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Abstract:
This Article provides a brief analysis of the main stages of Western theories of rights and liberties: (1) classic Roman views of objective and subjective rights and liberties; (2) medieval Catholic views of rights and liberties rooted in natural law and corporate charters; (3) early modern Protestant views of rights and liberties rooted in biblical commands and natural orders; (4) modern Enlightenments views grounded in human nature and social contracts, and reflected in constitutional texts and cases; and (5) the proliferation and diversification of universal rights talk in the aftermath of World War II.

Rights, western tradition

Abstract:
This chapter explains how the sixteenth-century Protestant reformer, John Calvin, transformed the Western theology and law of sex, marriage, and family life. Understanding marriage as a divine covenant with distinct and discernible goods and goals, Calvin gave new grounds to old rules prohibiting illicit sexual unions, polygamy, adultery, prostitution, concubinage, pre-marital sex, and non-marital cohabitation. But Calvin also set out new teachings on the proper treatment of religious differences between spouses, sexual dysfunction, post-menopausal sex, and the right to separate and divorce for adultery or abandonment. These new grounds for old teachings and new teachings from old grounds were applied not only in formal theological tracts but also in the many statutes and cases that Calvin shaped for sixteenth-century Geneva. This chapter, introducing a three-volume series on sex, marriage and family life in early modern Geneva, reveals the debt Western theology, jurisprudence, and political theory owes to Calvin.

Calvin, marriage, theology, law, sex, jurisprudence, political theory, polygamy, prostitution, theology, protestantism

Abstract:
Martin Luther (1483-1546) was one of the great revolutionaries in the Western legal tradition. The Protestant Reformation that he inaugurated produced fundamental changes in legal theory, political organization, church-state relations, marriage, education, and social welfare. These changes were inscribed on the legal and confessional systems of that period. They have had an enduring effect on modern public, private, and criminal law, and on modern ideals of liberty, equality, and dignity. This essay surveys these sweeping changes that Luther's Reformation wrought, and then analyzes more closely the sources of inspiration and integration of these reforms in Luther's famous theory of the two kingdoms.

Law and Religion, Legal History, Theology, Protestant Reformation

Abstract:
Responding to several new histories of church and state in America, this article warns against the emerging view that separation of church and state is a distinctly American and relatively modern invention that has been used principally to harm religion and religious freedom. The article traces the historical roots and routes of the principle of separation of church and state in biblical, patristic, Catholic, Protestant, and Enlightenment sources. It then shows how the eighteenth-century American founders used this principle to press five religious liberty concerns: protection of the state from the church; protection of the church from the state; protection of liberty of conscience from both church and state; protection of the new states from the federal government in their treatment of religion; and protection of citizens from unwelcome support and participation in religion. Finally, the article analyses the uses and misuses of this principle in the later history of American law.

law, religion, theology, church and state, separationism, establishment, free exercise, first amendment, american founding, jurisprudence

Abstract:
This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed periods: (1) the Christianization of Rome and Romanization of Christianity in the fourth and fifth centuries; (2) the Papal Revolution of the twelfth and thirteenth centuries; (3) the Protestant Reformation of the sixteenth century; and (4) the Enlightenment of the eighteenth and nineteenth centuries. It shows how major shifts in dominant religious ideas transformed the legal ideas and institutions of their day. It concludes that, although recent secular movements have removed traditional forms of religious influence on Western law, contemporary Western law still retains important connections with Christian and other religious ideas and institutions.

legal theory, Western law, Christian

Abstract:
The eighteenth-century American founders distinguished six principles of religious liberty - liberty of conscience, freedom of exercise, equality of faiths, plurality of confessions, disestablishment of religion, and separation of church and state. They "incorporated" these six principles into the original state constitutions, though with different emphases and applications. They also "incorporated" these six principles into the First Amendment religion clauses. The free exercise clause outlawed government proscriptions of religion-actions that unduly burdened the conscience, restricted religious expression, discriminated against religion, or invaded the autonomy of churches and other religious bodies. The disestablishment clause outlawed government prescriptions of religion-actions that coerced the conscience, mandated forms of religious expression, discriminated in favor of religion, or improperly allied the state with churches or other religious bodies. Both the free exercise and the disestablishment clauses thereby provided complementary protections to the first principles of the American experiment in religious liberty.

Abstract:
This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and in the century to follow. More commonplace was Adams' view that balanced the freedom of all peaceable private religions with the "mild and equitable establishment" of one public religion. Adam's model of religious liberty dominated much of nineteenth-century law and culture, Jefferson's model a good bit of twentieth-century law and culture. In its most recent cases, the U.S. Supreme Court seems to be developing a new model of religious liberty that draws on the insights of both Jefferson and Adams, but rejects their respective calls for the privatization or the establishment of religion. The Court's formula is that both private and public forms of religion deserve constitutional freedom and support, though neither may be given preferential treatment.

Abstract:
The wall of separation between church and state has been an abiding metaphor in the history of Western thought, and especially in the history of American law. This essay reviews two important new volumes that trace the evolution, and escalation, of separationist thought in America from the mid-eighteenth to the mid-twentieth centuries. While heartily commending these two books, this essay calls for a fuller appreciation of the historical antecedents of American separationist thought, a more nuanced account of the multiple understandings of separationism at the American founding, and a greater appreciation for the multiple principles of religious liberty that buttressed and buffered the principle of separation of church and state in the history of American law.

Constitutional Law, First Amendment, Establishment Clause, Legal History

Abstract:
John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.

Public Religion, Constitution

Abstract:
This chapter argues that John Calvin (1509-1564), the Protestant reformer of Geneva, developed a complex theory of (religious) liberty that lies at the heart of modern Protestant political theology. In his early years, Calvin's views of religious liberty were influenced strongly by Martin Luther's understanding of the freedom of the Christian in the heavenly kingdom and the bondage of the Christian in the earthly kingdom. In his mature writings, Calvin abandoned much of this framework, and worked out a detailed understanding of liberty vis-a-vis the moral laws of God, the civil laws of the state, and the spiritual laws of the church. Particularly novel and important was Calvin's call to integrate the principles of rule of law, democratic process, and individual liberty within the church, a theory with obvious implications for the state. Also important was his call to balance liberty and authority, rights and duties, within church, state, and family alike.

Abstract:
This Article argues that New England Puritan covenant theology was a fertile seedbed for a number of American constitutional ideas of ordered liberty and orderly pluralism. Puritan constructions of the "liberty of covenant" inspired later theories of liberty of conscience and free exercise of religion. Puritan constructions of social, political, and ecclesiastical "covenants of liberty" provided a foundation for later understanding of republican nationalism, separation and cooperation of church and state, and sundry checks and balances on authorities within both church and state.

Abstract:
This article is both an apologia and agenda for the interdisciplinary study of law and religion, especially the Christian religion. Briefly tracing the rise of the contemporary interdisciplinary legal studies movement against the backdrop of legal positivism, the article argues that legal studies must take full account of the religious sources and dimensions of law. Law and religion are two great interlocking systems of values and belief with their own sources and structures of normativity and authority, their own methods and measures of enforcement and amendment, and their own rituals and habits of conceptualization and celebration of values. Yet, they share many elements, many concepts, and many methods. They balance each other by counterpoising justice and mercy, rule and equity, orthodoxy and liberty, discipline and love. Though Christian jurists, theologians, and ethicists have made monumental contributions to this burgeoning field of law and religion study, this article addresses several challenges that lie before them in this new century, including the need to look to neglected traditions and times and to engender a more ecumenical and concrete Christian jurisprudence.

jurisprudence, law, religion, christianity, positivism

Abstract:
This Article argues that modern Anglo-American marriage law was formed out of two traditions - one rooted in Christianity, a second in the Enlightenment. Each of these traditions has contributed a variety of familiar legal ideas and institutions of modern domestic life, lore, and law - some overlapping, some conflicting. The overlapping and creatively juxtaposed legal contributions of these two traditions hold the promise of creating a new understanding of marriage that is neither blindly nostalgic about a purported golden of marriage nor naively myopic about the massive social, psychological, and structural costs of the modern revolution of sex, marriage, and family.

marriage, family, Christianity, Enlightenment

Abstract:
This Article argues that Martin Luther's classic tract, Freedom of a Christian (1520) had a shaping influence on modern theories of human dignity, liberty, and equality. For Luther, the essence of human dignity lies in the juxtaposition of human depravity and human sanctity. Human dignity is something of a divine fulcrum that keeps our depravity and sanctity in balance. The essence of human freedom is our right and duty to serve God, neighbor, and self, and to do so with the ominous assurance of divine judgment. Human freedom is the divine calling that keeps our individuality and community in balance. While Luther did not draw out the radical implications of his theory for law, politics, and society, later Protestants did, eventually rendering Protestantism a formidable force for the construction of modern Western theories of law, liberty, and democracy.

Martin Luther, human dignity, liberty, equality

Abstract:
In 1841, the American jurist Joseph Story noted that marriage is something more than a mere contract. Justice Story's writings embody an American common law refrain, namely that marriage is at once a contract and something more. This Article details the historical roots of that common law tradition. The history stems mostly from the Christian tradition, but also has antecedents and analogues in Jewish and Islamic teachings. All of these traditions have long taught that marriage is at once a contract (ketubah, pactum, and kitab) and more than a mere contract. Marriage is an institution that is both private and public, individual and social, civil and religious, temporal and transcendent. Its origin, nature, and purpose lie beyond and beneath the terms of the marriage contract itself. The idea of covenant is emerging in Western law, theology, and ethics as a common inter-religious and interdisciplinary term to capture some of the higher dimensions of marriage.

Historically, the Jewish, Christian, and Islamic traditions found ways to reconcile the contractual and covenantal dimensions of marriage, but American law today juxtaposes them and has moved much more toward a straight contractual model. In all but three states, parties who wish to marry must choose the state's contract marriage option. In Louisiana, Arkansas, and Arizona, though, parties may choose contract marriage or covenant marriage, which has tighter marital formation and dissolution rules. But even in those three states, there is not yet a robust legal appreciation and reification of some religious covenantal notions of marriage (and current conflict of laws rules do not favor the enforcement of covenant marriage laws in inter-state disputes). Ultimately, a fuller legal response may well be necessary to recapture the multi-layered dimensions of marriage. America's religious communities may need to draw upon and reformulate their own norms and resources, and American states, in turn, may need to think more seriously about granting greater deference to the marital laws and customs of legitimate religious and cultural groups that cannot accept a marriage law of the common denominator.

marriage, law of marriage, law and religion, covenant marriage, family law

Abstract:
This article discusses the development of rights talk in the pre-Enlightenment Protestant tradition, especially as formulated by the sixteenth-century Calvinist theologian and jurist, Theodore Beza. Responding to the horrific persecution born of the St. Bartholomew's Day Massacre of 1572, Beza mobilized classical, Catholic, and Protestant sources alike to develop a coherent Calvinist theory of rights, resistance, and revolution against tyrants. This article details Beza's arguments, places his work in its historical and intellectual context, and highlights the innovations Beza contributed to the intersection of legal, political, and theological teachings. It concludes by showing how Beza's theory of subjective rights and resistance to tyranny helped to plot the course of modern democratic and constitutional theory.

Abstract:
In John Calvin's Geneva, as much as today, marriage was a contract between a fit man and a fit woman of the age of consent. Marriage was much more than a contract. It was also a spiritual, social, natural, and economic unit that could involve many other parties besides the couple. But marriage was never less than a contract. It could not be created unless both the man and the woman properly consented to and celebrated this union. This Article analyzes the new Geneva theology and law of marriage contracts and marital property contracts both as set out in statutes and formal treatises and implemented by the Genevan consistory. Notable are the Genevan authorities' deep concern for freedom and capacity of both parties to enter engagement and marriage contracts, the dramatic changes they introduced in the mandatory wedding liturgy, and the complex laws and customs concerning engagement gifts, dowers, and dowries that they adopted and adapted often under Calvin's direct influence.

marriage, John Calvin, contract

Abstract:
The recent scandals over clerical pedophilia have raised anew ancient church battles over the propriety of clerical celibacy. Using a sensational sixteenth-century case as a laboratory, this Article analyzes the traditional Catholic arguments in favor of clerical celibacy and the attacks on those arguments by the sixteenth-century Protestant reformers. It then draws from this historical battle several modern lessons about clerics, children, and sexual crimes.

Catholic, clerical, sexual crimes, children

Abstract:
Parental consent to engagement and marriage was a major reform that the sixteenth-century Protestant Reformation introduced to stamp out the late medieval Catholic toleration of clandestine marriages. John Calvin introduced the doctrine of parental consent to Protestant Geneva both in statutes that he drafted and in cases that he adjudicated as a member of the Consistory court. Calvin and his fellow reformers insisted on the priority of the father's consent over the mother's consent, but also insisted that even the father could not override his child's own consent to an engagement or marriage contract. Parents and guardians who neglected their duties or abused their authority at this fateful stage of their child's lives were severely punished and often forfeited their right to have their child's secret marriage annulled.

John Calvin, marriage, honor, consent

Abstract:
The sixteenth-century Protestant reformer, John Calvin, developed arresting new teachings on rights and liberties and church and state that shaped the law of early modern Protestant lands. Calvin's original teachings, which spread rapidly throughout Western Europe, were periodically challenged by major crises - the French Wars of Religion, the Dutch Revolt, the English Revolution, American colonization, and the American Revolution. In each such crisis moment, a major Calvinist figure emerged - Theodore Beza, Johannes Althusius, John Milton, John Winthrop, John Adams, and others - who modernized Calvin's teachings and translated them into dramatic new legal and political reforms. This rendered early modern Calvinism one of the driving engines of Western constitutionalism. A number of basic Western ideas of religious and political rights, social and confessional pluralism, federalism and social contract, and more owe a great deal to early modern Calvinism. This chapter, which introduces the volume, traces the development of rights doctrine in Calvinism, and situates it within a broader history of Western rights.

rights, reformation, calvin, beza, milton, althusius, winthrop, john adams, protestantism, liberty, church, state, politics, law, religion

Abstract:
This essay offers a critical rereading of the Western theological and legal doctrine of illegitimacy or bastardy. The author traces the Western stigma against bastards to the Bible, particularly to the story of Ishmael, the illegitimate son of Abraham and Hagar. He then shows the systematic discrimination against bastards in classic canon law and in early modern Anglo-American common law, and the slow amelioration of their plight in legal reforms in the United States in the past century. The author concludes that the Western doctrine of illegitimacy is theologically illegitimate and suggests a few historically-informed legal remedies, notably adoption, that would help mitigate the plight of illegitimates today.

Abstract:
This article describes the modern paradox of religious rights - the sudden awakening of religion and religious freedom around the globe versus the tragic escalation of religious rights abuses born of local bigotry and creedal clashes. This paradox lies in part in competing understandings of the rights and rites of conversion and the role that local political communities can play in preventing or facilitating the same. Some communities regard the right to change one's religion as an essential principle of religious freedom that the state must protect. Others regard it as a calculated insult to the rights of the religious community whose interests the state must support. The paradox also lies in part in competing understandings of the rights and wrongs of proselytism - particularly the clash between one party's claims to free exercise rights to share the faith versus another party's rights to freedom of conscience and religious self-determination. This article suggests measures drawn from the Western story of religious rights to mitigate the problem of conversion and to soften the tensions between the religious rights of individuals and groups. This article further argues that while peaceable proselytism is protected by international human rights law, resolving the modern problem of proselytism will require more self-restraint from proselytizers than legal limitations from government.

proselytism, religion, rights, human rights, law, international law

Abstract:
This project analyzes the reformation of sex, marriage, and family life as revealed in the systematic writings, sermons, lectures, commentaries, letters, consilia, catechisms, polemics, statutes, and Consistory cases authored or influenced by sixteenth-century Protestant reformer, John Calvin. Courtship, engagement, and marriage are the first step of the family cycle and the focus of this first volume of the series. The volume begins with an overview of the whole reformation of sex, marriage, and family life in Calvin's Geneva, and a close sifting of its main sources, personalities, and institutions involved. After explaining Calvin's views and experiences of courtship and matchmaking, the discussion then turns to parental consent in making engagement and marriage contracts. Next, it explores the tangled jungle of impediments to engagement and marriage whose presence could lead to annulment - infancy, mental inability, polygamy, lack of virginity, sexual incapacity, contagion, age disparity, and incest. Then, the volume works through the delicate issue of interreligious courtship and marriage, the complex laws of marital property, and the problems of premarital sex, cohabitation, and desertion. After following the couple on their wedding day and detailing the surprising liturgy and celebration that awaited them, the volume concludes with a sketch of these sundry topics of reform, using the biblical doctrine of covenant. This chapter introduces and frames the project as a whole, which will continue in sequel volumes, subtitled "The Christian Household" and "Divorce and Death, Inheritance and Remarriage."

calvin, protestantism, reformation, law, theology, religion, marriage, sex, courtship, contract, covenant, family

Abstract:
This book explores the interplay among law, theology, and marriage in the West, focusing primarily on Christian theological norms and Western legal principles of marriage and family life in the past half millennium. Historically, Catholics, Lutherans, Calvinists, Anglicans, and Enlightenment thinkers recognized and prioritized multiple perspectives on marriage, which they pressed into five distinct models: a Catholic sacramental model, a Lutheran social model, a Calvinist covenantal model, an Anglican commonwealth model, and an Enlightenment contractarian model of marriage. This preface introduces the German translation of the volume.

law, religion, theology, liberty, politics, rights, marriage, family, legal history, church and state, first amendment