God vs. the Gavel: Religion and the Rule of Law. By Marci A. Hamilton. New York: Cambridge University Press, 2005. xii+414 pp. np (original) (raw)
Related papers
Why religion is different: Five contradictions of religion in law
Immanent Frame Blog, 2019
In this online review essay I argue that religion poses special challenges as a category of law; and these challenges arise not simply because religion is difficult, if not impossible, to define nor because legal agents deploy the category in strategic, prejudicial, or inconsistent ways. Religion is a uniquely thorny category of law, I will insist, because the use of that category—in legislatures, courtrooms, and mediascapes—evokes (at least) five distinct discursive contradictions, opposing ways of representing and understanding those things that are supposed to be protected or regulated by law: contradictions of communality, authority, acquisition, imagination, and independence.
RELIGION INTERFACING WITH LAW AND POLITICS: THREE TIRED IDEAS IN THE JURISPRUDENCE OF RELIGION
LOGOS: A JOURNAL OF CATHOLIC THOUGHT AND CULTURE, 2007
The Religion Clauses of the First Amendment comprise the American citizen’s first freedoms. The Supreme Court’s interpretation of these freedoms is in a state of hopeless confusion. The reasons for the confusion have to do with three ideas – separationism, neutrality, and coercion – which have no content independent of the political proclivities of the jurist. This generally ignored fact points to the need to re-cast the jurisprudence of religion in a fashion that competing political visions are clearly and straightforwardly considered by judges and citizens alike. Religion, law, and politics are finally inseparable, leave no room for neutral ground, and will constrain (or “coerce”) those who disagree with the adopted regime.
Christian concept of the common good, he argues, offers a more compelling framework for addressing issues of conscience. Jacqueline Laing traces the natural law tradition through the classical and medieval periods and defends it against Bentham's charge that the natural law and therefore also natural rights are "nonsense upon stilts". She argues that it is the idea of the natural law that undergirds human rights with its concern for universal and timeless values. Laing contends that if we want to hold on to the idea that certain activities and actions are timelessly unjust, whether genocide, child abuse, rape, or slavery, then we have to jettison our view that both morality and law in its fullest sense, i.e. that which binds the human conscience, are mere human constructs or social conventions. Charlotte Smith highlights one of the most ancient and venerable interfaces between religion and law, namely the question of establishment. Reflecting on the English example, she defines establishment or, rather, points out how fluid that definition is, and then outlines the various justifications for its English form. Some of these, she recognises, are no longer tenable but others, in particular the argument that establishment signals that there is a place for religious faith, in all its forms, in public life (increasingly needed in the face of aggressive secularism), remain persuasive-at least for now. Julian Rivers asks whether English law is Christian and answers with a careful 'yes and no' , depending on how one reads the question. If being Christian means directly defending Christianity or promoting the church, the answer, he shows, is no, and has effectively been no for over a century. If, however, it means being consistent with a Christian view of the proper purpose and content of secular law, then it is broadly Christian-although, as Rivers concludes, we cannot assume it will always remain so. Finally, David McIlroy systematically dismantles the idea that law is amoral , without foundation in the ethical universe that we all inhabit. We need, instead, he argues, to see it clearly for what it is, a 'branch' or 'sub-category' of morality. This does not mean we should equate law with morality. But because law is a reflection of our substantive, shared moral commitments, we should be more willing to debate, seriously and in a sustained way, what those moral commitments are, and how far they are shared. 10 Kesh (uncut hair), the kangha (a wooden comb), the kara (a metal bracelet), the kachera (cotton undershorts tied with a drawstring) and the kirpan.
Symposium Introduction: The Competing Claims of Law and Religion: Who Should Influence Whom?
2012
Abstract: This introduction provides a preface to the Pepperdine Law Review symposium from the Third Annual Religious Legal Theory Conference on" The Competing Claims of Law & Religion: Who Should Influence Whom." As the introduction notes, the relationship between law and religion is both fraught with tension but also provides great opportunity. In so doing, the introduction sketches some of the varied responses to conflicts between law and religion, providing a brief overview of the papers included in the symposium issue.
God's Law and Civil Law / Religious Norms in the Public Sphere
2022
Several events that took place at the turn of the 21st century signalled ‘the return of religion’ to the political and social spotlight with serious consequences for religious institutions, practitioners, and for secular political systems. Ignoring the debates concerning whether or not this ‘return of religion’ is a myth, or if modern societies are indeed turning more religious, the paradigm of state-church separation (Barzilai 2007, xi) is currently facing grave challenges with the increased visibility of religion within the public sphere in comparison with previous decades. This trend unsettles established norms regulating the public sphere in modern democratic states, which are almost always founded on secular paradigms. Accordingly, religions that have been strongly represented in Europe and Western states for centuries – albeit shaped by sweeping waves of secularisation and emancipation throughout Europe (i.e. Christian churches) – have developed a modus-vivendi over decades to cope and live peacefully within secularly dominated contexts (Roy 2005, 39–41). The concept of secularism has been uprooted. On the one hand, the idea of secularism has expanded, transforming into an ideology that concerns both secular and religious affairs in many global contexts so that it became a global prescription for regulating ties – or lack thereof – between religion and the state. This transformation has led to harsh debates that are still taking place between religious and secular actors. The Islamic world is one of the main regions where this debate is reaching its apex.
Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion
27 Miss. C. L. Rev. 159 (2007-2008), 2008
The continued vitality of religion has motivated many scholars in sociology, anthropology, political theory, international relations, and philosophy to revisit their assumptions about how religion relates to their disciplines. Despite this robust reexamination in other disciplines, the secularization of law - that the law is or should be independent of any religious foundation or values - arguably constitutes the most widely-held but least-examined assumption of the modern paradigm of law and religion (secularism). This article argues that the widespread acceptance of legal indeterminacy calls into question this secularism and points the way toward the desecularization of the law. Desecularization does not mean returning to the pre-modern paradigm (theocracy) as suggested by contemporary calls for government recognition of the United States as a Christian nation by posting the Ten Commandments, displaying creches, etc. While somewhat exaggerated, the charge of theocracy accurately identifies the implicit assumption that the law is or should be legitimated by a particular religious tradition - the "Judeo-Christian tradition" - in the world's most religiously diverse nation. The Establishment Clause of the First Amendment and a proper understanding of religious pluralism rule out returning to the pre-modern paradigm. They prohibit the law from explicitly adopting a religious legitimation and require that the text of the law be secularized. Nevertheless, the secularized text of the law does not mean that the law has an autonomous secular foundation. As seen by the Muslim headscarf controversy in France, the secularism proposed by the modern paradigm includes or entails a comprehensive or religious foundation for the law that competes with traditional religion. In this respect, the modern paradigm continues rather than supersedes the pre-modern paradigm and contravenes the Establishment Clause and religious pluralism. To move beyond theocracy (pre-modern) and secularism (modern), this article closes by indentifying the trajectory for a new constructive postmodern paradigm that embraces legal indeterminacy and secularizing the text of the law but argues that a plurality of religious convictions implicitly legitimates and thereby desecularizes the law.