“Where is the standard of review in Judge Noonan's opinion?” The question has been posed—I am confident—more than once. I first heard it when I clerked for Judge Noonan, from a friend clerking elsewhere on the Ninth Circuit. My friend wanted to know by what standard of review Judge Noonan had reached his result. “It's not there,” I replied, “and come to think of it, it never is.” “Well,” retorted my friend, “how can that be? In our chambers, the standard of review decides the case.”

That little exchange (which is not apocryphal) rendered me speechless and thus got me thinking about the fetters that bind judges. While I disdained such a facile incantation—indeed, caricature—of the judicial “can't,” I accepted that while appellate courts rarely stand on the shoulders of giants, they do not sit as though the trial court (or agency) never rendered a decision. If appellate courts are not to be second trial courts, there must be some deference to the earlier proceeding, and that might usefully be designated the standard of review.

Since women's rights first entered the agenda of the United Nations (“U.N.”), there has been a running tension between the expression and codification of those rights and the right to freedom of religion. Thus far, this tension has resulted in an uneasy relationship between U.N. instruments regarding religious rights and U.N. instruments on women's rights. The former stand mute with respect to the relationship between women's rights and religion. The latter are encumbered with substantial reservations by countries concerned with safeguarding their religious tenets and traditions.

This paper will examine the tension between women's rights and religious rights as expressed in certain State Parties' reservations to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”) that are based on Islamic Law and the extent to which CEDAW can ensure adherence to its norms while recognizing the right to freedom of religion or belief. The article does not purport to offer any authoritative commentary of Islamic law. Rather, its objective is to highlight connections between CEDAW's tenets, the nature of Islam-based reservations, and the course of women's lives in certain reserving countries.

The papers that follow were presented on April 27, 1996, at a conference entitled “Religious Freedom, Modern Democracy, and the Common Good” and devoted to Franklin I. Gamwell's The Meaning of Religious Freedom: Modern Politics and the Democratic Resolution (Albany: SUNY, 1995). The conference was sponsored by the Lilly Endowment and held at Eden Theological Seminary in St. Louis.

Gamwell's constructive proposal is significant not as a further nuance on settled ways of understanding the relation of religion and politics in the United States, but rather as an explicit attempt to unsettle the current consensus in approaching this issue itself. As Gamwell shows, the contemporary discussion is dominated by so-called separationist and religionist understandings that alike assume, rather than argue, that religion is “nonrational.” He engages positions representing the entire spectrum of such understandings, including the “privatist” view of John Rawls, the “partisan” view of John Courtney Murray, and the “pluralist” view of Kent Greenawalt, in order to demonstrate that such a nonrational approach makes it impossible democratically not only to assert, but also to give coherent meaning to the political principle of religious freedom.

Ironically, certain contemporary international human rights norms appear to place governments in an adversary relationship to certain peoples, such as Hasidic and Orthodox Jews, whose attempted destruction provided the impetus for modern human rights law. This raises the paradoxical spectre of human rights law being used as a tool of cultural genocide.

This conflict is, of course, not confined to Hasidic and Orthodox Jews; indeed, it appears that the majority of people on the earth are identified with a people-group whose cultural/religious practices violate certain international human rights norms. While it is common to use Islam as an example, this paper initially concentrates on traditional Judaism because of the special place of the Holocaust as a catalyst for the modern international human rights movement.

How can people who disagree about what it means to be a human being agree about what it means to be a citizen? The question Franklin I. Gamwell's The Meaning of Religious Freedom seeks to answer concerns the proper relationship between religious pluralism and modern politics. The question may be put either from a religious perspective (How can people who have incompatible religious convictions possibly coexist as members of the same political society?) or from a political perspective (In a pluralistic society, what constitutional principle can allow people of different religious convictions to live together in harmony?).

Insofar as the beliefs of different religions involve discrepant “comprehensive convictions” regarding the meaning of authentic human life, including, therefore, authentic forms of political association, state approval of religious pluralism would seem to be, as Gamwell rightly observes, “a prescription for political instability or civil war.” (8) The principle of religious freedom—meaning thereby the political principle “in accord with which a plurality of legitimate religions internal to a political community is consistent with its unity” (10)—is, therefore, “all implications taken into account, the only constitutional principle.” (162) What, then, is the proper understanding of religious freedom?

“Reformation denial” has become the new fashion among Western historians today. A generation ago, the sixteenth century Protestant Reformation was almost universally regarded as a formative era in the development of Western ideas and institutions. Today, it is regularly described as an historians' fiction and historical failure. Martin Luther, John Calvin, Thomas Cranmer, and other sixteenth century figures certainly called for reforms of all sorts, recent interpretations allow. But they inspired no real reformation. Their ideas had little impact on the beliefs and behavior of common people. Their policies perpetuated elitism and chauvinism more than they cultivated equality and liberty. Their reforms tended to obstruct nascent movements for democracy and market economy and to inspire new excesses in the patriarchies of family, church, and state.

In every legal system a gap exists between the law as it is actually enforced by the courts and the ethical categorical imperative. Although it was rejected by Justice Holmes in his “bad man rule,” a strong claim can be made that the measure of an enlightened and advanced legal system and society is its success in bridging this gap. Within a religious legal system which rejects the clear separation of law and ethics, the severity of this problem is ameliorated. As illustrated by Jewish law, even such a system's purely civil law must be influenced by ethical duties to a far greater degree than in secular legal systems.

This article compares the legal rules and jurisprudence of the American common law and Jewish law in the area of finding and returning lost or abandoned property, illustrating the interplay between the purely legal and ethical components of the respective legal systems. Surprisingly enough, the differences between the two systems are not usually significant; they follow the same basic legal principles, and typically lead to the same results. There are, however, two major exceptions: Jewish law imposes a duty to rescue the lost property of one's neighbor, while the common law does not require that one initiate the process by retrieving the article. Thus according to Jewish law, when one happens to stumble across lost property, one must intervene to retrieve it; according to the common law one need not. Second, Jewish law imposes ethical duties as part of its legal mandate, a practice the common law does not follow.

Professor Gamwell's book presents an ambitious and sophisticated argument, and I have to say at the outset that it is a daunting assignment for me to comment on the book. My difficulty is eased somewhat, though, by the fact that this conference has a separate panel with the expertise, and the assignment, to address the philosophical questions raised by the book. The job I've been given is a little easier—it is to talk about the significance of the book for constitutional jurisprudence—and so I can leave the very tough philosophical problems to those better equipped to deal with them. Of course, my job would be easier still if I'd been asked to comment on the book from the perspective of gardening, say, or perhaps tennis; then I could report that this is an admirable book but it isn't about gardening or tennis, and leave it at that. Well, as it turns out, I want to respond to my actual assignment by making a similar sort of claim: Professor Gamwell has written an admirable book, but it isn't about constitutional jurisprudence. Gamwell is not really concerned, in other words, with the same problems that provoke debates among judges, lawyers, and litigants.

Here, at the very beginning of our conference, it may be useful for me to restate summarily some of the main themes in The Meaning of Religious Freedom as I understand them. Professor Gamwell begins with what he calls “the modern political problematic.” Regarded from a religious point of view, the problematic is how a religious person (who, in accordance with the author's definition of religion as an answer to “the comprehensive question,” might be a systematic atheist) can logically avoid either denying the political relevance of his faith and spurning public debate; or else entering into public debate, but insisting without argument on the truth of that faith and in that way seeking, at least implicitly, its official establishment. Regarded from a political point of view, the problematic is: how can religious people, with their nonrational faiths, be admitted into the political realm—a realm open to all regardless of diverse faiths and therefore necessarily based on the rational powers we all have in common—without fatally compromising the principled openness of public life? It is a crucial premise of Professor Gamwell's argument that a mere modus vivendi cannot be an adequate answer to this problematic; only a theory of justice will suffice.

Hidden in plain sight in hundreds of judicial opinions is an extraordinary principle—love your neighbor as yourself. At first blush the idea of its application to our legal relations seems odd: This is a matter of morality, not legality. But the biblical command to love neighbor as self has exerted an important influence upon the decisions of American courts. While more frequently excluded from application, the love command has found expression in a wide range of cases. From criminal to civil procedure, from torts to contracts, from employment to family disputes, neighbor-love has been a vital part of American jurisprudence.

This article will highlight the application of the love command to legal disputes by courts, as well as provide a brief overview of the biblical texts and scholarly legal commentary dealing with the love command. Its main purpose is descriptive—pointing out what we haven't noticed—but it is also normative—we have missed something important—neighbor-love is not out of place in the courtroom. It has been, and should continue to be, applied to legal relationships by our courts.

Franklin I. Gamwell's book, The Meaning of Religious Freedom, sets forth a theory that, if followed, would require some response (change) in education (from educators). Among other things, a philosophy of education should indicate curricula choices and instructional practices that follow from, or would lead to, a theory such as Gamwell's. John Dewey, the preeminent 20th Century American philosopher, to whom Gamwell refers numerous times, believed that “[e]ducation is the laboratory in which philosophic[al] distinctions become concrete and are tested.” I will raise some questions that are not so much criticisms of Gamwell's argument as they are attempts to start a discussion about what the theory would require from education.

Gamwell makes it clear that his argument, and the definitions from which it works, is “formal,” that is, not tied to any particular set of circumstances, let alone the United States, because he does not want to privilege or preclude at the outset any, what he calls, “candidate answers.” (13) His argument is compact and intricate. He earlier gave an outline of the argument in a paper on “Religion and Reason in American Politics” read at a conference in 1986. His concern is that there is a tendency to treat religion as inconsistent with politics, indeed as adversarial, and as non-rational, or not liable to criticism. (This is the same concern that Stephen Carter addresses in The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion, though Carter's treatment is “popularized,” not formal, and, in my judgement, is superficial).

The headline in the October 1, 1994 edition of the San Francisco Examiner read “Law Saves Churches From Preservation.” It is not intuitively apparent that churches would want to utilize the law to be saved from historic preservation; in fact, it is at least equally logical to assume that preservation of historic churches would be a goal around which clergy and preservationists would rally. Secular preservationists, of course, may find in a given church superior formal aesthetic qualities or crucial social or historical significance. Religious leaders, for their part, may welcome historic preservation for theological reasons, so that the buildings will stand as “witnesses to faith”; others may see preservation “as part of a church's responsibility to the wider community.” Regardless of their motivations, though, there's significant potential for cooperation among preservationists and religious leaders. However, as landmark and historic district preservation has emerged as an important governmental planning and land use tool, cooperation has inevitably given way to conflict. Ultimately, issues of preservation yield to issues of authority and autonomy, that is, whether freedom of religion or preservation should prevail.