When I was a student, one of the best and most insightful books on the quality of religious experience that I came across was Wayne Proudfoot’s Religious Experience (1985). Proudfoot’s exploration is important for law in a variety of ways, one of which may be that it may be seen as in conversation with the “is-religion-special” literature that is now emerging in legal scholarship. Proudfoot’s emphasis on the noetic quality of religious experience (building upon William James’s writing in deeply interesting ways) has influenced my own thinking about the nature of the experience at issue in cases like Lyng v. Northwest Indian Protective Cemetery Ass’n and others. Here is a passage from the introduction of the book:
This book is about the idea of religious experience which has been so influential in religious thought and the study of religion in the past two centuries. It is an examination of some of the most important theories of religious experience, an elucidation of the idea or concept as it is presupposed by such topics as mysticism and reductionism in the study of religion, and a consideration of the implications of these theories and this idea for contemporary issues in the philosophy of religion. Particular attention will be given to the way people come to understand or interpret their behavior and what is happening to them, and under what conditions they label certain bodily or mental states religious.
Today’s classic revisited is one in the sociology and history of religion, Mircea Eliade’s The Sacred and the Profane: The Nature of Religion, first published in 1957 (the first edition pictured at right). The field of religious studies, unlike theology, is a comparatively new one — beginning in earnest in the 19th century and heating up only in the 20th. One connection to law is the ‘definition-of-religion’ issue: how can we find an essence or core of what religion is — and so what the scope is of the constitutional commitments against its establishment and to its free exercise. The issue appeared in some of the Supreme Court’s mid-twentieth century conscientious objection to military service opinions, which, while not strictly about the Constitution (they were statutory interpretation decisions), confronted the Court with the problems of how to distinguish a religious reason of conscience from a different sort of reason, and whether to do so at all. But there are other less obvious and so far unexplored connections to law, particularly constitutional law.
The eminent and supremely cultivated theorist and historian of religion Mircea Eliade, Romanian by birth, taught at the University of Chicago after a turbulent early life. Together with Joachim Wach and others, Eliade made Chicago the heart of the academic study of religion in the mid-late-20th century, and to this day it retains some of the preeminent figures in religious studies (J.Z. Smith, Martin Riesebrodt, and Jean Bethke Elshtain, among many others).
Though Eliade never had any particular influence on the Court (a treatise of his was cited in the majority opinion in the Lukumi Babalu decision, as well as in a handful of 2d and 3d circuit decisions), his ideas about the nature of religious experience are extremely interesting and possibly deserve further study by legal scholars and courts — including by those interested in the psychology of originalism. One of Eliade’s crucial ideas was that the conceptions of “sacred” and “profane” time differ fundamentally. In sacred time, every time that we engage in a ritual or a ceremony, it serves to reactualize the “mythic beginning” which is “indefinitely recoverable, indefinitely repeatable.” (69) Sacred time is therefore cyclical; while profane time is linear. That “beginning” is not to be found in a historical moment because no time can precede “the appearance of the reality narrated in the myth.” (72) It is in this way that sacred time (and, we might say, sacred legal time) creates fissures or what Eliade called moments of “hierophany” in the humdrum linearity of profane time, in which a (legal) “beginning” is recalled and reactualized in (legal) ritual.
Eliade’s writing (laced in part with the writing of Freud and Jung) has not penetrated the constitutional discourse, but it has something worthwhile to offer.