The Return of Religion: The Rise, Decline, and Possible Resurrection of Legal Secularism

AuthorNomi Maya Stolzenberg
Pages274-290
The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.
© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.
Where is Law and Religion?
Few subject areas occupy as uncertain a place in law and legal studies as religion.
Unlike other identity categories, such as race, gender, or sexuality, religion has not
been widely embraced as a protected status or basis of victimization that belongs in
the field of discrimination law. Nor has religion secured a strong foothold as a theo-
retical framework or legal methodology, as other philosophical systems have, such
as economic and moral philosophy. In part this is owing to confusion about what
religion is. Is it a system of philosophical thought, a theoretical lens like economic
analysis and moral philosophy through which legal issues are fruitfully analyzed? Or
is it a category of personal identity, a status category that takes its place alongside
other categories of personal identity and group affiliation? Is it a method of analysis
or an object of analysis? And if an object, what kind? A property of groups and insti-
tutions or of individuals? Creed or culture? Belief or behavior? Political peoplehood
or personal spirituality?
The persistence of these definitional questions without any clear answer is just one
reason for religion’s uncertain place on the map of legal studies. (Addressing these
definitional questions is its own scholarly subgenre.) A more fundamental reason for
religion’s uncertain place in the scholarship of law is that its place in modern society
is itself uncertain. A hallmark of modernity has been the dethroning of religion from
reigning mode of thought to object of intellectual analysis. Where once theology was
the “queen of sciences,” religion has increasingly come to be viewed as an anthropo-
logical phenomenon, a product of human cultures and subjective beliefs that evolve
over time. The backlash unleashed in response to this deflationary view of religion is
well documented; it is indeed one of the defining features of the modern world.
The Return of Religion
The Rise, Decline, and Possible Resurrection
ofLegal Secularism
Nomi Maya Stolzenberg
18
The Return of Religion 275
Conservative reaction against the relegation of religion to the private domain of
personal opinion has manifested itself in every major faith tradition: from the
movement that gave birth to American Protestant fundamentalism at the end of the
nineteenth century to the ascendance of the “moral majority” that united Christian
evangelicals with conservative Catholics in the latter decades of the twentieth century;
from the emergence of ultra‐Orthodox forms of Judaism in pre‐war Europe to their
post‐war transplantation to Israel and the United States; from the rise of Islamic fun-
damentalism and the creation of new Islamic republics to similar blends of nation-
alism and religious traditionalism in Shinto, Hindu, and Buddhist societies. No
religion, it seems, has a purchase on moderation; every religion has its militant and
extremist forms as well as its more liberal formulations. Taken together, the moderate
and extremist wings of religiosity represent a broader phenomenon of which reli-
gious fundamentalism is merely a part, namely, the manifest desire of people all
around the world to preserve, or return to, religious tradition.
The observation of this widespread and persistent religiosity has led to a growing
body of scholarship challenging the long‐regnant “secu larization thesis,” according
to which history is moving inexorably in the direction of secularization and religion
is destined to wither away. Some of this literature is more sociological in nature,
pointing to the persistence of religious faith and faith‐based forms of social affilia-
tion and the widespread resistance to denying religion public authority (Casanova
1994: Berger 1999). Other contributions are more theoretical, questioning whether
the public authority of religion over the state was ever really taken away (Asad 2003).
In both of these forms, the critique of the secularization thesis has transformed mul-
tiple academic disciplines, from literary and critical theory to history (Sheehan
2003), political theory (Taylor 2007), sociology (Casanova 1994; Berger 1999) and
anthropology (Asad 2003). Historian Jonathan Sheehan has documented the “return
to religion” across a variety of research areas, in particular, the history of the
Enlightenment and the history of science (where religious thought is now viewed as
foundational to modern thought rather than its foil), in addition to the more obvious
subjects of the history of Protestantism and Catholicism, Jewish history, and African‐
American history (Sheehan 2003). At the same time, the critique of the secular
nature of the modern state has sparked a revival of interest in the topic of political
theology, which has swept across the fields of continental philosophy (Agamben
1998), literary theory (V. Kahn 2014), political theory (P. Kahn 2012) and critical
th eo r y.
Taken together, these re‐evaluations of the place of religion in the history of
modern ideas have produced a radically new view of the relationship of modernity
to religion. This revisionist view questions the secular nature of modern society and
the supposed antinomies between religion and reason, religion and modernity,
religion and Enlightenment – with some going so far as to question the dichotomy
between religion and secularism itself. Curiously, however, this revisionist view has
not yet taken hold in the legal academy. To be sure, more than a few legal scholars
have joined in the current vogue for the work of Carl Schmitt, whose conservative
conception of political theology purports to expose as illusory the liberal ideal of the

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT