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Notes on the Syllabus

The following syllabus was used for an upper-level course on Law and
Religion at UC-Santa Barbara in the spring of 2017. I prepared the course
knowing that my audience is likely to be comprised of Religious Studies majors
and pre-law students. I wanted to give a firm base for students who were
planning to apply to law schools within a year or two, but also to give students
an opportunity to use this course to enhance their understanding of religion
through the prism of law.
I also knew that in addition to this course I was assigned to teach course
entitled Religion, Law, and Society. My challenge was to consider what
elements of the connections of law and religion were conspicuously social, and
would be more fitting for that title, and vice versa. This division nicely correlated
with the structure of my first monograph, which I just recently published, which
stressed the discrepancy between legal notions and legal practice, by setting the
discussion of the two apart.
The course presents multiple introductions to the topic: the problem of
defining religion, and the problem of defining law; the relationship between
them; the religious sources of law and its secular sources; the duty to obey the
law, from both religious and secular perspectives. All these are just by way of
introduction, slowly approaching the realm of the law, as in Kafkas parable of
the Gatekeeper (which we read in the first class), and they last almost half the
course.
We then explored the concepts of intent, sin and crime, and punishment
from both legal and religious perspectives. The readings are intended to present
students with a vast array of scholarship, ranging from classic standards to the
most recent developments.
The discussions and the readings combined revealed to students a rich
religious residue at the heart of the legal system, and gave them tools for a
theoretical analysis of any given debate on church and state or connections of
religion and law, as demonstrated by their application of these debates in their
final papers.
LAW AND RELIGION
Aryeh Amihay

Details:
RGST 177
M W 5:00pm-6:15pm
Room: Arts 1356

Office HSSB 3048


Office Hours: T & R 11:00am-12:00pm; 3:30pm-4:30pm
aamihay@religion.ucsb.edu

Description and Mission


As major aspects of any civilization, law and religion rely on socially shared values and
concepts of reality and morality, while perpetually functioning to shape, regulate, modify, and conserve
these very same values and concepts. The similarities between them suggest their pervasiveness, which
claims impact and relevance for many, if not all, facets of human life. The complete power both law
and religion demand for themselves claims authority and jurisdiction even for those who doubt or deny
their validity. The differences between them are likewise evident and instructive: law does not claim to
regulate all aspects of the ethical lives of individuals, religion can make claims even on ones thoughts.
Law can exercise actual power through the deployment of political instruments and physical coercion,
while religion depends on social norms and on claims of retribution and rewards in an afterlife. In a
certain sense, and for certain people, this distinction renders laws power more tangible and concrete
than religions; for other people, and for other reasons, this brands religion as the more powerful,
investing not only fear and force into it, but also the higher moral ground.
We will explore these issues by comparing shared themes alongside disparate topics for each.
Following introductory sessions on the definitions of law and religion, we will proceed to explore
issues of origins and obligation from legal and religious perspectives. We will consider the
idiosyncrasies of law and religion by examining the role intent plays in each system, and by contrasting
the notions of sin and crime, leading to a further discussion on their outcome through the concepts of
desert and punishment. We will conclude with the topic of justice, as the ultimate goal of both religion
and law, and consider the relationship between law and morality, before reaching the theological
problem of evil and addressing the possibility of a just God in a seemingly unjust world.
The readings have been selected to include some of the classic texts in the fields of law and
religion as well as more recent developments in scholarship. Students are expected to come to class
with questions on the readings, using them as a stepping stone for debate and for the formulation of
their own opinions on the matter. Students will not be expected to prove they have done the entire
reading, but must have a point to contribute to class discussion, by way of an example, affirmation, or
contestation of a stance in the readings.

Tardiness and Absence


Students should be in class on time. Students are allowed four unjustified absences from class. The
instructor does not adjudicate as to what is a justified absence. Justified absence is according to
UCSB rules, or requires a justification from another UCSB faculty or staff.
Assignments and Grading
Students must submit one brief response on a reading, and may submit up to 3. Each response
comprises 15% of the grade. Students must submit a bibliography exercise (20%).
Final paper will comprise of the remaining percentage, depending on how many responses a student
submitted.
Lack of presence, preparation or participation, may be penalized up to a full letter grade.
Students who have missed more than a third of the course will not be graded.

All students are required to have one office hour meeting with instructor during the course.
Grades will not be submitted for no-show students.

Class 1 (Apr. 3) Introduction

Class 2 (Apr. 5) What is Religion?

Geertz, Religion as a Cultural System


Taves, Religion: Deeming Things Religious

Class 3 (Apr. 10) What is Law?

Sinnott-Armstrong, A Perspectival Theory of Law


Sandberg, What Is Law and Religion?

Class 4 (Apr. 12) Religion and Law as Interpretation

Deadline to submit response on reading: April 11, 2017, 10pm.

Dworkin, Law as Interpretation


Kugel, The Four Assumptions

Class 5 (Apr. 17) Source of Law 1

Hayes, Greco-Roman Discourses of Law

Class 6 (Apr. 19) Source of Law 2

Hart, Positivism and the Separation of Law and Morals


George, Natural Law and Positive Law

Class 7 (Apr. 24) Legal Obligation

Raz, The Obligation to Obey the Law


Dan-Cohen, In Defense of Defiance

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Class 8 (Apr. 26) Religious Obligation

Kierkegaard, Is There Such a Thing as an Absolute Duty Toward God?


Galanter, Forces in the Charismatic Group

Class 9 (May 1) Association, Exclusion, Exit

Gutmann, Freedom of Association


Minow, Dilemma of Difference
Walzer, On Involuntary Association

Class 10 (May 3) Intent: The philosophical problem

Anscombe, Intention 1-6, 36, 51


Audi, Intending

Class 11 (May 8) Intent in Religion: Positive and Negative

Daube, Error and Ignorance


Davies, Desire and Action + The Life and Work of Christ
Powers, Intent in Islamic Ritual Law

Class 12 (May 10) Intent in Law: Criminal Intent

Deadline for Bibliographic Exercise Submission: May 11, 2017, 9pm.

Garvey, Whats Wrong with Involuntary Manslaughter?


Yaffe, Rationalizing the Criminalization of Attempt

Class 13 (May 15) Sin

Anderson, What Is a Sin?


Sharot, The Sacredness of Sin
Wasserman, The Death of the Soul in Romans 7

Class 14 (May 17) Crime

Gardner, Crime: In Proportion and in Perspective


Simester and von Hirsch, Criminalisation and Wrongdoing

Class 15 (May 22) Desert

Sher, Desert: The Dimensions of the Problem


Fletcher, Desert

Class 16 (May 24) Punishment

Foucault, The Gentle Way in Punishment


Berman, The Justification of Punishment
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Class 17 (May 29) Justice

Rawls, The Principles of Justice

Class 18 (May 31) The Law and Morality Conundrum

Greenawalt, The Conflicting Claims of Law and Morality


Finnis, Unjust laws

Class 19 (June 5) Theodicy

Trakakis, Theodicy: The Solution to the Problem of Evil, or Part of the Problem?

Class 20 (June 7) Conclusion

Bellah, Civil Religion in America


Barzilai, Legal Categorizations and Religion

Sources of Readings

Anderson, Gary A. Sin. A History. New Haven, Conn.: Yale University Press, 2009.
Anscombe, G. E. M. Intention. Ithaca, N.Y.: Cornell University Press, 1957.
Audi, Robert. Action, Intention, and Reason. Ithaca, N.Y.: Cornell University Press, 1993.
Barzilai, Gad. Legal Categorizations and Religion: On Politics of Modernity, Practices, Faith, and Power. In The
Blackwell Companion to Law and Society, edited by Austin Sarat, 392-409. Malden, Mass.: Blackwell, 2004.
Bellah, Robert N. Civil Religion in America. Daedalus 96.1 (1967): 1-21.
Berman, Mitchell N. The Justification of Punishment. In The Routledge Companion to Philosophy of Law, edited by Andrei
Marmor, 141-56. New York: Routledge, 2015.
Dan-Cohen, Meir. Harmful Thoughts. Essays on Law, Self and Morality. Princeton: Princeton University Press, 2002.
Daube, David. The Deed and the Doer in the Bible, edited and compiled by Calum Carmichael. Philadelphia: Templeton
Foundation Press, [1962] 2008.
Davies, Brian. The Thought of Thomas Aquinas. Oxford: Clarendon and Oxford University Press, 1992.
Dworkin, Ronald. Law as Interpretation. Critical Inquiry 9.1 (1982): 179-200.
Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon and Oxford University Press, 1980.
Fletcher, George P. Basic Concepts of Legal Thought. Oxford: Oxford University Press, 1996.
Foucault, Michel. Discipline and Punish. The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage, [1975]
1995.
Galanter, Marc. Cults. Faith, Healing, and Coercion, 2nd ed. New York: Oxford University Press, 1999.
Gardner, John. Offences and Defences. Selected Essays in the Philosophy of Criminal Law. Oxford: Oxford University Press,
2007.
Garvey, Stephen P. Whats Wrong with Involuntary Manslaughter? Texas Law Review 85.2 (2006): 333-83.
Geertz, Clifford. The Interpretation of Cultures. New York: Basic Books, 1973.
George, Robert P., ed. The Autonomy of Law. Essays on Legal Positivism. Oxford: Clarendon and Oxford University Press,
1996.
Greenawalt, Kent. Conflicts of Law and Morality. Oxford: Clarendon and Oxford University Press, 1987.
Gutmann, Amy, ed. Freedom of Association. Princeton: Princeton University Press, 1998.
Hart, H. L. A. Essays in Jurisprudence and Philosophy. Oxford: Clarendon and Oxford University Press, 1983.
Hayes, Christine E. Whats Divine about Divine Law? Early Perspectives. Princeton: Princeton University Press, 2015.
Kierkegaard, Sren. Fear and Trembling. A Dialectical Lyric. Translated by Walter Lowrie. Princeton: Princeton University
Press, [1843] 1941.
Kugel, James L. The Bible as it Was. Cambridge, Mass.: Belknap of Harvard University Press, 1997.

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Minow, Martha. Making All the Difference. Inclusion, Exclusion, and American Law. Ithaca, N.Y.: Cornell University Press,
1990.
Powers, Paul R. Intent in Islamic Law. Motive and Meaning in Medieval Sunni Fiqh. Leiden: Brill, 2006.
Rawls, John. A Theory of Justice. Revised edition. Oxford: Oxford University Press, 1999.
Raz, Joseph. The Authority of Law. Essays on Law and Morality. Oxford: Clarendon and Oxford University Press, 1979.
Sandberg, Russell. Law and Religion. Cambridge: Cambridge University Press, 2011.
Sharot, Stephen. The Sacredness of Sin. Antinomianism and Models of Man. Religion 13.1 (1983): 37-54.
Sher, George. Desert. Studies in Moral, Political, and Legal Philosophy. Princeton: Princeton University Press, 1987.
Simester, A. P., and Andreas von Hirsch. Crimes, Harms, and Wrongs. On the Principles of Criminalisation. Oxford: Hart,
2011.
Sinnott-Armstrong, Walter. A Perspectival Theory of Law. Australian Journal of Legal Philosophy 24 (1999): 27-56
Taves, Ann. Religious Experience Reconsidered. A Building-Block Approach to the Study of Religion and Other Special Things.
Princeton: Princeton University Press, 2009.
Trakakis, Nick. Theodicy: The Solution to the Problem of Evil, or Part of the Problem? Sophia 47 (2008): 161-91.
Walzer, Michael. On Involuntary Association. In Freedom of Association, edited by Amy Gutmann, 64-74. Princeton:
Princeton University Press, 1998.
Wasserman, Emma. The Death of the Soul in Romans 7: Revisiting Pauls Anthropology in Light of Hellenistic Moral
Psychology. Journal of Biblical Literature 126.4 (2007): 793-816.
Yaffe, Gideon. Attempts in the Philosophy of Action and the Criminal Law. Oxford: Oxford University Press, 2010.

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