Triptych: Sectarian Disputes, International Law, and Transnational Tribunals in Drinan's Can God and Caesar Coexist?
Journal of Catholic Legal Studies, Vol. 45, p. 11, 2006
49 Pages Posted: 23 May 2007
This essay is part of a written symposium in honor of Father Robert Drinan, S.J., book "Can God and Caesar Coexist?" The symposium also includes essays by professors Elizabeth Defeis and Mark Janis, as well as a responsive essay by Father Drinan, one of his last published pieces.
This essay focuses on Father Drinan's proposal to establish a transnational tribunal for the protection of religious freedom. Part I of this essay considers Father Drinan's proposal as part of the modernist tradition of international legal jurisprudence. Aspects of Father Drinan's argument are especially similar to conceptions of international law elucidated by Hersch Lauterpacht, perhaps the greatest twentieth-century exponent of legal modernism. Both Lauterpacht and Drinan draw from a worldview defined by the European Enlightenment and the start of what is commonly called the Age of Reason.
After situating the proposals of "Can God and Caesar Coexist?" within international law's tradition, Part II turns to a pair of relatively recent methods of criticizing the traditional view of international law: rational choice theory and so-called critical or new stream perspectives on international law. Although these perspectives have at times been linked with politically conservative (rational choice theory) and liberal (new stream) viewpoints, Part II argues that they are better understood as atavistic conceptions of law that have earlier manifestations in the theories of the Enlightenment philosophies and of their Romantic critics. As such, legal modernism, new stream theory, and rational choice perspectives are methodological siblings, borne of the Age of Reason and now squabbling over the intellectual inheritance of their parents. They may be better off sharing the wealth and helping each other.
With this discussion as a base, Part III returns to Father Drinan's proposal and considers how it may profit from the perspectives of rational choice and the new stream, as well as insights from transnational legal process and legitimacy theory. I use these theories to highlight an underlying tension in Father Drinan's proposal - the attempt to use rationalist/universalist tools to defend particular conceptions of the good. Referring to recent debates on the effectiveness of transnational tribunals, I ask whether legalization and the use of a tribunal would actually be counter-productive in this instance. Conversely, while Father Drinan's proposal has its difficulties, new stream and rational choice theorists can learn from his mainstream/modernist methodology in considering how to address the sectarian struggles of today. Father Drinan's proposal may not be perfect, but it does present a clear path towards attempting to resolve actual problems. Bridging theory with practice remains one of the enduring parts of Father Drinan's scholarship and the ongoing process of trying to find a solution may be all the solution that exists.
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