Putting the Legal in Religious Legal Theory

I just finished reading Samuel Levine’s essay RLT: A Preliminary Examination of Religious Legal Theory as a Movement, which considers the challenges facing the creation of a Religious Legal Theory (RLT) movement akin to Critical Legal Studies, Law & Economics and Empirical Legal Studies.  As Levine notes, the growing – and, to mind, successful – Religious Legal Theory conferences (the three annual RLT conferences thus far have been held at Seton Hall, St. John’s and Pepperdine) indicates that there is a conglomeration of research and scholarship revolving around some central concept captured by the label “religious legal theory.”

Among the challenges to the RLT movement detailed by Levine, I was most drawn to the tension between the pluralism embedded within RLT – it brings together different methodologies, disciplines and faith perspectives – and the need for a movement to advance a “foundation of meaningful concepts” in order to retain coherence, integrity and longevity.

As I’ve thought about this challenge, I’ve wondered whether RLT can do more to capitalize on the legal within religious legal theory.  By that I mean, further focus its efforts on the ways in which religion and religious life incorporates legal structures and norms.  This inquiry might itself be described as two-fold: to what extent does religious life mimic that of a legal system – and how might those similarities impact the nation-state’s treatment of religion.  As example, RLT might further explore the methods of authority, interpretation, and norm-creation within religious communities and compare those methods to compare to other legal structures.  Moreover, to the extent religion and law share important similarities, questions of accommodation, deference and enforcement might require considering religion alongside, for example, international law and foreign law where the nation-state has contemplated navigating the competing claims of conflicting legal norms.  Such an approach would incorporate insights of legal pluralism, international legal theory, political philosophy, and indigenous law into the RLT movement.

This is not to say that this isn’t already happening; to the contrary, there is growing amount of writing on this very issue – and probably more to come in light of the Supreme Court’s recent pronouncements in Hosanna-Tabor v. EEOC.  Some examples that come to mind – just to name a few – include Paul Horwitz’s work on First Amendment Institutions (here and here), Joel Nichols recent book Marriage and Divorce in a Multicultural Context, Ayelet Shacher’s book Multicultural Jurisdictions, Perry Dane’s work on church autonomy and legal pluralism (see, e.g., here and here), Rick Garnett’s work on religious institutions, (see, e.g., here and here), Chaim Saiman’s Jesus Legal Theory, and Mark Movsesian’s Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence.

Consider this a pitch for more of the same and for moving this focus into the center of the RLT movement.

Leave a Reply

%d bloggers like this: