University of Washington, USA
Religions as Traditions of Law
Religion does not merely constitute a major source of modern human rights; it also constitutes a certain ontology in modern nationalism and law. Mainly since the nineteenth century, nationalism has utilized religion for its political purposes. Through legal categorizations nation-states have framed religious myths to consolidate a national ethos. Based on the fact that they are sociopolitical forces that comprise and reﬂect strong human desires and expectations, religion and nationality were intertwined to consolidate a political mechanism that mobilizes people with different interests towards what may be perceived as a common
public goal (Migdal, 1988, 2004).
The constitutive interactions between religion and nationality that empower each other in modern legality have contradicted not a few sociopolitical generalizations. Emile Durkheim conceptualized that modern societies would necessarily undergo rigorous secularization (Pickering, 1984). He was therefore concerned about what would happen to modern societies without the effects of religion as a crucial and functional consolidating social force. Falsifying Durkheim religion is a vivid tradition and a national civil force in modern political regimes in many regions around the globe. Hence, various nation-states have employed different modes of public strategies to manage the challenges of religion as a massive sociopolitical force at both elite and grassroots levels.
One such legalistic political strategy excluded religion from being a publicly organized political force. It was integrated into the state’s invasive endeavours to construct a fundamentally secular statehood and national collectivity that is systematically socialized to be unattached to (past) religious attachments. Thus, national projects of the state’s dereligiosity, at various levels of intensity and in various political settings, were prominent in Turkey during the 1920s and 1960s, and in some authoritarian/totalitarian regimes like the Soviet Union-led communist regimes after the 1920s and then after 1945 until the 1980s, as well as in China after 1949. These different political–legal efforts often resulted in resistance and religious dissent among minorities (for example, inTurkey), the Church (for example, in Poland), and in various localities (for example, in China).
The constitutional institutional privatization of religion has been a second political legalistic strategy. This has been driven by a liberal vision of freedom of religion, as in the archetypical examples of France and the USA since the eighteenth century. Either through a legal ideology of secular republicanism (France) or state neutrality (the USA), that strategy has professed formal prohibition on the state’s direct endorsement of any specifc religious institution. In practice, however, the institutional privatization of religion has prevented religious non-ruling communities from attaining governmental direct support for equality. It has further resulted in national attempts to subdue, in practice, the religious collective demands, habits and needs
of religious minorities, especially non-liberal religious communities (Barzilai, 2003; Shachar, 2001).
Alongside liberal endeavours to secularize the state as in France, or to release it from concrete institutional religious formal commitments, as in the USA, another legalistic political strategy has formally recognized the religious communalism of minorities, while state law has prominently propelled its own religious identity. Such a strategy of co-opting dominant religion in state law and legal ideology, and yet recognizing and even constructing religious non-ruling communities, has been used by states for circumventing other collective identities of the very same non-ruling communities. Thus, Israeli law has somewhat followed the Millet (community) system that had characterized the Ottoman Empire. Accordingly, Israeli ArabPalestinians were constructed and recognized in state law as religious minorities (Muslims, Christians, Bedouins, Druze), and then were denied collective national rights as Palestinians. A somewhat similar fourth political legal strategy has been employed by states that have aspired to be maintained as secular and yet uphold their religious communalism. India is an important example: after hectic debates in India’s political forums at the end of the 1940s, the state was framed as secular, although religious communities have been bestowed with some group rights. A less professed secularism of the state, accompanied by constitutional protections for minorities, has been a foundational arrangement in the German Grundgesetz (Basic Law) as well.
The fifth political legalistic strategy is generated in states that have co-opted one religion as a formal dominant social force that is integrated into the state, while preserving the worship rights of others. England, Ireland, Italy, Portugal, Spain and Argentina are some examples of states that have granted one specifc religion a constitutional superiority while allowing others to preserve their right to cultivate their different religious practices. Despite various political legalistic strategies of modern nationalism, religions have prevailed as vibrant traditions. Part II of this volume deals with several religious traditions that have
been articulated and practised amid the shadows of state law.
In Chapter 8 Robert Cover discusses obligations and social order in Judaism. Cover argues for the effects of the state on religious traditions of law. Accordingly, he contrasts the Western legal tradition, with its emphasis on rights, with the Jewish legal tradition that stresses obligations. The latter was developed over the last two millennia among Jews living as minority groups with no state and sovereignty to rely upon. Consequently, whereas Western legal tradition underscored rights as a source of mythologizing the nation-state, the Jewish tradition emphasized obligations (Mitzvoth) as a means of inciting Jewish communalism in the absence of a Jewish nation-state. While the Western nation-state in practice allowed for the evolution of rights in order to incite the collective good, in Judaism, as explained by Maimonides, obligations were clearly intended to uphold the communal Jewish good.
Judaism, Christianity and Islam have reﬂected only one fragment, however signifcant, of the relationships between states and religious traditions of law. Luke T. Lee and Whalen W.Lai (Chapter 9) focus on Confucian and Buddhist legal traditions in China. They elucidate how ethical rules of Confucianism (li) have interplayed with rigid legalism and its demands for obedience (fa). The Confucian tradition has preferred to thwart crime by relying on feelings of shame instead of relying on punishment, which may aggravate crime. While the state imposes punishment, Confucianism emphasizes such virtues as self-respect and conscience. In addition, Lee and Lai explain the characteristics of Buddhism and its effects on Chinese law. Buddhism has challenged the state, asserting an alternative communalism and an emphasis on mutual responsibility and self-regulating individuals. Although Buddhism has stood in opposition to state law in China because it expects its believers to disengage from statehood and be devoted to the Buddhist community, interactions between modern China and Buddhism have not necessarily generated conﬂicts. The state has recognized a certain autonomy of the Buddhist community, and the latter has never directly resisted the state. The unexpected result is a very multidimensional modern Chinese law, which conventionally may be perceived as secular but nonetheless embodies strong effects of religions as traditions of law.
Hinduism also testifes to multifaceted interactions between state power and religions as traditions of law. Ludo Rocher explains in his essay (Chapter 10) that Western notions of law pressured Hinduism only towards the end of the eighteenth century. Historically, obedience in Hinduism is embedded not in mere formal rigid law but in dharma – that is, the need of
every human being to live in a transposable sense of balance with his or her environment. Law in its more stringent logic of ordered hierarchical set of regulations is part of dharma; however, law should not control dharma but, rather, be guided through it. Hence, Rocher’s essay deconstructs any categorizations of religion and law as mutually separate. Rocher shows how any enforcement of Western law through English imperialism in India has been subjected to dharma and to intrinsic interactions of law and religion. However, principally since the beginning of the twentieth century, Hindu law and the hermeneutics of dharma have been more attentive to governmental purposes and have enabled the state to rule through national codifcation and a greater emphasis on administrative and criminal law.
Multicultural intercommunal probes into the infnite space of law and religion unveil aspirations for more direct dialogue between secularism and religiosity within the shadows of state law. In Chapter 11 Rebecca R. French deconstructs some problematic Western legalistic separations and epistemological dislocation of religion, law and politics. She invites us to talk to Buddhist Tibetans and be immersed in the Buddhist’s perspective that these separations and dislocation do not exist in practice. In the Buddhist community, life is intrinsically religious and the law should maintain complete and comprehensive faith in Buddha. Secular law, as a dynamic and interchangeable subordinated category, can be relevant only when it concerns specifc issues of administration. The divide between religious Buddhist law that dominates all daily practices and administrative issues which may be guided by secular law falls within the structure of the Buddhist natural religious law. Contrary to modern liberalism, there are no separate categories of religion and secularism. Rather, law in all its multiplicity is always governed by the principles of Buddhism. Thus, a state should be governed by a religious leader, such as the Dalai Lama, but may nevertheless be regarded as a constitutional democracy. Religious law need not necessarily displace secular law. In Chapter 12 John Bowen explores how Islamic law in Indonesia is interlinked with secular law through judicial hermeneutics
(see also Lev, 1972, 2000). Muslim law is being practised among different localities and is part of state law, especially when it concerns personal and family matters. Hence, religious law has survived in between local pressures and the colonial European inﬂuence over Indonesia (Lev, 1972, 2000).
The maintenance of non-liberal religious legal traditions in modernity should also be examined in light of modern technology, such as the Internet, which may hold secular symbols. In Chapter 13 Karine Barzilai-Nahon and Gad Barzilai present a theoretical framework for understanding interactions between religious fundamentalist communities and the Internet, through four dimensions of tensions and challenges: hierarchy, patriarchy, discipline and seclusion. They develop the concept of cultured technology, and analyse how religious communities reshape technology and construct it within their culture, while allowing it to engender certain changes in their customary life and law. The study examines cultured technology among ultra-Orthodox Jewish communities in Israel and is based on an original dataset of 686,192 users and 60,346 virtual communities. While formal law in these communities remains suspicious of modern technology, in practice the community elite allows the community to adapt and culturally construct it for communal socioeconomic needs. Hence, between state law that embraces liberalism and the Internet with its secular manifestations ultra-Orthodoxy upholds its legal tradition with practical adaptations.