Richard Nunan
College of Charleston

This issue marks the end of my tenure as editor of the Philosophy and Law Newsletter, and I would like to start with a few acknowledgments. To begin with, my thanks go to Rex Martin (University of Kansas, & University of Wales, Swansea), my predecessor in this job, for encouraging me to consider the position in the first place, and for supporting my candidacy. It has been a valuable experience, giving me the discipline to keep up with recent developments in law and philosophy of law, and learning the skills of journal editing. My thanks also to Rex’s Assistant Editor, David Reidy (Tennessee, Knoxville), and to Jim Nickel (Colorado, Boulder), Chair of the APA Committee on Philosophy and Law at the time, for their guidance and advice while I was learning my way in my first year in this job. My own dean here at the College of Charleston, Sam Hines, has also provided me with some financial support for clerical costs associated with Newsletter production throughout my term as editor.

It wouldn’t have been possible either for me to produce all those issues over the past five years without the help of guest editors for half of them: Steve Griffin (Tulane), Jeffrey Abramson (Brandeis), John Kleinig (CUNY), Carl Wellman (Washington U.), Bill Edmundson (Georgia State), and Brian Leiter (Texas). My thanks to Ted Benditt (University of Alabama, Birmingham) as well, for consenting to undertake the duties I leave behind. Ted’s appointment as editor officially began as of July 1, 2000. But owing to the fact that newsletter issue deadlines don’t conform to APA appointment dates, Ted will actually be taking matters into his capable hands effective with the Spring, 2001 issue.

Finally, I owe a special debt to two groups without whom the Newsletters would certainly have been impossible: to the dedicated staff at the APA office in Delaware, especially the four publication coordinators I’ve dealt with over the years—Barbara Eller, Amy Weaver, John Long, and Dawn Hartford; and to all the scholars who have contributed articles to the Newsletter. This last group includes, of course, those of my fellow committee members who have been contributing abstracts of recent law review articles at a steady pace over the years—in the current issue courtesy of Lester Hunt and Joan McGregor.

I would also like to take this occasion to welcome three new members to the APA Committee on Philosophy and Law: Lester Hunt (Philosophy, University of Wisconsin at Madison); David Luban (Georgetown University Law Center); and Joan McGregor (Philosophy, Arizona State University). As of July 1, 2000, Joan, David, and Lester replaced David Theo Goldberg, Frances Kamm, and Larry May, who rotated off the Committee at the end of June, after completing their three-year terms. Our thanks to Theo, Frances, and Larry, for their good work on the Committee’s behalf.

The current issue is devoted to the overlap between religion and the law, a rich mine for philosophical material. We have in consequence some very thought-provoking contributions. The opening article, from Gerard Quinn at the National University of Ireland, Galway, is a fascinating comparative exploration of Irish constitutional law as a case study in the conflict between the theologically-motivated branch of the natural law tradition, on the one hand, and secular liberal political theory, on the other. Tracing the history of the natural law tradition from its emergence in the 1937 Irish Constitution, through its aggressive application in Irish Supreme Court adjudication beginning in the 1960s, and to its eventual demise in the 1990s, Quinn provides us with a dramatic illustration of the conflicts between the natural law tradition and liberal-democratic constitutionalism. He also offers thoughtful commentary on the contrast between the theologically-based natural law tradition that emerged in Ireland, and the secular liberal brand of natural law embedded in American jurisprudence. Although this article is longer than the standard newsletter contribution, it will certainly repay the investment of your time to read it.

The following pair of articles, by Robert Van Wyk (University of Pittsburgh, Johnstown) and Erik Anderson (University of Connecticut, Storrs), focus on the concept of state neutrality as applied in the First Amendment’s free exercise clause (Van Wyk) and establishment clause (Anderson). In his article, Van Wyk notes that the Supreme Court trend over the past three decades has been to deny every claim to a free exercise exemption to otherwise "neutral" legitimate laws, apart from unemployment compensation cases. In light of this judicial history, Van Wyk examines three accounts of government neutrality distinguished by Joseph Raz, as they might be applied to free exercise rights: neutrality of government aims (i.e., legislation not directed specifically at religious beliefs or behavior); neutrality of effects or results (regardless of aims), either by refraining from promoting any particular religious experience or goals, or by promoting all of them equally; and comprehensive political neutrality, which demands that government create conditions which provide equal opportunities for genuinely autonomous choice with respect to one’s conception of the (religious) good life. Where Raz favors the last of these, Van Wyk argues that all three are motivated by a top-down approach focusing on what government should or should not do. Using Employment Division V. Smith, the Religious Freedom Restoration Act, and City of Boerne v. Flores to illustrate his position, Van Wyk advocates instead a bottom up approach like Jeremy Waldron’s, asking about that to which the governed would consent. From this perspective, Van Wyk defends a Madisonian interpretation of free exercise which would (almost) "wholly exempt" churches and believers from state intrusion, except under the most compelling social necessity.

Erik Anderson also discusses the first two accounts of neutrality sketched in Van Wyk’s article (neutrality of aim or of effect). After dismissing neutrality of effect as conceptually unworkable, Anderson concentrates on the possibility of interpreting establishment clause neutrality in terms of neutrality of aim, understood in light of the ‘ideal of public reason’, the view that any appropriately neutral law should be justifiable (at least hypothetically) by appealing exclusively to considerations which do not rely on any individual’s particular religious (or non-religious) conception of the good. But Anderson concludes that even this approach allows for justification only at a very abstract level, which underdetermines policy choices. To make substantive political decisions, reliance on controversial moral and metaphysical beliefs derived from more specific conceptions of the good are inevitable. Reliance on such beliefs is compatible with establishment neutrality when the appeals are to religiously controversial interpretations of publicly justifiable principles, but not when the appeals depend on the conviction that all citizens should rely on a particular conception of the good. Anderson closes with a discussion of practical problems which must be addressed in order to implement his preferred neutrality of aim model. In this vein, he distinguishes between a separationist "no aid" approach, and a neutralist approach which focuses on whether there is an important public function being served by a religious institution, a function which would justify the existence of a comparable secular institution, if the need were not already being addressed.

Finally, I’ve contributing a few thoughts on the relationship between First Amendment ‘freedom of conscience’ clauses, among which the religion clauses figure preeminently, and the judicially-recognized unenumerated constitutional right of privacy. I use a personal experience as a witness in civil litigation to illustrate what I take to be a very tight connection between privacy rights and these clauses, especially the free exercise clause (although the establishment clause also figures indirectly in the grounding of some aspects of the right to privacy, as do the First Amendment rights of free speech and association).

One last item in connection with the topic of this issue: I would like to draw readers’ attention to a newly published one-volume encyclopedia from Garland Press: Religion and American Law. This is an extremely useful reference tool organized by Paul Finkelman of the University of Tulsa Law School. The primary emphasis is on detailed commentary concerning the content and subsequent significance of American court cases (and some federal and state statutes) going back as far as the English Toleration Act and colonial era blasphemy cases, progressing through the late 19th century Blaine Amendment, the polygamy cases (e.g., Reynolds v. U.S. and Davis v. Beason), and concluding with Congress’s Religious Freedom Restoration Act of 1993, and the important 1997 case, City of Boerne v. Flores, overturning that legislation. In addition to alphabetized entries on individual cases and statutes, there are a variety of topical entries (e.g., on evolutionary theory in public schools, flag salute cases, free exercise in its historical setting, school prayer), entries on religious traditions and their impact on American law (e.g. on Catholicism, Jehovah’s Witnesses, Mormon Free Exercise, Native American religious rights, Secular Humanism), and entries on particular justices and political figures who have had significant influence in this area of the law (e.g., William Brennan, Thomas Jefferson, James Madison, William Rehnquist, Antonin Scalia, Roger Williams).

In the intersection between philosophy and law, Religion and American Law is the second extremely readable, informative, and comprehensive encyclopedia produced recently by Garland Press. Last year saw the appearance of Christopher B. Gray’s two-volume The Philosophy of Law: An Encyclopedia, a more general source which will also be of value to anyone interested in our subdiscipline. One of the chief virtues of both these reference sources is the extreme accessibility of the entries, easily grasped by a general audience, but quite substantive enough to be of genuine use to scholars as well.

Topics and topic editors for the 2001 issues of the Newsletter are as follows:

Guest Editor: Brian Leiter
Director, Law and Philosophy Program
University of Texas at Austin
727 East Dean Keeton Street
Austin, TX 78705
bleiter@mail.law.utexas.edu
(512) 471-5151

Editor: Theodore M. Benditt
Department of Philosophy
University of Alabama at Birmingham
Birmingham, AL 35294-1260
tbenditt@uab.edu
(205) 934-4083

Natural law theories are among the oldest approaches to both ethics and law. In moral philosophy, 16th and 17th century skepticism led, on the one hand, to new sorts of natural law theories that were both more modest in the moral demands they saw nature as supporting and more protective in identifying areas of human life in which people should be free of interference. But skepticism led also to the development of entirely new approaches to ethics which came, over time, to be more prominent than natural law thought. At the same time, natural law thinking about law also began to seem less impressive than other approaches, most notably legal positivism and, more recently, analyses of law highlighting social interests and political ideology.

In recent years there has been a resurgence of natural law thinking in both ethics and law. Important books and collections of essays have been published making the case for or against some version of natural law. It seems appropriate for the Newsletter to take stock of these developments. Essays are welcome which address central themes related to the recent literature on natural law theory.

Editor: Theodore M. Benditt
Department of Philosophy
University of Alabama at Birmingham
Birmingham, AL 35294-1260
tbenditt@uab.edu
(205) 934-4083

If you are interested in submitting an article to be considered for inclusion in a forthcoming issue, it would be prudent to send an inquiry in advance, briefly describing your proposed topic. Space is very tight in the Newsletter, and there is room for only a few articles in each issue. Since the Newsletter aims for broad coverage of the range of issues relevant to a particular topic, it is unlikely that two articles which treat of the same subtopic will be published. Advance inquiries also enable the editor to furnish prospective contributors with more detailed information about the formatting requirements for submissions. In any event, authors should restrict their contributions to roughly 4,000 words (about 12-15 pages, double-spaced).

Please mail inquiries concerning article submissions to the individual editor designated for the relevant issue. All other inquiries (e.g., concerning possible announcements, suggestions of possible law review articles to abstract, notices of new books of interest, etc.) should be sent to Ted Benditt (see Fall 2001 issue on previous page for address).

Finally, an announcement:

The Justice Studies Association has issued a call for papers for its third annual conference, to be convened at Wheaton College (of Massachusetts), May 30-June 1, 2001, on the theme "Restorative Justice: Seeds of Social Revolution or Just Another Correctional Alternative?" Prospective contributors are requested to submit a 250-word abstract by January 15, 2001 to:

Dennis Sullivan, JSA Program Chair
14 Vorheesville Avenue
Vorheesville, NY 12186
gezellig@global2000.net