Edited by
Gad Barzilai
University of Washington, USA

A Challenge

Modern law and religion are essential sociopolitical phenomena that have in common some veiled elements. Both aspire to constitute, or at least to frame, human consciousness and behaviour in all spheres of private and public life. Accordingly, modern law and religion are complementary, contradictory and simultaneous sources of rule-making, adjudication and
execution. Both embed obedience and obligations, leadership, institutions and legal ideology as foundations of their maintenance and prevalence, based on a strict structure of commands. Modern law and religion are engendered through written and oral intergenerational – sometimes transnational – texts that are enforceable through authorities, and are subjected to authoritative, corresponding and alternative hermeneutics. Since modern law and religion are infinitely dynamic bounded spaces of institutions, professionalism and social mobilization, they are carriers and subjects of political power. They colonize through, and are colonized in, political power. Hence, as we will discover below, in various contexts they may, paradoxically, challenge, maintain and generate state political power. NFrom antiquity to current modernity amid various historical transformations, some of which have been revolutionary, law and religion have never been completely separated. They have never been so independent as to achieve complete autonomy from each other. Religion has essentially been embodied in modern legal systems, even in those that have aspired to privatize religion. Religions are embedded in daily practices in various regions, from the Middle East through Africa to Europe, from Latin America to North America and Asia, in
Western regimes and post-communist regimes alike. The compound interactions and multifaceted mutuality between law and religion, as excavated in this volume, deserve a distinctive scholarly attention on account of their immense sociopolitical significance. This volume aims to exhibit different voices of various scholars who are responding to the challenge of comprehending those interactions and mutuality. Religion and law should be redeemed from their imagined setting as metaphysical mythological entities and be conceptualized as relative sociopolitical phenomena.

Beyond the Myth of State–Church Separation

Some years ago the US Federal Supreme Court ruled in two salient legal cases on education and religion. Notwithstanding differing legal rulings, they both lay bare the need for, and inevitability of, going beyond the myth of separation between state and religion. In 1971 the Amish community argued before the Court that its children should be exempted from attending state public schools after the eighth grade.1 Counterintuitively to the First Amendment and its  anti-establishment clause, the Court upheld the Amish’s religious arguments, defying the state of Wisconsin’s claims against the constitutionality of religious exemptions from equal state education. The main reasoning behind the ruling was articulated in Chief Justice Burger’s decision: In sum, the unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith, pervading and regulating respondents’ entire way of life support the claim that the enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger if not destroy the free exercise respondents’ religious beliefs.

In 1994 in the Kiryas Joel case, the Satmar Hasidik Jewish community in Brooklyn, NYC, asked the Court to recognize the legality of New York law, which had designated the establishment of a public school. The community argued for the need in such a designated school since ultra-Orthodox physically challenged children could not attend any other
school for lack of appropriate facilities.
As might have been expected, based on the antiestablishment clause, the Court dismissed the community’s claims and tailored the legislation as null and void.

Justice Souter argued for the rationale embedded in the Court’s ruling:

The fundamental source of constitutional concern here is that the legislature itself may fail to exercise governmental authority in a religiously neutral way. The…. case specifc nature in creating this district for a religious community leaves the Court without any direct way to review such state action for the purpose of safeguarding a principle at the heart of the Establishment Clause, the government should not prefer one religion to another, or religion to irreligion. In both rulings the Court admits the crucial importance of religion in American public life and accordingly emphasizes the need to protect religious educational practices even of non-liberal fundamentalist religious communities. The Amish desired to gain an autonomous system of education based on their religious dicta. The Court granted the alleged constitutional remedy, albeit founded upon the rhetorical argument of federal non-interference in communal religious autonomy due to the anti-establishment clause. The Satmar claimed to assist physically challenged ultra-Orthodox students who could not learn in the state’s (secular) non-Jewish schools. They were denied their claim on the basis of a similar rhetorical judicial argument of the anti-establishment clause. In both legal cases, however, the Court had to face diffculties embedded in liberal jurisprudence in order to acknowledge the democratic pressures to embrace non-liberal religious collectivities. The Western liberal constitutional myth of the separation of religion from the state is utterly problematic (Barzilai, 2003; Carter, 1995) since religion is irreducibly signifcant in formation of modern states, laws and legal ideologies. Thus, surveys in Europe, for example, demonstrate to what degree religion is prominent in both liberal and post-communist political regimes. In relation to religious practices of praying in church, the fgures are illuminating: 88 per cent in Ireland, 85 per cent in Poland, 69 per cent in Northern Ireland, 51 per cent in Italy, 43 per cent in Switzerland, 41 per cent in Portugal, 39 per cent in Spain, 34 per cent in Hungary, 34 per cent in West Germany, 30 per cent in the Netherlands, 24 per cent in the UK, 20 per cent in (East) Germany and 17 per cent in France attended church ‘at least monthly’ (Bruce, 1999, p. 90, Table 4.1). Obviously, fluctuations in levels of secularization and religiosity are to be expected. Yet the signifcance of religion as a central political and legal phenomenon in modernity is far from being marginal.

Although there are institutional, organizational and cultural variances between and among political regimes and religions, religion amidst neo-liberal transnational and international expansion (‘globalization’) is prominent as a sociopolitical legal force. This diverse volume with its multiplicity of intellectual voices, explores some facets of religion in the local–global nexus. Religion is conspicuous despite of, in reaction to, and even as part of, ethos and practices of secular rationality and teleological modernity at the outset of the third millennium. Intriguingly, religion is even fused in modernity. It is constructing for its needs and interests some major aspects of modernity, such as the transnational world economy, nation-state law and the language of liberal human rights, as well as communications technology and the Internet. Nevertheless, callous conflicts between liberalism as values, norms and practices and non-liberal non-ruling religious communities are common. Inter alia, such conflicts have
erupted in Belgium, England, France, Germany, India, Israel, the Netherlands, Spain, Turkey and the USA. These conflicts are signifcantly meaningful even in states where a formal liberal separation between state and Church is professed, as in France and the USA. This volume, through its various prisms and inclusive spirit, is committed to elucidating the multifaceted
aspects of modernity and religion in and towards law. This volume differs from studies that have conceived religion in singular constitutional terms of ‘freedom of religion’, ‘freedom from religion’, ‘anti-establishment clause’ and ‘state neutrality’. Furthermore, it diverges from, and is critical of, studies that portray religion and religious law as chiefly non-modern and primordial social phenomena that are driven to constitute an image of savagery and terrorism. Rather, this anthology advances a theoretical and empirically-based concept that inquiries into religion and law should be sensitive to the versatilities of religious law and the pluralities of religions, and their possible adaptations to, and reconciliation with, modernity. Our capacity to generalize important aspects of law and religion should be subjected to such a theoretical, empirical and methodological sensitivity to contexts of meanings.

This volume has as a lucid intellectual context. About 30 years after Max Weber’s death in 1920 his studies of Buddhism, Christianity, Confucianism, Hinduism, Islam, Judaism and Taoism (Weber, 1951, 1952, 1956, 1960) had remained unmatched and only infrequently touched by law and society scholars. Only with the rising influence of anthropological studies, largely by Adamson Hoebel and his students, was our knowledge enriched with insights on religions and religious law (Hoebel, 1954; Pospisil, 1973). However, since the 1980s legal pluralism has highlighted cultural disharmonies that generate normatively justifed cultural relativism. It has called for an understanding of different legal traditions in their interactive relations through unveiling and decentring state law and legal ideology as relative traditions as well (Merry, 1988; Sarat and Berkowitz, Chapter 18, this volume; Twining, 1986, 2000; Santos, 1995). In the context of legal pluralism and political power, this volume encourages us to look into whether the multiplicity of religious practices – possibly even fundamentalist religious practices – is reconcilable with democratic order (see Sarat and Berkowitz, Chapter 18).

Religion offers epistemological guidance for viewing the universe through a set of communal and individual practices, driven by faith in transcendental, sacred and invincible forces. It constitutes and reflects meanings of existence in every domain of private and public human life. It can neither be comprehended solely based on criteria of ‘rational’ and ‘irrational’, nor can it be understood as secluded from other sociopolitical phenomena (Asad, 1993).