Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion
Mississippi College Law Review, Vol. 27, p. 159, 2007-2008
Mississippi College School of Law Research Paper No. 2008-07
77 Pages Posted: 18 Jul 2008 Last revised: 17 Nov 2015
Date Written: July 11, 2008
The continued vitality of religion has motivated many scholars in sociology, anthropology, political theory, international relations, and philosophy to revisit their assumptions about how religion relates to their disciplines. Despite this robust reexamination in other disciplines, the secularization of law - that the law is or should be independent of any religious foundation or values - arguably constitutes the most widely-held but least-examined assumption of the modern paradigm of law and religion (secularism). This article argues that the widespread acceptance of legal indeterminacy calls into question this secularism and points the way toward the desecularization of the law. Desecularization does not mean returning to the pre-modern paradigm (theocracy) as suggested by contemporary calls for government recognition of the United States as a Christian nation by posting the Ten Commandments, displaying creches, etc. While somewhat exaggerated, the charge of theocracy accurately identifies the implicit assumption that the law is or should be legitimated by a particular religious tradition - the "Judeo-Christian tradition" - in the world's most religiously diverse nation. The Establishment Clause of the First Amendment and a proper understanding of religious pluralism rule out returning to the pre-modern paradigm. They prohibit the law from explicitly adopting a religious legitimation and require that the text of the law be secularized. Nevertheless, the secularized text of the law does not mean that the law has an autonomous secular foundation. As seen by the Muslim headscarf controversy in France, the secularism proposed by the modern paradigm includes or entails a comprehensive or religious foundation for the law that competes with traditional religion. In this respect, the modern paradigm continues rather than supersedes the pre-modern paradigm and contravenes the Establishment Clause and religious pluralism. To move beyond theocracy (pre-modern) and secularism (modern), this article closes by indentifying the trajectory for a new constructive postmodern paradigm that embraces legal indeterminacy and secularizing the text of the law but argues that a plurality of religious convictions implicitly legitimates and thereby desecularizes the law.
Keywords: Religion, Law, Religious Pluralism, Secularism, Secularization, Theocracy
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