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Friday - Sunday, May 1 - 3, 2009
Re-Describing the Sacred/Secular Divide: The Legal Story IIAbstractsWhen the icon
Hussein Agrama Any study of the modern practice of Islam, of religion and conflict, must make an account of the modern state, its governing ambitions, and especially its secularizing power. And this is consonant with the idea emphasized by Talal Asad, that when we study religion, we must carefully attend to the materialities by which it is practiced, and by which it is defined, shaped, constrained and enabled in specific ways. Let me state my thesis forthrightly: some of the conflicts in Egypt that seem to be between Islamic precepts and secular ideals actually arise out of deep rooted tensions within liberal secularism itself.
Banu Bargu “All significant concepts of the modern theory of state are secularized theological concepts,” famously argues Carl Schmitt. While Schmitt’s interpretation of secularization was directed to elucidate the relation of the exception and sovereign power, it also casts light on other concepts that are part of his political theory. In this paper, I propose to focus on the concept of sacrifice in order to interrogate the relation between the political and the theological in his thought. I advance the claim that the demand for sacrifice is an important and yet neglected dimension of Schmitt’s theory of sovereignty. Sacrifice is at once a “secularized theological concept” and a concept open to the possibility of re-theologization. The ability of sovereign power to command a monopoly not simply on violence but on politically motivated sacrificial violence keeps alive the link between the sovereign and the sacred. However, in conversation with Schmitt, this paper suggests that a significant challenge to the “secularized” concepts of the modern theory of state, primarily the theory of sovereignty, comes from insurgent movements that resist and challenge sovereignty through the re-theologization of the political. But this converse movement is attained less through the introduction of a theological politics (for example, in the case of religious movements) than via the construction of the figure of the enemy on theologized terms. To understand this shift, I analyze Schmitt’s last work Political Theology II in which he proposed a specific political theology in his polemic against Gnosticism and Blumenberg’s secularization thesis. In Schmitt’s conception, the idea of stasis (with its contradictory meanings of stability and unrest) takes a prominent role and is closely connected to his theorization of the enemy as an absolute other in which the transcendent re-emerges on the immanent plane of politics.
Mary Anne Case In this paper, I consider the possibility that the following is the best explanation of opposition to legal recognition of same-sex marriage on the part of evangelical Protestant religious conservatives who claim such recognition would undercut their own marriages: Unlike observant Jews and Roman Catholics, who clearly understand that civil marriage and marriage within their faith are not the same, such that one can be married in the eyes of the state and not the faith and vice versa, Protestant denominations have essentially abdicated the definition, creation and, above all the dissolution of marriage to the state. I trace the roots of this conflation to Lord Hardwicke's Act, which not only asserted for the first time the state's monopoly over marriage, but did so in conjunction with the Established Church of England. [Read Paper]
Jakob de Roover Before the eighteenth century, western Christianity configured the sacred and the secular in relation to a third sphere, that of idolatry. During the expansion of both Roman-Catholic and Protestant forms of Christianity, religious authorities were compelled to draw clear boundaries between the sacred, the idolatrous and the secular sphere of things indifferent to religion. Also in the domain of law, this threefold distinction was made within Christian frameworks and by Christian authorities. Secular law came into being when churches delegated certain legislative powers to the civil authorities. From the Enlightenment, two striking developments have taken place: (a) idolatry has disappeared from the equation to create an opposition between the secular and the religious, (b) secular law appears to have become independent and is now given the authority to fix the scope of the religious. Yet, whenever judges have had to decide on its scope, they confront the lack of a neutral secular conception of religion, which is able to identify and delimit this sphere. Inevitably, they take recourse to one particular religious conception and reject certain practices or beliefs as 'false' religion. In this way, the realm of idolatry remains present and certain models of religion are spread implicitly. My paper will examine European conceptions of law in India in order to assess the hypothesis that secular law is the manifestation of an internal Christian dynamic of expansion or 'secularization', whereby Christian structures are spread in secular guise.
Markus Dressler This paper aims to work out the religionizing, aspects of secular law and secular legal discourse based on the case of modern Turkey. It will interrogate the roles ascribed to religion within the discourse of Turkish laicism and especially laicist law. The legal sphere is strongly implicated in the laicist quest to control religion, and to determine its place within politics and the public sphere. As I will argue, laicist discourse in general, and legal discourse as one of its major arenas in particular, are, qua the binary concepts on which laicist secularism is constructed, engaged in an essentially theological debate on what constitutes religion, and especially Islam. Drawing on debates on (1) the role of the state in the organization of religion, (2) the question of the recognition of the Alevi minority as legitimately different, (3) the Turkish headscarf debate, and (4) the Kemalist state practice of outlawing parties with a supposedly Islamist agenda this paper will elaborate the religionizing mechanisms of legalist Turkish laicism.
David Engel A striking aspect of Thai tort law from a sociolegal perspective is the very substantial disparity between judicial accounts of "wrongful acts" in court and the discourse of personal wrongs that pervades Thai culture and society outside the courthouse. This paper suggests that the extreme contrast between the discourse of Thai tort law and popular, religious-based discourses of injury has its origins in a distinctive approach to the issue of legal pluralism adopted in the late nineteenth and early twentieth centuries. Choices made during the legal codification process resulted in the complete erasure of the law of injuries that had formerly existed in Chiangmai and elsewhere in Thailand. The paper describes the close linkages that had formerly existed between the mangrai thammasat in northern Thailand and village customary practices and beliefs concerning injuries that were rooted in spirit worship and Buddhism. Adoption of the Thai Civil and Commercial Code in 1935 destroyed these linkages and denied the very existence of village customary law at the same time that it abrogated the mangrai thammasat. In recent years, spirit-based practices have disappeared from injury cases, and injury victims have been guided by what they consider the principals of Theravada Buddhism, which they view as incompatible with the assertion of rights or the quest for compensation. Paradoxically, the triumph of the Thai state over the customary practices of the northern region is most obvious in the almost complete absence of state law – or indeed any sort of law – in most injury cases.
Rebecca French This paper is an attempt to look at religion and law caselaw in a different way, that is, to look at who really goes to court with God in their briefcase. Hundreds of thousands of cases are filed every year in the United States and of those approximately 200,000 are now captured by the Westlaw and Lexis/Nexis systems including both reported and unreported cases. So the question becomes: of those 200,000 cases, how many are on religion and what do they reveal? Can we see subtle changes and shifts over time? What are the differences in the kinds of cases and the articulation of religion in case law between 1963 when these cases were first reported on the computer and now? Do any of the current theories about religion inform our analysis?
Thomas Blom Hansen How do human beings fall in love, intense love, with abstractions, idea and principles they can neither see nor touch and which often are fundamentally at odds with their everyday existence? This paper explores the genealogy of how modern secular convictions arose as a quest for being 'overcome by proof' of the correctness or desirability of certain principles and truths. I explore how both an 'ethics of sincerity' and an 'ethics of consequence' ultimately are organized around a demand for fidelity to an inner law that almost invariably sits uncomfortably with the demands and expectations of ordinary life. Through three stories of men of modern conviction I have met during fieldwork in India and South Africa I argue that sacrifice – material, bodily or mental - remain the ultimate proof of conviction because it demands constant reiteration of a decision to believe, to be convicted by one's own convictions, and therefore retroactively reduces (self)doubt.
Tim Jensen Based on three recent Danish law cases and legal decisions - one on the wearing of a kirpan in public space, one on the Muhammad cartoons vis à vis laws on blasphemy and discrimination, and one on the alleged illegal character of certain practices performed by the established Evangelical-Lutheran Church (or the Ministry of Ecclesiastical Affairs) – I intend to discuss, also by way of a comparative look at similar cases in other countries (e.g. Sweden and Finland) as well as at case law at the ECHR, the sacred/secular implications, differences and similarities, and possible trends and tendencies. Part of the discussion centers on the questions indicated in the title, including questions pertaining to the protection of the 'sacred' out of respect, not for religion, religious feelings, and the sacred, but for democracy, freedom of speech, and public order.
Greg Johnson In a feat best described as religious, Mahi came to life in a Hawai`i state archive in early 2007 and six months later walked into a federal review meeting to assert claims upon a collection of rare Hawaiian objects. Who is this Hawaiian chief and what did he say at that meeting? Mahi attempted to speak across many generations and, perhaps more dauntingly, across two contemporary divides: that between religion and law and that between fiercely contending Hawaiian groups. The proposed chapter will address Mahi's claims as an example by which to examine the intersection of contemporary indigenous religious traditions and law. Mahi's claims emerged in the context of the Native American Graves Protection and Repatriation Act (NAGPRA). This essay asks: How do NAGPRA and laws like it shape religious claims and then conduce to misrecognition of the same? How do such laws structure the conditions of possibility for native claims to be acknowledged and yet work, at times, to deny the validity of such claims?
Paul Kahn For the conference, I am submitting the first chapter of a new book manuscript, Political Theology: Four New Chapters on the Concept of Sovereignty. In this chapter I distinguish political theology from other forms of political theory and argue that it remains a necessary form of inquiry into contemporary political experience. At the level of abstract theory, I argue that liberal political theory fails to offer an account commensurate with our experience of the political as a domain of meaning that can support a practice of sacrifice. At the level of jurisprudence, I argue that American exceptionalism -- and more broadly the American experience of the relationship of constitution to revolution -- cannot be understood outside of a political theological inquiry. Finally, at the level of practice, I argue that a modern political theology cannot entail the subordination of politics to religion. Rather, political theology offers a phenomenology of the sacred as it appears within political experience. The chapter begins the dialogue with Schmitt that occupies the entire book. It also takes issue with Mark Lilla's recent work on political theology.
Leonard Kaplan Three German Weimar theorists continue to exert influence in the contemporary academy on the notion of how to understand public space. Arendt, Schmitt and Strauss have cottage industries attached to their respective work. Each engages some of the best commentators in contemporary discourse. Each has resurrected the political as fundamental to their individual projects. This paper will engage with several of the recent writers who continue to find these thinkers relevant for understanding the political as a distinct category for human understanding and on which to base social practice. The political became a necessary category for each because of the Weimar moment. For each the political is a theoretical space prior to any claims about the sacred or secular. The political is in that sense built into the fabric of existence. Therefore unsurprisingly each deals with Athens and Jerusalem, reason and revelation and each plays out some of the same categories for looking back and for prospective application. They come to decidedly different answers on legitimacy, law, sovereignty, citizenship, community, society, liberalism and republicanism to name some of the important conceptual points of reference. The paper will summarize their respective positions and further ask what differences their findings make for the sacred/secular divide. Further the question goes: why these three and what relationship to the political, theory has to offer.
Tomoko Masuzawa The "sacred/secular divide" that interests me here has to do with the secularity of historical studies of the Bible. Historical Biblical exegesis was to be one of the cornerstones of modern scholarship on religion and, as such, also grounds for the legitimacy of the study of religion in public schools, colleges, and universities. The focal point of my current research is the Scottish Biblical scholar, Arabist, and encyclopedist, William Robertson Smith (1846-1894). Unlike some of his Continental colleagues who could count on relative leniency of their liberal church (e.g., Heinrich Ewald, Julius Wellhausen in Germany) or liberal state-run university (e.g., Abraham Kuenen in the Netherlands) or who chose to renounce their faith altogether (e.g., Ernest Renan in France), Smith sought to abide by his ancestral faith but he was tried for heresy by the Free Church of Scotland and ousted from the chair of divinity he held at the University of Aberdeen; all the while he insisted that it was his "Protestant duty" to read the Bible historically rather than theologically. By focusing on Smith himself—particularly his less known and more controversial works, The Old Testament in the Jewish Church (1881) and Kinship and Marriage in Early Arabia (1885)—we may begin to understand the intimate and complex relation that obtained between comparative religion and comparative jurisprudence in the latter half of the 19th century. I will discuss this relation by considering the (indirect) engagement between Smith and Henry Maine, mediated by the work of another Scottish jurist, John F. McLennan. The concept of legal fiction played a critical role.
Stephanie Philips Barack Obama, like many of his predecessors as president of the United States, has a religious view of himself, his presidency, and the American polity. He is, however, very unusual among liberal Protestants in the accord he seeks with conservative Christians. In contrast to Obama's evident respect for conservative Christianity, much more common is a longstanding pattern of "intolerance of intolerance," whereby smug, self-congratulatory liberals set out to vanquish conservatives in theological debates and fights for control of institutions. The centerpiece of this article is a series of disputes over church property in early nineteenth-century Massachusetts, key events in what is known as the "Unitarian Controversy." In broad outline, the controversy concerned a Christian denomination that split in two, ostensibly because of theological differences over the question of the divinity of Christ. One faction, the Unitarian, clearly won the fight: predominantly Unitarian judges rendered judgments awarding property belonging to at least eighty-one churches to Unitarians, thus divesting Massachusetts Calvinists of property they had long held. In the process, the supposedly liberal, tolerant Unitarians inflicted the same sort of sectarian oppression of which they perennially accused their Calvinist opponents. The present article focuses upon the theological dimension of liberal self-justification. Liberal Protestant theologians, including William Ellery Channing from the nineteenth century, and Paul Tillich from the twentieth, are intolerant of intolerance. From their point of view, however, this presents no paradox. Rather, no tolerance is due to intolerant religions, because those religious systems have fallen into idolatry by their claims to certainty regarding the process of salvation. Bringing this theological debate to the present era, the article explores Michael Perry's proposal that the liberal definition of idolatry play a role in the ground rules for public religious debate, as well as David Smolin's vigorous objections, from a theologically conservative point of view. The article concludes with a description of a new détente being attempted between religious liberals and conservatives under the leadership of Barack Obama.
Bruce Rosenstock The International Criminal Court (ICC) has only recently begun its first trial, and only within the last few days issued its first indictment of a sitting head of state, the first such indictment in the history of international jurisprudence. The ICC is a permanent court of last resort for the prosecution of war crimes, genocide, and crimes against humanity. Defenders of the ICC see it as the long-awaited culmination of the universalist impulse within international law as the law of all humanity while critics see it as an unrealistic institution that will inevitably fall victim to political manipulation as competing parties seek to use it as a weapon against their enemies. One of the most forceful critiques of international criminal law regimes and of the the concept of "crime against humanity" most particularly was Carl Schmitt. Schmitt argued that the history of the concept "criminal against humanity" (hostis humani generis) shows it to have been used against those parties against whom a "war of annihilation" could legitimately be fought. Schmitt therefore balks at its use in the modern period as a way to bring heads of state to justice, since it can quickly become a cover for a war with no limits. My paper defends the ICC by placing its governing statute, the Rome Statute, within the context of history of the concept of "hostis humani generis" that Schmitt sketches. ….In order to defend the ICC's Rome Statute against the Schmittian criticism that it breaks with the fundamental principle of sovereign immunity and thus opens the door to "humanitarian" wars of annihilation, I place the Rome Statue in the context of Locke's thesis that the individual retains a right to "appeal to Heaven" against sovereign impunity. This is, admittedly, a theologically-frought right, but so too is the right of sovereign immunity, since it is made precisely in resistance of the theologically-frought charge of "hostis humani generis." I argue that the Rome Statute reveals the theologico-political horizon of modern sovereignty and the concept of "hostis humani generis" alike, and that it works to replace this horizon with one that is based on the Lockean idea that universal jurisdiction can be justified as the permanent rejection of sovereign impunity. The Rome Statute is not committed to the elimination of sovereign immunity or to an extension of the "hostis humani generis" concept to any class of criminals. It draws its legitimacy only from the limit concept of impunity and the right of appeal against it.
John Schlegel It is important to remember the symbiosis between identity and religion that built vanished urban ethnic neighborhoods. In these neighborhoods, Catholicism, in the form of the ethnic language parish, supported the formation of an ethnic identity, but at the cost of subordinating the Roman claim to universality of both the Church's authority and its normative vision. In an odd way this had the effect of reducing Catholicism to just another religious expression, to a denomination as it were. After The War, as the effects of the shutting off of immigration and the continuation of the process of suburbanization brought the demise of the old ethnic community, both Catholics and ethnic Protestants experienced the same sense of loss of identity, loss of that which helped to form the self by providing a ground within which to locate, and so to differentiate, one's self from other selves.
Jonathan Sheehan How is theology inscribed in, and excluded from, the law? The essay will focus on a particular historical moment—seventeenth-century Europe —and the efforts to reconceive the relationship between religious and legal authorities in the face of catastrophic violence. In particular, it will look at theories of punishment, and the traces they bear of sacrificial (or more properly, self-sacrificial) acts of assent by the very victims of the law's violence. The persistence of sacrifice was not, the essay argues, a sign of conceptual pollution, as if theology remained the secret hidden inside the law's autonomy. Rather, it was a witness to the real fragility of the nascent legal and political order, and its reliance on substantial, but improvident, commitments on the parts of its subjects.
Mateo Taussig-Rubbo [paper available, abstract forthcoming]
Rachel Weil When did religion become irrelevant to political loyalty? In early modern England, distinctions between Catholic and protestant had long been mapped onto those between the loyal and disloyal. The Revolution of 1688, which is often hailed as a moment of secularization, put pressure on that protestant=loyalty equation, in part because the new regime faced a number of protestant enemies. Yet, halting and contested moves towards constructing a purely secular definition of loyalty re-inscribed protestant-Catholic distinctions in important ways. This paper problematizes the narrative of secularization by looking at the place of religion in the process of ascertaining loyalty after 1688: to what extent did loyalty remain a confessional category? How did mechanisms for targeting Catholics interact with mechanisms for targeting disloyal persons of any religion? How did the treatment of protestants thought disloyal differ from that of Catholics thought disloyal? Do historians who despite evidence of continued persecutions of Catholics insist that 1688 represents "secularization" unconsciously labor under a (Lockeian?) conception that because Catholicism is not really a "religion" the persecution of Catholics is compatible with a narrative of secularization?
Robert Yelle There are unacknowledged structural parallels, as well as genealogical connections, between Christian theology and modern secularism. St. Paul's definition of Christianity as a universal religion of the spirit, opposed to the narrow tribalism and ritualism of Jewish law, stands as precedent for the separation between law and religion characteristic of modernity. My essay explores this structural analogy by focusing on the treatment of Moses' veil in 2 Corinthians 3, which resembles much contemporary discourse concerning the veil worn by Islamic women. As some scholars—such as Gil Anidjar, David Ellenson, and David Kennedy—have begun to recognize, secularism adapted an anti-Jewish discourse, and deployed this against religion as a whole. The Christian repudiation of ritual, closely linked to the typological interpretation of the Hebrew Bible, informed some early arguments for religious toleration, as well as efforts to distinguish religion from both ritual and law. The problem of defining what we mean by "secularism" and "secularization" is compounded by the fact that these concepts emerged from and constitute a particular political theology. Achieving clarity in our discourse requires uncovering this theology, and with this, abandoning the myth of religious neutrality on which secularism has depended. |
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