ABSTRACT
In the academic study of religion in the U.S., it is a commonplace to express anxiety about the legitimacy of comparing religions. Such anxiety has complex roots, but for the moment I will just note the anxiety.1 In the academic study of law in the U.S., it is likewise a commonplace to bemoan the incoherence within the body of law that constitutes the authoritative interpretation of the religion clauses of the First Amendment. What I will suggest here is that these two anxieties, and the structure of the larger academic discourses of which they are a part, are related: the instability of the category of religion itself and of other categories used by both religion scholars and legal practitioners to talk about religion is both a cause and a result of the widespread failure of the increasingly anachronistic legacy of the separation of church and state, as conventionally understood. The ongoing negotiation, over centuries, between law-increasingly secular law-and religion-post-reformations religion-has been one of the primary sites on which the modern state has taken shape. It has been, in part, through the medium of modern positivist law that the state has exercised its sovereignty over modern life (see, for example, Goodrich 1995; Murphy
1997; Sullivan and Yelle 2005). The resulting law is singularly self-referential, autonomous, and formalist in its hermeneutics-and utilitarian in its philosophy. Other cosmologies and anthropologies, religious and otherwise, to which modern legal ideas and institutions continue to be indebted, were, and are, often not seriously acknowledged, by legal and non-legal scholars alike. Formalist and positivist understandings of law have, to be sure, been the subject of criticism within legal studies for some time from a number of different perspectives (see, among many others, Sarat, Garth, and Kagan 2002; Douzinas, Goodrich, and Hachamovitch 1994). The religious critique is, in some ways, a late-comer to the demand by many that modern law needs re-connecting with the rest of life. And it brings with itself tensions and divisions within religious studies. I myself am extremely dubious about projects that propose the need for a “reconciliation” between law and religion (e.g. Berman 1993). I do not think that contemporary law needs to “get religion.” But law does need to take religion seriously. Those who make, enforce, and study the law need to understand religion and understand the relationship-both historically and structurally-between legal and religious ideas and institutions. It is important because religion is apparently not going to go away and it is important because we need to be intentional about the way we think about the legal regulation of religion in an increasingly pluralistic society. Slogans about the natural wonders of the “rule of law” and of “religious freedom” are insufficient. We need to think in detail about why and how and whether religious ways of life-religious ways of life in detail, not religion in general-should be legally accommodated or prohibited. We need to think about the relative advantages and disadvantages to various legal arrangements-and about how and whether scholars of comparative religion might participate in the design and administration of such laws. Any legal regime depends on comparative categories. Unlike religion scholars, lawyers do not have the luxury, often voiced by religion scholars, of refusing to compare. J. Z. Smith has noted that no one has the luxury of not comparing; comparison, he points out, is basic to thought (1978, 240). As for law, the use of categories, as I have said, is necessary to the law. Even legal systems that are described as treating each case as entirely uniquesuch as those described by legal anthropologists in places as diverse as Morocco and Tibet-make use of categories in deciding cases (e.g. French 1995; Rosen 1989). It is not the use of categories itself that causes the problem in religion cases. The problem is the extent to which the categories that are used by the law to think about religion in particular are intellectually defensible and sufficiently grounded in shared cultural assumptions to warrant their reification in law, a reification that necessarily implies violence.
