Re-Describing the Sacred/Secular Divide: The
Legal StoryA Workshop at the Law School, University at
Buffalo
March 27-29, 2008
This workshop brings together scholars of law, the
humanities, and the social sciences to inaugurate a sustained
conversation regarding contemporary relations between law and
religion in society and culture. For this workshop, we have assembled
a core group of scholars that will set the agenda for further
conferences expected to culminate in an edited volume.
A reassessment of the social, cultural, and historical relations
between law and religion is a pressing necessity given the apparent
hegemony of the rule of law and the powerful hold that assumptions
of thorough secularization have had in many academic fields, at a
time when public policy in this area is being reconsidered at every
level of government in many parts of the world. Despite the thorough
discrediting, at a theoretical level, of legal positivism and, with
this, renewed doubt concerning where to draw the line between law
and religion, much academic work and many policy proposals proceed
with dated and anachronistic notions of these two categories.
Recently, we have seen an abundance of theoretical reappraisals
of modern secularism and secularization by political and social
philosophers. These include Charles Taylor, Michael Sandel, Marcel
Gauchet, Hent de Vries, and Slavoj Žižek, as well as Foucault and
Derrida, each of whom turned to examine religion in his later work.
Less attention has been given, in these appraisals, to
“re-describing” (to borrow Jonathan Z. Smith’s term) the historical
and anthropological dimensions of the encounter between law and
religion in both the modern and late modern periods. Given what has
amounted to a virtual collapse of the standard division of labor
between “church and state,” such a re-description is urgently
needed. In apparent recognition of this fact, there is an emerging
body of work interrogating the historical roots and modern realities
of legal secularism by such scholars as Talal Asad, Jean Baubérot,
James Beckford, José Casanova, Peter Goodrich, Sally Merry, Tim
Murphy, and Boaventura de Sousa Santos, among others.
What, precisely, is modern religion under the rule of law? How
has the historical trajectory of secularization altered religion,
and its relation to law? How has the legal regulation of religion
affected the experience of religious practices, places, and objects,
whether liturgical, social, individual, or communal? As a first step
toward answering these questions, special attention should be given
to the contemporary rhetorical applications and historical origins
of the words about religion used by lawyers, legislators, and
judges: categories such as faith, belief, cult, Christian, islamist,
laicism, priest, confession, worship, commandment, establishment,
freedom, conscience, martyr, sacrament, marriage, proselytizing,
witchcraft, sacrifice, damnation, church, supreme being, etc.
Many scholars in law and other disciplines would readily admit
the importance of these questions regarding the definition and legal
location of religion. Less widely appreciated, especially outside
legal studies, is the potential of such questions to reshape our
understanding of law itself. The loss of confidence in our ability
to define law positively, as merely a set of rules, has followed the
erosion of the explanatory power and normative validity of
positivism in general. Law is much more than a set of rules. Law
constitutes at once a cosmology, an anthropology, a technique of
textual interpretation, a regime of images or of representation, and
even a soteriology. As such, law serves a social role that is
analogous to, and is to some extent historically derived from, that
formerly served by religion. This overlapping of functions defines a
range of possible relationships that law bears toward religion, as
complement and mutual support, competitor, or successor.
If formerly, in many cultures, law and religion were often
combined into a single authority, such that the question of their
distinction and relationship would have been unintelligible, the
process of secularization in European civilization involved both an
institutional separation of law from religion and, in the early
modern period, an increase in the power of the state and its legal
sovereignty at the expense of that of religious institutions. Given
these developments, and the concomitant tendency toward absolutism
in the post-Hobbesian secular state, debates concerning the present
meaning and future development of religious freedom must necessarily
address the problem of legal pluralism, and especially of the legal
authority and institutional embodiment of religion.
At the national and local levels, in the U.S. and elsewhere, this
would involve an investigation of contemporary institutional
formations of law and religion, the histories of such formations,
and the changes currently taking place in them. Federal and state
law converge with religion at a large number of points, including:
problems of nationalism; citizenship and electoral politics;
education and curricular reform; the regulation of medicine and
science; family law, marriage, divorce, and adoption; the
prosecution of war and demands of military service; criminal justice
and prisons; social service administration and the regulation of
charities; and labor and employment practices. At the local level,
religion is often an issue in contests over property, zoning, city
planning, and land use; water rights and environmental degradation;
and municipal politics.
At the quintessentially modernist level of the individual, all of
these changes are affecting the nature of the human, as is evident
in transformations of: legal and religious notions of subjectivity,
personal identity, sexuality, and gender; technologies of
self-discipline; the legal and political status of religious
leadership; the relation of the individual to multiple communities;
practices of surgical and genetic modification; the boundaries and
relations among humans, animals, and robots; and even the mundane
level of food and clothing.
Globalization has enhanced the urgency of these issues.
Technological changes facilitating communication, the transportation
of goods, and travel have made possible a faster-paced and more
reactive world environment. The activities of multinational
corporations and transnational religious actors are making state
borders less salient; and transnational political and legal
institutions, governmental and non-governmental, have begun to
enforce international legal regimes that impact religion. Various
sites for an investigation of these new religio-legal realities, and
of their histories, include human rights, economic activity, the
transformation of geographically located religious traditions into
more portable modernist ideas and practices, rapid migration,
environmental degradation, entrepreneurial violence, and the
proliferation of electronic media.
The range of topics that have consequences for our understanding
of law and religion in the late modern context, as thus outlined, is
vast. Religion, broadly defined, remains a significant factor in
virtually every area of modern life and law. The goal of this
conference is not to provide an encyclopedic description of each of
these areas, but tbegin to develop theoretical and structural models
that will both deepen our understanding of the dynamics connecting
law and religion, and serve as the basis for further specialized
research.
At this conference, participants will bring topics from
their current research as well as a willingness to engage across
disciplines to develop a structure for future collaboration. The
workshop will include intensive sessions for a day and a half during
which participants will make formal presentations of the way in
which their work intersects with the topics of the conference. There
will also be a general session inviting conversation with a larger
audience in the law school and across the UB campus. In the final
session, the organizers of the conference, Sullivan and Yelle, will
propose a formal structure for a volume and future conference as a
beginning for a discussion of future work.
Baldy Center For Law & Social Policy
511
O'Brian Hall, University at Buffalo Law School
Buffalo, NY 14260
716-645-2102
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