The “return of religion” has resulted in an existential crisis for secular liberalism. Vigorous debate now centers on what it means for the state and the law to be “secular” or even whether secular neutrality is possible. Critical perspectives on law have put into question the professed neutrality and universality of law, but discussion of the “secular” and secularism focus mainly on redefining those terms without considering the historical connection between law and religion, without defining religion, and without reexamining the nature of law and human rights. In other words, even with these widespread debates, contemporary conceptions of law and human rights remain essentially untouched and intact. These conceptions continue to view religion primarily from the perspective of law (e.g., rights protecting religious liberty) and presuppose that the law is predominantly secular rather than religious. On this account, religion can be contained within the private realm of faith while law circulates freely in the public realm of reason. Postmodern critiques of the modern public/private divide have decreased the distance between faith and reason but provide little insight into a way forward. Rather, they condemn us to a never-ending battle for power among equally true (or equally false) secular and religious convictions.
Each participant will present a paper engaging these issues with the aim of developing post-secular theories of law and human rights. These theories will be informed by different disciplinary perspectives including historical, philosophical, sociological, theological, and aesthetic perspectives that will provide resources for rethinking contemporary conceptions of religion, religious pluralism, secularism, politics, human rights, and law. In addition to theoretical inquires, some papers will explore historical and contemporary cases that illuminate the problematic assumptions of secular liberalism in domestic, international, and comparative law contexts. Moreover, the hope is to advance the contemporary debate by showing that a post-secular world requires a fundamental reworking of conceptions of law and human rights rather than minor adjustments to the prevailing contemporary views.
Friday, March 28th:
9:00–9:15 a.m. Welcome by Dean Rosenblatt
9:15-9:30 a.m. Introduction by Mark C. Modak-Truran
9:30-10:30 a.m. Session 1 (Room 300)
Presenter: John P. Anderson (Mississippi College, School of Law)
Paper: Paintbrushes and Crowbars: A Rortyan Defense of Liberal Neutrality in the Law
I have argued elsewhere1 that liberal neutrality can be maintained in even a post-secular pluralistic society by understanding law as justified by appeal to social practices, as opposed to justification in terms comprehensive foundational commitments. My aim here is different. My goal is not to show how neutrality through a strong public-private divide is possible in the postsecular West, but to draw on Rorty’s work to explain why it is necessary to protect and preserve the West’s most precious values. I shall begin by say something about the new meaning of liberalism’s public-private divide as a guarantee of neutrality in a post-Enlightenment, postsecular West that faces its own contingency. In what remains, I enlist Rorty to defend the crucial importance of maintaining neutrality in law and politics. I argue that preserving this neutrality through a strong public-private divide is the best way to promote and protect the liberal values freedom and equality in our post-Enlightenment world.
10:45–11:45 a.m. Session 2 (Room 300)
Presenter: Larry Catá Backer (Penn. State University, School of Law and International Affairs)
Paper: Secular Liberalism, the Faith Communities State, and the Political Consequences of an Unbalanced Privileging of Religion for Multi-Religious States
Religion has returned to the secular state; does crisis result? Conflating variations of Marxist-Leninist states, whose godless communism” of the 20th century sought to marginalize religion as a political adversary, with the Westphalian state that sought to avoid sectarian conflict by separating the institutional state from the apparatus of religion, modern secular liberal theory has long problematized the role of religion in modern "secular" states. Critics of secular liberal modernity never fully accepted its premises and “post” modernists have sought to undo to “reform” the structures of secular liberalism to provide for a larger space for “religion” in politics and economics. This essay considers the issue of the "return" of religion from a comparative constitutional perspective. Its central premise is that where institutional religion is both protected and engaged in political life through which it seeks to harmonize institutional state and religious government, the resulting system tends to advantage a privileged religion in political life over its political rivals. It develops this thesis by weaving together several stories from developing and developed states where religion has acquired a more privileged role. These illustrate the ways that blasphemy and apostasy laws and the incorporation of religious values skew the nature and application of the rule of law, the nature and limits of direct democracy, the relationship between apostasy and treason, the language of interpretation and the power to participate in that dialogue, and the role of the foreign or minority. The effect is especially pronounced in states formally organized on global secular liberal principles of neutral and tolerant process and values neutrality. It suggests a context for the insight, at the center of secular liberalism’s solicitude for religion, that where the apparatus of institutional religion seeks to enter into the political life of a state its religious beliefs ought not to be accorded any particular deference. It will suggest the nature of the shocks to the constitutional settlement of the U.S. constitution and its now misunderstood model of secularism, which touches on the construction of a shadow religious state within American secular liberalism. To that end the Supreme Court decision in Hobby Lobby is considered in light of the prior discussion.
1:15–2:15 p.m. Session 3 (Room 300)
Presenter: Zachary R. Calo (Valparaiso University School of Law)
Paper: Religion, Human Rights, and Postsecular Legal Theory
This paper aims proposes that religion should neither reject nor embrace but rather transform the idea of human rights by entering into a constructive engagement with the logic and categories of modernity. The language of human rights is the dominant moral vocabulary of the day, and the ability of religious traditions to participate in serious political discourse would be undercut if human rights were to be rejected in toto. At the same time, the task of religion is not to provide a metaphysical superstructure that might sustain the modern tradition of human rights. Rather, theological traditions should advance distinct and particularistic accounts of human rights that challenge the hegemony of the secular tradition. In one respect, this project can be understood as part of the broader contest over the place of religion within liberal politics. As it concerns human rights, the issue is not merely that of defining boundary lines between - the secular state and religious communities, but rather that of reconceptualizing the role of religious communities in shaping the content of human rights. The elemental challenge in advancing constructive thought about the relationship between religion and human rights is thus related to, but ultimately distinct from, the issue of pluralism within legal liberalism. It demands cultivating pluralism not only within law but within our approach to the construction of legal meaning. In this respect, work in the area of human rights is part of a larger project of defining the relationship between normative theology and secular jurisprudence. This in turn implicates the meaning of the secular, and in particular, secular law. Rather than considering this issue from the perspective of constitutional law or applied jurisprudence, it is useful to turn to constructive theology, where some of the most significant work on law and religion is occurring.
2:30–3:30 p.m. Session 4 (Room 300)
Presenter: John D. Haskell (Mississippi College, School of Law)
Paper: The Religion/Secularism Debate in Human Rights from an International Law
In its literature, the adjective ‘modern’ is typically inserted as a preface to the discipline of international law – ‘modern international law’. The rhetoric of modernity within the discipline, in turn, generally designates a liberal posture towards governance, both in terms of describing the nature of conflicts facing transnational regulation and offering solutions through international law. These critical evaluations and normative assessment within the literature are furthermore supported by juxtaposing themselves against what is not modern – whether that means to assert a former period, which is ‘pre’ or ‘early’ modernity, to situate particular actors or ideological predispositions as ‘barbaric’ or ‘anti’-modern, or even to claim that the cosmopolitan project of international law is still trapped within a colonial, or culturally biased, legacy. Academic writing in international law, however, rarely addresses how ‘modernity’ functions within the conceptual vocabulary of the discipline – particularly, what role it might have in shaping its methodological and theoretical assumptions. In this paper, I analyze the rhetoric of ‘modernity’ through its three primary traditions: Christianity, Liberalism, and Marxism. Addressing and contrasting each tradition’s treatment of three key themes – time, history, and the subject – the paper attempts to better understand how ‘modernity’ functions within international legal argument, and concludes by tracing out an alternative perspective forward that draws upon all three traditions, what might be termed, ‘structural jurisprudence’. The underlying argument of the paper is that only by taking all three traditions seriously can policy-makers and scholars begin to overcome not only the current lack of dialogue between contrasting orientations, but perhaps more importantly, break out of the insular and often static disputes and logic that bind their analysis.
3:45–4:45 p.m. Session 5 (Room 300)
Presenter: Kevin Lee (Campbell University, School of Law)
Paper: Proximity and Loyalty: Levinas, Alterity, and Meinhard v. Salmon
This essay considers the possibility that Emmanuel Levinas’s ethics might find space for soulfulness in legal theory. It focuses on one example taken from Benjamin Cardozo’s opinion in a classic case in the law of partnership, Meinhard v. Salmon.2 It suggests that the protection of human rights rests on an immediately apprehended sense of responsibility that Levinas described. The relationship between the sense of responsibility and law is explored through a case in commercial law involving the loyalty that a fiduciary owes to his partner. It suggests that although law depends for its authority on accommodating the sense of responsibility, in the current era the sense of responsibility is attenuated by abstracted entities and virtualized social relations.
Saturday, March 29th:
9:00–10:00 a.m. Session 6 (Room 300)
Presenter: Kenneth Townsend (Millsaps College)
Paper: Norms and Narratives: Law’s Latent Supports and the Challenge of International Human Rights
One of the chief accomplishments of the modern world has been to base legal rights in universal principles of justice, rather than on any particular history, status, or faith. Inspired by Robert Cover’s seminal piece Nomos and Narrative, this paper uses Cover’s distinction between “law as social control” and “law as meaning” to consider these distinct manifestations of law as well as their relationship to each other. In the contemporary West, secularized law, particularly as manifested in liberal political theory, is chiefly conceived as a tool for maintaining social control, not for creating meaning. Nevertheless, world-creating and meaning-making features of law offer “latent supports” that help ensure law’s perpetuation and vitality. These latent supports that aid the actual practice of law in a liberal state are not as available for international legal contexts in which no normative universe unites the nations of the world, thus posing serious challenges for any ambitious human rights agenda. This paper explores the notion of covenant in the context of ancient Israel and the theology of John Calvin to consider the role history and vision play in shaping a community’s legal culture.
10:15–11:15 a.m. Session 7 (Room 300)
Presenter: Mark C. Modak-Truran (Mississippi College, School of Law)
Paper: A Post-Secular Pluralistic Legitimation of Law
The paper raises the issue of how constitutions and more generally how the law are legitimated. Debates about legitimation and legitimacy, however, now preoccupy multiple disciplines including political theory, legal theory, constitutional theory, international affairs, social theory, empirical sociology, social psychology, political theology, and law and religion. These disciplines and the differing positions within them have very different understandings of the process of legitimation and the relevant criteria—normative and/or descriptive—for measuring legitimacy (e.g., legal validity, societal acceptance, principles of justice, theories of democracy, etc.). These multiple layers of disagreement make it difficult to define legitimation without unduly privileging the parochial assumptions of one of these approaches. To avoid this predicament, legitimation as used in this article refers to the process by which the social order—including political and legal institutions—is explained and justified within a larger descriptive and normative context. The need for legitimation arises when existing societal rules, roles, and institutions are challenged. In other words, legitimation aims at integrating society by making the social order understandable to its members objectively and by convincing them of its plausibility subjectively. This article posits that conceptions of legitimation can be divided into three main types—pre-modern, modern, and post-secular. After discussing the pre-modern conception of legitimation based on religion or the cosmos, the two principles of legitimation (democracy and constitutionalism) in the modern conception will be specified along with critical challenges to these principles from postmodernism, feminism, identity politics, religious fundamentalism, and globalization. The article will then identify the strong signs that a post-secular conception of legitimation is on the horizon, which would transform the prevailing modern understanding of the principles of democracy and constitutionalism. Finally, the article will close by arguing that the post-secular conception of legitimation provides the best account of how the law is legitimated in a religiously pluralistic democracy.