The Plight of the Secular Paradigm
Smith, Steven D., Notre Dame Law Review
Ever since the Peace of Westphalia, or in any case since the Enlightenment, or possibly from the enactment of the American Constitution, or at least since the early twentieth century, or most definitely over the last couple of decades or so, it has been accepted in western nations and their progeny, among dominant minorities anyway (to borrow a term (1)), that governments and the laws they impose must be "secular" (whatever that means). (2) This requirement of governmental secularity has been argued for, or at least asserted, or in any case assumed, in law (3) and in political theorizing. (4) "[T]here is a broad consensus," Jocelyn Maclure and Charles Taylor approvingly report, "that 'secularism' is an essential component of any liberal democracy composed of citizens who adhere to a plurality of conceptions of the world and of the good...." (5)
The requirement of secular government has been central to what I will call the prevailing "paradigm of legitimacy." Governments or laws that transgress the requirement by straying beyond the secular and lapsing into "religion" (whatever that is (6)) thereby imperil their legitimacy and compromise their claim on their subjects' respect and obedience. Or at least so it has been widely supposed.
The secular paradigm as a basis of political and legal legitimacy was not always in place, (7) however, and it is not foreordained that the paradigm always will be in place. On the contrary, there are indications that the paradigm is already losing its grip--that it may even be in a condition of crisis, or breakdown. Thus, Rajeev Bhargava argues for a rehabilitation of secularism precisely because, as he observes, "[o]nly someone with blinkered vision would deny the crisis of secularism." (8)
This Essay explores this perceived crisis. Part I discusses the nature of a "paradigm of legitimacy." Part II outlines the strategies of assimilation and marginalization that historically have supported such paradigms and, borrowing from the work of Thomas Kuhn and Arnold Toynbee, considers the paradigm shifts that can occur when these strategies prove ineffective. Part III illustrates these observations by reviewing the process by which, beginning in the fourth century, a Christian paradigm replaced an earlier Roman one and then in turn was displaced by a more secular view. These first three Parts are a prelude to Part IV, the longest in the essay, which discusses the rise of the secular paradigm, the strategies that have supported it, the increasing futility of those strategies, and the consequent present distress. As part of that discussion Part IV considers a potentially crucial distinction--between a secular paradigm of legitimacy and a paradigm of secular legitimacy--that is usually overlooked in contemporary discussions. The conclusion briefly reflects on the prospects.
I. PARADIGMS OF LEGITIMACY
Governments claim legitimacy. Not everyone will be persuaded by such claims, of course, or even by the proposed distinction between "legitimate" and "illegitimate" rule. Augustine recounted the story of a pirate captured by Alexander the Great. Asked by Alexander what he meant by marauding on the seas, the pirate answered, "What you mean by warring on the whole world. I do my fighting on a tiny ship, and they call me a pirate; you do yours with a large fleet, and they call you Commander." (9)
The story is provocative precisely because it challenges a distinction that is familiar, and a claim that governments make, probably of necessity. Governments claim that there is such a thing as "legitimacy," that they possess it, and that in this respect they are different from other wielders of power (such as pirates, or gangsters).
Legal theorists make a similar point with respect to law. Law claims "authority," which can be another name for, or alter ego, or at least close sibling of, legitimacy. (10) There is a crucial difference, H.L.A. Hart famously maintained, between the mugger who demands your wallet and the tax collector who demands your payment; unlike the mugger, as an agent of the (presumptively legitimate) government the tax collector claims authority and imposes, or purports to impose, obligation. …