Academic journal article Washington and Lee Law Review

Comparing Religions, Legally

Academic journal article Washington and Lee Law Review

Comparing Religions, Legally

Article excerpt

I. Introduction

Religion and law, in some form, seem to exist in every society. Each, broadly understood, offers explanations for life on earth and how it ought properly to be lived. Sometimes religion and law compete for power but more often they share and influence each other's notions about what it means to be a human being and what it means to live with other human beings in the world. For example, although religion looks very independent in modern societies-free, as we say-the choices of religious individuals and religious communities with respect to their religious practices are profoundly limited by secular laws governing zoning, crime, tax, labor, families, etc., as well as the overarching ethos and ideology of the modern "rule of law." In many cases today it is law, rather than religion, that tells us who we are and what we may do. But... while modern law itself looks deeply self-contained, all-powerful and secular, we know that it was profoundly shaped by religion in its origins and continues to depend in fundamental ways on religious understandings of the nature of the human person and of society. This interdependence of law and religion is hard for us to see because we have been taught to believe in the effectiveness and necessity of disestablishment... but if we look carefully, it is there.

I will talk this afternoon about one aspect of this interdependence. I will talk specifically about the kinds of words that legislators and judges and lawyers use when they talk about religion-in statutes, in courtrooms, and in legal decisions ... and I will talk only about the modern Anglo-American context, although there are interesting ways in which this linguistic interdependence reveals itself across space and time in human history. I am going to talk about some contemporary British cases-and use those cases as examples to help us to think more broadly about the relationship between law and religion in the modern West.

Historically speaking, the conditions of this relationship of law and religion changed significantly in the early modern period when law began to be separated from religion and religion became an object of law ... and once the new nation-states of Europe began acknowledging the religious fragmentation and diversity of their populations. At one time, the Roman Church had mostly acted as legal spokesperson for Christians. When the Roman Church lost its monopoly after the Reformation and modern states developed independently of the churches, it was no longer sufficient to leave that language about religion to the churches. Modern societies then needed to develop a working legal language about religion to allow them to effectively and persuasively regulate religion-now that it had been separated. This new language was necessary for the purpose of protecting religious freedom, for the purpose of preserving the neutrality of government, and for the simple purpose of managing the religious lives of a country's residents. People of Europe began to think of religious identity as separate from political identity and citizenship. In most cases, this new language was largely borrowed from the dominant religious tradition: As a simple example, the synonyms for religion in the west, "faith" and "belief are largely derived from a Christian theological understanding of the proper relationship of individuals to their god and often makes a poor descriptor for other religious ways of being. Law has also borrowed from other languages about religion, languages developed by philosophers, anthropologists, sociologists, and those who study comparative religions.

We do not have time this afternoon to trace this entire history, although it is arguably at the heart of the modern relationship and remains fundamentally unresolved today. We will move quickly to twentieth century Britain and look at how the later results of these changes are still working themselves out. My argument in the larger project, of which this is a part, will be that the way in which lawyers and legislators and judges talk about religion is a function of its church/state arrangements. …

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