Posted on by Marc O. DeGirolami

Davie on Law, Sociology, and Religion

I missed this when it came out a few months ago — Grace Davie’s Law, Sociology, and Religion: An Awkward Threesome — in the Oxford Journal of Law and Religion.  Like all of the journal’s content at present, it is available for free.  And our readers will want to check out this piece.  Here is the opening of Professor Davie’s extremely interesting article:

Lawyers are increasingly interested in religion—for good reason. Religious disputes demand the attention of legal experts—an interest that is likely to grow given that almost all of us live in religiously diverse societies, in which effective forms of co-habitation have to be established and regulated. Sociologists, initially distracted by the assumption that modernization implied secularization, are similarly inclined, spurred on by the presence of religion in public as well as private debates. No longer is it possible to relegate religion to the sidelines of social science. Sociologists, finally, have always been interested in the law—recognizing that the law and law-making reflect the changing nature of society.  The interpretation of law, conversely, sharpens the issues at stake and becomes itself an important factor in social change.

All that said, these can be difficult conversations. Lawyers and sociologists are differently trained and ask different questions about religion, as indeed about everything else. They do not always listen to each other. Lawyers, for example, create and interpret legal frameworks, some of which deal with religion; they are less interested in the messy realities of lived religion as this is experienced in everyday life. If it is one thing to deem certain forms of religion to be legally acceptable and others not, it is quite another to grasp the implications for the individuals and communities, that fall—at times arbitrarily—on one side of the line or the other. Why, for example, do certain religious movements fare better in some parts of Europe than in others? Clearly this has nothing to do with the religious movements themselves, and everything to do with the understandings of tolerance and toleration in the host society, and the historical specificities that lie behind this. Legal judgements must be placed in context.

Professor Davie is surely right to say that lawyers, sociologists, and religious studies scholars are pursuing very different sorts of inquiries and projects, and she is surely also right to say that they nevertheless can learn a great deal from one another.

Posted on by Marc O. DeGirolami · 6 Comments

Dressler & Mandair (eds.), “Secularism & Religion-Making”

Here is a collection of essays by religious studies scholars, Secularism & Religion-Making (OUP 2011), edited by Markus Dressler and Arvind-Pal S. Mandair.  Given the description of the contents of the essays, it should come as no surprise that it has been praised heartily by Talal Asad.  To my mind, it also tacitly suggests why religious studies and law often seem to be academic ships passing in the night.  The publisher’s description follows.

This book conceives of “religion-making” broadly as the multiple ways in which social and cultural phenomena are configured and reconfigured within the matrix of a world-religion discourse that is historically and semantically rooted in particular Western and predominantly Christian experiences, knowledges, and institutions. It investigates how religion is universalized and certain ideas, social formations, and practices rendered “religious” are thus integrated in and subordinated to very particular – mostly liberal-secular – assumptions about the relationship between history, politics, and religion.

The individual contributions, written by a new generation of scholars with decisively interdisciplinary approaches, examine the processes of translation and globalization of historically specific concepts and practices of religion – and its dialectical counterpart, the secular – into new contexts. This volume contributes to the relatively new field of thought that aspires to unravel the thoroughly intertwined relationships between religion and secularism as modern concepts.

Posted on by Marc O. DeGirolami

Classic Revisited: Eliade’s “The Sacred and the Profane”

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.

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The Supreme Court and the Field of Religious Studies

This is an essay by journalist Nathan Schneider with some interesting observations, but also some parts that I think are mistaken.  The point of the piece is to explain why religious studies is an important and useful field for the problems of our day.  The strangest and most anachronistic argument in it is that religious studies came into its own as an academic discipline pretty much as of 1963 with the US Supreme Court’s decision in Abington v. Schempp.  Read more