The
relationship between law and religion can be imagined as a dynamic intersection
of culture, values, and ideas, that are formed by the various religious and
legal traditions from which they emerge. They may be the result of social
interaction and individual innovation, like the law that exists in a secular
democracy, or they may be divinely inspired, such as in the case of divine law.
They might be the source of conflict and violence, such as the Jim Crow
segregation laws of the early twentieth century in the American Deep South, or
they might instill a profound sense of justice, like the “rule of law” in the
United Nations. Nevertheless, in order to grasp a better understanding of the
intersection of law and religion, it might be worthwhile to consider what is
meant by the terms “law” and “religion”. Do they exist as socially constructed
categories? If they are socially constructed categories, then how do they
differ? Are there essential characteristics that link them together? I argue
that although religion and law occur and act differently depending on their
particular manifestations in time and space, the most striking similarity
between them is that they consist of ways of structuring the order of social
and individual existence. Since religion and law both tend to share this
characteristic they are often found converging in an intersection of culture,
values, and ideas. I will begin by briefly reflecting on the influential and
thought provoking ideas of Winnifred Fowler Sullivan, Talal Asad, Robert
Covers, Ben Berger, and others.
In order to engage with this question of the
dynamic intersection of religion and law, it is useful to begin with some
reflection on the meaning of these terms. How do we define law? According to
Sullivan, “law, like religion, is a virtually universal feature of human
society – law, that is, understood in its simplest sense, as the organizing structure
for collective life”. This statement is a
fascinating account of the meaning of law. For Sullivan, the law is a means of establishing
universal order. Similarly, Cover maintains that the law exists in a “nomos” or
“normative universe”. A normative universe is a
universe of standards, norms, and structure. According to Cover, this normative
universe consists of narratives. These narratives
legitimate and give value to the law as it exists in the normative universe.
Cover introduces the notion of “jurisgenesis” or “the creation of legal
meaning”. Cover states that legal
meaning is the result of narrative, the “story of how the law, now object, came
to be, and more importantly how it came to be one’s own”. The law is necessarily a
process of jurisgenesis. Jurisgenesis is both the creation and destruction of the
law as it is dealt with by individuals and groups in a legal process.
Another significant factor in this analysis of
law is the role of culture. Indeed, culture plays a significant role in the
development of the narratives that form the normative universe. According to
Berger, law is in itself a product of culture. The law consists of
history, a language, and a framework of ideas and values. For instance,
although Canadian common law is grounded in the English legal tradition of
common law from the seventeenth and eighteenth centuries, Quebec retains a form
of civil law rooted in the Napoleonic Code. Hence, law is in itself a
consequence of the intersection of history, culture, values, and ideas. As
Cover asserts, “once understood in the context of narratives that give it
meaning, law becomes not merely a system of rules to be observed, but a world
in which we live”.
How then does religion fit into Cover’s equation of nomos and narrative? Is
religion understood to be a part of the very narratives that actualize the law
as a world in and of itself?
Religion
is a term that requires deep reflection. Religion is a peculiar term. It appears
to be mainly a “western” abstraction. As Armstrong points out, “in the west we
see ‘religion’ as a coherent system of obligatory beliefs, institutions, and
rituals, centering on a supernatural God, whose practice is essentially private
and hermitically sealed off from all ‘secular’ activities”. This western perspective
tends to exclude other forms of expression that are considered to be religious
and representative of “religion” by non-Western cultures. Could there be a
definition of religion that applies trans-historically, and cross-culturally? As
Asad states in Genealogies of Religion,
“there cannot be a universal historical definition of religion, not only
because its constituent elements and relationships are historically specific,
but because that definition is itself the historical product of discursive
processes”.
Indeed, such a definition would necessarily be compromised by its own
historical production. For instance, the eminent scholar Wilfred Cantwell Smith
once defined religion as a network of symbols. Smith’s definition of
religion as symbols is perhaps too essentialist, as it fails to take into
account the power relations that conceive of the symbols themselves. Smith’s
definition risks confining religion to a particular perspective that perhaps
militates a greater understanding of religion as something that is
characteristically fluid and variable, but also subject to relations of power.
Therefore, it seems that we are incapable of producing a single definition of
religion that can encompass the great variety of religious modalities that exist
across the space-time continuum. However, if religion cannot be contained by an
all-encompassing category, then how could it ever be similar to law, defined by
Sullivan and Cover as a universal category of ideas and values? Perhaps it is
more appropriate to speak of religion in terms of its features and
characteristics.
One
characteristic of religion is that it can provide people with a sense of order
and structure. This is similar to Sullivan’s claim that law is the “organizing
structure for collective life”. Indeed, there are various systems of religious
legalism that attest to this assertion, such as Halakha in Judaism, Sharia in
Islam, and Canon Law in Christianity. However, there is a subtler dynamic that
enables religion to be a proponent of structure and order. This dynamic is found
in ritual and ritual process. Ritual is “symbolic activity” that acts as a medium of
formation and individuation. The subject’s participation in a ritual forms a
sense of identity. For example, people who receive the sacrament of baptism are
officially recognized by the Catholic Church as a “members of Christ”. Ritual, although not
always exclusive to religion, plays a significant role in religion’s capacity
to structure and organize social and individual reality. Therefore, religion
functions similarly to the law in as much as it is concerned with the ordering
and structuring of a particular reality.
Religion,
for its part, is perhaps best understood in terms of what we can observe and
interpret. Law, on the other hand, can be conceived of as a universal category.
It is primarily concerned with structure and order. Law is subject to the legal
process of jurisgenesis, and is the outcome of the interplay of history, culture,
value and ideas. However, there is a parallel between religion and law, and
this is the role of ritual. The ritual activity of religion is a way of
structuring and organising reality. For this reason, religion and law share a
common characteristic: the capacity to create systems of order and meaning. Perhaps,
in the future, it would be worthwhile to consider the ritual component of law
in the process of jurisgenesis. Nevertheless, the intersection of religion and
law results in a dynamic convergence of culture, history, ideas, and values.
Works
Cited
Armstrong, Karen. Fields of Blood: Religion and the History of
Violence. New York, Toronto:
Alfred
A. Knope, 2014.
Asad, Talal. Genealogies of Religion: Discipline and
Reasons of Power in Christianity and
Islam.
Baltimore, London: The John Hopkins University Press, 1993.
Berger, L. Benjamin. “Inducing
Fundamentalism: Law As A Force In The Domain Of Religion.”
Canadian Diversity
9, no. 3 (2012): 25-28.
“Catechism of the
Catholic Church.” Vatican. Accessed
February 15, 2016.
Smith, Wilfred Cantwell, Modern Culture from a Comparative
Perspective. Albany: State
University
of New York Press, 1997.
