The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.

Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Nature's God.”

On January 27, 2003, amid much publicity, a path-breaking agreement was signed between the Federal Republic of Germany and the Central Council of Jews in Germany. The historical background to, and the historic nature of, such an agreement needs no explanation. This agreement is worthy of scholarly review not only because of the manner in which the agreement came about, its provisions, and its place in the German legal system, but also because of critical assumptions it makes about what it means to be Jewish from the perspective of a modern secular nation-state attempting to respond to the aftermath of the Holocaust.

Because it sheds light on the difficulty of framing Jewish identity for purposes of secular law, however, I will first evaluate litigation currently in progress under a different but related agreement with the German State of Saxony-Anhalt. This litigation was brought by a liberal Jewish religious community that claims it has been unjustly excluded from the distribution of state subsidies made available to Jewish organizations under an agreement between that State and the Central Council of Jews. The litigation forces answers to difficult questions: what is the legal status of such agreements, who has the right to decide who counts as Jewish under them, and who speaks for the Jewish community in Germany?

A Christian state or mundus Christianus is not easy to define. It is perhaps one where the public, legal and constitutional institutions are “Christian”. (I shall leave to one side for a moment the problem of defining precisely what I mean by Christian.) T. S. Eliot believed that the Christian state was “the Christian Society under the aspect of legislation, public administration, legal tradition and form.” The “state” can refer to the country, nation, society or culture as a whole or, only to the set of governmental institutions within a country. The latter, narrower meaning is the one I wish to adopt here. I shall define the state as “the set of distinctive institutions whose authority is recognised as legally binding within the territory.”

A theocracy is undoubtedly a Christian state, indeed one par excellence. I shall refer to theocracy as a “type 1” Christian state, for here both form and substance coincide. By theocracy I mean the situation where there is ecclesiastical supremacy and the state machinery is used to further particular religious interests. The early Jewish nation, Geneva under Calvin and various Islamic states around to the world today are examples of type 1 states. In this monistic polity, membership of the church (using that as a generic term for a religious organisation) and membership of the state are coterminous. Full rights as a citizen turn upon whether one is member of the church; those outside the church are second-class citizens. But a Christian state need not necessarily be a theocracy.

Perhaps in part because Jews did not enjoy sovereignty for most of their history and thus rarely organized, much less directed, military institutions, the Jewish textual tradition says relatively little about the exercise of corporal punishment during warfare. This dearth of classical sources, however, does not mean that Judaism has nothing to offer contemporary deliberation about the ethics of torture. On the contrary, modern Jews plumb the textual tradition in search of prooftexts that ground their passionately held positions vis-à-vis torture. And this is precisely one of the methodological conundrums torture poses. In their search for corroborating principles, verses and halakhah (law) for their positions, Jewish scholars often gloss over countervailing values, texts and laws. Some trot out such broad principles as betzelem elohim (the notion that every human is made in the divine image), al tonu (do not oppress the stranger), or lagoyim (a light unto the nations), kavod habriot (respect creatures), chillul hashem (desecrating God's name), or lo ta ’amod al dam re ’echa (do not stand on your neighbor's blood) so as to condemn or condone torture without considering countervailing principles. Others point to certain laws, such as those pertaining to the rodef (stopping a pursuer who has lethal intent against another) or hora’at sha’ah (emergency exigency) to justify their positions on torture—without entertaining other relevant legal precedents. And a few others blandly state Judaism's position vis-à-vis torture without providing much or any evidence supporting those claims.

Why do nine Supreme Court justices have the power to overturn the choices of a majority in a democratic nation? This question, known as the counter-majoritarian problem, has driven constitutional theory for the past forty years. Likewise, it is the question at the heart of Jed Rubenfeld's Freedom and Time, A Theory of Constitutional Self-Government. In responding to this question, Rubenfeld argues that freedom and democracy require temporal extension, precluding either freedom or democracy from being reduced to the immediately present majority will of a people. Therefore, Rubenfeld concludes that the checks on the immediate will of the people at the heart of constitutional judicial review are not only democratically permissible but a necessity.

I believe that a person accused of wrongdoing should have an opportunity to respond to the charge. This chance is particularly urgent when the accusation, if proved, subjects the accused to punishment. Response to an accusation is expected both by the accuser and the accused. The scope of response to an accusation should include the accused's ability to argue that he or she is not guilty: not blame-worthy; not deserving of sanction.

Response to an accusation may take several forms. The accused might, for example, deny the validity of the charged wrong. That is, he or she might argue that the articulated statement of the wrong, the rule allegedly breached, was not within the authority of the charging party to promulgate; or claim that the creation of the rule by the charging authority was procedurally defective and the rule invalid on that basis regardless of substance. Or, the accused might agree to the substantive and procedural legitimacy of the rule, but deny that he or she did the acts which the charge alleges. Then again, the accused might concede the general legitimacy of the articulated standard of wrongdoing and his or her violation of that standard, the protection of which the person would ordinarily want, but the accused might offer a special case story of exculpation.

The third response, an admission to the doing of a proscribed act followed by an explanation which seeks vindication, is the subject examined here as it operates in the system of criminal law. I call this response the justification story. Legal practice controls the opportunities of one accused of criminal wrongdoing to respond to an accusation with a justification story. I will use two notions, “law as integrity” and “deviationist doctrine,” as ways to ask how the law interprets the justification story in the legal practice of criminal law.

The understanding of Jewish law of the legal rationale of the relationship between parent and child developed gradually. In the first stage, in ancient Jewish law, the dominant tendency was to affirm the authority of the Jewish father over the members of his family. During this period, the idea that parents have a natural responsibility to love their children, care for them and provide for their welfare was less transparent. The main purpose of the rules concerning the relationship between parents and children at this stage was the assertion of the rights and needs of the father of the family.1 Consequently, some of the regulations of ancient Jewish law regarding the relationship between parents and children were not necessarily focused on the best interest of the child and the ideological basis for the legal policy in the sphere of custody in the ancient period was somewhat vague.

By contrast, during the second, medieval stage of development of Jewish law on the relationship between parents and children, the ancient supreme principle, of the father's authority over members of his family in all spheres including the sphere of custody of children, was largely replaced by an explicit rule in Jewish law: the best interest of the child is a paramount consideration. Indeed, we could say that the explicit implementation of the principle of best interest of the child in Jewish custody cases is a medieval invention, introduced by Jewish scholars at this period in their child custody verdicts. By contrast to the ancient period, the rules of custody, which had become fully defined at this stage, utilizing this principle, usually favored the mother.

The passage in the Williamsburg Charter referring to two questions — “how we view the place of religion in American life and how we should contend with each other's deepest differences in the public sphere” — opens two lines of inquiry. First, I understand the “we” in the passage to refer at least in part to the religious communities; from this follows the need to assess how these communities understand their exercise of religious and moral authority (power) in the public arena. Second, the passage is also open to an investigation of the exercise of power in our national life. Presumably the religious communities contend among themselves and with other institutions in the evaluation of how power is exercised in the name of the nation.

It is a view widely held amongst psychologists that human beings have a basic need to create a positive social identity for themselves, either as individuals or as members of a group. In this regard, choice of dress is likely to be particularly important. A person's clothes can reveal much about their identity, in relation to their gender, class, sexual orientation, and religious beliefs. Yet what an individual wears can also attract great controversy, as evidenced by the fact that, in Europe of late, there have been few issues more controversial than that of religious dress.

Today in towns and cities across Europe a significant proportion of Muslims—in particular Muslim females—have eschewed conventional western clothes in favor of garments (such as veils and headscarves) traditionally associated with Islam. With a new generation of “European Muslims” keen to cultivate a distinct identity for themselves as members of the continent's second largest religion, Islamic dress often has an “emblematic status” as a “powerful and overdetermined marker of difference.” Yet the right to wear religious dress varies significantly in Europe. In some countries there are clear restrictions on what can (or cannot) be worn in public (e.g., France and Turkey), whereas in other parts of the continent (e.g., the U.K.) young people are relatively free to wear the religious dress of their choice. Mindful of this state of affairs, the European Court of Human Rights has chosen to tread warily, letting governments retain considerable discretion in the field of religious dress. Consequently, states enjoy a wide “margin of appreciation” when determining whether their curbs on religious symbols or related garments are compatible with Article 9 of the European Convention on Human Rights (ECHR).

The U. S. Forest Service has proposed oil and gas development for wildlands adjacent to the Blackfeet Indian Reservation, Glacier National Park, and the Bob Marshall wilderness. In response, traditional Blackfeet tribesmen have argued that these Badger-Two Medicine wildlands are sacred and essential to their traditional religion. In this essay, I document the Blackfeet Tradition and explore the religious significance of these wildlands. Investigating several myths germane to the Badger-Two Medicine wildlands, I conclude that the area is sacred and essential to traditional Blackfeet religion.

In cautioning the planners of cities, Plato declared that particular locations possess ecological and spiritual qualities which markedly affect human character development. This ancient observation contains an essential wisdom for contemporary land use planners, as they consider an area in northwestern Montana along the eastern slopes of the continental divide, just southeast of Glacier National Park, an area known as the Badger-Two Medicine. In 1855, these wildlands were retained in reservation status via a treaty between the United States and the Blackfeet Indians. An agreement was subsequently reached between the parties ceding the Badger-Two Medicine wild-lands to the United States. In this agreement, the Blackfeet reserved rights “to go upon” these lands, to hunt and fish thereon, and to harvest timber therein for personal and domestic use. The Badger-Two Medicine later became a unit within the Lewis and Clark National Forest.