Articles by John Witte, Jr.
Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, ed. Orazio Condorelli and Rafael Domingo, 2020
A brief overview of an important new collection of essays on great Christian jurists in Italian h... more A brief overview of an important new collection of essays on great Christian jurists in Italian history from the Middle Ages until today.
Christianity and Global Law, ed. Rafael Domingo and John Witte, Jr., 2020
This is a brief introduction to a book that explores both historical and contemporary Christian s... more This is a brief introduction to a book that explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. In this book, two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historical-biographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges.
Christianity and Global Law, ed. Rafael Domingo and John Witte, Jr., 2020
A brief preface to this volume of Christianity and Global Law, one of several new introductions t... more A brief preface to this volume of Christianity and Global Law, one of several new introductions to Christianity and law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume is an anthology of some two dozen chapters written by leading scholars. Each volume has historical, doctrinal, and comparative materials designed to uncover Christian sources and dimensions of familiar legal topics. Each volume is authoritative but accessible, calibrated to reach students, scholars, and instructors in law, divinity, graduate, and advanced college courses as well as educated readers from various fields interested in what Christianity has, can, and perhaps should offer to the world of law.
Yale Journal of Law & the Humanities, 2020
This Article outlines the human rights theories of nineteenth-century abolitionist and civil righ... more This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, regardless of race. He emphasized the authority and freedom of the individual conscience as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by historians, Pennington was well known and influential among his contemporaries. His life and work represent an important step in the development of law, religion, and human rights.
Journal of Law and Religion, 2019
This article responds to Mark Jordan, Brian Bix, Michael Broyde, Robin Fretwell Wilson and Jonath... more This article responds to Mark Jordan, Brian Bix, Michael Broyde, Robin Fretwell Wilson and Jonathan Chaplin who offered learned reviews of my volume, Church, State, and Family: Reconciling Traditional Teachings and Modern Liberties (Cambridge University Press, 2019). This volume marshals historical, philosophical, jurisprudential, theological, and social science arguments to defend the fundamental place of the marital family in modern liberal societies. While applauding modern sexual freedoms as a welcome relief from traditional forms of patriarchy, paternalism, and plain prudishness, it also defends the traditional Western teaching that the marital family is an essential cradle of conscience, chrysalis of care, and cornerstone of ordered liberty. The volume thus urges churches, states, and other social institutions to protect and promote the monogamous marital family, including same-sex families. It encourages reticent churches to embrace the rights of women and children, as earlier Christian writers taught. It encourages modern states to promote responsible sexual freedom and stable family relations, as classical liberals in Europe and North America repeatedly said. It counsels modern churches and states to share somewhat in family law governance, and to resist recent efforts to privatize, abolish, flatten, or radically expand the marital family sphere. And the volume invites fellow citizens to get over their bitter battles concerning same-sex marriage and tend to the vast family field that urgently needs concerted attention and action. The five reviewers generously condone the main argument of the book, while offering interesting caveats and elaborations.
Leading Works in Law and Religion, ed. Russell Sandberg, 2019
Concluding remarks on the compiled essays in Russell Sandberg's edited volume, Leading Works in L... more Concluding remarks on the compiled essays in Russell Sandberg's edited volume, Leading Works in Law and Religion, along with a reflection on the broader global development of the field of law and religion.
Journal of Law and Religion, 2018
This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religi... more This editorial prefaces the contents of the December 2018 volume of the Journal of Law and Religion. These remarks comment briefly on the growing field of inquiry located at the intersection of law and religion before introducing the diverse range of provocative topics addressed by the articles and reviews included in this issue, with contributions by Mary Ann Glendon, Michael J. Broyde, Matthew S. Erie, Jianlin Chen, Joel Harrison, Avishalom Westreich, William A. Barbieri, Rabea N. Benhalim, Nadieszda Kizenko, Bart Klem, and Audra L. Savage.
Journal of Law and Religion, 2018
This review essay evaluates Kathleen Brady's provocative and original defense of the idea that re... more This review essay evaluates Kathleen Brady's provocative and original defense of the idea that religion remains special in modern liberal democracies, and deserves special constitutional treatment. While warmly commending this work, this essay also queries the author's non-originalist reading of original sources, her non-theological account of religious arguments, and her neglect of valuable international human rights sources in support of religious freedom for all.
Pepperdine Law Review, 2020
This Article explores the role of metaphors in shaping our thought and language in general, and i... more This Article explores the role of metaphors in shaping our thought and language in general, and in the fields of law and religion in particular. Drawing on modern cognitive theorists like George Lakoff and Mark Johnson, the Article distinguishes and illustrates the roles of "orientation," "structural," and "ontologi-cal" metaphors in everyday life and language. Drawing on jurists like Robert Cover and Steven Winter, it shows how metaphors work both in describing the law in terms like "the body," and in prescribing the foundational beliefs and values on which the legal system depends. Finally, the Article explores the ample use of the number three in the law and speculates tentatively whether this legal appetite for "triads" might provide traction for the development of a Trinitarian jurisprudence. This Article is dedicated to Robert Cochran, one of the pioneers of law and religion and Christian legal thought in the United States, whose own writings make ample use of metaphors.
Journal of the Society of Christian Ethics, 2020
The eighteenth-century American founders believed that religion is special and deserves special c... more The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom-freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.
Ius Humani, Revista de Derecho, 2019
Este artículo compara la protección de la libertad religiosa contenida en la Primera Enmienda de ... more Este artículo compara la protección de la libertad religiosa contenida en la Primera Enmienda de la Constitución de los Estados Unidos con las principales normas internacionales de derechos humanos sobre la materia. Especialmente, se analiza el Pacto Internacional de Derechos Civiles y Políticos de 1966, la Declaración de las Naciones Unidas sobre la eliminación de todas las formas de intolerancia y discriminación fundadas en la religión o las convicciones de 1981 y los llamados Documentos de Clausura de Viena de 1989. Los casos de la Corte Suprema de los Estados Unidos sobre la libertad de conciencia, el libre ejercicio de la religión, la igualdad religiosa y la no discriminación encajan favorablemente con las normas internacionales. Sin embargo, el encaje resulta más desfavorable en lo que respecta a la deficiente y repetida falta de protección de las distintas reivindicaciones de libertad religiosa por parte de grupos indígenas estadounidenses. Los casos de la Corte Suprema que defienden el principio de la separación de la iglesia y el estado encajan bien con las preocupaciones internacionales por los derechos y la autonomía de los grupos religiosos, aunque van más allá de lo dispuesto en las normas internacionales porque eliminan en gran medida la libertad religiosa de la educación pública.
Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833, ed. Carl H. Esbeck and Jonathan Den Hartog, 2019
This chapter surveys the arguments for and against religious establishment and religious freedom... more This chapter surveys the arguments for and against religious establishment and religious freedom that informed the Massachusetts Constitution of 1780 and the subsequent amendments of 1821 and 1833. Most preachers, politicians, and citizens during this period agreed that religion was an essential source of morality, and that the Constitution should respect and encourage diverse religious beliefs and practices, at least among Protestants. But controversial issues including religious test oaths, church membership rules, and the use of taxes to support Congregationalist Churches created sharp political divisions. In 1833, the Eleventh Amendment to the Massachusetts Constitution moved away from religious establishment. It made church membership and funding entirely voluntary; granted all religious societies the right to hire their own clergy, to build their own churches, and to manage their own membership rolls; promised equal protection of the law to believers of all sects and non-believers, alike; and ensured that individual members of those sects could exit without incurring liability for contracts subsequently made by the other members of that sect.
Calvin Theological Journal, 1998
This Article analyzes John Calvin’s reformation of the life, law, and lore of the marital family ... more This Article analyzes John Calvin’s reformation of the life, law, and lore of the marital family in sixteenth-century Geneva. Calvin’s early efforts in the 1530s and 1540s were focused on the law of marital formation, maintenance, and dissolution. Particularly his 1545 Marriage Ordinance was famous for requiring parental consent, church consecration, and publicly attested marital contracts for valid marital formation, and for allowing both husbands and wives to divorce on grounds of adultery and desertion. When Calvin’s legal views were challenged, he both defended and refined them with a new theology of marriage as a covenant, modeled on the covenant between God and his elect. This theology emphasized both the spiritual and contractual qualities of marriage, its dependence on the moral law of God, and the participation of God through parents, peers, pastors, and political officials who each hold divine authority. In Calvin’s covenant theology, marriage was more than a mere contract (given its vital public rolls and roles) but less than a divine sacrament (only baptism and the Eucharist counted as sacraments). A German translation of this article appears as "Zwischen Sakrament und Vertrag: Ehe als Bund im Genf Johannes Calvins," Zeitschrift der Savigny-Stiftung (Kanonisches Abteilung) 115 (1998): 386-469.
By Nature Equal? The Anatomy of a Western Insight, by John E. Coons and Patrick Brennan, 1999
This brief Article introduces the highly original theory of equality of two distinguished Catholi... more This brief Article introduces the highly original theory of equality of two distinguished Catholic legal scholars. They root their argument in a reconstructed theory that human beings are created with the divine invitation to moral self-perfection, however impossible this state is for anyone to achieve in this life. Humans can still, however, achieve goodness in objective good intentions and doing the best they can to discover and perform certain good actions. This Article places this argument in historical context, compares it other theories of equality based on reason, will, and dignity, and judges it to be a refreshing new way of thinking about human equality, liberty, and capability.
Lex et Romanitas: Essays for Alan Watson, ed. Michael Hoeflich, 2000
This Article explores the surprising use of medieval Catholic canon law in the new Protestant civ... more This Article explores the surprising use of medieval Catholic canon law in the new Protestant civil law of Lutheran Germany within a decade of Luther's decision to burn the canon law books and reject papal authority. Inertia is part of the reason. Prior to the Reformation, the canon law was a vital part of the ius commune in which most jurists and theologians who had joined the Reformation cause were trained. In the heady days of revolutionary defiance of Pope and Emperor in the 1520s, it was easy for Protestant neophytes to be swept up in the radical cause of eradicating the canon law and establishing a new evangelical order based on the Bible alone. When this revolutionary plan proved unworkable, however, theologians and jurists invariably returned to a truncated version of the canon law and civil law that they knew. Innovation is also part of the reason. Lutheran theologians after 1530 offered an innovative theory of the church that ultimately required church and state officials to use both biblical and canonical rules and procedures to govern the polity, property, and clergy of the church. Lutheran jurists offered an innovative theory of the state and the sources of civil law that ultimately saw much of the canon law as a quintessentially Christian and equitable law that could be readily used in Lutheran lands, especially in the governance marriage and family, education and schooling, charity and welfare.
Michigan Law Review, 1992
Emory Law Journal, 2019
Historically, sexual morality and criminal law overlapped, and churches and states enforced sundr... more Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex crimes and the roles of churches in maintaining sexuality morality. But sexual misconduct remains a perennial reality in modern societies, including notably within churches, and sex crimes inflict some of the deepest scars on their victims. Modern liberal states must thus maintain a basic standard of sexual morality in its criminal law as a restraint on harmful behavior and as a bulwark against a sexual state of nature where life is often “brutish, nasty, and short” for the most vulnerable. And liberal societies should encourage its citizens and churches to pursue a higher morality of aspiration that views sex and the sexual body as a special gift for oneself and others.
Emory International Law Review, 1992
Christianity and democracy complement each other. Christianity provides democracy with a system o... more Christianity and democracy complement each other. Christianity provides democracy with a system of beliefs that integrates its concerns for liberty and responsibility, individuality and community. Democracy provides Christianity with a system of government that balances its concerns for human dignity and depravity, social pluralism and progress. This complementarity has brought Christianity and democracy together, and has placed Christianity in the vanguard of early modern democratic revolutions in the West, and the new wave of democratic revolutions breaking around the world. Christianity and democracy, however, also challenge each other. Democracy's commitment to religious freedom opens new opportunities to Christianity and challenges the church to extend its mission and ministry. Democracy's commitment to religious equality forces Christianity to stand on its own feet and on an equal footing with all other religions. Its survival and growth must turn on the cogency of its word, not the coercion of the sword, on the faith of its members, not the force of the law. Christianity, in turn, must challenge democracy to extend its regime against tyrants and autocrats, and to vindicate its inherent promise for peace, justice, and a better life for all. Christianity must also challenge democracy to reform itself. Democracy has stored up many idols in its short life-the proud cults of progress and freedom, the blind beliefs of materialism and technologism, the desperate faiths of agnosticism and nihilism. Democracy has done much to encourage a vulgar industrialization that reduces both human beings and natural resources to fungible and expendable economic units. It has done much to impoverish the already poor, to marginalize the already marginal, to exploit the already exploited-all along promising them a better life. Christianity must work to exorcise the idols of democracy and to continually drive democracy to purge and reform itself.
Michigan Law Review, 1991
Southern California Law Review, 1991
The practice of taxing church property while exempting other nonprofit groups appears to violate ... more The practice of taxing church property while exempting other nonprofit groups appears to violate the “no special burden” principle of the free exercise clause. The Supreme Court case of Walz v. Commission charted a course between the free exercise and establishment clause. The Court argued from neutrality, separatism, and history to state that tax exemption of church property is part of an unbroken national tradition. However, the Court’s neutrality argument does not address constitutionality, its separatism argument is contrived, and historically, only established religions have been exempt from taxation.
Past tax exemptions are rooted in two traditions: the common law adopted from England that granted exemptions to established churches, and the equity law tradition that granted exemptions to all churches. The common law tradition was restricted to certain types of church property of established churches, and the exemptions could be put on hold during times of emergency. The equity tradition gave churches another chance; ecclesiastical and charitable organizations could be tax exempt.
These traditions continued uninterrupted in the early American republic. Three provisions ultimately provided ground for a challenge to the tax exemption of church property. The disestablishment of religion undercut the authority of officials to prefer one religion over the other. The truncation of the equity tradition removed the equitable privileges given to charities. Finally, equal and uniform taxation was considered a basis of American life.
In modern theory, churches are seen as beneficial to society because they promote public morality, charity, and education. The law of equity is now based in statutory schemes or state constitutions, but the religious use of property is key to its tax exempt status. In the future, courts must find a via media between the eradication of exemptions and blanket endorsements.
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Articles by John Witte, Jr.
Past tax exemptions are rooted in two traditions: the common law adopted from England that granted exemptions to established churches, and the equity law tradition that granted exemptions to all churches. The common law tradition was restricted to certain types of church property of established churches, and the exemptions could be put on hold during times of emergency. The equity tradition gave churches another chance; ecclesiastical and charitable organizations could be tax exempt.
These traditions continued uninterrupted in the early American republic. Three provisions ultimately provided ground for a challenge to the tax exemption of church property. The disestablishment of religion undercut the authority of officials to prefer one religion over the other. The truncation of the equity tradition removed the equitable privileges given to charities. Finally, equal and uniform taxation was considered a basis of American life.
In modern theory, churches are seen as beneficial to society because they promote public morality, charity, and education. The law of equity is now based in statutory schemes or state constitutions, but the religious use of property is key to its tax exempt status. In the future, courts must find a via media between the eradication of exemptions and blanket endorsements.
Past tax exemptions are rooted in two traditions: the common law adopted from England that granted exemptions to established churches, and the equity law tradition that granted exemptions to all churches. The common law tradition was restricted to certain types of church property of established churches, and the exemptions could be put on hold during times of emergency. The equity tradition gave churches another chance; ecclesiastical and charitable organizations could be tax exempt.
These traditions continued uninterrupted in the early American republic. Three provisions ultimately provided ground for a challenge to the tax exemption of church property. The disestablishment of religion undercut the authority of officials to prefer one religion over the other. The truncation of the equity tradition removed the equitable privileges given to charities. Finally, equal and uniform taxation was considered a basis of American life.
In modern theory, churches are seen as beneficial to society because they promote public morality, charity, and education. The law of equity is now based in statutory schemes or state constitutions, but the religious use of property is key to its tax exempt status. In the future, courts must find a via media between the eradication of exemptions and blanket endorsements.