Americans are fond of unity talk: we see ourselves as "one nation, indivisible," and in pursuit of "a more perfect union." But much of our actual existence is characterized more by difference and disagreement than by unity. We lack agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing.
These differences are evident in our religious and legal practices. Religion asks the fundamental questions of human existence: why are we here, is there a God, what is good and what is evil, what happens when we die? We do not get to hedge our bets in answering these questions. Whatever we conclude, whatever we choose to believe, we all live into one and only one set of beliefs. As New Testament scholar Kavin Rowe asserts, "the human condition is such that you have to choose how to live from among options that rule one another out." (1) And we make that choice trusting in things unseen: "we wager our lives, one way or the other," because "we cannot know ahead of the lives we live that the truth to which we devote ourselves is the truth worth devoting ourselves to." (2)
Law, like religion, raises fundamental questions of our existence. Law is the means through which we impose our beliefs on our fellow citizens. We do so not through gentle persuasion but through coercion rooted in the threat of violence. In the haunting words of legal scholar Robert Cover, "legal interpretation takes place on a field of pain and death." (3) All of our laws, even mundane laws like property taxes and speed limits, are given power by the credible threat of state violence that underlies them. (4)
Most legal and religious understandings are sustained by texts. The communities in which these understandings unfold are constantly and contingently arguing about the meaning and coherence of the words in those texts. In other words, the lived practices of law and religion--their quests for meaning and coherence--depend on interpretation. That interpretation typically stands somewhere between a rigid formalism that brooks no ambiguity and an open-ended pragmatism that admits no foundations. Most of us fall somewhere in between these poles of certain absolutes and absolute uncertainty. We have another name for this uncomfortable middle ground: we call it trust, or perhaps even faith. (5)
Trust, in both legal and religious practices, is the way we go on in the world. We all exercise trust, whether we have deep religious belief or no belief. We trust that God exists, or that God does not exist, we trust that certain acts are good or evil, we trust that we will or will not be judged for our acts in this lifetime or the next. The need for trust permeates the substance of law and religion. Take, for example, the idea of "justice." Some people claim to know justice from religious precepts; others believe that it is knowable apart from religion, or perhaps that it comes from being on "the right side of history." (6) But claims about justice are ultimately uncertain. (7) We cannot prove them like a mathematical equation or a lab experiment, and we cannot know how future generations will judge our justice claims. (8)
Our lack of certainty affects the most basic aspects of our lives. We experience the promises of marriage, friendship, and employment only to the extent that we, and those around us, live up to those promises on any given day. In our relationships with others, we trust, which means that we risk. In the words of theologian Lesslie Newbigin: "Personal knowledge is impossible without risk; it cannot begin without an act of trust, and trust can be betrayed." (9) This is especially true of those commitments that are not backed by legal obligations. But it is generally true of all relationships. And it is thus through trust--and risk, and faith--that we live out the particulars of both law and religion, in our relationships with one another.
Law and religion point to the deepest questions of our existence, and our relationships with each other. But law and religion in the world exist only in their particulars. We do not encounter "law" as such, but a liberal understanding of constitutional reasoning, or a conservative view of statutory interpretation. We do not experience "religion" as such, but Roman Catholicism, or Sunni Islam. There are no such things as beliefs, rituals, or adherents in "law" or "religion" in general. Rather, the particularized forms of law and religion are sustained by tradition-dependent practices--communities of people and institutions with histories that shape their purposes and values. (10) These practices are constantly renegotiating both their internal norms and their relationships to the world around them. (11)
The challenge of pluralism emerges out of these intersecting relationships across difference. We do not choose pluralism; rather, we encounter it in the world as we find it--a world of competing religious and legal claims. (12) The challenge of pluralism generates three possible responses: chaos, control, or coexistence.
Chaos is not sustainable in the long-term. It falls flat as a political possibility, leading ultimately to a violence that destroys lives. Hobbes called it "the war of all against all." (13) We have built norms, structures, and institutions to protect against chaos, but we can never take its absence for granted. We are rarely as far away from chaos as we'd like to believe.
Control finds its logical end in either theocracy or totalitarianism. Some people in our country are lured by this possibility of control. We have seen this in the nostalgia and nativism from some on the Right. (14) We also see it in the moralistic assurances by some on the Left, who believe that opposing viewpoints are simply bigoted or ignorant and therefore worthy of suppression. (15)
I have been writing lately...