The absence of God, observes Leff, deprives us of a solid foundation for our legal system. Without instruction from above, laws are no more than human commands, based merely on human will: “Whenever we set out to find ‘the law,’ we are able to locate nothing more attractive, or more final, than ourselves.” Leff's recognition that behind the rule of law lies not the benevolence of divine guidance but the capriciousness of human will results in a jurisprudential despair that leads him to cry out ironically at the end of his essay, “God help us.”

The subject of religion and human rights is something in which I have more than academic or professional interest. It is true I have invested considerable time and energy to the question throughout my scholarly life. In recent years, I have paid special attention to the more practical aspects—namely, the degree to which states and other actors have actually complied with the standards of religious freedom and equality enshrined in the international human rights documents. At the same time, I have come to see that my efforts in this area are not “value-free;” in fact, they express a deeper worldview that, for better or worse, I hold and am pleased to avow. In this article I attempt to lay out the sources and features of that worldview.

As it happens, I am a committed Presbyterian layman, and have served at various times as an officer in that church. That means I stand in what is known as the “Reformed” tradition of Protestant Christianity, which stems from the sixteenth-century French theologian and religious leader, John Calvin (1509-1564). Calvin's general approach is summarized by the motto, ecclesia reformata semper reformanda—”the church reformed, ever reforming.” Those words signal Calvin's strong concern for church life and organization, both as an expression of Christian commitment, and as a model for social and political life. Moreover, the motto implies Calvin's characteristic emphasis on the obligation of Christians to act out their beliefs in institutional and practical ways.

When I was a child my family had a cabin in the southern Sierra Nevadas. A rocky, snow-fed creek ran at the edge of the property and often, when it wasn't warm enough yet to wade, my brother and I would guide board boats down the small cascade above our “beach,” trying to find a path through the rapids that wouldn't capsize our crafts. To do so, we had to learn the easiest paths through the white water, but also had to judge the hidden turbulence under the seemingly still waters in the various pools and eddies along the way. To me, this childhood practice provides a perfect metaphor for the genealogical work of Michel Foucault, work that enriches our understanding of the modern world by following, not the mainstream of historical landmarks, but rather the hidden textual currents that only reveal the full force of their power much further down the stream of time.

In a familiar passage, R.H. Tawney has spoken of the transformation of natural law in the seventeenth century—an age in which the concept of “Nature” came to “connote not divine ordinance, but human appetites, and natural rights were invoked by the individualism of the age as a reason why self-interest should be given free play.” “Natural rights” replaced “natural law” in the context of an ongoing inquiry into the sources and limits of political authority. Central to this discussion remains the enigmatic figure of John Locke. A common refrain in the literature identifies Locke—that many-faceted “man in whose name the American Revolution was made, … the man above all whom hysterical conservatives all over Europe would blame for the collapse of the Ancien Régime”—as, in addition, a religious thinker whose Christianity colors the entire fabric of his political philosophy; as, even more specifically, the “heir of puritan political theorists.” In this vein, at least one writer has ventured to connect Locke with a now largely forgotten piece of 17th century political theory, Lex, Rex, the work of puritan pastor, theologian and political controversialist, Samuel Rutherford. The general impression seems to be that Locke's Calvinist upbringing places him in a long line of Reformed Christian resistance theorists. On the other hand, Lex, Rex has been called “a deeply Thomistic book” for its close adherence to natural law principles in the scholastic tradition.

On 30 May 1994 Pope John-Paul II declared that the discussion on ordaining women was “definitively” closed. Women could not become priests, the Vatican repeated for the “very last” time. This event stimulated an unprecedented commotion in the Flemish (Belgian) Catholic community. The laity voluntarily working in the Church even threatened to strike. The debate on feminism and human rights within the Roman Catholic Church erupted more fiercely than ever before. The laity reacted in an astonishingly radical manner. The bishops tried to hold a position in between the displeased Catholics and the Vatican. An analysis of the debates held on these issues in the Flemish newspapers shows that the human rights discourse and the Vatican doctrine were worlds apart. Nevertheless, progressive Catholics tried to create a new discourse that was able to combine both perspectives. In this article, the interrelations between the several discourses and the dynamics of the debate are discussed, using the “commonwealth model” of Boltanski and Thévenot. It is argued that their model is useful but inadequate, because of its lack of attention to power and its ahistoricism.

‘ … to a very large extent power consists in the ability to make others inhabit your story of their reality.’

The accommodation afforded to religious differences within the legal systems of the common law world is as much a political as a legal concern. As such it is part of a much wider debate about the nature of democratic government within a pluralist society. The concern is that in so far as democracy is dominated by a majoritarian concept it may not be compatible with pluralism. Majoritarianism is predicated on the assumption that the will of the majority is absolute and is the final authority when defining the limits of individual rights and freedoms and how they are best respected and enforced. A pluralist conception of society, by contrast, requires that the rights of minorities must, on occasion, be allowed to take precedence over the wishes of the majority in order to encourage diversity, whether religious, racial or sexual, to flourish. The challenge for modern democracies is, therefore, to reconcile the demands imposed by majoritarianism within a pluralist framework.

Since 1533 archbishops of Canterbury have conferred academic degrees by virtue of the power invested in them by the Ecclesiastical Licences Act 1533-1534, also known as the Peter's Pence Act. Legally these so-called Lambeth degrees, named after the principal residence of the archbishop, survive as an aspect of the medieval papal authority to grant dispensations. This is, in individual cases of hardship, the see of Rome might exercise the jurisdiction vested in him as patriarch of the west—though not necessarily in other patriarchs—to confer upon an appropriate recipient the academic degree which he would have received but for some impediment.

But properly speaking, these degrees were not just an exercise of papal dispensation, they also sometimes had the character of a grant of a privilege. For example, the papacy might confer a degree upon a recipient to enable that person to hold an office that the canon law, or a specific institutional rule, limited to graduates. The power claimed and exercised by the papacy to confer the status of graduate to someone who had not earned it in the traditional way was never limited solely to true dispensations, but always included positive privilege as papal degrees granted for political reasons clearly illustrate.