Legal Regulation of Non-Mainstream Religious Groups: Perspectives from Economics and Social Psychology
July 19, 2010
IWM Junior Visiting Fellows' Conferences, Vol. 28, 2010
In this paper, I construct a preliminary theory which posits the behavior of religious groups as a fulfillment of three basic aims.
First, the provision of group identity 'bundled' with shared emotions, beliefs and behavioral patterns; second, activities that are meant to sustain mutual cooperation and advance the internal and external credibility of group held religious beliefs, identity and behavioral patterns; and finally, boundary keeping activities, meaning activities related to the preservation of intra-group solidarity and group existence in the face of external or internal pressures.
Additionally, I theorize that law is a tool of social control and regulation and describe the rise of legal institutions as mechanisms to solve the problems of uncertainty. Institutions are built against a particular social background of values, customs, religion and informal rules, and they are charged with making binary decisions on what is legal or illegal. In so doing, legal institutions are subject to influence of social norms which have a psychological impact on legal decision makers (legislators, jurors and judges). In turn, institutions and legal decisions influence social norms themselves.
The major claim of this work is that the contemporary systems for regulating religious groups judge all non-mainstream religious groups by assessing them according to their relative status in the social strata of a given society. The judgment on the status of a given religious group is based on its potential for disloyalty to the state and the perceived social distance of a given group from what is legally constructed as the mainstream.
The 'status judgment' is based of the three major functions of religious groups posited in the theory of religious groups I construct. It is assumed, hence, that the legal evaluation of disloyalty potential and social distance is constructed and structured around the decision-makers perception of group cooperation, credibility-enhancing and boundary sustaining mechanisms of a given religious group under scrutiny. These assesment serves as proxies for assessing the (un)acceptability of emotions, beliefs and identities that precede them, leading to positive or (more frequently) negative legal decision.
This theory is than illustrated with two case studies. First, the legal position of non-mainstream religions in Germany, and a discussion of the Jehovah's Witnesses trial and a headscarf and crucifixes in schools controversy. Second, the Hungarian reenactment of institutional privileges for “historically accepted churches” following the fall of Communism in 1989 and the discussion on failed Jewish organizations' demand for public recognition of Jewish holidays in Hungary.
In the conclusion, I discuss case studies in light of theory, and also explore problematic aspects of the theory in light of cases. I touch on potential for future research in this area, and point to several problematic aspects of the contemporary legal regulation of non-mainstream religious groups. The following identical issues occur as problematic in the case studies analyzed in the paper, as well as in other Western jurisdictions (i.e. the US or France). First, the procrustean bed problem: the attempt of legal systems to push various religious groups into organizational forms that fit only certain versions of organized Christianity. Second, the socially constructed and structured nature of legal argumentation in court cases involving religion, which increasingly looks odd (to say at least) and is further and further removed from contemporary developments and changes in everyday social life. This is another way of saying that the background conditions against which previous cases and precedents were decided are no longer present, and hence a pragmatic need (if not a growing necessity) to reassess the legal treatment of religious groups generally and non-mainstream ones particularly in light of new circumstances.
Keywords: comparative constitutional law, religion, psychology, behavioral economics, sociology, identity, neuroscience, cognitive science
Date posted: July 21, 2010 ; Last revised: September 16, 2012
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