Thomas Curry's synopsis of church-state practices in seventeenth and eighteenth century America is notable for its modesty and balance. When lawyers and judges paint the religious history of that period they picture events like cows on a hillside—all pointing in the same direction. (Of course the cows point different ways in different pictures; it depends on which way the wind is blowing.) The scene Curry describes is more disorderly. This makes it harder to identify trends that we might say were embodied in first amendment principles. But it prefigures, and helps explain, our messy first amendment practices.

Curry argues that two topics dominated church-state discussions from 1600 to 1800: (1) the government's power to legislate about religion, and (2) public financial support for ministers. As to the first issue, Americans gradually accepted the principle, espoused by Roger Williams, that government had no power over matters of religious worship and practice. But they did not live up to this principle. They passed laws about sabbath observance, blasphemy, days of prayer and fasting, and religious qualifications for office. In this, they followed the practice of John Cotton, who thought that the two tables of the Ten Commandments (religion and morals) must stand or fall together. “The principle was the principle of Williams, but the practice was the practice of Cotton.” As to the second issue, financial support for ministers, practice converged more with principle. But there were exceptions, as in New England. And those who opposed support often did so for no principle more lofty than the fear that it would go to the Church of England.

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the years are wide-ranging; for example, he has written insightfully on both sexual ethics and economic justice. The methods that he has used are diverse; he has deftly deployed the tools of historiography as well as logic. Moreover, the normative stances that he has taken defy location on the normal liberal/conservative spectrum as it plays itself out in American political life. He has argued in favor of a legal system that would encourage a more traditional sexual morality, while emphasizing the need to compassionately accommodate those whose lives do not conform to its strictures. He has also maintained the importance of assessing social and economic structures from the perspective of the most marginalized members of the society, without succumbing to romantic illusions that technology, progress, or the dynamism of history will eliminate class stratification and its ensuing divisions of humanity into the “haves” and the “have nots.” His writings at the intersection of law and religion reflect neither the Democratic Party nor the Republican Party at prayer—and neither party at a town hall meeting, for that matter.

This article comments on a definition of religion recently proffered by Brian Leiter. Leiters definition first appeared in a paper arguing that there is no principled reason for the Constitution to single out religion as one of many forms of conscience for special tolerance. Martha Nussbaum then suggested that we owe something more than mere tolerance for religious belief; in our efforts to make sense of the world, we owe “a special respect for the faculty in human beings in which they search for life's ultimate meaning.” In a later paper, Leiter uses the same definition of religion to argue that Nussbaum is wrong. My argument can be expressed positively: if Nussbaum is right, she is also right that the concept of religious belief (as opposed to particular conceptions or instantiations of it) is entitled to as much respect as any other kind of belief, because once we are talking about any kind of belief it is difficult to draw a principled line. Stated negatively, Leiter's attack is ultimately circular: the problem with religion is that it is not science. Exposing the circularity requires identifying the trick, which is that Leiter employs an appeal to common sense to distinguish religion and science under a bright line definition. Nevertheless, the very belief in common sense Leiter employs here is the same as the belief in religion Leiter attacks: it is categorical and insulated from further reasons.

From an Afrikaner perspective, a firmly established way of life is at stake in the crisis situation of South Africa. The ongoing struggle centers on two passionately held principles. Taken in tandem, these two fundamental convictions have over the years assumed a quasi-confessional status. The one is freedom (vryheid), the other identity (identiteit).

A fierce determination to preserve its privileged freedom pervades the Afrikaner community. They fought long and hard throughout the nineteenth and twentieth centuries to achieve liberation from the stranglehold of English domination and other opposing forces. Within the ranks of Afrikanerdom this hard-won freedom to exploit their own tradition is as clearly a self-evidently righteous cause as it is a self-serving one in the eyes of others. And they are not about to surrender it easily.

Soon after Gotama the Buddha Sakyamuni obtained his Enlightenment in 531 B.C. he established the basis of a self-governing Religious Order (Sangha). The rules of this community (Vinaya) were framed and promulgated by the Buddha himself.

It is the general belief that the Buddha was concerned solely with establishing a moral and spiritual teaching and that he was not law-minded. For instance, T. W. Rhys Davids maintains that:

Contrary to this view, I have argued that the Vinaya was a monastic code which in its entirety amounted to a legal system. In this article, I wish to consider the Buddha's relationship to law and law-making by examining the nature of his authority and how his recommendations were elevated into precepts. I shall argue that the Buddha legislated by way of precepts, that he was not a judge, as some scholars contend, and that his precepts rarely took the form of a dialogue in which a question of conduct is posed and a precept is uttered in response (Responsa).

In this article, I intend to explore the normative relation(s) between “God” and “war.” A bit more precisely, I intend to explore the normative relevance of theistic conviction to the proper employment of military violence. Even more precisely, I intend to explore the relevance of theistic conviction to the proper employment of military violence as judged by the so-called Just War Tradition (JWT). Properly interpreted, I take the JWT to provide the best available account of the morality of war. The JWT is not perfect and is bedeviled by serious problems, but it is the best available nonetheless. So, when I reflect on the morality of war, and thus on the normative relation(s) between religion and war, I do so from the perspective of the JWT.

Now this might seem to portend a very brief discussion. As we will see in detail, contemporary adherents typically construe the JWT in resolutely secular terms. Perhaps in order to compensate for its religious prehistory, most insist that the JWT has outgrown its religious provenance and may not be used to legitimate a crusade, a jihad, a holy war, or anything of the sort. In so doing, they align the JWT with the commonplace, endemic to contemporary liberal democracies, that religious wars and religious justifications for war lay far, far beyond the moral pale.

“We cannot endow people with intelligence. Intelligence fundamentally is this capacity to ask questions, and this capacity is entirely from nature.”

My concern here is the rule of law, in all its operations. I select the unexpected word “operations” in order to telegraph a difference from much other natural law jurisprudence. The rule of law is not just a battery of operations; however, failure to appreciate the place of operations in the rule of law leads to a straw-man rule of law—and we know too well the fate of straw men. It is flesh-and-blood men and women whose operations bring about the rule of law, if a rule of law there is to be.

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.