After Secular Law (The Cultural Lives of Law)

After Secular Law

THE CULTURAL LIVES OF LAW Edited by Austin Sarat

After Secular Law Edited by

WINNIFRED FALLERS SULLIVAN ROBERT A. YELLE MATEO TAUSSIG-RUBBO

S ta n for d L aw B oo k s An Imprint of Stanford University Press Stanford, California

Stanford University Press Stanford, California © 2011 by the Board of Trustees of the Leland Stanford Junior University No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Library of Congress Cataloging-in-Publication Data After secular law / edited by Winnifred Fallers Sullivan, Robert A. Yelle, and Mateo Taussig-Rubbo. ╇╇╇╇╇ pages cm. — (The cultural lives of law) ╇╇ Includes bibliographical references and index. ╇╇ isbn 978-0-8047-7536-6 (cloth : alk. paper) ╇╇ 1.╇ Religion and law.╇ 2.╇ Secularism.╇ I.╇ Sullivan, Winnifred Fallers, editor of compilation.╇ II.╇ Yelle, Robert A., editor of compilation.╇ III.╇ Taussig-Rubbo, Mateo, editor of compilation.╇ IV.╇ Series: Cultural lives of law. bl65.l33a38 2011 201'.72—dc22╇╇╇╇╇╇ 2011002323 Printed in the United States of America on acid-free, archivalquality paper Typeset by at Stanford University Press in 10/13 Minion

for Frank Reynolds

Acknowledgments

This volume is the result of several years’ work and the generous support and contributions of many institutions and individuals. We are grateful to the Baldy Center for Law and Social Policy at the University at Buffalo Law School, in particular Lynn Mather and Rebecca French, directors of the Baldy Center during this time, as well as the rest of the Baldy staff, who warmly and expertly assisted us in our efforts. We would also like to acknowledge our appreciation of the American Academy of Religion for supporting this work with a Collaborative Research Grant. Each of us thanks our home institutions, the University at Buffalo Law School and the University of Memphis, for their support of our work, and our colleagues, for their enthusiasm, critique, and forbearance. We are also grateful for the generous editorial support given us by Kate Wahl at Stanford University Press and for the careful and thoughtful readings of the manuscript by the press’s anonymous reviewers. Finally, we thank Kristin Tobey and Brin Stevens for their timely and professional copy-editing, and Mary Voglmayr, faculty assistant without compare, who ably organized and smoothed communication, travel, and manuscript preparation and submission.

Contents

Contributors Introduction w innifre d fal lers sul livan, rob ert a. ye l le, and mate o taussig-rubb o

xi 1

Part I. Histories of the Legal Secular 1. Moses’ Veil: Secularization as Christian Myth rob ert a. ye l le

23

2. Secular Law and the Realm of False Religion jakob de ro over

43

3. Assenting to the Law: Sacrifice and Punishment at the Dawn of Secularism jonathan she ehan

62

4. National Security and Secularization in the English Revolution of 1688 r ache l weil

80

5. “Intolerance of Intolerance” in the Unitarian Controversy: The Theology of Baker v. Fales stephanie l. phil lips

101

6. The University and the Advent of the Academic Secular: The State’s Management of Public Instruction tomoko masuzawa

119



CONTENTS

7. Stasiology: Political Theology and the Figure of the Sacrificial Enemy ban u bargu

140

8. Against Sovereign Impunity: The Political Theology of the International Criminal Court bruce rosensto ck

160



Part II: Ethnographies of the Legal Secular

9. Sovereign Power and Secular Indeterminacy: Is Egypt a Secular or a Religious State? hussein ali ag r ama

181

10. The Ruse of Law: Legal Equality and the Problem of Citizenship in a Multireligious Sudan noah salomon

200

11. The Religio-Secular Continuum: Reflections on the Religious Dimensions of Turkish Secularism mar kus dressler

221

12. “The Spirits Were Always Watching”: Buddhism, Secular Law, and Social Change in Thailand dav id m. enge l

242

13. Secular Speech and Popular Passions: The Antinomies of Indian Secularism thomas blom hansen

261

14. Courting Culture: Unexpected Relationships between Religion and Law in Contemporary Hawai‘i g re g johnson

282

15. The Peculiar Stake U.S. Protestants Have in the Question of State Recognition of Same-Sex Marriages mary anne case

302

16. Sacred Property: Searching for Value in the Rubble of 9/11 mate o taussig-rubb o

322

17. When Is Religion, Religion, and a Knife, a Knife—and Who Decides?: The Case of Denmark t im jensen

341

Index

365

Contributors

            is Assistant Professor of Anthropology and of the Social Sciences at the University of Chicago. His book manuscript on law, religion, and secular power in contemporary Egypt is currently under review.       is an Assistant Professor of Politics at the New School for Social Research and Eugene Lang College, where she teaches political theory. She has been the recipient of numerous teaching and research awards, including the John M. and Emily B. Clark Award for Distinguished Teaching. She is the author of the book manuscript “Human Weapons: Biopolitics and the Death Fast” (under review for publication) and is currently working on a new manuscript entitled “Sovereignty, Sacrifice, and Sedition.”           is Arnold I. Shure Professor of Law at the University of Chicago. Among the fellowships she has held are the – Crane Fellowship in Princeton University’s Program in Law and Public Affairs and a  Bosch Public Policy fellowship at the American Academy in Berlin.           is a Postdoctoral Fellow of the Research Foundation Flanders FWO at the Research Centre Vergelijkende Cultuurwetenschap, GhentÂ� University, Belgium. His research concerns the secularization of political theory in general and the emergence of the liberal model of religious toleration in modern Europe and its implementation in colonial and postcolonial India.               is Assistant Professor at Istanbul Technical University. He is co-editor of Secularism and Religion-Making and Sufis in Western Society. Currently he is finishing a book manuscript on the role of religion in the formation of Turkish nationalism.  .  is SUNY Distinguished Service Professor at the Law School of the University at Buffalo, State University of New York. A former president

xii

CONTRIBUTORS

of the Law and Society Association, his most recent books include Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand and Fault Lines: Tort Law as Cultural Practice.                 is the Reliance-Dhirubhai Ambani Professor of South Asian Studies and Professor of Anthropology at Stanford University. He has published widely on Hindu nationalism, Hindu-Muslim conflicts in South Asia, and the anthropology of the postcolonial state. Recent publications include Wages of Violence: Naming and Identity in Postcolonial Bombay, and Melancholia of Freedom: Social Life in an Indian Township in South Africa.   is Associate Professor, Historian of Religions, Department of the Study of Religions, Institute of Philosophy, Education, and Religion, University of Southern Denmark, Odense. He is also General Secretary of the International Association for the History of Religions.            is Associate Professor and Chair of the Department of Religious Studies at the University of Colorado, Boulder. His recent publications include Sacred Claims: Repatriation and Living Tradition and “Social Lives of the Dead: Contestations and Continuities in Native Hawaiian Repatriation Contexts,” in Culture and Belonging: Symbolic Landscapes and Contesting Identity in Divided Societies.         is Professor of History and Comparative Literature at the University of Michigan. Her publications include In Search of Dreamtime: The Quest for the Origin of Religion and The Invention of World Religions: Or How European Universalism Was Preserved in the Language of Pluralism.          .        is Professor of Law at the University at Buffalo, State University of New York. She has taught numerous courses and seminars exploring intersections of law and religion. Her current focus is upon theologies of religious pluralism, used as lenses for interpretation of the First Amendment religion clauses.    is Associate Professor in the Department of Religion at the University of Illinois at Urbana-Champaign. He is the author of New Men: Conversos, Christian Theology, and Society in Fifteenth-Century Spain and Philosophy and the Jewish Question: Mendelssohn, Rosenzweig, and Beyond.   is Assistant Professor of Religion at Carleton College where he teaches courses in Islamic Studies. His research and writing has focused on contemporary Sufi thought and poetic genres, debates in Islamic knowledge



CONTRIBUTORS xiii

and jurisprudence, Islamic political thought and praxis, and the changing fortunes of the idea of “the Islamic state” in contemporary Sudan.   is Associate Professor of Early Modern European History at the University of California, Berkeley. He is the author of The Enlightenment Bible: Translation, Scholarship, Culture, which won the George Mosse Prize from the American Historical Association.                       is Professor of Law and Director of the Law, Religion, and Culture Program at the University at Buffalo, State University of New York. Her published works include Paying the Words Extra: Religious Discourse in the Supreme Court of the United States, The Impossibility of Religious Freedom and Prison Religion: Faith-based Reform and the Constitution.          -     is associate professor of law at the University of Buffalo Law School. He earned a doctorate in anthropology from the University of Chicago and a law degree from Yale Law School. His research has focused on military outsourcing, immigration detention, and piracy in the Gulf of Aden. Taussig-Rubbo is the author of several articles on sacrifice, including ‘‘Outsourcing Sacrifice: The Labor of Private Military Contractors,’’ Yale Journal of Law & the Humanities ().    is Associate Professor of History at Cornell University. Her first book, Political Passions: Gender, the Family and Political Argument in England –, was published in . She is currently working on a book tentatively entitled A Plague of Informers: Liberty, Security and the Credit of the Government in England after the Revolution of .          is Assistant Professor in the Department of History and the Helen Hardin Honors Program at the University of Memphis. He is the author of Explaining Mantras: Ritual, Rhetoric, and the Dream of a Natural Language in Hindu Tantra (Routledge ) and a number of journal articles. He received a fellowship from the John Simon Guggenheim Memorial Foundation in .

After Secular Law

Introduction w innifre d fal lers su l l iva n rob ert a. ye l l e mate o taussig-ru bb o

Losing Faith in the Secular An easy assumption in much academic writing for a century or more has been that a key feature of the modern era and social order, whether this is understood to have begun in the twelfth, sixteenth, or eighteenth century, is the progressive immanence of our concerns and our references. The separation of the state and of its various institutions, including law, from religion, and with this the religious neutrality of the state (and the political neutering of religion), has been conceived as not only central to the emergence of this new order, but also necessary for its preservation and for the achievement of the justice that it is supposed to guarantee. Given the prevalence of this assumption, it is perhaps surprising how quickly “secular,” “secularism,” and “secularization” have recently come to be seen as highly unstable terms in academic discourse. Whether it is their etymological and discursive origins, their present definition, or their inseparability from dubious projects of modernity and “the West,” these categories have been called into question by an ever-expanding number of books, articles, and conferences. There is a significant urgency, even a sense of panic, to much of the new discussion about the secular, as if getting control of the words might alone hold back history and provide a foundation for the reconstitution of political order. This urgency has been exacerbated by several developments, including especially the rise of religious movements, both in the United States and abroad, that have challenged long-settled assumptions and contributed to what now appears to be an existential crisis for secular liberalism.



sullivan, yelle, and taussig-rubbo

Criticism of the assumptions underlying secularization was not entirely absent in the past; consider Karl Marx on the Jewish question1, or Carl Schmitt’s arguments in Weimar Germany that modern law has its own “political theology.”2 For the most part, however, secularism was treated as an unproblematic background condition. In the last twenty years or so, this background has become foreground. Historians, sociologists, anthropologists, and political theorists are insisting in various ways on the persistent relevance of religion or of the “sacred.” Among others, sociologist José Casanova’s  Public Religions in the Modern World, anthropologist Talal Asad’s  Formations of the Secular, philosopher Charles Taylor’s  A Secular Age, and the new salience of “political theology” in both Continental and Anglo-American political thought, have reoriented the conversation, placing questions about secularism at the top of the agenda for many social and political theorists.3 These works and others have decentered the secular, urged a new relevance for religion, and insisted on the existence of multiple modernities and diverse ways of relating religion to the public order. Such scholarly trends highlight the changes to religion and to governance that have occurred since the accommodations of the early modern era. It is now better understood that religion, like secularism, takes plural forms, some of which fit uncomfortably with the liberal modes of thought dominant in Euro-American societies. Some of these deviations from the paradigm of liberal secularism extend the promise of multiculturalism, but some also appear to challenge key assumptions of traditional theoretical models justifying public order, and to expose vulnerabilities in the sovereignty of the secular state. It is the purpose of this volume to focus attention on one domain in which questions of the secular have received relatively little detailed attention—namely, that of law: how did law become secular, what are the phenomenology and social and individual experience of legal secularism, and what are the challenges that taking into account religious formations poses for modern law’s self-understanding? The value of the rule of law as a necessary element in global development is largely taken for granted. Great hope is placed in law, properly understood and administered, as a vehicle for the transformation of society. Most movements for modern reform also accept without question law’s account of itself as autonomous, universal, and above all, secular—meaning, in the first instance, religiously neutral, but also, more strongly, paradigmatically rational. A common account of modern law is that it ensures a regime of religious toleration and pluralism, one that allows a zone of “religious freedom” in which individuals and communities are free to follow the dictates of conscience in matters of religious belief and practice.4 In these accounts, private individual or communally



Introduction



bounded modes of religion are juxtaposed to and contained within a universal “secular” law. One intention of this volume is to document, historically and ethnographically, the always mutually involved ways of law and religion. Interestingly, law’s claim to the universal resembles—indeed arguably derives its power from—the universalism that is claimed by a number of religious traditions, including, notably, Christianity. “In Christ there is,” in the words of the Apostle Paul, “neither Jew nor Greek” (Galatians :). Similar to the way in which Christianity arrogated to itself the power to succeed and contain Judaism (as Islam did in turn to both of those earlier traditions), secularism asserts its authority to displace and locate religion.5 As with the universalisms of the monotheistic religious traditions, the contemporary promotion of secularism as a “one size fits all” approach appears similarly as an effort at proselytizing and conversion. So, while, for the most part, the very expression “law and religion” reflects an assumption that law is different and separate from religion—that they are discrete kinds of things, separate species if not members of different kingdoms altogether—in fact, regarded more closely, their overlapping functions define a range of possible relationships that law has to religion, as complement and mutual support, as competitor, or as successor. Law may constitute, at once, a cosmology, an anthropology, a technique of textual interpretation, a regime of images or of representation, and even a soteriology—that is, a method of justification or salvation. As such, law serves a social and cultural role analogous to that served by religion. For its part, religion provides an ever-replenishing supply of lawlike norms and narratives that govern human life. As David Kennedy has pointed out, the very gesture of separation between religion and law echoes, ironically, a fundamental concern of religion to distinguish between the “sacred and the profane,” suggesting the closeness between sacred and secular modes of thought precisely at the point at which they are believed to be most distinct.6 If we might, following anthropologist John Comaroff, call this overlap “legal theology,”7 how does it compare to “political theology,” another concern of this volume?8 The first points to the singularity of law and implies an attitude of reverence. The latter emphasizes different points: that law, and the state and legal order more generally, are dependent upon the more fundamental category of the political, which also includes the religious; there is a necessary structural coordination between the political and the religious domains that challenges the state’s pretensions to religious neutrality; and, there is a theological, in many cases a specifically Christian, residue repressed at the foundations of the modern state. These two uses of the term “theology” thus reinforce the need to reexamine what we mean by “religion” and “the secular” in law.



sullivan, yelle, and taussig-rubbo

Apart from the implications for the legitimacy of the secular state, and the rule of law more generally, the answers to these questions have profound implications for a wide range of practical legal issues, including evolving trial processes, the law of evidence, the defining and redefining of citizenship, state security systems, family law, the law of property, new practices of sacrifice on the part of the military and the citizenry, new formations of sacral sovereignty, the transformation of geographically located religious traditions into more portable modernist ideas and practices, the consequences of transnational migration, and changes to electoral politics, among others. The authors of the essays in this volume approach these issues as anthropologists, historians, philosophers, and legal scholars. Each takes a particular area of contention concerning religion and secular law—what Hussein Agrama, in this volume, borrowing anthropologist David Scott’s phrase, calls a “Problem-Space”—and begins to redescribe the dynamic interconnections between law and religion that this space makes evident, with a view to deepening our understanding of the range of possible relationships between these two domains and the many meanings of legal secularism in a globalizing modernity.

Contexts The study of the relationship between religion and law was, until recently in the English-speaking academic world, conventionally located in two places: in the history of church-state interactions in Europe and in the history and legal management of religious diversity. This circumscription of attention, which reflected prior political decisions in favor of secularism, and was itself a symptom rather than a diagnosis of secularism, has largely displaced religion from both broader theoretical accounts of law and its place in social history. It is worth briefly recounting the most recent historical narratives that supported this displacement. For most of the nineteenth and twentieth centuries, evolutionary accounts of the historical development of law saw a natural progression from sacred to secular law. For example, British legal historian Henry Maine (–), in a discussion of the Hindu Laws of Manu, asserted that the earliest legal systems were religious: “There is no system of recorded law, literally from China to Peru, which, when it first emerges into notice, is not seen to be entangled with religious ritual and observance.”9 His Ancient Law asserted and documented what he regarded as an essential transition, that “from status to contract,” as a foundation for modern, positive law.10 The secularization of law is bound up with other themes in the development



Introduction



of modern law. Some legal historians have emphasized the importance of the increasing ascendancy of written or printed codes. Such sources of “rational” legal authority are said to have replaced, variously, the capriciousness of oracles and ordeals; the rigidity of magical formalism; or the dissemination of law by oral tradition, maxim, and proverb, or more generally custom. Yet legal codification was not synonymous with secularization, if that is understood to mean the decline of religion. Aside from the fact that many of the earliest law codes were explicitly religious, the development of legal codes in the modern, English-speaking world was itself partly due to the influence of Protestant ideas of scriptural authority, and an accompanying rejection of customary traditions as “idolatry.”11 Jeremy Bentham (–), for example, in his proposal to codify the English common law vowed to end the manipulations and “priestcraft” of the judiciary.12 Bentham asserted the independence of law from religion, morality, and ethics, and was one of the central figures in the elaboration of a theory of positive law. Although Bentham’s jurisprudence was clearly rational and secularizing, it was also deeply imbued with certain strains of Protestant thought and cannot therefore accurately be termed “nonreligious.” The repudiation of ritual is an important characteristic of the modern period, as scholars from Peter Burke to Talal Asad and Catherine Bell have noted.13 Despite the persistence of ritual throughout contemporary legal institutions, modern law can also be seen as, in part, the product of an effort of deritualization. Discussions of ancient or “primitive” law often exhibit a critique of the rigid attachment to certain prescribed modes of legal procedure.14 Many of these critiques share a characteristic modern emphasis on the value of substantive law and of legal realism over formalism, and accordingly disparage the ritual dimensions of ancient law as a mode of irrational or “magical thinking.” Part of this disdain of ritual can be traced to Protestant attacks on embodied forms of worship, which contributed to the redefinition of religion as an internal state of belief more compatible with the modern concept of freedom of conscience. Part can be traced as well to earlier Christian attacks on Jewish “ceremonial laws,” which, by distinguishing these from “natural” and “civil laws,” anticipated the contemporary distinction between law and religion.15 The German sociologist Max Weber (–), whose work is still an important point of departure for contemporary discussions of secularization and the history of law, traced secularization to developments internal to Latin Christianity during and after the Protestant Reformation.16 Society became “disenchanted”—liberated from magic and personal charisma, as well as ritual formalism—making possible the rationalization of both law and the economy. Despite numerous challenges, Weber’s account has been reinforced by several



sullivan, yelle, and taussig-rubbo

recent works on the Christian roots of secularization.17 Yet, the very notion of disenchantment echoes earlier theological accounts according to which the Crucifixion abolished Jewish sacrifice and silenced the pagan oracles.18 The dependence of Weber’s sociology on such theological tropes illustrates the difficulty of disentangling the secular from the religious. Weber’s younger contemporary and critic Carl Schmitt (–) recognized this difficulty. He argued, “All significant concepts of the modern theory of the state are secularized theological concepts.”19 Schmitt contended that secularism followed Protestant theology in attempting to displace transcendence, by outlawing or banishing magic, miracles, and mystery from the text of law.20 He saw contemporary jurisprudence as lacking an awareness both of its own theological antecedents, and of the inevitable persistence of “political theology.” His theory of the “state of exception,” in which the sovereign suspends the law in a manner analogous to revelation or divine fiat, represented a deliberate attempt to re-enchant the law. In recent decades, a reconsideration of both Schmitt’s own concept of political theology and of the influence of Jewish and Christian theological traditions, most notably the writings of Paul, on modernity has engaged scholars at the intersection of political and legal theory, philosophy, and theology.21 Several essays in this volume take up a consideration of Schmitt’s challenge to secular liberalism.22 Critical cultural studies of law also have contributed to a significant re-examination of modern law’s claims to secularity, autonomy, or even completeness and adequacy, in the absence of a religious reference.23 Robert Cover’s iconic  essay “Nomos and Narrative” pointed to the sacral dimensions of law.24 Peter Fitzpatrick’s  The Mythology of Modern Law and Peter Goodrich’s  Oedipus Lex both argued for law’s dependence on a mythological narrative of separation from religion, a narrative that parallels religious modes of thought. Secular law, they argue, appears to have borrowed some of its strategies from religion itself. Indeed, the bare question of “what constitutes religion” in the secular state necessarily involves the law in a process of theologizing, demonstrating the “impossibility of religious freedom” and of a complete separation between law and religion.25 If the boundaries between law and theology now appear less distinct, the blurriness of those edges has arguably enabled a range of new stories to be told about legal modernity, stories that reject the simplistic narrative of a separation between law and religion without necessarily collapsing these two categories or returning law to a religious foundation. Historians increasingly see a profound intertwining of religious and secular ideas, institutions, and popular practices in the early modern period.26 Upon closer inspection, key philosophical and



Introduction



social-scientific thinkers who have described the evolution of modern law and politics turn out to have been as interested in religion as in the state, and significant moments in the history of law are being reinterpreted as significant moments in the history of religion.27 Law is thus increasingly being recognized as varied, plural, and overlapping, dependent on religious anthropologies and cosmologies, as well as sharing symbols, ideas, and institutions with religion. The entire history of law is now being retold. Harold Berman’s two volumes, Law and Revolution I and II, focus on the transformation that occurred in European law after the rediscovery of Justinian’s law codes in twelfth-century Bologna, the subsequent invention of a law for the Roman Catholic Church which influenced the emerging secular states, and the Protestant reformulation of law that followed.28 A reconsideration of the significance of customary law in Europe, including that of the common law, and the profoundly religious learning and motivation of those who invented modern positivist law is underway.29 These new studies, which challenge both Weber’s linear account of secularization and oversimplified histories of the post-Westphalian state, while extending Weber’s insight concerning the irrational or religious basis of what we call “the secular,” still emphasize the unique role of Western civilization by focusing primarily on the development of law in modern Euro-American cultures and their diaspora. An urgent task for the study of legal secularism today is the displacement and “provincializing” of such a Eurocentric (and Christocentric) narrative:30 by examining parallel and divergent examples of secularism in other cultures; by scrutinizing alternative histories of legal development; and by tracing the colonial encounter between European and non-European cultures, in which we may observe not only the emergence of “the secular” in its process of formation but also the peculiar distortions and, in some cases, Christian theological presuppositions that directed this process.31 Like the new histories of law, anthropologies of law have left behind colonialist constructions of culture in favor of what Comaroff calls a horizontal and polycultural legal landscape.32 One of the most interesting aspects of globalization is the way that it restructures relations of difference—in particular, how “religion” and “culture” and “ethnicity” mark group and individual identity. On the one hand, globalization entails a universal regime of value through market exchange, the flow of capital and the sale of labor;33 while, on the other hand, new “noneconomic” domains emerge as places where differences may be expressed. Other anthropologists of law, such as Bruno Latour in his The Making of Law, an ethnography of the French Conseil d’État, attempt to specify at ground



sullivan, yelle, and taussig-rubbo

level the peculiar life ways of modern law. Law itself, Latour observes, has no content. It is a peculiarly totalizing human form that is mixed with everything. In his words, law is “fractal”; it “has its own ontology”; “it engenders humans without being made by them”; it is “its own meta-language.” Law is a particular schematizing of social facts that provides no additional information about anything. To expect otherwise, Latour insists, is to misunderstand modern law and its relation to religion, and, significantly, of both to modern science and the invention of the fact.34 The activities of multinational corporations and transnational religious actors are making state borders salient in new ways; and transnational political and legal institutions, both governmental and nongovernmental, have begun to enforce regional and international legal regimes that impact religion. Various sites for an investigation of these new religio-legal realities, and of their histories, include human rights, economic activity, rapid migration, environmental degradation, entrepreneurial violence, and the proliferation of electronic media. While Faisal Devji describes the contemporary terrorist as inventing the global post-human through suicide bombing,35 President Nicolas Sarkozy talks of a laïcité positif that reimagines French republican religiosity.

This Volume This volume seeks to hold together several strands of the conversation about law and religion that are often, institutionally and discursively, taken as distinct: the historical, anthropological, normative, juridical, theologico-political, and philosophical. These strands are intimately connected both genealogically and structurally today. Theorists have much to learn from the redescription being provided by historians and anthropologists about life on the ground, while historians and anthropologists have much to learn from theorists about the framing terms of the conversation and the persistence of normative claims. The study of law and religion continues to operate in a world where academic work may have immediate political currency. That currency demands careful and precise attention to history and phenomenology. The essays are grouped into two sections, “Histories of the Legal Secular” and “Ethnographies of the Legal Secular.” The essays of the first section are largely historical reassessments of the founding moments of the legal secular; the essays of the second section further specify the ambiguous phenomenology of the legal secular today. Together they address the following questions: —What, precisely, do we mean by “legal secularism”? Is the concept of “separation of church and state” still valid as a rubric for the analysis of the many (or indeed



Introduction



any) phenomena that might be grouped under the category of legal secularism? Can we say what the differentiation of law from religion means, intellectually speaking, in a context in which the stability of the categories of law and religion has been so thoroughly eroded? —Is legal secularism primarily or even exclusively of European origin, or have there been analogous processes in other cultures and historical periods? How can we anthropologize the question of legal secularism in a way that does not simply project European, post-Christian categories as a false mode of universalism? —When did the modern, secular legal order arise? What are its key moments, causes, and consequences? How can we construct a historical narrative of legal secularization that neither avoids specifying the differences introduced by modernity nor simply repeats earlier, discredited narratives that now appear too obviously tainted by either liberal triumphalism or the echoes of Christian eschatology? —What is the role of Christian theology in the rise and transformation of the concept of legal secularism? Is it necessary to study Christian theology in order to appreciate the legal and political structures of modernity? If so, then what happens to the disciplinary division of labor among scholars of law, theologians, and secular scholars of religion?

Although it is scarcely possible, given the present state of our knowledge, to answer any of these questions, the essays in this volume collectively assert that such questions have been and must be posed.

Part I: Histories of the Legal Secular The essays in this part retell key narratives in the history of the modern period with a view to putting into question the notion of a progressive and thorough modern secularization of the law. Some authors do this by tracing the lingering theological dimensions of the modern order, or by showing how an ostensibly religiously neutral modernity privileges certain types of religion. Other authors argue that what really happened in the past was not secularization, but rather various transformations in the sociopolitical order in relation to which religious motives were either epiphenomenal, superficial, or inseparable from a total social dynamic. Religion emerges as both more and less significant and distinctive than the standard narrative of secularization asserts. Robert Yelle argues that the view that law is properly secular, or separate from, religion finds its roots in earlier theological readings of history, including the central event of Christian sacred history. Christ’s redemptive sacrifice was understood to usher in a division between “grace” and “law,” abrogating the Jewish ritual law and creating a divide between the theological and political domains. Paul’s interpretation of Moses’ veil, for example, encoded the

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claim that the Gospel had superseded the darkness of Jewish ritual, banishing all such signs of ritual particularity in favor of an enlightened universalism. Such Christian themes are implicated in the “disenchantment” of the world of modern bureaucratic law as described by Max Weber. During and after the Reformation, condemnations of Jewish “ceremonial law” reinscribed the distinction between “religious” and “secular law,” in part by redefining religion as antinomian and a matter of inner conscience, rather than of external performance. The historical connections and structural analogies and displacements between Christianity and secularism resulted in the formation of a secular legal economy of salvation parallel to the earlier theological one. Jakob de Roover focuses on how secular law is drawn into defining religion. In making such determinations, secular authorities are, he says, “bound to smuggle in one particular theological conception of religion.” De Roover takes up in his inquiry both the dynamic expansion of Western Christianity and the creation of a secular legal system in India. The Christian opposition of true religion to false religion or “idolatry,” as well as of both kinds of religion to a third category of matters “indifferent” to religion, enabled the European accommodation between religion and the secular. De Roover further argues that the “realm of false religion has not really disappeared, but remains embedded implicitly in the practice of secular law.” Jonathan Sheehan rereads two texts from mid-seventeenth-century England with a view to understanding the political work done by the language of sacrifice. He challenges the ideas that that moment in history represented either the achievement of a political domain independent from theology, or the persistence of theological motifs in an ostensibly secular political order. He argues rather that the two allow us to see an integrated social picture in which such alternatives make no sense. John Milton responded to the publication of the Eikon Basilike, which had presented Charles II’s martyrdom as a sacrificial judgment on the law, by insisting that Charles, like any other, was subject to the legal order. In the end, imagining Charles’s martyrdom proved more powerful to a wider public than Milton’s appeal to universal justice, but, Sheehan teaches us, that success was not the triumph of the religious over the secular, but rather the triumph of an emerging model of the necessity of assent to the political order. Sheehan’s second example shows how Thomas Hobbes also invoked sacrifice to embody and dramatize assent to the law as a basis for a contract theory of the state. The English Revolution of —the so-called Glorious Revolution—which replaced the Catholic King James II with the Protestant monarchs William and Mary, has long been regarded as a watershed moment in the development of religious toleration. In her essay, Rachel Weil examines the security laws, in-



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cluding loyalty oaths, enforced in the wake of the  Revolution, and designed to preserve the new regime from disloyal elements, especially those known as “papists and reputed papists.” Her study of this legislation shows that reading these strictures through the lens of an earlier “equation of Protestantism and loyalty, Catholicism and disloyalty” does not do justice to the way they were now used. This change was due in part to the newly visible phenomenon of disloyal Anglicans, and resulted in the development of new religious tests, such as the Declaration against Transubstantiation, which were aimed only at suspected Catholics. The equation of Catholicism with political disloyalty was counterfactual, but politically useful to Anglicans. A similar conflation of religious with political identity can be observed today, with the threat—magnified, again, by its subterranean nature—of “Islamic terrorism.” Tomoko Masuzawa’s essay on the advent of the academic secular traces the efforts of modern states to design and promote new forms of public instruction that would unify their peoples and transcend religious differences. Following the paper trail from eighteenth-century Prussia to the founding of the University of Michigan in the mid-nineteenth century, Masuzawa sees the actions of profoundly pious and religiously motivated men as inventing not a secular university but one with a new mission, far from former curricula designed for the re-production of old elites. Stephanie Phillips’ rereading of the Unitarian controversy in nineteenthcentury Massachusetts invites us to see, not a secularizing moment of liberation from older established modes of religious control, but a deliberate and violent displacement of one religious regime with another. Taking us through disputes over church property, Phillips shows how such disputes also served as vehicles for the development of new ideas of tolerance and religious orthodoxy, ideas that are, on her reading, as intolerant as their predecessors. Banu Bargu discerns three permutations in Carl Schmitt’s usage of the term “political theology”: a “static structural homology” in which the political and theological are seen to share a common institutional form, vocabulary, and origin; a “dynamic affiliation, mixture, or convergence” in which the two interpenetrate; and, lastly, a relation where the two are combined. To illustrate the different ways of conceptualizing the linkages between the two, Bargu turns to the concept of sacrifice. In Bargu’s rendition, political sacrifice in the modern state “becomes more and more routinized and secularized, immanent and profane.” Insurgent movements, by contrast (some of Bargu’s other work is about hunger striking prisoners in Turkey) “bring sacrifice to the center stage of politics .€.€. thereby theologizing political struggle.” Bruce Rosenstock’s essay construes the recently established International

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Criminal Court as the “sovereignty-less conscience of humanity.” For Rosenstock, the ICC is amenable to analysis in terms of political theology, but one that draws on John Locke rather than on Hobbes’s and Schmitt’s notions of the absolutist state. Although a court of final judgment, the ICC does not dispense divine punitive justice with an apocalyptic coloring, and is not just another form of Schmitt’s sovereign, who acts with impunity. Rather, the ICC is informed by a divine restorative justice that opposes impunity, a form of justice that Rosenstock finds in Locke’s notion of the right to “appeal to Heaven.” The ICC’s protection of human rights, he argues, is not merely immanent and secular, but represents a theologico-political determination that potentially replaces or qualifies Schmitt’s absolutism. Some common themes emerge among these historical essays. Weil and Sheehan illustrate the birth of the modern in the renegotiation of the relationship between the individual and the political order, and of the boundary between private and public, so as to require an expression of individual assent, whether in the form of a loyalty oath or in the drama of sacrifice. Modernity was less about secularization on this reading than it was about something that might be called the creation of a new subject. Sheehan further rejects the interpretation that secularization represents the (illegitimate and unconscious) translation of theological motifs to the political domain. Yelle’s description of secularization as a “myth” inherited from Christianity, and De Roover’s analysis of the contribution of the category of idolatry to the formation of the secular, take the opposite approach while Phillips exposes the illiberal intolerance at the heart of the liberal legal order. Yelle’s, De Roover’s, and Phillips’s essays all point to the manner in which an ostensibly theologically neutral modern political order actually privileges particular theologies. Bargu presents a rereading of Schmitt’s work, complicating easy reductions of his critique of the secular, liberal state. Masuzawa and Rosenstock show us the deeply ambiguous nature of modern institutions, the secularity of which is usually taken for granted. All of these essays illustrate a modernity characterized not primarily by the dismissal or displacement of religion, but by the persistence, transformation, and sometimes fragmentation and dispersal of religion under what still might be termed “secularizing” dynamics.

Part II: Ethnographies of the Legal Secular The imagined separation of religion from law today has been so thoroughly naturalized that it is difficult to see the ways in which the two continue to share spaces, texts, actors, and authorizing narratives. This part gathers together eth-



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nographic readings of contemporary contexts in which the notion of separation breaks down as a useful structuring description of the relationship between law and religion. Bringing together close readings of religio-legal encounters from contexts as diverse as Denmark, Egypt, India, Sudan, Thailand, Turkey, and the United States, these essays display the shifting and overlapping domains of the sacred and the secular, confounding our assumptions about the secularity of law and the antinomian nature of religion. Reviewing several recent cases in Egyptian personal law courts, Hussein Agrama asks whether Egypt is a secular or a religious state.36 He argues that “some of the conflicts in Egypt that seem to be between Islamic precepts and secular ideals actually arise out of deep-rooted tensions within liberal secularism itself.” Agrama concludes that it is, ironically, the very schematizing of religion by liberal legalism that enables religion to serve as a vehicle for illiberal policies. Secular law creates and polices a division and tension between the secular and the religious, and between public and private, that makes conflict inevitable when the very religion it has imagined into being is seen to violate that divide. Noah Salomon’s essay on “postconflict” Sudan describes the tensions that “emerge within the law from the competing demands for equal citizenship (translated into the principle of ‘equality before the law’) and multiculturalism (translated into the principle of ‘exceptional jurisprudence’) in which law is applied, or not applied, on the basis of the religious or cultural identity of the defendant.” The conventional depoliticization of discourse on the rule of law has allowed it to be adopted by those who, by using this discourse to repress cultural minorities, call into question the very foundation of the rule of law. Barring the unlikely elimination of shari‘a in northern Sudan, Salomon asks whether social stability must now be gauged not in terms of the presence or absence of the rule of law, as many argue, but rather through the negotiation of a system of radical legal pluralism. Markus Dressler sees the secular and the religious in Turkey as a self-reaffirming “binary pair.” He describes Turkish laicism (laiklik) as a process, not of separation, but of the containment and subordination of religion by the state through law and the efforts of the Directorate for Religious Affairs. The DRA does not claim authority only as a state agency: it also projects its own understanding of shari‘a law, Greek Orthodox devotional practices, and other religious matters. That is, it is both a “secular” and a “religious” actor, one that Dressler sees as having a modernist idea of religion as excluding “superstition,” while at the same time drawing on certain identifiable strands of Islamic theology to the exclusion of others.

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Moving to the other end of Asia, David Engel traces the declining use of Thai courts in injury cases beginning with the suppression of customary law and religious practices through legal codification in the early twentieth century. Close linkages that had formerly existed between the mangrai thammasat (royal codes) in northern Thailand, and village customary practices and beliefs concerning injuries that were rooted in spirit worship and Buddhism were destroyed by the adoption of the Thai Civil and Commercial Code in . In recent years village-based practices have disappeared as a viable response to injury cases, and injury victims increasingly explain causation using the principles of a modernist Theravada Buddhism, which they view as incompatible with the assertion of rights or the quest for compensation. Paradoxically, the triumph of the Thai state over the customary practices of the northern region is most obvious in the almost complete absence of state law—or indeed any sort of law—in most injury cases. Thomas Blom Hansen, in “Secular Speech and Popular Passions: The Antinomies of Indian Secularism,” discusses the deployment of secularism in India in order to contain sectarian violence following the  Partition. In the shifting boundary between the “cultural” and the “political,” Hansen examines how the valorization of the two domains has evolved. He describes the continued importance of emotions and passions to modern politics, “emotional intensities drawing on another time (the truth of the nation) or on another world (the sphere of the sacred).” Three essays in this part describe the interplay of religion and law in the United States today. Greg Johnson’s essay shows how the Native American Graves Protection and Repatriation Act “and laws like it shape religious claims and then conduce to misrecognition of the same.” NAGPRA hearings both legally authorize and provide the occasion for the performance of Hawai‘ian genealogies in hearings contesting ownership of sacred objects. Law is both complicit in the legitimizing of Hawai‘ian religion and limited in its power to shape that religion in the ways it would like. Hawai‘ian political and religious actors competitively and creatively work and rework both their received traditions and emerging ones in the legal spaces provided by state and federal law. Mary Anne Case argues that “opposition to legal recognition of same-sex marriage on the part of evangelical Protestant religious conservatives who claim such recognition would undercut their own marriages” can best be understood not as disingenuous, but as the result of Protestant dependence on the state to enforce its legal traditions. Case contrasts this concern with the practices of “observant Jews and Roman Catholics, who clearly understand that civil marriage and marriage within their faith are not the same.” “Protestant denominations,” she suggests, “have essentially abdicated the definition, creation



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and, above all, the dissolution of marriage to the state.” On her reading, most American Protestants sacralize the state in a most unexpected way, incorporating it religiously by assigning it governance tasks essential to the maintenance of religious goals. Mateo Taussig-Rubbo’s essay notes that the attacks of September , , led to the designation of property damaged in the attacks as “sacred” by officials and others. This new designation was applied both to real property (land) and to souvenirs of the attacks. Some of the objects in question were unremarkable, often nothing more than rubble, but for those who possessed them they seemed to have transcended such banal categorizations. Rather than focusing on the destruction of property and human life itself, Taussig-Rubbo’s concern is with the form of value created through destruction. He asks who lays claim to that value, to what purposes it is directed, how it attaches to material objects and land, and whether it overwhelms the usual legal understandings of property and ownership or can be subordinated to them. Finally, Tim Jensen brings us back to Europe with an essay on the legal regulation of religion in Denmark. He reviews three recent cases in the Danish courts concerning freedom of religion and concludes that, in this most secular nation, a population sometimes described as made up of “irreligious Lutherans,” still-dominant Protestant normative notions of religion are imposed on minority religious opinions and traditions. Jensen’s discussion is framed by a rereading of Danish secularism as a kind of Christianity, exemplified in the contemporary use in Danish passports of a photo of a tenth-century runic stone with a cross, a stone that proclaimed the conversion of Denmark to this still-dominant religion. (The Danish passport image is reproduced on the cover of this volume.) What is an anthropology of the legal secular? The ethnographic essays in this section participate in a larger anthropology of the modern. This ethnography seeks to redescribe what Talal Asad calls “the modern secular condition we all inhabit” with a view to disrupting the separations of what Bruno Latour has labeled the “modern constitution.”37 Agrama, Dressler, and Salomon subvert in nuanced ways the all-too-common narratives about the pathological and antimodern nature of the Muslim state, showing Egypt, Turkey, and Sudan to be involved in ongoing negotiations among religious and legal accounts of everyday life and of the nature of politics. Engel, Hansen, and Case reveal similarities among Thai, Indian, and U.S. political dynamics concerning the regulation of religion. The materiality of religion and the limits of law’s ability to deal with objects and their meaning are painfully evident in Johnson, Jensen, and Taussig-Rubbo’s accounts of litigation conducted under the protection of laws intended to guarantee rights to religious freedom and private property.

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Reappraising Secular Law Most polities in the world today claim to guarantee religious freedom for their citizens. All also profess to respect the rule of law. How these two goals might be practicable is far from evident. The rule of law turns out to look quite different in different places, dependent as it is on local histories and cultural and religious cosmologies and anthropologies that are far from agreed upon. Ensuring the religious freedom of citizens requires a constant cutting and fitting of religion to adapt to the demands of law. Persons and communities claiming motivation from a range of religious sources test the limits of a rationally ordered and technologically driven world. Indeed, imagining citizens as secular does continued violence to humans in ways we don’t fully understand. An underlying theme of this volume is that now is not a moment for the further refinement of existing settlements but rather a moment for redescription.38 The awkward incapacity of secular law is apparent at every turn, in efforts at the restoration of justice to indigenous communities, in the raising and education of children, in the management of sacred places, in the rehabilitation of prisoners, in end-of-life care, in the distribution of resources, in the preservation of the environment, and in the management of multicultural public life. Hence we must continue to ask: What is law? How does it work? Can it do what we expect of it? What is religion? Is it an inevitable part of human life or is it something disposable, something we might evolve out of? Has the separation between law and religion ever occurred, and does it even make sense, in either logical or normative terms? The essays in this volume work within a range of disciplinary canons, employ an array of different models and methods, and focus on a remarkable range of fascinating human stories. Themes and cross-talk and intriguing possibilities for future research are apparent throughout. It is our hope that this volume might be understood as a bid for further work, work toward a more complete and complex understanding of the ways in which law and religion have structured and continue to structure our lives, and work that integrates historical and ethnographic methods and insights. However, haunting this project, and ever-present in the subtle investigation and details of the lives here made visible—and the ones only hinted at—is the possibility that, “after separation” neither law nor religion will have the same power or presence—and that other ways of living will emerge. That possibility, too, beckons.



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Notes . Karl Marx, “Zur Judenfrage” (“On the Jewish Question”), Deutsch-Französische Jahrbücher (February, ). . Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, ). . José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, ); Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ); Charles Taylor, A Secular Age (Cambridge: Harvard University Press, ). For an overview of contemporary discussions of political theology, see Hent de Vries, “Introduction: Before, Around, and Beyond the Theologico-Political,” in Political Theologies: Public Religions in a Post-Secular World, ed. Hent de Vries and Lawrence Sullivan (New York: Fordham University Press, ), –. . For a classic account of this hope, see Thomas Jefferson’s Virginia Statute for Religious Freedom. . See Gil Anidjar, “Secularism,” Critical Inquiry  (): –; see also the essay by Yelle, this volume. . David Kennedy, “Images of Religion in International Legal Theory,” in Religion and International Law, ed. Mark Janis and Carolyn Evans (The Hague: Martinus Nijhoff, ), – at . . John Comaroff, “Reflections on the Rise of Legal Theology: Law and Religion in the Twenty-First Century,” Social Analysis , no.  (): –, . . See the essays by Bargu and Rosenstock, this volume. . Henry Sumner Maine, “The Sacred Laws of the Hindus,” in Dissertations on Early Law and Custom (London: John Murray, ), – at . There are exceptions to the rule. Notably, Arthur S. Diamond, Primitive Law, Past and Present (London: Methuen and Co., ), vii, –, and esp. –, argued that the conflation of law with religion in Manu and Leviticus, and so forth, belonged to a phase of later codes developed under the influence of priesthoods. . Henry Sumner Maine, Ancient Law: Its Connection With the Early History of Society, and Its Relation to Modern Ideas (London: John Murray, ) . Assaf Likhovski, “Protestantism and the Rationalization of English Law: A Variation on a Theme by Weber,” Law and Society Review  (): –; Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, ), ix, , , , ,  n.. . Robert Yelle, “Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,” Yale Journal of Law and the Humanities  (): –. . Peter Burke, “The Repudiation of Ritual in Early Modern Europe,” in The Historical Anthropology of Early Modern Italy: Essays on Perception and Communication (Cambridge: Cambridge University Press, ), –. Compare Jonathan Z. Smith, To Take Place (Chicago: University of Chicago Press, 1987), –; Catherine Bell, “Ritual Reification,” in Ritual and Religious Belief: A Reader, ed. Graham Harvey (New York: Routledge, ), –; Talal Asad, “Toward a Genealogy of the Concept of Ritual,” in Genealogies of Religion (Baltimore: Johns Hopkins University Press, ), –. . See, for example, Sir Frederick Pollock, The Genius of the Common Law, reprint ed. (New York: AMS Press, ), .

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. See the essay by Yelle, this volume. . Max Weber, The Protestant Ethic and the Spirit of Capitalism, with Other Writings on the Rise of the West, trans. Stephen Kalberg, th ed. (Oxford: Oxford University Press, ); Weber, Economy and Society, ed. Günther Roth and Claus Wittich (Berkeley: University of California Press, ). . Taylor, A Secular Age; Marcel Gauchet, The Disenchantment of the World: A Political History of Religion, trans. Oscar Burge (Princeton: Princeton University Press, ); Anidjar, “Secularism.” . See the essay by Yelle, this volume, and Yelle, “The Trouble with Transcendence: Carl Schmitt’s ‘Exception’ as a Challenge for Religious Studies,” Method and Theory in the Study of Religion  (): –. . Schmitt, Political Theology, . . Ibid., –. . Jacob Taubes, The Political Theology of Paul, trans. Dana Hollander (Stanford: Stanford University Press, ); Giorgio Agamben, The Time That Remains: A Commentary on the Letter to the Romans, trans. Patricia Dailey (Stanford: Stanford University Press, ); Alain Badiou, Saint Paul: The Foundations of Universalism, trans. Ray Brasser (Stanford: Stanford University Press, ). . See the essays by Bargu and Rosenstock, this volume. . Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds., Law and the Sacred (Stanford: Stanford University Press, ). . Robert Cover, “Nomos and Narrative,” Harvard Law Review  (): –. . Winnifred Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, ). . See, for example, Benjamin Kaplan, Divided by Faith (Cambridge: Harvard University Press, ). . See Hobbes, Bentham, and others. . Harold Berman, Law and Revolution, vols. I and II (Cambridge: Harvard University Press,  and ). . See, for example, Manlio Bellomo, The Common Legal Past of Europe: –, trans. Lydia Cochrane (Washington: Catholic University Press, ). . Dipesh Chakrabarty, Provincializing Europe: Postcolonial Thought and Historical Difference (Princeton: Princeton University Press, ). . See the essay by De Roover, this volume; see also Robert Yelle, “The Hindu Moses: Christian Polemics against Jewish Ritual and the Secularization of Hindu Law under Colonialism,” History of Religions  (): –. . Comaroff, “Reflections on the Rise of Legal Theology,” . . Marshall Sahlins, “Two or Three Things That I Know about Culture,” Journal of the Royal Anthropological Institute , no.  (): – at ; David Graeber, Toward an Anthropological Theory of Value: The False Coin of Our Dreams (New York: Palgrave, ), . . Bruno Latour, We Have Never Been Modern, trans. Catherine Porter (Cambridge: Harvard University Press, ). . Faisal Devji, The Terrorist in Search of Humanity: Militant Islam and Global Politics (New York: Columbia University Press, ). . See also Malika Zeghal, Sacred Politics: Political Islam and the State in the Middle East (forthcoming).



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. Latour, We Have Never Been Modern, –. . Jonathan Z. Smith, “The ‘End’ of Comparison: Redescription and Rectification,” in A Magic Still Dwells: Comparative Religion in the Postmodern Age, ed. Kimberley C. Patton and Benjamin C. Ray (Berkeley and Los Angeles: University of California Press, ).

part i

Histories of the Legal Secular

chap ter one

Moses’ Veil Secularization as Christian Myth rob ert a. ye l l e The categorical distinctions between the two kingdoms and spheres, which were handled in a practical way in epochs which recognized the institutions of state and church, do not work any longer. .€.€. For the walls collapse and the spaces which were once distinct intermingle and penetrate each other, as in a labyrinthine architecture of light. —Carl Schmitt, Political Theology II 1

The “Great Separation” The standard narrative of the birth of our age includes an account of the progressive extrication of the political domain from the clutches of religious fanaticism. Religion, in this narrative, functions as the evil Other, a monster the slaying, or rather taming, of which was one of the defining moments in the birth of the modern, liberal subject as Hero, as the champion of freedom and Enlightenment, in the sense in which Immanuel Kant defined that movement: as “man’s emergence from his self-imposed immaturity” under the “guidance of another,” or “alien guidance.”2 Kant’s definition of Enlightenment as maturity or adulthood, as casting off the yoke of servitude to another, exchanging heteronomy for autonomy, parallels the charter myth of modern law, which describes a progressive growth of freedom, above all freedom of and from religion, following the European wars of religion that took place in the sixteenth and seventeenth centuries. Despite periodic relapses into barbarism, this narrative affirms an irreversible progress. Never again will we return to the evil old days, when religion oppressed the individual conscience and became the cause of violence and war. According to a frequently repeated formula, secularism and religion are polar opposites, rather than close kin; religion is distinguished from secularism on the basis of its stubborn adherence to outmoded, superstitious, or barbaric practices; and the only possible outcome of this encounter is

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that eventually, in some bright future more or less distant, we shall all be converted to secularism, which abolishes false distinctions based upon religious particularities. Mark Lilla has recently advanced his own version of this narrative of secularization, which he calls the “Great Separation,” the conclusive severing of the connection between religion and politics supposedly effected by such thinkers as Thomas Hobbes and John Locke.3 Lilla portrays this as a necessary and irrevocable step in the birth of the liberal order, and a precious legacy to be defended. He rejects attempts to reintroduce the consideration of modernity as a “political theology,”4 in which law and politics have only apparently become separate from religion, but actually continue to be dependent on categories inherited from a theological past. Lilla’s metaphor resembles Thomas Jefferson’s “wall of separation,” or even Roger Williams’s “Garden and the Wilderness,” in which church and state were similarly walled off for mutual protection. Good fences supposedly make good neighbors. The concept of political theology threatens this accommodation, by calling into question the religious neutrality of the secular state. Lilla’s recommendation is that we should reinforce and recommit to the “Great Separation.” From my perspective, this would mean clinging more tightly to a historical narrative that has already been exposed as a theological myth.5 David Kennedy has noted that modern law’s self-depiction as “that which has been able to differentiate and defeat religion, by inheritance and banishment .€.€. repeat[s] in a secular key a practice of distinction that, recast as the separation of the sacred and the profane, seems the most central concern of religion itself.”6 Indeed, Christianity arguably created a separation between the religious and political domains with its distinctions between the “Two Kingdoms (Cities, Swords)” and, even earlier, between Christian “grace” and Jewish “law.”7 The original version of the “Great Separation” was the founding narrative of Christianity, which, according to Saint Paul, effected a fundamental break with its own Jewish past. Following Christ’s redemptive sacrifice on the Cross, the laws that prescribed sacrifice and other rituals were ineffective as a means of salvation, and were abrogated. Religion was no longer a matter of law, but of grace; no longer of the flesh, but of spirit. Not all law had been abrogated, of course. Later Christians divided the Mosaic laws into three categories: “moral” or “natural,” “civil” or “judicial,” and “ceremonial law,” also called “ritual” or simply “religious law.”8 Natural law was universal, and transcended the ephemeral distinctions embodied in external modes of worship; it bound even the Gentiles, to whom the Jewish law had not been revealed (Romans ). Civil law was the law of a particular nation or people



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considered as a political body, and ended at the boundary of that nation or with the demise of its sovereignty, as had happened with the Israelite kingdom. Ceremonial law consisted of the external forms of worship of a people such as, in the case of the Jews, laws prescribing circumcision and certain dietary restrictions. Christians claimed that the ritual laws that had enforced the separation of the Jews from other peoples had now given way to the universal dispensation announced by Christ. The Christian distinction of ceremonial from the other branches of law contributed to a denigration of ritual, as well as to the identification of a universal, natural, moral law that transcended all religious and ritual particularity. The present essay traces some of the ways in which what we call “secular law” has been shaped by Christian soteriology and supersessionism. The separation of a spiritual “religion” from both civil law and ceremonial is only the first and most obvious of these ways. This reinforces the view that we inhabit a particular political theology, and calls into question the familiar distinction between law and religion assumed by secularists. Rather than Lilla’s metaphor of the “Great Separation,” it is Carl Schmitt’s opposite image, quoted in the epigraph above, of collapsing walls—which we may identify, ambiguously, as both the walls of the monastery during the Reformation and Jefferson’s “wall of separation”—that appears to capture the present moment more accurately. What happens when these walls are shown to be vulnerable?

Enlightenment Lifts the Veil of Superstition Lex est umbra futurorum Christus finis promissorum Qui consummat omnia. —Adam of Saint Victor (d.  c.e.)

I begin by tracing one of the earliest versions of the myth of the “Great Separation.” Paul described in the letters he wrote to the church communities of the first century the manner in which Christ simultaneously conserved, fulfilled, and replaced the law of Moses. The Gospel “consummated and abolished” Judaism (to borrow Edward Gibbon’s phrase).9 Paul defined Christian salvation as a process of universalization, interiorization, and enlightenment. One of the key passages in which Paul described this feat of conversion is  Corinthians , quoted here in the Authorized or King James Version ():  Seeing then that we have such hope, we use great plainness of speech:  and not as Moses, which put a veil over his face, that the children of Israel could not steadfastly look to the end of that which is abolished:

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 but their minds were blinded: for until this day remaineth the same veil untaken away in the reading of the old testament; which veil is done away in Christ.  But even unto this day, when Moses is read, the veil is upon their heart.  Nevertheless, when it shall turn to the Lord, the veil shall be taken away.  Now the Lord is that Spirit: and where the Spirit of the Lord is, there is liberty.  But we all, with open face beholding as in a glass the glory of the Lord, are changed into the same image from glory to glory, even as by the Spirit of the Lord.

Paul used the image of the veil to define the relationship of Christianity to Judaism. Moses’ veil represented the ritual law founded on the Ten Commandments, those “tables of stone” brought down from Sinai. According to Exodus :–, when Moses came down from the mountain, his face was too bright to gaze at directly; hence the necessity of covering it. Paul inverted the symbol of the veil, converting it into an image of the darkness of the ritual law, which was now replaced by spiritual laws carved not on stone, but on the “fleshly tables of the heart.” The Gospel removed the veil and liberated us to view the full noonday light of the Son, indeed, to bask in and be transformed into His image. The law of Moses was a law of death, a carnal law that held the Jews in bondage. Christ removed the religious barriers that separated Jews from Gentiles and served as marks of an external discipline that would now be replaced and perfected by a new subjectivity, an internal discipline superior because invisible, ubiquitous, and transcendent: in a word, spiritual. The salvation consummated with Christ’s sacrifice coincided with the miraculous event of the rending of the veil of the Temple in Jerusalem (Matthew :). Many Christians took this as the sign that a new dispensation had replaced the “Old Testament,” the ritual prescriptions of which symbolized, in obscure form, the spiritual promise fulfilled by Christ.10 Henceforth, these rituals were no longer required, as they had no potential to effect salvation; Protestants later insisted that salvation was through “faith alone” (sola fide). According to early Christian typological interpretations of the Hebrew Bible, Jewish ceremonies were merely “types,” symbols that foreshadowed the “antitype” or reality presented in the Gospel.11 Adam of St. Victor refers to this idea with his statement that Jewish “law is the shadow (umbra) of things to come.”12 All such dark, figurative discourses were replaced by the light of the Gospel. While Protestants emphasized the literal sense of Scripture and, accordingly, often devalued typological interpretations, the idea that the Gospel represented the triumph of “plain speech” over Jewish mystery was encoded in the King James Bible’s translation of  Corinthians :.13 Salvation would come from “lifting the veil” of the Jewish law. The sign of the eschaton or end-times was



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the conversion of that last, stubborn remnant of the Jews, who persisted in their ignorance. The Scottish Puritan John Weemes (–) expanded on Paul’s image, and glossed the line “He will take away the vaile” as follows: The Apostle alludes here to the use of the vaile, which was amongst the Jewes; for the women, when they were married to their husbands, they put a vaile upon their head, in token of subjection to their husbands. So the Jewes were married to the Law first, as to a husband, and were in subjection to it; but now being dead to the Law, they are married to Christ, Rom[ans] :. When this vaile which was a signe of their subjection and blindnesse shall be taken away, then they shall behold Jesus Christ the end of the Law, as in a most cleare glasse, and their eyes shall not be dazled, as they were when they beheld Moses; but it shall be a most pleasant and comfortable light unto them.14

Weemes associated the veil with womanly subjection, symbolically placing all Jews, beginning with Moses, in the feminine position.15 Weemes added that the finally converted Jews will see “as in a most cleare glasse,” echoing Paul’s image that we see now only “through a glass, darkly” ( Corinthians :, Authorized Version). Paul was drawing the analogy between darkness and spiritual immaturity: “When I was a child, I spake as a child. .€.€.” ( Corinthians :). Invoking these different Pauline passages, Weemes simultaneously infantilized and feminized the Jews; their passage to spiritual enlightenment would require lifting the veil of ritual. The analogy to our contemporary discourse could hardly be plainer. The recent conflict between secularism and religion has focused much attention on the image of the veil or hijab worn by many Islamic women.16 This veil itself has become the most appropriate, and most overdetermined, metaphor for a debate over whether East and West may ever see eye to eye, a feat that would require, both literally and metaphorically, a “lifting of the veil” to see clearly what lies beneath. As in the earlier case of Moses’ veil, the struggle has been depicted as one between an enlightened, universal reason and the stubborn remnants of superstitious ritual, which defend and preserve a religious distinction doomed to pass away. As Gil Anidjar has suggested, the original model for the West’s religious “Other” was the Jew as viewed from within a Christian imaginary; Islam has only partly replaced Judaism in this role.17 The parallel between Christian and secular discourses against Semitic ritual veils reinforces Anidjar’s analogy. In this sense, the genealogy of Orientalism is inextricably tied to that of secularism, which preserved crucial structural elements of the Christian attitude toward Judaism and transferred these to “religion” as the now superseded Other. The crudest form of this analogy, then, would be: “Secularism is to Religion as

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Christianity is to Judaism.” Such a contention might appear absurd when stated this plainly. However, the increasing contemporary engagement with Paul’s theology as a means of understanding the structures of contemporary secularism and universalism reinforces the devastating critique implied by Anidjar’s analogy.18

Breaking the Tables of the Law Let us attempt to develop this analogy by adding some historical detail. The Christian identification of certain Jewish laws as “ceremonial” anticipated the modern distinction between the “secular” and the “religious.” As Philippe Buc has noted: [A]ccording to patristic understanding the Jewish “ceremonies” had been emptied of all meaning when Christ had fulfilled the promises of the Old Dispensation that these caerimoniae symbolized. Thomas Aquinas thus carefully distinguished between purely ceremonial commands, now prohibited in Christendom, and praecepta iudicialia, secular provisions that might be adopted in a Christian State. Since the relationship between regnum [the monarchy or emperor] and sacerdotium [the priesthood] could be conceived in terms of the contrast between the Old Law and the New Law, the distinction between ceremonies and sacraments could also be correlated to the hierarchized complementarity of Polity and Church.19

As Buc proceeds to describe, with the Reformation, the question of what was “secular” and what “religious” became more difficult. Rejecting Catholic tradition, Protestants addressed de novo the question of which of the Mosaic laws remained in force under the Christian dispensation. The general Protestant distrust of ritual as either “empty works” or outright idolatry, which led to a wholesale attack on the ritual economy of the medieval church, also deepened the hermeneutical engagement with the topic of Jewish “ceremonial.”20 Several of these developments intersected with the evolution of what we call “secular law.” As previously noted, the identification of natural law depended on the distinction of such a universal law both from civil law, which was limited to a particular polity and necessarily positive, and from ceremonial law.21 Early candidates for a supposedly natural law included the Noahide laws, the laws known to Noah before the revelation to Moses at Mount Sinai, including prohibitions of idolatry, murder, and theft.22 Efforts to define natural law paralleled efforts to define natural religion by Herbert of Cherbury (/–) and later Deists; indeed, “natural religion,” conceived as including the demands of religious service in a plain and rational form of worship, as opposed to excessive ceremonial, was frequently taken as synonymous with “natural law.”23



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Although the Ten Commandments themselves, unlike the remainder of the Mosaic laws, were generally identified as unalterable natural or “moral law,” not abrogated by the Gospel,24 they had a special status, as a republication—in the mode of divine revelation—and thus a making positive of laws that were already, in a sense, known. The laws of the so-called “Second Table,” which defined the duties to humanity, and prohibited killing, stealing, and so forth, were clearly enough natural laws. The “First Table,” however, which prescribed the duties to God, had a more ambiguous status, as it included some commandments pertaining to worship. The commandment against idolatry was generally regarded as part of natural law, known even to the Gentiles before they fell into the worship of idols, as Paul asserted in Romans . However, some opined that other laws of the First Table—such as keeping the Sabbath—were perhaps not natural,25 and might not need to be observed any longer. The original Two Tables were broken when Moses descended from the mountain to find the people worshiping a Golden Calf (Exodus :). According to the theory of divine accommodation, the ceremonial laws were a concession to the weakness of these people, in recognition of a Jewish propensity to idolatry, and were a necessary prophylaxis against their relapse into this sin.26 More commonly, though, these laws were explained as necessary to produce a social separation between the Jews and their idolatrous neighbors. This purpose had been filled partly, according to the twelfth-century Jewish scholar Maimonides, by opposing the ceremonies of the Jews in every detail to those of the Egyptians, or the legendary Sabaeans,27 but also by the content of these restrictions, such as the dietary laws, which tended to make such social intercourse impossible. It was precisely such social separation that Christianity supposedly had ended. John Weemes gave three reasons (“uses”) for the institution of the Jewish ceremonial laws. The first was as a concession to the Jews’ infantile nature (an echo of the view that they were predisposed to idolatry); the second was as a typological foreshadowing of the Gospel; and the third was as enforcing a social separation: “[T]hese ceremonies served to make a partition well [wall] betwixt the Jewes and the Gentiles, but this partition wall is now broken downe, and there is one sheepheard and one sheepfold.”28 The abstention from eating pork was therefore valid now only if done for reasons other than religious: “[If] a man should abstaine from eating of swines flesh onely, because it were unwholesome, he Judaizeth not in this case; but if hee should abstaine from swines flesh as a meat unclean, and forbidden in the Law, then he should formally keepe the ceremony, and truly Judaize.”29 This bit of casuistry from Weemes, in which the religious (“Jewish”) quality of a particular action depended on the intent with

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which it was undertaken, resembles our contemporary conundrum over how to demarcate “religious” from “secular” conduct. According to many Christians, Judaism was concerned solely with the external performance—the “what” rather than the “why.” Christians also distinguished among practices that were required, prohibited, and “indifferent” (adiaphora). After Christ, many of the Jewish laws fell into the last category. The Jewish laws were “the statutes that were not good” (Ezekiel :) but instead necessary to guard against idolatry. Weemes drew on these distinctions in explaining why Jewish circumcision was still tolerated by Christians: “[W]hen the christians tollerate the Jewes to circumcise their children: this is for the hardnesse of the Jewes hearts; for the Jewes would not live amongst christians unless they were tollerated to circumcise their children: things commanded are bona [good], things forbidden are mala [bad], and things permitted are non bona [not good, indifferent], as circumcision is to them when they use it.”30 As Jakob De Roover traces in greater detail in the present volume, such categorizations contributed to the carving out of a zone of religious freedom or toleration. In the English Reformation Puritans stressed the duties of the First Table, whereas Anglicans stressed those of the Second Table.31 Alberico Gentili, the exiled Italian Protestant who became Regius Professor of Civil Law at Oxford in , maintained that there was a division of labor in the law, as reflected in the Two Tables.32 The First Table belonged properly to theologians, whereas the Second Table belonged to jurists. In part on this basis, Gesina van der Molen argued that Gentili was “a pioneer of the secularisation of the law.”33 Pioneer or not, it is clear that the doctrine of the Two Tables upon which Gentili relied lent itself to the possibility of just the sort of separation between law and religion that we now call “secularization.”34 To describe twentieth-century attitudes, Carl Schmitt quoted Gentili’s dictum, Silete [theologi] in munere alieno (“Theologians, mind your own business,” or “Keep quiet in matters that don’t concern you”).35 Silence has been achieved, and theologians and jurists no longer talk to one another. Many of these theological ideas influenced debates in America regarding the separation of church and state—for example, Roger Williams’s much-discussed dispute with the elders of the Massachusetts Bay Colony in the s, in which Williams anticipated contemporary notions of religious toleration.36 He argued, against his Puritan opponents, that the state has no authority to enforce the duties of the First Table.37 Williams categorized the Jewish law into the familiar divisions of natural, civil, and ceremonial. The Israelite kingdom had a plenary sovereignty that extended over both civil and ecclesiastical domains. With the demise of that kingdom and the coming of Christ, however, the eccle-



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siastical power was converted from a worldly to a spiritual one. Henceforth, the only sanction for a violation of religious law was a spiritual sanction. Failure to distinguish between the civil and ecclesiastical powers would lead to “Babel” or confusion, and break down the wall of separation between the “Garden” of the church and the “Wilderness” of the world.38 Although Williams himself may not have had much influence on subsequent debates over religious freedom, the sort of typological thinking he represented did play an important role in secularizing the law.39 Recently, Eric Nelson has argued that early modern imaginings of the “Hebrew Republic” or political constitution depicted in the Hebrew Bible, particularly by seventeenth-century English Protestants, shaped theological arguments for religious toleration. Erastians such as Hugo Grotius, the Dutch natural law theorist, and John Selden, the English legal scholar and Hebraist, believed that the state or sovereign should control in religious as well as civil matters, as it had in ancient Israel, but that the range of religious matters under state control should be sharply delimited. Whereas the enforcement of certain religious laws might have been appropriate in a Hebrew Republic over which God himself had exercised direct authority, this enforcement could only be justified under the civil regimes currently existing if necessary for public order. Thus, a biblical model was invoked in such a way as to expand the zone of religious freedom: [A]s early-modern authors scrutinized the records of the Hebrew republic .€.€. the set of religious matters deemed worthy of civil legislation grew steadily smaller—until at last it was virtually empty. The emptying of this set did not, however, reflect an emerging conviction that religion ought to have no role in political argument. On the contrary, it proceeded under the fervent belief that God himself required the emptying.40

Nelson emphasizes that his alternative account of the rise of toleration from the Erastian union of civil and religious authority contradicts the standard account according to which toleration arose from a separation of church and state.41 He concludes that this “argues against the view that toleration emerged out of a process of secularization.”42 The argument I am presenting is, for the most part, complementary to Nelson’s. Such Erastian readings of the Hebrew Republic did contribute an additional theological impetus to toleration. In my view, however, Nelson underestimates the role that traditional Christian anti-Judaism, particularly as expressed in biblical typology, played in a broader process of secularization.43 Erastianism in itself only supported the control of religion by the civil authority. More than the invocation of the Hebrew Republic as a positive model, it was the attack on Jewish ceremonial that encouraged the deritualization as-

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sociated with secularization. In countering the standard narrative of toleration as stemming from a separation of church and state, Nelson largely ignores the distinction of ceremonial from both moral and civil law that reinforced secularizing tendencies in both church and state. It was a strange toleration that extolled the virtues of the (defunct) Hebrew Republic as a model for the state, while declaring Judaism null and void both as positive law and as a religious dispensation! Yet that is precisely what Grotius, on whom Nelson relies,44 did.45 It is also similar to what Immanuel Kant did in the eighteenth century, when he argued that ancient Judaism, because its precepts concerned “nothing but outer observance,” was “really not a religion at all but merely a .€.€. commonwealth under purely political laws.”46 As we can see, the recognition, for strategic purposes, of the political character of the Hebrew Republic did not displace the broader current of anti-Judaism that was more characteristic of Christianity as a whole. Moreover, many Protestants, and especially Deists, accused Judaism of exhibiting a particular intolerance, as evidenced, for example, by the slaughters of the Midianites (Numbers ) and the Canaanites (Deuteronomy ).47 It was the older claims of Christian supersession on which Roger Williams relied in combating the intolerance of the Massachusetts Bay Colony, an intolerance he attributed to an excessive imitation of the Hebrew Republic.48 Another example, drawn from a different historical context, illustrates my point.49 In colonial India, the British administration reserved certain “private” matters such as those involving family law, inheritance, and adoption to traditional Hindu law, or dharma. However, the vast majority of dharma was labeled “ritual,” was not enforced by the government, and was further marginalized by being deleted from authorized texts and government college curricula. These developments exhibit two related characteristics of secularization: both the repudiation of ritual and the privatization of religion. The reservation of religion to the space of the home, if not the individual conscience, coordinated with the rejection of a definition of tradition in terms of performance, or orthopraxy, such as we find in the Hindu texts. The privatization of religion in this case created the space for a “secular” law. However, this privatization was itself the result of a redefinition of religion in accordance with understandings drawn, in part, from Protestant Christianity. Hinduism was frequently compared to Judaism because of their shared propensity for ritual, in terms (such as “ceremonial law”) that borrowed from Christian theology. The evolution of both religion and law supposedly required the abandonment of such practices. Such attitudes toward ritual continue to play a role in law today. Both domestic U.S. and international human rights laws allow more freedom to religious belief than to ritual action, thereby privileging one, typically Protestant



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understanding of religion over others. This illustrates the unavoidability of a legal definition of what constitutes (normative) religion, and thus the “impossibility of religious freedom,” as Winnifred Sullivan has demonstrated.50 In some cases it is, ironically, the Protestant insistence on Christian freedom that underwrites this impossibility. By defining religion as primarily a matter of internal conscience rather than of external practice, and by emphasizing the autonomy of the forum internum or interior domain in which freedom means the possibility of assuming different theological or philosophical opinions,51 human rights law universalizes a concept of religion that has by no means been shared by all religious traditions, nor indeed by all forms of Christianity through the centuries. Many traditions, such as Judaism and Hinduism, historically have placed greater importance on communal religious practice or observance. This can become a source of conflict between such traditions and modern human rights regimes. What the discourse of secularism serves quite efficiently to obscure is that the “freedom of religion” it defines does not preserve but rather serves to replace and displace a whole series of other forms of life with which such freedom is incompatible. Modes of life based upon the primacy of communal ritual have been ghettoized, rhetorically and socially devalued, and, in some cases, eliminated altogether.

Toward a Religious Genealogy of Secular Law As we see, not only is secular law not separate from religion, to the extent that the “secular” and the “religious” are reciprocally defining, but the very idea of “separation” was originally Christian. Neither the function of separation nor that of evolution and transcendence is the exclusive property of secular law. In absorbing and displacing religion, secular law borrowed strategies that Christianity had used to marginalize and subordinate Judaism. David Kennedy argues that a more critical genealogy would find in the origins of international law not a moment of tolerant generality, of liberality, but a well-articulated practice of social intolerance. For it was the law of peoples that worked to exclude the Jew, the homosexual, the heretic, and perhaps most crucially, worked to suppress the exuberance of spiritual fervor, displacing it with bureaucracy. .€.€. This story would recapture the trace of Judaism, particularly of the mystical Jew, in the early literatures of international law .€.€. a Jew that seems at once the law that revelation and redemption replace and the mysticism that law and state refuse. Paradoxically enough, we find here our own complex relationship between international law and religion exactly mirrored in the relationship between Christianity and Judaism.52

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Secularism thus reflected a two-pronged strategy. “Religion” was redefined as spiritual (“revelation and redemption”) as opposed to the “old law” of Jewish ritual. Simultaneously, “law” itself was redefined as secular and positive—as a disenchanted, bureaucratic technology that excluded “mysticism” or Jewish mystery. These newly redefined concepts of “religion” and “law” were compatible with each other, as the one was spiritual, the other concrete and positive. They formed a new spiritual economy that was incompatible with the old one based on ritual. Kennedy’s image of the suppression of the “mystical Jew” and the ascendancy of “bureaucracy” corresponds to Max Weber’s account of the manner in which Protestants “disenchanted” the world.53 This illustrates another point of connection between secularism and Christian tradition. The original source for Weber’s idea of disenchantment was the birth-narrative of Christianity. Protestants argued that the Crucifixion not only abrogated the Jewish ceremonial law and silenced the pagan oracles, it also ended miracles and magic. This process was epitomized, for Weber as well as Kennedy, by the secularization of law, its transformation into a demystified, mechanical technique that attempts to exclude the intrusion of charisma and the exceptional.54 The radical bifurcation between law and charisma, which is ostensibly characteristic of the secular, was originally directed against Judaism, and is part of what identifies our disenchanted order as a variant on ancient Christian themes. As Rémi Brague has observed: Our societies, with their agenda of a law with no divine component, are in fact made possible, in the final analysis, by the Christian experience of a divine without law. .€.€. The supposed combatants for the “secularization” of institutions fly to the aid of a victory that was assured centuries ago, and which is, what is more, the victory of Christianity itself in its most official form, that of the church, establishing the borderline that separates it from the secular domain.55

We may dispute some of Brague’s historical claims. The triumph of an antinomian concept of religion, and with it, of secularism, was more recent than he asserts, being largely a product of the Reformation; and it was hardly “assured.”56 This is a teleological claim that accepts dogma as fact. Nevertheless, one must endorse Brague’s claims in their broad outlines, and with this, abandon the pretense of a “secular” free from Christian presuppositions. As he suggests, secularization was a dialectical process. The historical examples explored above already serve to illustrate the reciprocal definition of law and religion in a political theology or spiritual economy: just as religion became “spiritual,” individual, and/or private, law became “secular,” positive, and public. As the one advanced, the other withdrew. The separation between the religious and



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the secular was a division internal to religion—it carved up a single theological space—in which “law” and “religion” were originally not distinct. From this perspective, secularization—meaning the transcendence by religion of all positivity, especially that of ritual—represented the consummation of an eschatological process, the guarantee of Christian redemption. “Freedom of religion” meant originally “freedom from (Jewish) ritual.” The birth of secularism was not an easy one. Like the struggle of Jacob with Esau in the womb—an image that Paul used to illustrate how the Jews, though elders like Esau, could be supplanted by their younger brothers, the Christians (Romans )—modern secularism owes an unacknowledged debt to Christian antinomianism and universalism, which established itself through a rejection of the carnal rites and superstitions of Jewish ritual, the abolition of which made way for a new dispensation in which there would be no distinction between Jew and Greek. Forgetting the violence of this birth-struggle, we have forgotten also our own parentage. Weber already argued that the logic of modern universalism, like that of the Christian universalism from which it borrowed, required such a rejection of ritual particularity.57 As with the original from which it is drawn, the soteriology of modernity promises an escape from heteronomy—that of the externally imposed law—and a realm of absolute freedom. Under this interpretation, “religious freedom” becomes little more than a pretext for the hegemony of one, particular tradition that styles itself as universal. Why, precisely, these developments occurred in recent centuries, associated with the rise of what we like to call “modernity,” is a difficult question, the answer to which would require the examination of many factors. It would be naïve to suggest that this process was driven solely by theological ideas. It also opened the space for modern modes of exchange and a reorientation of behavior toward a rationalized economy, as Weber suggested.58 However, theological ideas often served to provide crucial rhetorical reinforcement and ideological cover to the process of secularization; and the traces of these ideas remain in the repressed soteriological dimensions of modernity. A key consequence of the foregoing analysis is that the claim of religious neutrality, on the basis of which secularism asserted the authority to adjudicate the limits of the various religions, especially vis-à-vis the secular, stands revealed as myth. This poses several challenges to the “legitimacy” of the modern age, which Hans Blumenberg defended against Carl Schmitt, Max Weber, and others.59 If secularism inherited or merely borrowed its categories from Christianity, then some may argue that the survival of these categories in modernity reflects a displacement of them from their proper context, and a misuse. This

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strikes me as a version of the fallacy that attributes prestige to origins. To the extent that these categories, whatever their original form, are structural and not incidental or ornamental features of modernity, their meaning and function derive from their position in that structure, and not from their etymology. This is why I have chosen to focus on the parallel in structural logics between Christianity and secularism. The fact that secularism does not recognize its functional status as a religion shows a certain disingenuousness, a lack of self-awareness or historical consciousness. This is one implication of Schmitt’s critique of liberalism as an unacknowledged political theology. This lack of consciousness appears deliberately motivated by the need to separate secularism from the “religions” and thus vital to the maintenance of the hierarchy according to which modernity is unique, incomparable, and universal. Conversely, the recognition of secularism as a religion undoes this hierarchy and lays a level playing field in which secularism must compete with other religions, as indeed it is already doing. The myth of secularization has served capably for some time as a rhetorical justification, designed to appeal to the populace and convince them of the need for the kinds of limitations and self-discipline required by modernity. A further challenge posed by the exposure of this myth, then, concerns the self-adequacy of modernity, which seems to need this myth as a supplement, at least for rhetorical purposes, either to persuade the masses, or to generate a level of political motivation or affect that cannot be generated otherwise, certainly not by the technocratic, utilitarian state. This is the well-known problem of the need for a “civil religion” in secular society. The point of my genealogy is not to claim some hidden continuity of essence between Christianity and its secular progeny, much less to label modernity a bastard.60 That would mean reifying the category of “religion” in a way that allows the distinction between the “religious” and the “secular” to be reinscribed. Rather, my objective is to diagnose the secular condition, particularly in relation to law. Without genealogical analysis, we remain unaware of the foundations, limits, and motivations of secular law. Positivist insistence on the “incomparability” of law precludes an understanding of law in relation to other domains of culture. Such a nonrelational understanding is impoverished. We should reject the self-image of law as transparent, logical, and responsive only to known motivations rather than to other drives and desires that might exceed the rational calculus of positivism, utilitarianism, economics, or simple materialism. Secularism encodes certain motivations, desires, habits of thought, and narrative patterns that we traditionally associate with religion, or at least with Christianity. To that extent, it may be suggested that secularism is a reli-



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gion, in a functional rather than an essential sense. In particular, it conserves and displaces the functions of soteriology and eschatology from their original Christian context into another that is apparently, but only apparently, “nonreligious.” This is most evident in the manner in which secularism has followed Christianity in defining itself against a Jewish Other. As my essay has suggested, Paul’s rejection of Jewish ritual contributed an enduring foundation not only for what we misleadingly call “secularism” but also for anti-Semitism and a particular mode of religious intolerance. An excavation of the repressed connections between secularism and Christian theology can therefore continue to play a useful role in critique.

Notes I would like to thank Bruce Rosenstock and Winnifred Sullivan for their suggestions on this essay. . Carl Schmitt, Political Theology II: The Myth of the Closure of Any Political Theology, trans. Michael Hoelzl and Graham Ward (Malden, MA: Polity Press, ), . . Immanuel Kant, What Is Enlightenment? (); English translation at http:// www.english.upenn.edu/~mgamer/Etexts/kant.html (accessed //). . Mark Lilla, The Stillborn God (New York: Knopf, ). . Lilla here is clearly invoking Carl Schmitt. See Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, ). . Eric Nelson, The Hebrew Republic: Jewish Sources and the Transformation of European Political Thought (Cambridge: Harvard University Press, ), , , also refers specifically to Lilla’s account of the “Great Separation” as a form of a common and “serious misconception” concerning the rise of toleration. . David Kennedy, “Images of Religion in International Legal Theory,” in Religion and International Law, ed. Mark Janis and Carolyn Evans (The Hague: Martinus Nijhoff, ), – at . . Hent de Vries and Lawrence Sullivan, eds., Political Theologies: Public Religions in a Post-Secular World (New York: Fordham University Press, ), . . See, for example, Thomas Aquinas, Summa Theologica (moral, judicial, ceremonial); Westminster Confession of Faith () (moral, civil, ceremonial); John Maynard, The Law of God Ratified, by the Gospel of Christ (London, ), ; John Edwards, A Compleat History or Survey of All the Dispensations and Methods of Religion (London, ), . . Edward Gibbon, The History of the Decline and Fall of the Roman Empire (), ch. . . On the diverse interpretations of this symbol, see Daniel Gurtner, “The Rending of the Veil (Matt.:a par): A Look Back and a Way Forward,” Themelios , no.  (): –. . On Christian typology, see, for example, Eric Auerbach, “Figura,” in Scenes from the Drama of European Literature (Minneapolis: University of Minnesota Press, ),

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–; Friedrich Ohly, “Typology as Historical Thought,” in Sensus Spiritualis: Studies in Medieval Significs and the Philology of Culture (Chicago: University of Chicago Press, ), –; Sacvan Bercovitch, Typology and Early American Literature (Amherst: University of Massachusetts Press, ); Paul Korshin, Typologies in England – (Princeton: Princeton University Press, ). . See epigraph to this section. . See note 43 below regarding Nelson’s underestimation of the role of typology in Protestant thought. . Joh. Weemse [John Weemes], A Treatise of the Foure Degenerate Sonnes: The Atheist, the Magician, the Idolater, and the Jew (London, ), . Bruce Rosenstock has pointed out to me that this title may be a parody of the story of the four sons told during the Passover seder. 5. The feminizing of the Oriental is a well-known phenomenon, although it should be noted that, in Christianity, as suggested in this passage, becoming a “bride of Christ” has a positive valence. 6. For an illuminating discussion of the multiple meanings of and tangled politics surrounding the veil in contemporary France, see Joan Wallach Scott, The Politics of the Veil (Princeton: Princeton University Press, ). . Gil Anidjar, “Secularism,” Critical Inquiry  (): –. . Jacob Taubes, The Political Theology of Paul, trans. Dana Hollander (Stanford: Stanford University Press, ); Giorgio Agamben, The Time That Remains: A Commentary on the Letter to the Romans, trans. Patricia Dailey (Stanford: Stanford University Press, ); Alain Badiou, Saint Paul: The Foundations of Universalism, trans. Ray Brasser (Stanford: Stanford University Press, ). . Philippe Buc, The Dangers of Ritual: Between Early Medieval Texts and Social Scientific Theory (Princeton: Princeton University Press, ), . . See Nelson, The Hebrew Republic, –. . There is no space here for mapping more precisely the distinctions among these, the variations in terminology, and the intersection with other categories such as “positive,” “divine,” and “revealed law.” . See David Novak, The Image of the Non-Jew in Judaism: An Historical and Constructive Study of the Noahide Laws, Toronto Studies in Theology, vol.  (New York and Toronto: Edwin Mellen Press, ). Both John Selden and Hugo Grotius regarded the Noahide laws as the Jewish version of the “law of nations” (ius gentium). See ibid., ; Nelson, The Hebrew Republic, –. . See, for example, William Penn, A Perswasive to Moderation to Dissenting Christians (London, ), , referring to the Noahide laws as “the Natural Religion of Noah”; and James Tyrrell, A Brief Disquisition of the Law of Nature (London, ), Preface to the Reader. Tyrell’s association with a deistic attack on ceremonial law is evident at : “For as one great design of our Saviour’s coming into the World, was .€.€. to exalt the Law of nature to a higher perfection .€.€. so likewise was it one of the main designs of his coming, to restore the Law of Moses to its Primitive Purity and Perfection; and to free it from those false Interpretations and Traditions, with which the Pharisees had corrupted it.” A similar sentiment was expressed by Edwards, A Compleat History, : “[T]he Worship of the Patriarchs, tho not wholly void of Ceremonies, was Simple and Plain in respect of what was now. Under this Legal Dispensation the number of Ceremonies was



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vastly increas’d, and the Worship was all Gay and Pompous by reason of them.” The Huguenot scholar Jean Barbeyrac, in his introduction to Samuel Pufendorf ’s treatise on The Law of Nature and Nations, trans. Basil Kennedy (London, ), , argued that the Jews were “entirely taken up with the Civil and Ceremonial Law .€.€. under Pretence that God, to suit himself to the Weakness of the Jewish Nation, had prescrib’d to them a great Number of Rites and Ceremonies.” Making things worse, the rabbis had introduced rituals that “destroy[ed] entirely several of the most incontestable Principles of the Law of Nature” and “corrupted the pure morality of their Legislator Moses.” . The distinction between moral and symbolical, ceremonial laws goes back to Augustine, Contra Faustum, Book , where Faustus the Manichaean utterly rejects the ceremonial laws of the Jews but accepts the commands of the Decalogue as “true law.” . Francis Roberts, Mysterium & Medulla Bibliorum the Mysterie and Marrow of the Bible (London, ), , argued that “[T]he Ceremonial Laws are all comprised in the First Table,” while the Second Table was judicial law. . Johannes Cocceius (–) even argued that the ceremonial law was a punishment to the Jews for worshiping the Golden Calf. See John Weemes, An Explanation of the Ceremoniall Lawes (London, ), ; Weemes, An Exposition of the Morall Law (London, ), ; William Warburton, The Divine Legation of Moses Demonstrated (London, –),  vols., : ; Hugo Grotius, On the Truth of Christianity (London, ), , , –, ; Richard Watson, A Collection of Theological Tracts (Cambridge, ), : ; Isaac Watts, A Short View of the Whole of Scripture History (London, ), ; Stephen D. Benin, “The ‘Cunning of God’ and Divine Accommodation,” Journal of the History of Ideas  (): –; Guy Stroumsa, “John Spencer and the Roots of Idolatry,” History of Religions  (): –; Amos Funkenstein, “Accommodation and the Divine Law,” in Theology and the Scientific Imagination: From the Middle Ages to the Seventeenth Century (Princeton: Princeton University Press, ), –. . See, for example, Weemes, An Exposition of the Morall Law, ; Watson, A Collection of Theological Tracts, . . Weemes, An Explanation of the Ceremoniall Lawes, . The same three reasons are given also by Watts, A Short View of the Whole of Scripture History, , except that propensity to idolatry is more forthrightly substituted for infantilism. . Weemes, An Explanation of the Ceremoniall Lawes, . . Weemes, A Treatise of the Foure Degenerate Sonnes, . . James Sears McGee, The Godly Man in Stuart England: Anglicans, Puritans, and the Two Tables – (New Haven: Yale University Press, ). . Gentili’s argument was advanced during his dispute with John Rainolds over the propriety of theatrical plays at university, which Rainolds attacked and Gentili defended. See Leon Markowicz, trans., Latin Correspondence of Alberico Gentili and John Rainolds on Academic Drama (Salzburg, ), , , –. See also Gesina H. J. Van Der Molen, Alberico Gentili and the Development of International Law: His Life, Work and Times, d rev. ed. (Leyden: A. W. Sijthoff, ), – and ff. . Van der Molen, Alberico Gentili and the Development of International Law, . . Nelson, The Hebrew Republic, –, provides another example of how this distinction between the Two Tables could be deployed in an argument for toleration, in this case by Thomas Hobbes. . Schmitt, Political Theology II, , compare .

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. As Sacvan Bercovitch argued in “Typology in Puritan New England: The Williams-Cotton Controversy Reassessed,” American Quarterly  (): –, the difference between Williams and his “orthodox” opponent John Cotton depended on their different views of Christian typology. Kent Greenawalt has rightly pointed out that Martha Nussbaum underestimated the theological dimensions of Williams’s concept of freedom of religion, and interpreted him anachronistically as a secular thinker. Indeed, it is almost impossible to understand the logic of Williams’s argument without a knowledge of Christian theology, and especially of typology. Kent Greenawalt, “Where Shall the Preaching Stop?,” reviewing Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, in New York Review of Books , no.  (May , ). See also the exchange of letters between Nussbaum and Greenawalt in the June , , NYRB. . Roger Williams, The Bloudy Tenent, of Persecution, for Cause of Conscience (), reprinted in The Complete Works of Roger Williams (New York: Russell and Russell, ), –; compare ff., , , . . Ibid., , . . Henning Graf Reventlow has noted the influence of typology on the political thought of Hobbes, Locke, and others in The Authority of the Bible and the Rise of the Modern World, trans. John Bowden (Philadelphia: Fortress Press, ), his masterful account of biblical interpretation in British Protestantism. . Nelson, The Hebrew Republic, . . See ibid., . . Ibid., . . Nelson, ibid., , claims that “the general Protestant hostility to received exegetical tradition made possible a radical break with the conventional Catholic view that the Hebrew Bible should be regarded as a typological prefiguration of the Gospel.” Later (p. ) he states: “Readers began to see in the five books of Moses .€.€. a political constitution. No longer regarding the Hebrew Bible as the Old Law—a shadowy intimation of the truth, which had been rendered null and void by the New Dispensation—they increasingly came to see it as a set of political laws that God himself had given to the Israelites as their civil sovereign.” The suggestion that Protestants rejected typology and, with this, ceased to condemn the ceremonial law, is not quite accurate. Although typology was modified in various ways by different Protestants, only in certain radically literalist readings or in the Deist repudiation of “mystery” was the concept of typology itself undermined. Even then, the critique of symbolic interpretation often converged with a deepening of the traditional typological elevation of the Gospel as a form of “plain speech.” For example, the Deist John Toland argued that “in the New Testament Mystery is always us’d in the first Sense of the Word, .€.€. for things naturally very intelligible, but so cover’d by figurative Words or Rites, that Reason could not discover them without special Revelation; and that the Vail is actually taken away; then it will manifestly follow that the Doctrines so reveal’d cannot now be properly call’d Mysteries.” Christianity Not Mysterious (London, ), . . Nelson, The Hebrew Republic, –. . See Grotius, On the Truth of Christianity, : “It is further observable, that all that part of the Jewish law which the coming of our Saviour made useless and unnecessary, was of no real or intrinsic worth; consisting merely of ceremonial matters, indiffer-



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ent in themselves, and consequently having no claim to immutable observance.” . Immanuel Kant, Religion within the Limits of Reason Alone, trans. Theodore M. Greene and Hoyt H. Hudson, d ed. (La Salle, IL: Open Court, ), . . Matthew Tindal, Christianity as Old as the Creation (London, ), –; Thomas Morgan, The Moral Philosopher, vol.  (London, ), . . Nelson presumably would classify Williams as among the “sectarian writers .€.€. who defended toleration while advocating for the radical separation of church and state” and as less representative than the Erastians (The Hebrew Republic, ). . Robert Yelle, “The Hindu Moses: Christian Polemics against Jewish Ritual and the Secularization of Hindu Law under Colonialism,” History of Religions  (): –. . Winnifred Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, ). . Carolyn Evans, “Religious Freedom in European Human Rights Law,” in Religion and International Law, – at –. . Kennedy, “Images of Religion in International Legal Theory,” –. . Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (New York: Charles Scribner’s Sons, ). . For an account of the Protestant presuppositions of Weber’s theories of charisma and disenchantment, and Carl Schmitt’s critique of these presuppositions, see Robert Yelle, “The Trouble with Transcendence: Carl Schmitt’s ‘Exception’ as a Challenge for Religious Studies,” Method and Theory in the Study of Religion  (): –. The discourse of disenchantment actually reached its apex, not in Puritanism, but in Deism, which attacked the God of the Old Testament—the God of miracles, mystery, and sacrifice—in the name of a robust concept of natural law. But that is a story for another day. . Rémi Brague, The Law of God: The Philosophical History of an Idea, trans. Lydia G. Cochrane (Chicago: University of Chicago Press, ), . . Nor was it shared by all Protestants, as the Deist championing of natural law exemplifies. . Max Weber, The Religion of India: The Sociology of Hinduism and Buddhism, trans. H. H. Gerth and Don Martindale (New York: Free Press, ), , –; compare Weber, The Sociology of Religion, trans. Ephraim Fischoff (Boston: Beacon Press, ), –. . Max Weber, Economy and Society, ed. Guenther Roth and Claus Wittich (Berkeley: University of California Press, ), : . See also Peter Ghosh, A Historian Reads Max Weber: Essays on the Protestant Ethic (Wiesbaden: Harrassowitz, ), –. . Hans Blumenberg, The Legitimacy of the Modern Age (Cambridge: MIT Press, ). . The earliest version of this essay was presented to a group of scholars at the American Bar Foundation. On the whole, the response was polite interest, with some probing questions. The one that stuck with me called into question the value of the entire project, in terms that invoked a biological metaphor strikingly similar to that of genealogy. One law professor asked (though perhaps not quite so bluntly), “Why does any of this matter? After all, children are children, and as such, are invested with certain legal rights. We do not ask whether they are the product of rape, or of incest, and so

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forth. Similarly, why should it matter what the origins of modern legal doctrines such as freedom of religion and the like were, even if they were anti-Semitic? As long as they are the correct doctrines—the right result—what difference does it make how we arrived at this result?” I appreciate the rigor and clarity of such questions, and in the present version of this essay, have attempted to answer them.

chap ter t wo

Secular Law and the Realm of False Religion jakob de ro over

Today, notions of false religion and idolatry have disappeared from our legal vocabulary. We would be shocked to hear a modern Western court of law ban some practice as idolatry or refuse religious freedom to some community because of the falsity of its religion. Such reasoning belongs to the Taliban and its kin, but certainly not to secular liberal democracy. Nevertheless, the legal systems of liberal democracies also exclude certain practices from the realm of legitimate religion, even while these are considered religious by the people who practice them. Secular law confronts a major quandary whenever it has to decide whether some practices or beliefs are religious. Being secular, law is expected to be neutral toward all religions in its judgment as to what counts as religion. Yet, when courts determine that some practices are not religious and, hence, do not fall under the scope of religious freedom, or do not deserve state funding or tax exemption, the failure to be religiously neutral seems inevitable. No court possesses an impartial scientific conception of religion; there are no shared secular criteria that enable one to identify and delimit the sphere of religion in a manner neutral to all religions. Consequently, in such cases, judges and other secular authorities are bound to smuggle in one particular theological conception of religion.1 That is, a specific religious language becomes the metalanguage to discuss and decide on matters of religion in courts of law and serves as the standard to reject certain practices as not “truly” religious. This essay examines this quandary by tracing key moments in its genealogy. The first section briefly illustrates the nature of the quandary of legal reli-

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gion. The second section looks into the dynamic of the expansion of Western Christianity, where the distinction between the religious and the secular was originally drawn: an internal Christian distinction that characterized these two spheres in relation to a third, the realm of false religion and idolatry. Focusing on the creation of a legal regime of religious toleration in nineteenth-century British India, the third section argues that this realm of false religion has not really disappeared, but continues to play an essential but hidden role in the liberal state and its legal system.

The Quandary of Legal Religion Secular courts of law across the world have had great difficulty in determining the scope of religion. Yet courts are compelled to take up this task in several types of cases: not only when groups claim exemption from specific laws or some other special status in the name of religion but also when civil authorities desire to ban certain symbols or modes of dress as religious intrusions into the neutral public sphere. Other authors have cogently described this problem, so let me briefly recount two examples.2 The first is the debate about Hindu law in colonial India. In the first decades of the nineteenth century, British rulers raised the question whether a series of native practices in India—from “widow-burning” to “hookswinging”—were religious or not, because native religious practices ought not to be disrupted by colonial government according to its toleration policy. To decide on this issue, British legal authorities referred to a body of Sanskrit texts, which they construed as the scriptures of “Hindu law,” and to the authority of pundits, whom they viewed as priestly interpreters of this sacred law. If a practice had scriptural sanction according to Hindu law and its pundits, then it ought to be allowed; if not, then it could be banned. This became the standard to determine when practices were legitimately religious or only apparently so.3 In The Impossibility of Religious Freedom (5), Winnifred Sullivan analyzes another interesting example. In a trial about grave decorations in the city of Boca Raton, Florida, the court had to judge whether municipal cemetery regulations allowing only simple horizontal grave markers constituted a substantial burden on the plaintiffs’ free exercise of religion. The plaintiffs had marked the graves of their loved ones with a variety of “vertical” symbols and statues, and now the court was to decide whether these were religious. Eventually, the judge rejected the decorations as personal choices of the plaintiffs, without any basis in a larger authoritative system of religious beliefs. These practices were not required by their religions, but were voluntary and individual acts; hence the



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cemetery regulations could not count as a substantial burden on free exercise. Something peculiar happens in such cases. A group is told that some of its practices are not really religious, even though it took them to be so. By implication, these practices are secular and only wrongly viewed as religious; therefore, they can be regulated by the state. This kind of judgment faces a problem: disputes about who or what is truly religious are viable only within the framework of a specific religion. Take the breaking of bread. The question “Is this a religious practice?” hardly makes sense when it concerns crumbling bread to feed ducks in a pond. It is only against the background of liturgical practices and theological disputes about transubstantiation, sacraments, and the Eucharist that it becomes a sensible and answerable question.4 To take a position, one has to enter such theological disputes, interpret Scripture in a particular way, and assess the status of apostolic tradition. The same goes for other examples. Cases of this type transform courts into arbiters of religious truth who cannot help but to invoke theological criteria to come to a decision. To require of secular law that it verify the religiosity of practices is to condemn it to giving up its own secularity. Another difficulty arises when we take into account the history of such attempts to distinguish the truly religious from that which is only apparently so. Turning to early modern Europe, one of the archetypal characterizations of idolatry was that it imposed things of human invention and choice as though these were necessary to religion. False religion introduced human fabrication as divine injunction. While the terms “false religion” and “idolatry” are not invoked today, the conclusion is similar in cases where modern secular courts of law have had to decide what counts as religion. They also argue that, legally, certain practices or beliefs considered religious by some people are not truly religious, but actually concern personal preferences or secular issues—that is, human inventions. Is it the case that the conceptual realm of false religion and idolatry still remains present implicitly in our legal reasoning and practices, while the terms have disappeared from our legal vocabulary? Isn’t this inevitable when one specific religious language is smuggled into courts of law as the metalanguage to decide on matters of religion? What does this tell us about secular law and its relation to Christian religion? In this chapter, I will suggest that the distinction between religious and secular practices derives from a conceptual mechanism internal to Christianity and depends on its prior distinction between true and false worship. Consequently, where secular courts of law identify “truly” religious practices, they also introduce an implicit model of false religion that restructures traditions in society.

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Christian Expansion and False Religion Before the Enlightenment, Western Christianity configured the religious and the secular in relation to a third sphere, that of idolatry and false religion. This triad became crucial once early Christians had accepted that the Parousia (the Second Coming of Christ that would precede the Last Judgment) was not imminent and faced the problem of living as Christians in pagan society. They needed to address the question, what does it mean to be a Christian? In the period preceding the sixth century c.e., clerical authorities began to determine which practices in society should be rejected and which retained by Christians. Could they attend circus games and shows in theaters, participate in holidays, festivals, and other forms of entertainment? Could believers be astrologers, schoolmasters, and traders? Were they allowed to wear jewelry, dress, eat, and shop like pagans? It became crucial to decide which among these practices were neutral or indifferent to religion and which embodied false religion and idolatry.5 In medieval Europe, the Libri Poenitentiales, or manuals of penance, addressed similar issues. By identifying certain practices (for example, performing incantations, attending festivals, lacerating the face with a sword or with the fingernails after the death of a relative) as problematic and ignoring others as indifferent to religion, penitential law drew the boundary of the realm of false religion.6 Drawing this line became more important than ever during the Protestant Reformation, which saw a replay of the scenario, but with the crucial difference that now Catholic societies played the part of the earlier pagan society. Once again, the question was raised as to which practices were acceptable to the true Christian. The teachings and rites of the Roman hierarchy were condemned as idolatry and superstition, but so were all kinds of practices common to medieval society. Reformed consistories reproved those who consulted “magicians” to cure their ailing relatives and those who played at “divination.”7 Dancing was associated with “idolatrous” Catholic customs such as votive festivals. Not only was Carnival suspect, so were donning costumes and masks, playing music, playing cards, and holding banquets. Folk customs relating to the cycles of nature were particularly disapproved of by pastors and elders. They also opposed the celebration of religious festivals, including Christmas, since the laity had to stop clinging to “the old superstition of observing feast days.” From France to Scotland, such practices were denounced as the celebrations of idolaters.8 Far from being unique to Calvinists, this obsession with idolatry also emerged in Lutheran jurisdictions. The popular Teufelbuch genre of the late sixteenth century conceived of all kinds of acts, emotions, and attitudes as in-



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direct worship of the devil.9 People who worried about money or food were called idolaters of “the Worry Devil”; others were said to be victims of the “Hellish Spirit of Sadness” or the “Melancholy Devil.”10 Carnival was described as a pagan festival preserved by the medieval church to promote its own invented festivals.11 In short, a plethora of everyday practices and feelings was considered idolatrous by the Reformers and banned by laws of ecclesiastic discipline. Simultaneously, idolatry and false religion became matters of intense theological reflection. The Protestant theology of Christian freedom had built a solid wall between the eternal spiritual world and its temporal material counterpart. In the first realm, only Christ could rule and the soul ought to enjoy liberty from any human authority and laws; in the second realm, the sinful body had to be held in check by secular rulers and human laws.12 False religion, it was said, violated the sacrosanct boundary between these realms. First, it directed its worship at visible and carnal objects, while true religion should have the invisible spiritual as its object of worship.13 Second, idolatry presented human laws and works as means to the justification of the soul, while Christ alone was “the Lamb of God who takes away the sins of the world.” To take the example of the Mass, Lutheran and Calvinist creeds stated that the Mass was evil idolatry that encroached upon Christian liberty, because it presented human works as spiritual.14 More generally, they asserted, the article of Christian freedom should not be weakened: For weakening this article and forcing human commands upon the church as necessary—as if their omission were wrong and sinful—already paves the way to idolatry. Through it human commands will ultimately increase and will be regarded as service to God equal to that which God has commanded; even worse, they will even be given precedence over what he has commanded.15

In other words, human works and laws became idolatrous when they were regarded as religious. They became Menschensatzungen—that is, human fabrications added to God’s revelation. Protestants were also concerned about the theological contrast between things indifferent and things necessary to salvation. The latter concerned teachings and practices clearly prescribed in Scripture. The indifferent things, or adiaphora, on the contrary, belonged to the realm where humanity had been left free by the Lord. Such neutral indifferent things could never be imposed in the name of religion, because this was equivalent to idolatry: it amounted to enforcing human secular preferences, as though these were commanded by God and necessary to salvation.16

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Naturally, there were many discontinuities between the several Protestant theologies of idolatry. Luther argued that the prohibition of images and other externals in worship was idolatrous, because this bound our consciences to things indifferent as much as their imposition did.17 Calvin and his followers, in contrast, argued that any addition of unscriptural human inventions to worship amounted to idolatry. As the Scottish reformer John Knox put it: “All worshipping, honoring, or service invented by the brain of man in the religion of God, without his own express commandment is idolatry.”18 Importantly, these different positions shared one conceptual apparatus, which revolved around the drawing of the boundary between true worship, idolatry, and the realm of indifferent human practices. Throughout the “confessionalization” of Reformation Europe, different confessions accused each other of idolatry and identified some of each other’s practices as human inventions.19 In the first stage, many ceremonies and beliefs of the Roman Church were said to be “popery” or “popish idolatry”: human fabrications enforced as commandments of God. The same charge was repeated once Protestant confessional churches had crystallized, and their doctrines, laws, and rites had become objects of opposition. Anticlerical Christians claimed that these churches had failed to free the believer from the burden of idolatry and that church doctrine and discipline still imposed false human additions to religion.20 From the seventeenth century, this tendency to make Protestant religion ever more “spiritual” emerged in several denominations. The tendency culminated in deism, which rejected all dogmas and rituals that deviated from certain core principles of “natural religion” as superstitious and idolatrous human inventions.21 How do we account for this set of facts and disputes concerning idolatry? At one level, these indicate a contingent theological problematic within Christianity: there is the biblical injunction against worship of images in the first table of the Decalogue and the conviction that mere creatures never deserve the honor due to the Creator. But how do we explain that entire realms of practices were condemned as idolatry and contrasted to true worship and practices indifferent to religion? How could we make sense of the fact that this happened not just once or twice, but at many spatiotemporal locations in the development of Christianity? To answer these questions, we have to move to another level of description, that of a theory of religion. Even though the multiple historical forms of Christianity have diverse characteristics, this does not prevent us from identifying those characteristics that render them into instances of religion. In the last two decades, the Indian thinker S. N. Balagangadhara has developed a theory that



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not only clarifies this characteristic structure of religion but also explains how earlier theorists have failed to do so.22 As a religion, he argues, Christianity is a particular type of account, “an explanatory intelligible account of the Cosmos,” which represents the world as the embodiment of God’s will and thus transforms this world into an entity that carries meaning and is explicable by deciphering God’s will or plan.23 For our current purposes, it is important to see how this theory explains the role of worship. Worship allows for the everyday reproduction of religion, because it is the act through which one recurrently confirms that God is the sovereign creator of the world, that His plan is expressed in the world, and that one’s own existence is part of His plan and in submission to His will. Collectively, worship creates and reproduces the Christian religious community as a group of people accepting some particular account as the revelation of God’s will and striving to live and act in conformity to His will. At this point, the “Mosaic distinction,” as Jan Assmann has called it, enters the equation: since there can be only one sovereign whose will governs the world and only one account that truly reveals His will, distinguishing between the one true God and many false gods and between true and false religion becomes essential.24 The act of worship should have only the true God as its object. It unites His followers and divides them from those who follow false gods. Empirically speaking, worship needs to demarcate the boundary of the community of believers, but this demarcation cannot happen just by pointing to the social environment that lies outside this community, since some degree of interaction and sharing of practices with others is inevitable. The rift between true and false religion compels one to strictly distinguish two kinds of acts from each other: one kind involves false worship with all its ramifications, and the other is indifferent to worship. Some acts are idolatrous in nature, and others are indifferent to religion. As Balagangadhara suggests, the notion of idolatry splits the realm outside of the Christian religious community into two spheres: the secular realm of things indifferent to religion and that of false religion.25 Idolatry plays the role of a filter: something is secular, if and only if it is neither idolatrous nor truly religious. It constitutes the realm of the secular by defining the triad of the truly religious, the falsely religious, and the indifferent.26 This filtering mechanism is well illustrated by Tertullian’s (– c.e.) De Idololatria, which first distinguishes between the worship of God and devilworship and next scrutinizes a variety of practices to decide whether these belong to the realm of idolatry. The followers of Christ could not participate in any heathen festivals and also not in the games and spectacles; magic, astrology, and miracle-working were cases of “formless idolatry”; any craft, profession, or

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trade contributing to the equipment or formation of idols was also off-limits.27 Finally, Tertullian could decide which practices were neutral: Christians could attend public and private ceremonies related to betrothals, weddings, and name-givings and could even wear a white toga at such occasions.28 Similarly, in the Middle Ages, when entire nations converted to Christianity, the pope was asked to determine which of their practices had to be rejected after conversion. In the case of the Bulgars, for instance, he condemned the “incantations, jests, verses, and auguries” they performed before battle, but placed the wearing of trousers by women and the king’s custom of dining alone in the indifferent realm.29 In such instances, the filtering mechanism of idolatry identifies those practices in the surrounding society in which members of the Christian community can participate and those which are to be rejected. In this way, idolatry constructs the secular realm and, at the same time, draws the external boundary of the Christian community.30 While worship constitutes the practices that are obligatory, idolatry identifies those practices that are forbidden, thus opening the realm of the religiously permissible.31 By filtering out such neutral or indifferent practices, the mechanism of idolatry creates a secular world that is now defined by Christian religion. In other words, the secular realm is not the world that lies outside the Christian religious world and that has nothing to do with religion, but a sanitized realm of social practice cleansed from “false worship.” The religious-secular distinction is made by and within a particular form of Christian religion, in opposition to idolatry. Historically, whenever idolatry became the subject of intense dispute in Christian Europe, this was not mere theological contingency. Such disputes point to the formation of a new secular world necessary to demarcate the boundary of a Christian religious community. This is why early Christian authorities became fixated on distinguishing the three realms of religious, indifferent, and idolatrous practices: they had to build a wall of separation between their own religious community and the world of false worship. The same necessity also explains why Reformers identified a variety of practices of medieval society as idolatry, and why, in the period of confessionalization, each confessional church began to perform the same operation on its social environment. Given the fragmentation of Western Christianity after the Reformation, this mechanism could be reiterated endlessly by each schismatic community. Each accused the others of violating the boundary between the religious, the secular, and the idolatrous. However, this explains only part of the story. It does not tell us why ever more Christian practices and doctrines were identified as false human fabrica-



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tions in religion. Here, we have to introduce another aspect of Balagangadhara’s theory: as a religion, Christianity not only explains the world as the will of God but also accounts for itself as the act of self-disclosure in which God reveals His all-encompassing will to humanity. As such, this religion claims a truth that is both unconditional and universal in nature. As God’s revelation to humanity, it has to be unconditionally accessible to all; as the revelation of His will, it is universally valid for all. Because of this truth claim, Christian religion knows of a double dynamic of universalization.32 It expands in two ways: not only through proselytization, whereby groups of people are converted to its specific doctrines and practices, but also through a moment of secularization, whereby it achieves universalization in fact by progressively losing its specific form. In any historical instantiation of Christianity, a tension and interplay develop between these two antipodal moments of expansion: in that of proselytization, the particularity of some form of Christianity is stressed, both in terms of doctrines and practices; in that of secularization, this particularity gives way to a drive to become more generic, which causes (this form of) Christian religion to cast off specific doctrines and practices, because these pose obstacles to its further diffusion in society.33 After the Reformation, I would like to suggest, one of the forms taken by this moment of secularization was to identify certain aspects of confessional churches as idolatrous and claim that they are really human and indifferent and falsely imposed as God’s will. In this way, these aspects were cast off from particular forms of religion and pushed toward the secular realm of indifferent things. This moment of secularization went hand in hand with identifying certain practices and doctrines as constricting and corrupting additions to religion. Often, this took the form of contrasting the true spiritual form of religion to its false material and political counterparts. Prototypes of the latter were Judaism with its ceremonial law and national restrictions,34 and the Roman Catholic Church with its canon law and priestly hierarchy. Protestants argued that they were removing human accretions added to the pure core of divine revelation in a continuous process of degeneration of religion.

Hindu Law and False Religion At first glance, there appears to be quite a stretch between the Reformers’ intolerant notions of false religion and the regimes of religious toleration that emerged in early modern Europe. As several authors argue, however, the normative model of toleration formulated by early modern thinkers to cope with

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the coexistence of several Christian confessions in one polity had deep roots in Protestant political theology.35 In fact, it derived from a generic theology of Christian freedom, which said that political rulers had authority only over the secular realm and our material welfare and that they ought not to interfere in the religious realm of the soul’s salvation.36 Naturally, different confessions considered different sets of practices as true worship and idolatry; consequently, there was disagreement also on the scope of the secular realm. According to the principle of toleration, political rulers should abstain from judgment on these conflicting theological claims. Instead, they relied on a background consensus of what counted as secular and religious, which was acceptable to different confessions. But this background consensus also drew on the generic framework of Christian freedom to determine what is religious and what secular. One of the consequences was the agreement among many advocates of toleration that Catholicism could not be tolerated, because it was not religion, but only a political institution that falsely claimed to be religious.37 Let me formulate this as a hypothesis: even where the state did not engage in explicit endorsement of any religious truth, the conceptual mechanism that allowed it to sift the religious (as the realm of toleration and freedom) from the secular (as the realm of state interference) always involved an implicit notion of false religion. It is almost as though, in this model of religious toleration, a secularized counterpart had developed to the filtering mechanism of idolatry. Whereas the explicit notion of idolatry had allowed the church to determine which practices in the surrounding society were secular and therefore acceptable to Christian believers, the implicit notion of false religion now enabled the state to establish which among all the practices considered religious by its subjects could indeed count as religion and ought therefore to be tolerated. Hence it could also decide which other practices could be regulated as secular superfluities and human inventions. Of course, this is a tentative hypothesis. In what follows, we will examine its viability by analyzing a specific historical episode: the early-nineteenth-century attempt to set up a legal regime of religious toleration in British India. When Europeans began to conceive of the “Hindu religion” in India, all agreed that this was an instance of false religion, full of superstition and idolatry. Yet, once the British took control of Bengal in the late eighteenth century, they intended to create a government and legal system that would be tolerant of all religions and adapt itself to local customs. In a  plan for the administration of justice in Bengal, the Committee of Circuit stated the following: “We have endeavoured to adapt our Regulations to the Manners and Understandings of the



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People, and Exigencies of the Country, adhering as closely as we were able, to their ancient Usages and Institutions.”38 The ensuing legal system allowed for native subjects to be ruled by their own “sacred law” in questions of religion, inheritance, and contract.39 Here, we are not looking to determine the motives behind this policy of religious toleration or their relative proportion. To some extent, it served the economic and political interests of the Company and was motivated in pragmatic terms; however, normative principles of toleration and religious freedom and the political debates in England about this issue also shaped colonial policy.40 Of interest to us is the conceptual form taken by this British legal policy toward local traditions in India. Even though the private judgment of colonial officials might still reject native “religions” as false, and missionaries certainly retained the desire to eradicate idolatry, the government and its legal system did not allow for this distinction between true and false religion. This did not entail that the British left indigenous traditions in India untouched. They approached the dharmaśa¯stra traditions as “sacred law,” even though these treatises were not rules of law, but rather described customs of different groups and localities and contained a variety of reflections, sayings, and maxims for settling disputes. Instead of allowing the dharmaśa¯stra traditions to continue to play the same role in society as before, the British began to reform and codify them into a systematic, uniform and consistent body of law.41 The policy to retain “the laws of the Shaster” soon created problems for the administration of justice, as it was unclear what exactly this supposed sacred law of the Hindus consisted of. This manifested itself in two ways. First, the official policy of noninterference compelled colonial officials to determine which practices were truly religious and had to be tolerated. Take the example of “hookswinging,” or carak puja, a ritual that involved suspending the bodies of devotees by iron hooks through the skin. Nicholas Dirks has noted that the judicial inquiries about the toleration of “hookswinging” in South India always centered upon two aims: “[To] establish first, that hookswinging did not have the proper sanction of religion at all and second, that in any case it was performed in the name of religion only to mislead the public and subvert religion itself ” and to serve the interests of temple priests.42 For decades officials disputed whether “hookswinging” had scriptural sanction and religious significance. Was it really part of Hindu religion or merely primitive superstition abused by temple priests to manipulate believers? Any controversial practice—including sati (the immolation of a widow), female infanticide, assistance at the suicide of lepers, and so forth—could generate the same type of contro-

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versy about its religiousness. In each case, pundits affiliated to the courts were consulted to determine whether the practice was sanctioned by their scriptures. If the decision was negative, the practice in question was relegated to the secular realm, where it became subject to criminal law and could be banned.43 At this first level, we note how a generic Protestant notion of false religion operated implicitly here. According to this notion, idolatry consisted of practices and doctrines invented by human beings, without scriptural sanction, which were imposed as though they were religious. These fabrications were often denounced as the work of self-interested clerics. Even though the government and its courts of law approached Hindu traditions as religion tout court, without adding the predicate of falsity, the way in which they did so nevertheless smuggled in this theological distinction between true and false religion.44 But this was introduced as though it concerned a distinction internal to Hindu religion. Some practices were accepted as truly religious, while others were rejected as illegitimate human additions to religion. The boundary between these realms was drawn along the lines of the division between the essentials commanded by God in Scripture and indifferent things that were falsely imposed as religious. Since the task of locating the precise boundary was displaced to the supposed scriptures and priests of “Hindu religion,” the colonial legal system effectively transplanted this conceptual structure into the Hindu traditions. Second, more generally, the question emerged of which rules were to guide judicial decisions in the domain of Hindu law. “There is hardly any question arising out of Hindoo law, that may not be either affirmed or denied, under the sanction of texts, which are held to be equal in point of authority,” so concluded a man of great experience in the matter, Sir Francis Macnaghten, Supreme Court Judge at Fort William in Calcutta. In a work that would soon be distributed to all Bengal courts, he admitted that the plethora of contradictions, unintelligible passages, and conflicting authorities were extremely problematic. However, he affirmed that “their own is the only law to be administered to” Hindus, and that, by judicious selection and consistent application, “we may hope, in time, to cleanse the system of its aggregated corruptions, and to defecate the impurity of ages.” By creating such a consistent system of rules, one could also avoid the partiality of native lawyers: “We shall then by a series of adjudications give consistency to the law, and leave the rights of a people unmolested.”45 Sir William Jones, another Supreme Court judge and celebrated philologist and orientalist, had already come to very similar conclusions in a  letter to the Marquis Cornwallis, where he explained that judges could not “give judgement only from the opinions of the native lawyers and scholars,” who deceived



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them by quoting half-sentences from a single obscure text “as express authority, though perhaps, in the very book from which it was selected, it might be differently explained, or introduced only for the purpose of being exploded.” Jones called for a digest of Hindu law after the model of Justinian’s Pandects, which would be consulted by the courts as a fixed standard of justice, free from the impositions and fabrications of native lawyers.46 Other colonial administrators proposed similar solutions to the perceived problem. In , Governor Elphinstone of the Bombay Presidency concluded that there were only two potential solutions: either creating a new code founded on general principles, or compiling “a complete and consistent code from the mass of written laws and the fragments of tradition, determining on general principles of jurisprudence those points where the Hindoo books and traditions present only conflicting authorities.”47 Given the attachment of the natives to their institutions, the second plan was the only viable option. In pursuit of this plan, the incredible variety and intricacy of customs and “caste rules” surfaced when administrators collected these in different parts of India.48 Yet the conviction remained that all this derived from the degeneration of an original Hindu code.49 This belief that Hindu law had degenerated was embedded in a more general orientalist image of Hindu religion as an originally pure doctrinal core, similar to Christian theism, which had been corrupted by human additions. In the words of one author: “The genuine principles of the Hindu religion inculcate the most sublime notions; though its rites are debased with idolatry and superstition.”50 To make disappear all contradictions from Indian religion, a French orientalist recommended, one should return to the common point where each sect had started and examine the original principle, express it in its purity and then expose the aberrations that had ruined it.51 Indeed this approach was applied to Hindu law, which “in its pure and original state, does not furnish many instances of uncertainty or confusion. The speculations of commentators have done much to unsettle it, and the venality of Pundits has done more.”52 Now it was a matter of bringing back the pure and clear Hindu code. Again, the same crucial shift occurred here. Missionaries and other critics had denounced Hindu law as the fabrication of Brahmin priests, who had feigned a divine revelation in order to prescribe it as God’s own law and thus transform the believers into “only Machines, which are mov’d by their Priests.”53 In this sense, contemporary Hindu law exemplified false religion: it imposed human inventions as though these were necessary to salvation, human laws as though they were God’s will. In the eyes of the missionaries, the only possible approach to the native traditions of India involved a wholesale rejection of this

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“heathen religion” and conversion to the true will of God—that is, their particular version of Protestantism. While the colonial government did not approach Hindu law in the same way, it retained the theological distinction between truth and falsity at a fundamental level. The British never prohibited false religion or idolatry explicitly, but did conceive of “religion” in general—and “Hindu religion” in particular— in terms of the Protestant model of a set of scriptural rules that reflected the revealed will of God. However, the Hindu traditions and dharmaśa¯stra treatises did not behave like such a consistent set. When colonial officials and scholars tried to extract a consistent code, they rejected those aspects of these traditions that deviated from the Protestant model of religion as human accretions, impositions of native lawyers or priests. In other words, the process of codification was structured by this theological model of false religion and degeneration, much as the same theology had inspired demands for legal rationalization and codification in England.54 This tendency to transplant Protestant-Christian structures into Hindu traditions could take several forms and never required explicit rejection of practices as idolatry. As Robert Yelle has shown, the British secularized Hindu law in similar ways by marginalizing the ritual aspects of dharmaśa¯stra traditions.55 Even though these ritual aspects were described in dharmaśa¯stra texts, they were nevertheless disestablished and removed from editions and translations of Hindu codes. First, the British modeled their view of Hindu tradition on the Christian understanding of Judaism as a restricted carnal version of Christian spiritual truth. Next, they marginalized Hindu ritual as a set of irrational constricting ceremonies and laws, which could never truly be part of religion and law. Consequently, in several ways, the colonial legal system induced the Hindu traditions to internalize the Protestant-Christian division between the religious, the secular, and the falsely religious. The conceptual realm of false religion had been secularized in the sense that it became an implicit criterion presented as though it were internal to Hindu religion. All aspects of native traditions that did not fit into the codified model of Hindu law were rejected as illegitimate human additions to true “Hindu religion” or denounced as ceremonies and rites that had no role to play in real “Hindu law.” Thus, these aspects were relegated to a hidden realm of false religion. In this way, the institutions of secular law in colonial India contributed to the expansion of Protestant Christianity in its moment of secularization. Rather than eradicating Hindu religion and spreading the specific doctrinal content of Protestant Christianity, its formal structures were diffused in Indian society by being infused into Hindu traditions.



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Conclusion It remains to be seen how far this argument about the early phase of British colonial rule in India can be extended to other manifestations of the liberal state and its system of secular law. However, the widespread quandary of legal religion indicates that a similar process may be at work wherever secular courts of law have to decide what is and what is not religion. Where it concerns matters of religion, the language that liberal democracy speaks is a religious language that has become its own metalanguage. Secular law is one of the institutions through which this happens. But when such a theological language is used in courts of law to determine what counts as religion, then its concomitant notions of false religion also enter the picture. By deciding that certain things, which are believed to be religious by some group, are actually not truly religious, our courts implicitly reject these practices as false religion. When this happens, they insert Protestant-Christian structures into the different forms of religion and tradition that exist in our liberal-democratic societies. Further research will have to show what the precise relation is between secular law and the dynamic of universalization of Christian religion, which has always manifested itself in drawing the distinction between the religious and the secular (and the falsely religious). It may well be the case that the realm of false religion never disappeared from secular law, but has merely gone underground.

Notes The author would like to thank the editors of this volume, the anonymous reviewers, and S. N. Balagangadhara for helpful comments on earlier versions of this essay. . On this practice of smuggling metaphysical positions into “neutral” secular discourse, see Steven D. Smith, The Disenchantment of Secular Discourse (Cambridge, MA, and London: Harvard University Press, ), –. . See, for example, Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, ); Tim Jensen’s chapter in this volume. . Nicholas Dirks, Castes of Mind: Colonialism and the Making of Modern India (Princeton and Oxford: Princeton University Press, ), –; Lata Mani, Contentious Traditions: The Debate on Sati in Colonial India (Berkeley and Los Angeles: University of California Press, ); Jakob De Roover and S. N. Balagangadhara, “Liberty, Tyranny and the Will of God: The Principle of Toleration in Early Modern Europe and Colonial India,” History of Political Thought  (): –. . Bodo Nischan, “The ‘Fractio Panis’: A Reformed Communion Practice in Late Reformation Germany,” Church History  (): –. . Robert A. Markus explains these developments in The End of Ancient Christianity (Cambridge: Cambridge University Press, ). There were similar concerns about

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idolatry as the boundary marker between Jews and Gentiles: “They included questions of what to do with some Gentile coins, whether to go to the baths, games and other activities, what food to buy, who you can eat with, how and where, who you can marry, amongst many other things.” Mark Bonnington, “Fleeing Idolatry: Social Embodiment of Anti-Idolatry in the First Century,” in Idolatry: False Worship in the Bible, Early Judaism and Christianity, ed. Stephen C. Barton (London and New York: T. and T. Clark, ), . . Medieval Handbooks of Penance: A Translation of the Principal Libri Poenitentiales, ed. and trans. John T. McNeill and Helena M. Gamer (New York: Columbia University Press, ), , , . . Raymond Mentzer, “Disciplina Nervus Ecclesiae: The Calvinist Reform of Morals at Nimes,” Sixteenth Century Journal  (): . . Raymond Mentzer, “The Persistence of ‘Superstition and Idolatry’ among Rural French Calvinists,” Church History , no.  (): –; Michael F. Graham, The Uses of Reform: ‘Godly Discipline’ and Popular Behavior in Scotland and Beyond, – (Leiden: Brill, ). . Bodo Nischan, “Lutheran Confessionalization, Preaching, and the Devil,” in Lutherans and Calvinists in the Age of Confessionalism (Aldershot: Ashgate Variorum, ), . . Robert Kolb, “God, Faith and the Devil: Popular Lutheran Treatments of the First Commandment in the Era of the Book of Concord,” Fides et Historia  (): , , –. . Nischan, “Lutheran Confessionalization, Preaching, and the Devil,” . . Martin Luther, “The Freedom of a Christian,” in Martin Luther’s Basic Theological Writings, ed. Timothy F. Lull (Minneapolis, MN: Fortress Press, ); Philip Melanchthon, “Loci Communes Theologici,” in Melanchthon and Bucer, ed. Wilhelm Pauck (Philadelphia: Westminster Press, ). . Carlos Eire, War against the Idols: The Reformation of Worship from Erasmus to Calvin (Cambridge: Cambridge University Press, ). . See the Smalcald Articles, Part II, Art. , in The Book of Concord: The Confessions of the Evangelical Lutheran Church, ed. Robert Kolb and Timothy J. Wengert (Minneapolis, MN: Fortress Press, ), –, and “Chapter : Of Rites, Ceremonies and Things Indifferent” of the Second Helvetic Confession, in Creeds and Confessions of Faith in the Christian Tradition, vol. : Reformation Era, ed. Jaroslav Pelikan and Valerie Hotchkiss (New Haven and London: Yale University Press, ), –. . From the “Formula of Concord, Solid Declaration, Article X: Ecclesiastical Practices,” in The Book of Concord, . . For illustrations of the debate on things indifferent, see Edward Bagshaw, The Great Question Concerning Things Indifferent in Religious Worship (London, ); Richard Baxter, A Christian Directory, Or, A Body of Practical Divinity and Cases of Conscience, vol.  (London, ), –; Christian Thomasius, “The Right of Protestant Princes Regarding Indifferent Matters or Adiaphora,” in Essays on Church, State, and Politics, ed. and trans. Ian Hunter, Thomas Ahnert, and Frank Grunert (Indianapolis, IN: Liberty Fund, ). . Eire, War against the Idols, –. . John Knox, Writings of the Rev. John Knox (Philadelphia: Presbyterian Board of



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Publication, ), . See Richard Kyle, “John Knox and the Purification of Religion: The Intellectual Aspects of His Crusade against Idolatry,” Archiv für Reformationsgeschichte  (): –. . Confessionalization in Europe, –: Essays in Honor and Memory of Bodo Nischan, ed. John M. Headley, Hans J. Hillerbrand, and Anthony Papalas (Aldershot: Ashgate, ); R. Po-Chia Hsia, Social Discipline in the Reformation: Central Europe – (London and New York: Routledge, ); Wolfgang Reinhard, “Zwang fur Konfessionalisierung? Prolegomena zu einer Theorie des konfessionellen Zeitalters,” Zeitschrift für Historische Forschung  (): –. . On this anticonfessional dynamic, see Benjamin Kaplan, Calvinists and Libertines: Confession and Community in Utrecht, – (Oxford: Clarendon, ). . Some seventeenth-century examples are: Lord Herbert of Cherbury, De Veritate, trans. M. H. Carré (Bristol: J. W. Arrowsmith, ), and Pagan Religion: A Translation of De religione gentilium, ed. J. A. Butler (Ottawa: Dovehouse Editions, ). . In his work, Balagangadhara shows convincingly that the “secular” academic study of religion and the many explanations of religion of the last three centuries have reproduced the facts, concepts, and claims of a generic Christian theological framework, rather than developing any independent theory of religion. To avoid adding complexity to the argument, I will not fully explain his alternative theory of religion and its implications here. See his “The Heathen in His Blindness .€.€. ”: Asia, the West and the Dynamic of Religion (Leiden: Brill, ). . This characterization ignores other properties contingent to the Christian religions, such as the central role of Jesus Christ as the revelation of God’s will. . Jan Assmann, The Price of Monotheism, trans. R. Savage (Stanford: Stanford University Press, ). . Balagangadhara, “The Heathen in His Blindness,” . . See Robert Markus, Christianity and the Secular (Notre Dame, IN: University of Notre Dame Press, ), –. . Tertullian, De Idololatria, ed. J. H. Waszink and J. C. M. van Winden (Leiden and New York: Brill, ), .–, –. . Ibid., .–, . . Florin Curta, Southeastern Europe in the Middle Ages, – (Cambridge: Cambridge University Press, ), –; Markus, The End of Ancient Christianity, –. . From our present-day perspective, informed by the modern religious-secular dichotomy, it may seem as though there are really four categories at work here: true religion, idolatry, indifferent religious practices, and things that have nothing to do with religion—of which only the fourth is “secular,” properly speaking. However, it is only within the framework of a specific religion that one could decide which practices were unrelated to religion, both true and false. Potentially, any practice could turn out to be relevant to religion and become secular to a specific religious community only through its filtering mechanism of idolatry. In this sense, all secular or indifferent practices were religious secular practices, because they had been so decided by a specific religion and its authorities. There was no secular sphere of things that have nothing to do with religion, generally speaking. Maximally, an ecumenical consensus could emerge among different religious communities about the scope of the secular.

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. As Talal Asad notes, modern Islamic thinkers also make the same type of threefold distinction. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ), . . This explanation of the double dynamic of universalization in Christian religion is necessarily concise. For a more extensive argument, see Balagangadhara, “The Heathen in His Blindness,” ch. . . Paul’s Epistle to the Galatians with its rejection of “the works of the law” and circumcision is an early manifestation of this moment of secularization in Christianity. . See Robert Yelle’s chapter in this volume. . John Coffey, “Puritanism and Liberty Revisited: The Case for Toleration in the English Revolution,” Historical Journal  (): –; Andrew Murphy, Conscience and Community: Revisiting Toleration and Religious Dissent in Early Modern England and America (University Park: Pennsylvania State University Press, ), –; Jeremy Waldron, God, Locke, and Equality: Christian Foundations in Locke’s Political Thought (Cambridge: Cambridge University Press, ), –. . Jakob De Roover and S. N. Balagangadhara, “John Locke, Christian Liberty and the Predicament of Liberal Toleration,” Political Theory  (): –. . Famous examples are John Locke, “A Letter Concerning Toleration,” in Two Treatises of Government and a Letter Concerning Toleration, ed. Ian Shapiro (New Haven and London: Yale University Press, ); and John Milton, A Treatise of Civil Power in Ecclesiastical Causes (London, ). . Extract of a Letter from the Governor and Council at Fort William to the Court of Directors, Dated d November, , Transmitting a Letter from the Committee of Circuit, at Cossimbuzar, and a Plan, Framed by that Committee, for the Administration of Justice in Bengal. . Sir Francis W. Macnaghten, Considerations on the Hindoo Law as It Is Current in Bengal (Serampore: Mission Press, ), v–vi; Sir Henry Sumner Maine, “The Sacred Law of the Hindus,” in Dissertations on Early Law and Custom (London: John Murray, ), –. . We have analyzed this elsewhere; see De Roover and Balagangadhara, “Liberty, Tyranny and the Will of God,” –. The standard account explains the Company’s toleration policy in terms of economic and political prudence: see, for example, Penny Carson, “The British Raj and the Awakening of Evangelical Conscience: The Ambiguities of Religious Establishment and Toleration, –,” in Christian Missions and the Enlightenment, ed. Brian Stanley (Grand Rapids, MI: W. B. Eerdmans, ). . Nandini Bhattacharyya-Panda, Appropriation and Invention of Tradition: The East India Company and Hindu Law in Early Colonial Bengal (New Delhi: Oxford University Press, ); Bernard S. Cohn, Colonialism and Its Forms of Knowledge: The British in India (Princeton: Princeton University Press, ), –; J. D. M. Derrett, Religion, Law and the State in India (London: Faber and Faber, ); Richard W. Lariviere, “Justices and Panditas: Some Ironies in Contemporary Readings of the Hindu Legal Past,” Journal of Asian Studies  (): –. . Dirks, Castes of Mind, –. . See British Parliamentary Papers , vol. , –, –, and – for some striking instances. . Dirks largely ignores the role of this theology of false religion in the “hookswing-



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ing” controversy and instead emphasizes colonial notions of agency and free will and “low popular” and “high classical religion” (see Castes of Mind, –). These notions derived from another concern: to demonstrate that the practice was “falsely” religious, one had to show that the participants did not autonomously and voluntarily follow injunctions from the real scriptures of their religion, but were manipulated by clerics who had added their own fabrications. . Macnaghten, Considerations on the Hindoo Law, iii, vi, xi–xii. See also Sir Archibald Galloway’s concerns in his Observations on the Law and Constitution of India (London, ), . . The Letters of Sir William Jones,  vols., ed. Garland Cannon (Oxford: Clarendon, ), –. . Elphinstone in Arthur Steele, The Law and Custom of Hindoo Castes within the Dekhun Provinces subject to the Presidency of Bombay, Chiefly Affecting Civil Suits (London: W. H. Allen and Co, [] ), preface. . See Steele, The Law and Custom of Hindoo Castes; and the notes on Harry Borradaile’s work in “Bombay: Correspondence relative to the employment of Mr. Borradaile in the compilation and translation of certain works,  June ,” in Board’s Collections , –, vol. . . There are parallels here with the debates regarding British common law during the seventeenth and eighteenth centuries that call for further investigation. Some authors described common law as an evolving body of law, with apparent inconsistencies that were interpreted and refined by the judges, underneath which lay a coherent, constant, immemorial, and pure system. Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Harvard: Harvard University Press, ), –; J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge: Cambridge University Press, ), –. . Anonymous, “The History of British India,” in The Asiatic Annual Register .€.€. For the Year  (London, ), –. . M. Lacroix de Marlès, Histoire Générale de l’Inde Ancienne et Moderne,  vols. (Paris: Emler Frères, ), vol. , –. . W. H. Macnaghten, Principles and Precedents of Hindu Law, vol. I (Calcutta: Baptist Mission Press, ), iv. . La Crequinière, The Agreement of the Customs of the East-Indians, With those of the Jews, and other Ancient People (London, ), ; see Charles Grant, “Observations on the State of Society among the Asiatic Subjects of Great Britain (),” in British Parliamentary Papers—Colonies East India, vol. : – (Shannon: Irish University Press, ), –. . Assaf Likhovski, “Protestantism and the Rationalization of English Law: A Variation on a Theme by Weber,” Law and Society Review  (): –; Robert A. Yelle, “Bentham’s Fictions: Canon and Idolatry in the Genealogy of Law,” Yale Journal of Law and the Humanities  (): –. . Robert Yelle, “The Hindu Moses: Christian Polemics against Jewish Ritual and the Secularization of Hindu Law under Colonialism,” History of Religions  (): –.

chap ter thre e

Assenting to the Law Sacrifice and Punishment at the Dawn of Secularism jonathan she eha n

Common sense assures us that sacrifice is integrally linked to the sacred. We distinguish a sacrifice from, say, a murder or mere butchery of foodstuff by the ostensibly religious intentions that attach to the ritual. More significantly, sacrifice seems to mark the very boundary between sacred and secular things. Through sacrifice, quotidian objects are made capable of bearing the weight of transcendence. In a sense, sacrifice draws the line between sacred and secular spheres even as it communicates across them. How exactly this alchemy is accomplished—and what constitutes this apparently ubiquitous human practice—has been speculative fodder for anthropologists and other students of religion for long centuries. I want to suggest in this essay, however, that the quest to understand sacrifice as an anthropological or religious a priori in need of explanation might, at the very least, benefit from a historical corrective. That is, I want to ask the question whether in fact sacrifice has historically played this boundary-marking role, and, if not, what role sacrifice has played historically. As a historian, then, I want to focus on one particular moment—seventeenthcentury England—that was characterized by endless efforts to reconfigure the relationship between religious and legal authorities in the face of catastrophic violence. The early modern period is particularly exigent, I suggest, because it has so long served as a near mythical fons et origo of our own religious and political constitutions. Sometime between  and , the story goes, the West left the rest and created a political sphere characterized by the rule of secular law and distinct from that of the religious. This division—what, in a recent book, the political philosopher Mark Lilla called “the great separation” that “sever[ed]



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Western political philosophy decisively .€.€. from theology”—moved religion out of the public sphere. Or better put, it created a public sphere whose integrity depended on the exclusion of religion.1 Given this modern organization of things, any persistence of the sacrificial—as a secular legal or political norm—is anomalous. Such persistence would also, presumably, leave these norms vulnerable to charges of illegitimacy, for failing to achieve their own vaunted autonomy from the chains of religion. And in fact, Lilla’s book charts just this failure. What seemed a decisive separation in Thomas Hobbes, he reveals as merely momentary. Lines of distinction fade, as moderns (from Rousseau onward) forget their importance and are lured back by the “enduring attraction of political theology” into a form of primitive thought.2 For more theoretical critics of the secular order, this early modern story would serve as a neat parable about the inevitable failure of secular political and legal life to lose the religious frameworks that gave them birth. For someone like René Girard, for example, modern law has never emancipated itself from a sacrificial system. It is rather the very perfection of this system, the most efficient agent of repressive violence. For that reason, it preserves a religious core: “[O]nly the transcendental quality of the system .€.€. can assure the prevention or cure of [unrestricted] violence.”3 Yes, he says, the law has forgotten its religious origins. But it still keeps the structure of therapeutic violence as a cure for the uncontrolled explosions of revenge that characterized primitive (presacrificial) societies. Only Christ, as Girard explains in his Things Hidden since the Foundation of the World, has the final power to break with violence altogether, by “bring[ing] to light the founding mechanism [of human culture] and leav[ing] man without the protection of sacrifice.”4 Christ surrendered himself to death to make visible humanity’s dark secret—that its cultural formation was built in “the tomb”—and offer a way out beyond sacrifice and law altogether.5 From a different, though no less critical, perspective, the South African legal theorist Johan van der Walt argues something similar. Law under apartheid, he insists, was essentially sacrificial in its “need to reduce social ambiguity and .€.€. multiplicity .€.€. to simplicity and oneness.”6 Just as sacrifice ends undifferentiated violence by focusing community attention on a single victim, so too did legal apartheid (ostensibly) end race war by rigorously distinguishing between different legal communities. Put another way, the sacrificial demands of law were obscured by the apartheid system, which concealed the inequality of its violent burdens under the guise of subjectively “necessary” legal norms. In the name of my or our survival, anything can be justified—that is, can be made just without need to acknowledge what others give up in its name. As van der

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Walt puts it, “[T]he excessive sacrificial violence of apartheid can be traced to [a] lack of objective criteria regarding the real necessity of depriving others of life.”7 A response to apartheid demands, in his view, the honest acknowledgement of this lack, an acknowledgement that legal principles rely on sacrifices made upon others that may never be adequately grounded in any “objective criteria.” It is curious and important how both critics point to the early modern period as a primordial origin for both the separation of politics and law, and the mystifications that attended it. Girard, for example, looks back to Shakespeare, finding in him “the most daringly perspicacious interpreter” of the sacrificial nature of politics and law.8 And van der Walt looks to Hobbes (and generally early modern natural law theory) as a source of the mystification in the first place, as political science and later liberal legal theory “forgot” the sacrificial demands made upon human beings. Taking the hint, both historical and theoretical, we might then look to the early modern period as the moment when religious sacrifice was secretly transformed into secular law, even as an originally theological content and structure were preserved. Its dubious gift to our contemporary world is, in this view, an ideology of secularism that never fails to disappoint in its claims. Even worse, it never fails to conceal its own worst repressive tendencies behind masks of neutrality and even-handedness. In this essay, I suggest that the early modern period has more to offer than a shadow background against which we can play out our contemporary fights about secular governance. To make this point stick, I want to bring the conversation down to the historical ground, with two short, if potent, examples. Both stand smack in the middle of England’s fiercest struggles over justice and right. And in both, sacrifice, religion, law, and political order are in play at the same time. These early modern stories of sacrifice, I argue, were above all efforts imaginatively to embody the law. They called attention to the need for individual acts of will to constitute its efficacy. At a moment of real violence and polemical confrontation, the question on the table was the commitment of citizens to competing legal and political frameworks, and their willingness to act as if these mattered. In this moment, sacrifice appeared when the problem of assent was most pressing, when abstract frameworks of law and politics needed actual bodies to lend them force. In this moment, too, the boundary between sacred and secular things was irrelevant. These early modern stories of sacrifice drew promiscuously on political, legal, and religious idioms. To address them through the contemporary language of the “secular” would hide far more than it would reveal about the relationship between what we would now distinguish as “theology” and “law” in the early modern period. To read the law



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as a (perfect or imperfect) secular language, in other words, anymore than to read theology as a (perfect or imperfect) religious language, is to miss the real force of their convergences. Retelling these stories, then, might offer us a more sophisticated vocabulary for thinking about the sacrifice and its complex interdependencies with both law and politics.

Sacrifice against the Law? In August , six months after his restoration to the throne of England, Charles II publicly condemned John Milton, and especially the two books he wrote “to justifie the horrid and unmatchable Murther of Our late Dear Father.”9 One of the books was Milton’s Eikonoklastes, which the poet and then statesman wrote in  to counter what became a best-seller of royal hagiography, the Eikon basilike: The Pourtraicture of His Sacred Majestie in his Solitudes and Sufferings. Purportedly written by the king himself in his captivity and published hard on the heels of the  regicide, the Eikon basilike was, among other things, a brief for royal power against the new legal regime of Parliament. But its emotional center lay in its conclusions, the meditations on death and forgiveness by the captive king: If I must suffer a violent death, with my Saviour, it is but mortality crowned with martyrdome, where the debt of death, which I owe for sinne to nature, shall be raised, as a gift of faith and patience offered to God. Which I beseech him to accept .€.€. [and so] to pardon their sins, who are most guilty of my destruction.10

Over and over, the Eikon basilike repeated some version of these sentiments, in which, magnanimously, the king offered his death as a Christian sacrifice to ward off the well-justified blows of an angry God. This royal condescension was, needless to say, profoundly irritating to a republican like Milton. Who is Charles, Milton asked, to “erect the Trophies of his charity over us” by taking on this role of affronted martyr?11 But mere indignation at unwanted charity would not have caused Milton and his allies in Parliament many sleepless nights. Charles’s argument cut rather deeper than this, which is why Milton was given the official task of rebutting him. What truly annoyed Milton was how the argument set the king-martyr outside the operation of justice and appointed him to sit as judge of the law. Self-sacrifice subjected impersonal justice, what Milton called “the strength, the Kingdom, the power and the majestie of all Ages,” to the personal judgment of the martyr.12 Put another way, sacrifice inverted the relation between law and person, elevating a personal judgment to a universal one. This inversion was, for Milton, fundamentally corrosive to law, not least because, if successful, it trans-

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formed ostensibly neutral law itself into the plaything of improperly personal interest. This was one of Charles’s arguments, after all: that his parliamentary judges were not impersonal but rather actively malicious toward him. Through self-sacrifice, Charles transformed legal punishment into a crime, and moved himself from the defendant’s box to the judge’s bench. Milton’s task, then, was to move Charles back to the box, back inside the orbit of impersonal justice. Just as the good Protestant iconoclast reveals the saint as “nothing,” in Hobbes’s words, before he destroys it, Milton too had to reveal Charles’s sacrifice as nothing, no sacrifice at all, to counter the force of the king’s argument.13 He did this by recalling Charles to his role as the accused. Any defendant, after all, would like to be the exceptional sacrifice, the occasion of justice travestied. How could “the Testimony of one man in his own cause affirming .€.€. be of any moment to bring in doubt the autority [sic] of a Parliament denying,” Milton asked, and the sharp end of the question was the insistence on one man, in his own cause.14 In other words, bringing Charles back under the law meant denying him the right to speak in the name of a universal. When he speaks, he speaks only for himself: why, then, should justice be “more partial to him offending, then to all others of the human race”?15 Hence Milton’s impatience with what he understood to be a feigned piety. God-talk drips from Charles’s lips just as it did from those of Shakespeare’s tyrant-king Richard III, a parallel that Milton did not fail to point out. “I thank God for my humility,” the hunchback said, as he pursued his fratricidal plots.16 So too did Charles coat his injustice with the sweetness of feigned sacrifice. Milton’s Eikonoklastes was no doubt wounding, else why would Charles II so quickly single it out?17 But in telling ways, the poet’s iconoclasm failed. The Eikon basilike became an enormously popular book, circulating freely in thirtynine editions in  alone, and it successfully re-created the events of that winter as a Passion play, rather than the orderly and lawful proceedings that Milton and his parliamentary allies worked so hard to forge. None of them could have been pleased by the reports of miraculous healings effected by Charles’s blood, for example, nor by the rapid repair of the king’s reputation, from tyrant to suffering Job in a few short months.18 At least one modern scholar attributes the failure of the republican retort to a moment of revolutionary blindness. Men like Milton, Laura Knopper writes, made a “crucial and ultimately irreparable mistake,” because they failed to “understand the power of martyrdom” to mobilize sentiment in favor of the dead. By allowing the Eikon “to escape censorship,” she continues, republicans left the field open for the king’s posthumous conversion of legal punishment into tragic crime.19 This judgment seems wrong on a couple of counts. In the first



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instance, the Parliament let the Eikon escape censorship only insofar as they let virtually everything escape censorship. By the s, the censorship system in England was largely broken, and the publication of the Eikon was more the act of deliberately disobedient Presbyterian licensers than any decision by the Independents in Parliament.20 More significantly, though, the argument assumes that it knows what the “power of martyrdom” actually was. For her part, Knopper offers no explanation of this power. But other historians have been less shy in this regard—in particular, the leading historian of early modern martyrologies, Brad Gregory. He too finds a special power in martyrdom. He secures it in the martyr’s final commitment to “the transcendent importance of their beliefs,” and the resonance of these beliefs among a community of the faithful.21 Belief becomes power through suffering and death, not just because suffering itself is powerful, but because Christians in the early modern period together shared a common commitment to the ancient tradition of martyrological community. Commitment in turn begets commitment: martyrs imitate other martyrs, modern and ancient, in order to confirm the truth of belief, both in the original and the later emulator. If we extend this to Charles, the power of his sacrifice would (in this understanding) come from its resonance with Christian archetypes of communities built on suffering. The secular abstraction of Milton’s law, the argument would go, would prove unable to match the power of an ingrained religious worldview. And yet I have my doubts. The power of the king’s martyrdom, it seems to me, had less to do with the efficacy of belief per se than with its political and legal function. Charles’s martyrdom was a quite literal extension of a political principle, after all—namely, the “absolute demands of sovereign conscience” as the foundation of royalist law and politics more generally.22 “This last Parliament I called, not more by others advice, and necessity of My affaires, then by My owne choice and inclination”: these are the opening words of the Eikon basilike, and they convey the political valence of “choice and inclination.”23 Choice—doing what I believe—and its political activation in the sovereign conscience were, in fact, at the root of royalist politics. “Our Conscience must be subject unto you,” Charles supposedly complained about Parliament.24 When he mapped his life onto the Stations of the Cross, it was as much an effort to connect his royal death to his philosophy of political legitimacy, as it was to activate the sentimental exemplarity of Christ’s death.25 The Eikon basilike was not the first effort to do this. Royalists floated the story of the suffering king well before the regicide, fusing the personal and the political in opposition to the abstract legalities and legitimacies of Parliament.

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It was the rule of law in the abstract versus the specific legality that adheres to the person of the king that made the Eikon basilike such a potent text. Everyone must have known that Milton and the republicans would attack Charles as a false martyr and opportunist. Martyrdom is always liable to this charge, one made more potentially damaging by the necessary absence of the martyr from the scene. But what Milton didn’t realize (or didn’t want to admit) was how the very trappings of legal procedure that surrounded the regicide, and invested it with ostensible legitimacy, gave the politics of suffering their particular weight and power. “Kings in receiving Justice, and undergoing due tryall, are not differenc’d from the meanest Subject,” Milton wrote. But the point of the suffering king was not to make himself into an exception (to invoke “privilege,” for example) but rather to make himself paradigmatic.26 The conscience of the sovereign—and his justifiable refusal to assent to legal procedures—is extended to all those innocents afflicted by parliamentary injustice, which, for royalists, means everyone. To this end, the king delivered his final “Meditations on Death” as much a man as a sovereign. “It is, indeed, a sad fate for any man to have his Enemies to be Accusers, Parties, and Judges,” and while it is particularly sad for the sovereign to find himself in this state, this is only an extension of a general injustice.27 It is just at this point that Charles turns the false sacrifice argument against his accusers. “My bloud seems to wash their hands of that innocent bloud, whereof they are now most evidently guilty”—namely, the blood of England’s civil wars.28 Christians, after all, should make no bloody sacrifices at the altar. Indeed, it was by turning sacrifice back on the self—Christ’s own voluntary sacrifice—that Christians marked the difference between themselves and both gentile and Jewish antagonists. The latter were legalistic in exactly the same way as the republicans, in Charles’s view, who sought to expiate their sins not by suffering themselves, but by inflicting suffering on others. The more universal the republican justice-claim, the more universal the injustice in actual application. Charles’s death is not the exception to the rule, but rather the norm of the rule applied. Milton’s insistence on the universal scope of justice— its application to all people, its eternal nature—thus became the very source from which the king-martyr drew its power. And so it is a bit sad that Milton himself fell into this trap, when he insisted that, as far as God was concerned, the punishment of Charles was “no mockery of justice, but a most grateful and well-pleasing Sacrifice.”29 Exactly what a republican would say, we might imagine Charles’s head replying. In other words, Charles was not avoiding the constitutional and political issues, but rather addressing them directly.30 His suffering—his refusal to assent



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to the law—was an effective political response to the justice-claims of his opponents because it established a set of countervailing universal claims rooted in sovereign conscience. We should not, as modern readers, understand the struggle between Charles and Milton as a struggle between religion and law, or even between competing idioms of Christian right and secular justice. When Milton declared that the “Anointment of God” cannot be a “charme against Law,” we need to understand this for what it was: a polemical move in an argument about who gets to speak for the law. Charles’s passion play surely did summon, in powerful ways, the imaginative resources of Christianity. But it also reoriented them toward different notions of universal law and political right, ones rooted not in constitution but in conscience. The Charles-Milton struggle indicates, I think, something quite important about the “rule of law,” at least as it was constituted in one of its primal scenes of origination, in the English seventeenth century. Insofar as the legitimacy of the rule of law depends on the universality of its application inside the commonwealth, its judgments can only be opposed by one of two means. One can assert that its purported universality is in fact particular (hence Charles’s attack on the interestedness of his judges). But this is an easy argument to make, and an equally easy one to refute, since defendants and prosecutors have, of necessity, symmetrical, if opposing interests in the case and its outcome. All defendants think they are unique; all prosecutors that they are typical. Altogether more challenging both to make and refute, is the assertion that the particular case itself produces a different universality. To make this claim stick, though, you need more than just an alternative legal norm under which the particular case would receive a different judgment. English law cannot be trumped, for example, by French law (as much as the kings of England might have wanted!). What is called for, instead, is a generative mechanism for converting the singular case into a different universality altogether. Sacrifice was that mechanism for Charles. It moved his particular case sideways, as it were, outside the zone of parliamentary law, and then recaptured this law inside the circle of sovereign law. It is tempting to map the Charles-Milton argument as an argument between religious and secular forms of legitimation, or as a competition between religious sacrifice and legal punishment. But this would miss obvious facts. “Religion” is absent from neither. Milton was no less comfortable than Charles with the authoritative scriptural example. Law too was ubiquitous: accusations of illegality flew freely in both books. The real question, for both, was not regulating the border between religious and secular, but establishing universal norms to govern the particular case. The fight was thus a fundamentally political one,

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between competing legal universalisms. Milton and his republicans lost in  less because Charles’s sacrifice drew on deep reservoirs of Christian sentiment than because it successfully made his death into an exemplary case of legal injustice in a different legal universe, one grounded by the foundational power of sovereign conscience. Charles’s story of suffering imaginatively reoriented the legal framework. The martyr-king indicted republican “justice” by lodging justice inside its own legal and political concept of right. Why Milton failed had less to do with his inability to understand the power of martyrdom, in other words, than with the larger political struggle over the nature of the revolutionary event itself, a struggle that lasted long beyond .

Sacrifice for the Law? In his infamous discussion of the “Liberty of Subjects,” Hobbes argued that those who clamor for liberty from the restraints of the commonwealth are mistaken about the nature of freedom. Liberty is not an abstract notion, nor can it be opposed to legal sanction. Rather, liberty consists only “in this, that [a man] finds no stop, in doing what he has the will, desire, or inclination to do.”31 Just because you fear punishment, you are not less free to break the law. Chained men and slaves are not free, but unless your motions are actually restricted, liberty is yours. This narrow concept of liberty is bounded further by Hobbes’s fundamental law of nature, the lex naturalis, “by which a man is forbidden to do, that, which is destructive to his life.”32 This law is fundamental, both prior to the commonwealth and the very rationale for the commonwealth in the first place. For this reason, then, regardless of their apparent will and desire, human beings cannot legally pledge their lives. “If a man by words, or signes, seem to despoyle himself ” of his life, Hobbes insisted, “he is not to be understood as if he meant it, or that it was his will.”33 Life is that thing which we have no legal right to alienate, since the very basis of law consists in its preservation. In a curious way, however, this prohibition actually creates a sphere of freedom for man under government. In all things, the commonwealth might hinder our actions, but we are free in our bodies to act in pursuit of our lives. The fundamental link of liberty and life came up against a problem, though, one Hobbes saw right away. Sovereignty, after all, was classically understood— from the Romans to Jean Bodin—as the power over life and death. Capital punishment was the crucial example, as Hobbes noted: [We] are not to understand, that by such Liberty, the Soveraign Power of life, and death, is either abolished or limited. For it has been already shewn, that nothing the Soveraign Representative can doe to a Subject, on what pretence soever, can properly



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be called Injustice; because every Subject is Author of every act the Soveraign doth .€.€. . And therefore .€.€. Subject may be put to death, by the command of the Soveraign Power; and yet neither doe the other wrong.34

Hobbes sensed a paradox here, where the commonwealth seems to destroy the sole reason for its own formation. The legality of capital punishment is theoretically guaranteed because of the subject’s authorship of law. But when that punishment is turned onto the subject, he becomes the author of his own death. Capital punishment would be, legally speaking, a kind of suicide, but this was something that Hobbes had already rejected as incomprehensible and, indeed, unnatural. At precisely this moment, Hobbes shifted from argument to example, continuing: “As when Jeptha caused his daughter to be sacrificed: In which, and the like cases, he that so dieth, had Liberty to do the action, for which he is neverthelesse, without Injury, put to death. And the same holdeth also in a Soveraign Prince, that putteth to death an Innocent Subject.”35 The Jephthah story plays an interesting and complicated role in early modern thinking about sacrifice.36 Jephthah the Gileadite was a warrior in the endless battles between ancient Hebrews and their local foes. Before going to war against the Ammonites, he pledges to God that, should he prove victorious, “then whoever comes forth from the doors of my house to meet me .€.€. shall be the Lord’s, and I will offer him up for a burnt offering” (Judges :). After his great victory, he returns home only to discover, to his horror, that it is his own daughter who first dances out in celebration. At this point, he is dumbstruck, caught between two apparently irreconcilable imperatives: breaking the vow or killing the child. Luckily, his daughter comes to the rescue: “My father, if you have opened your mouth to the Lord, do to me according to what has gone forth from your mouth, now that the Lord has avenged you on your enemies, on the Ammonites” (:). Hearing her offer, Jephthah accepts, and kills her in fulfillment of his pledge. For Hobbes, the tale of Jephthah stood at the intersection of sacrifice and law. The force of the example lay in the daughter’s decision to sacrifice herself, apparently dissolving the paradoxical knot of capital punishment. If she had not freely met her father on the road, and then freely assented to die, presumably her death would have been murder. And yet, it is not clear that this assent solves the problem. Certainly other early modern commentators on this passage disagreed, finding the whole thing repulsive enough to wonder whether in fact Jephthah ever really killed his daughter. It is not even clear that, given Hobbes’s earlier arguments, the daughter’s speech should have been taken seriously: “[She] is not to be understood as if [she] meant it,” was Hobbes’s wording about self-sacrifice.

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The strange logic here is not helped by the equally strange case that Hobbes offers next—namely, the murder of Uriah by the scheming David. In  Samuel, David spies the beautiful Bathsheba in her bath, sleeps with her, and leaves her pregnant. Unfortunately, she is also married, to the now cuckolded Uriah. To rid himself of this nuisance, David forges a note in Uriah’s hand, and the note requests that he, Uriah, might be sent to the battlefront to die. And die he does, apparently of his own free will. Hobbes’s reading of this incident is bizarre. He argues that there was no offense to Uriah in this murder, since “the right to doe what he [that is, David] pleased, was given him by Uriah himelf.”37 But this is nonsense, since the note was just a trick. In fact, David’s note might well be read as a parody of assent, in which real assent proves a mere dupe, and sovereign right thus dependent on a ruse. Certainly this murder of Uriah, after all, was always one of the stains on the escutcheon of David. What does this figure of self-sacrifice do for Hobbes? Hobbes had already, in the Leviathan, given legal sacrifice pride of place as a marker of “worship”— that is, the marker of religious behavior both ancient and modern. In this respect, he put sacrifice under the control of the commonwealth. It was a key attribute “which the Soveraign ordaineth, in the Worship of God, for [a sign] of Honor.”38 But self-sacrifice was hardly Hobbes’s friend, at least not as usually manifested in Christianity, in the institution of martyrdom. On the contrary, Hobbes famously restricted the true martyrs to those who actually “conversed with [Christ] on earth, and saw him after he was risen,” taking quite literally the “witnessing” of the martyr.39 It is not “the Death of the Witnesse,” he argued, but the “Testimony itself that makes the Martyr.”40 Martyrdom is over, he argued, and can never be re-created no matter how much blood is shed. This fierce attack on martyrdom fits a familiar story about Hobbes’s effort to distinguish between law and religion. But the Jephthah moment sits uncomfortably with this, and it is difficult to know what to make of it. At this point, it is tempting to turn to sacrificial theory for aid. We might, for example, look to Giorgio Agamben, and argue something about how Jephthah’s daughter is the homo sacer that helps establish a universal and autonomous legal order. In that case, her self-sacrifice—neither legally nor divinely sanctioned—would be a kind of political remainder that bears witness to the impossibility of a hermetically enclosed (secular) law. Or, perhaps, we might turn to our legal theorist Johan van der Walt to discover the sacrificial remainder in the operation of sovereignty, what he calls “the language of silenced and silent sacrifice.”41 In this case, Hobbes would be revealing unconsciously “the sacrifice involved in the decision to curtail a right,” showing that the right to punish is not neutral with regard to the victim, but demands an assent to her victimhood.42



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I would like to suggest an alternative, a historical rather than a structural understanding of this scene. It starts with the proposition that the early modern legal order was still under construction. Concepts of both its autonomy and its secularity were categorically unclear, and the sacrificial was available to both legal and theological analysis. “Unmasking” the religious, or showing some ostensibly real theological core of the law, is in this regard irrelevant. Of real significance, instead, were the heteronomous intellectual practices of the early modern period, when the “theological” and the “legal” were productively engaged in all sorts of ways. Over half of Hobbes’s book might be called “theology,” and he was certainly just as comfortable with Jephthah and Uriah as he was with ancient Romans and Athenians. Insofar as Hobbes’s project was the inoculation of civilization against the natural state of violent man—“the end of making Laws” was “no other” than the restraint of the “Right of Nature” in the name of civil peace—the legal and the theological alike can function as synchronous elements in this restraint. Self-sacrifice here can stand for the voluntary turn away from the natural, not as a response to the authority of the father, but as an act of charity to him, to free him from the dilemma caused by his own foolish vow. Milton’s Christ listens to his father rage against the fallen Adam, and asks “wilt Thou thyself/Abolish thy creation and unmake/For him what for Thy glory Thou has made?”43 “Die he or justice must,” God insists, but He clearly wants to exit from the dilemma his own justice caused: he wants some way to relax the strictures of the law. Christ steps forward not just to save Adam but even more to relieve God of His own demands, “to see Thy face wherein no cloud/of anger shall remain.”44 The choice to die, in this case, is an act of charity, a moment of will—Christ stepped forward when “all the Heavn’ly choir stood mute”—that allowed law to flourish. It is not just that the self-sacrifice is a kind of aporetic supplement to an autonomous law, whether secular or divine. Rather, it is that the law demands enactment and embodiment at specific moments of choice. This is exactly, of course, the meaning of “liberty” for Hobbes: the ability to act free of “externall Impediments to motion.”45 And while coercion is certainly fundamental to the law—Hobbes was nothing if not interested in the coercive potential of his commonwealth—at the same time, he had a strong sense that this commonwealth was a fragile thing. Far from being an invulnerable titan of legal order, the commonwealth was “imperfect, and apt to relapse into disorder.”46 The natural constantly pressed against culture, and its containment took not just abstract principles but real enactment by subjects. “Theology” and “law” were equally potent conceptual schemes for thinking this containment. In a sense, then, the Jephthah story dramatizes the passage from nature to

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culture. This helps to explain its odd conjoinment not only with the Uriah incident but also with another episode, this one from Greek history. Hobbes ends this peculiar paragraph recounting how the people of Athens, when they banished the most potent of their Common-wealth for ten year, thought they committed no Injustice; and yet they never questioned what crime he had done .€.€. . Nay they commanded the banishment of they knew not whom .€.€. every Citizen bringing his Oystershell into the market place, written with the name of him he desired should be banished, without actually accusing him.47

The story of the “ostracism”—from the oyster-shells—came from Plutarch’s life of Aristides, banished from Athens by his fellow citizens for an overabundance of justice. Again, then, this was another of Hobbes’s odd stories. This very episode was liable to the kind of reading offered, for example, by John Dryden’s  edition of Plutarch, which described how the Athenians gave “their envy of his reputation the name of fear of tyranny.”48 In other words, the Athenians substituted passion for law in an act nearly criminal in nature. In a typical way, Hobbes blandly made the story say something outrageous—namely, that the banishment was actually an act of justice. No one could say, Hobbes remarked, that “the Soveraign People of Athens wanted right to banish [him].”49 In fact, however, people did say so, and Hobbes likely knew it. So what was the function of this story? I suggest that the function of this story is just that, story-telling. As with Jephthah and Uriah, Hobbes deploys not a conceptual argument—one that has to be “fit” into his architecture of the commonwealth—but a specifically fictional one. Already the stories stand out, rocks that perturb the stream of Hobbes’s analytical work. His careful deductions suddenly pause in this paragraph, as he shifts from analysis to example. The stories are, in this regard, deliberate shifts of rhetorical register, efforts fictionally to embody the performance of what he takes as an analytic truth: that “in the act of our Submission, consisteth both our Obligation and our Liberty.”50 And although the italics attach the word “submission,” in fact they might better be attached to the word “act.” Because here, in the word “act,” was the nub of the issue: Aristides “is said to have made no Reply but returned the Shell with the Inscription of his own name. At his departure from the City, lifting up his Hands to Heaven, he prayed .€.€. that the Athenians might never have any occasion which should constrain them to remember Aristides.”51 The just man makes a particular choice under particular circumstances, and his act—freely undertaken—leaves unchallenged the conceptual question of whether the people of Athens “wanted right to banish him.” Instead, the act made this right through deed, effectively creating the commonwealth, its law, and its right.



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Final Thoughts Jephthah’s daughter, Uriah, Aristides: these fictions, sacred and profane, indicate how impoverishing it is to frame the early modern intersections of “law” and “theology” as steps (false or true) toward the development of the “secular.” It is, I admit, extremely hard not to treat the presence of scriptural stories in Hobbes, for example, as awkward intrusions into the space of legal and political theory supposedly free of religion. It is made especially hard by Hobbes’s own proscriptions against the intrusions of religion into his political spheres. Hoisting him on his own petard is pretty tempting, calling him out as a hypocrite for failing to live up to his own prescriptions. Just as tempting has been to reverse polarities entirely, and use such stories to reveal Hobbes as a secretly orthodox Calvinist.52 To me, neither option—imperfect secularist, closeted theologian—really does much to address the heterogeneity of Hobbes’s text and its imaginative efforts to imagine a new form of social, political, and religious life. I want to suggest, then, that it is worth trying to think beyond the secular by looking before the secular. Here in the seventeenth century, we might understand the power of self-sacrifice, even the sacrifice of Christ himself, to lie not in any presumed theological “kernel” carried over from Christianity. Nor even—as in the case of Charles—in a presumed theological substratum that adheres to premodern (that is, Christian) society. Rather, we might see it as a particularly effective way imaginatively to inscribe an existential moment of assent into the cultural abstraction of law. Early modern Europe was a time and place, after all, singularly interested in questions of legitimacy. This interest was not unique. It had begun already in the later Middle Ages, with the rise of the legal professions, the concentration of duties in officers of government, and the gradual shift away from the violent dominion of early medieval lordship.53 But quiet shifts became much louder after , when the resources of competing legal, political, and religious traditions were mobilized in the face of pressing and violent conflict. Repeated legitimacy crises—in Germany in the s, in France in the s, in Bohemia in the s, and in England in the s (to name a few)—forced people not just to choose where their allegiances lay, but affirm those choices in the various idioms of legitimation that they possessed. This was phenomenal: people existentially had to decide where to live, where to go to church, whose army to serve in; not choosing was equally a choice. And it was theoretical: powerful discourses of legitimacy were proffered to shape these choices in particular ways. Charles’s politics of conscience were no less modern than Milton’s, and both were oriented toward a world of people be-

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yond themselves, to a political cause. In this sense, the early modern interest in assent—and the languages of sacrifice that helped to frame it—had little to do with the “rise of liberalism.” Hobbesian contract was only one way of thinking about assent. Indeed, all political actors in the early modern period worried, or at least, had to behave as if they worried, about who would buy into their legal and political visions. The fact that there was a royalist politics at all, in fact, was a concession to these circumstances. In this sense, perhaps democracy rather than the secular is the better frame, an odd thing, I admit, to think about Hobbes or Charles. But if the commonwealth is more fragile than we think, more threatened by the human attraction to its own natural rights, then the legal and political spheres would require constant enactments of assent. Civil war is always a possibility in a commonwealth, Hobbes does not fail to note: [In] case a great many men together, have already resisted the Soveraign Power unjustly, or committed some Capitall crime, for which every one of them expecteth death, whether have they not Liberty then to joyn together and assist, and defend one another? Certainly they have: For they but defend their lives, which the Guilty man may as well do, as the Innocent.54

A better description of the legal and practical conundrums of the English Revolution is hard to find. Though it began in injustice, the act of disobedience founded a new order of justice claims. It was not that the “foundation of sovereign power” lay only in the “right to punish,” as Agamben says, but that in fact this “right” would collapse—early moderns were convinced, from real experience—without constant acts of assent, assent that takes place not just cognitively, but in corporeal expressions.55 This is hardly voting, of course, but it acknowledges that the legitimacy of the commonwealth, however absolute, depends on the work of people choosing (or not) to give it life.56 Given this, the presence of materials from the Christian theological archive seems less surprising. It was, after all, Christ whose assent to his own death afforded a most powerful imaginative exemplar of a single body’s ability to constitute a new social, political, and indeed cultural system. As the examples of Charles and Hobbes show, then, the concept of a sacrificial “translation” from the religious to the legal (or vice versa) cannot be accepted with impunity. To say that the religious imaginary was activated in early modern politics and was effective in their construction is not to say that these politics have an origin in the theological per se. Where Girard would say that the sacrificial stands as the origin of human culture, I would instead insist that its appearance is a product of particular situations. Sacrifice is an available language of description and persuasion, a language present in Christianity and



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in classical texts, a language of paganism and Judaism, a language of ethics and politics, and so on. To boil it down to some sacred essence misses the heterogeneous reality of its appearance. Theology, like politics, is not an essence, but a set of claims that appear in time, and with specific empiricities of their application. Rather than use its appearances and disappearances to chart (ever anew, because ever in vain) the divide between sacred and secular, it seems worth our energies to focus exactly on the empiricities. Maybe by doing this, we can start to rethink larger categories—of secularization, of modernity, to name two—less as norms for a world writ large, and more as claims evoked in situations local and particular; less in terms of puzzling absences and persistences, and more in terms of their real dynamism and contingency. In this we historians and other critics would be giving up our jobs as demystifiers of the secular and the modern, and instead, content ourselves with something less grand, yet more truthful, I think, as careful listeners to the social, political, and religious languages that people speak and find persuasive in their lives.

Notes . Mark Lilla, The Stillborn God: Religion, Politics, and the Modern West (New York: Knopf, ), . . Ibid., . . René Girard, Violence and the Sacred (Baltimore, MD: Johns Hopkins University Press, ), . . René Girard, Things Hidden since the Foundation of the World (New York: Continuum Press, ), . . Ibid., . . Johan Willem Gous van der Walt, Law and Sacrifice: Towards a Post-Apartheid Theory of Law (London: Birkbeck, ), . . Ibid., . . Girard, Violence and the Sacred, . . Charles II, A Proclamation for Calling in and Suppressing of Two Books Written by John Milton (London, ). . [Anon.], Eikon basilike: The Pourtraicture of His Sacred Majestie in his Solitudes and Sufferings ([London], /), .The authorship issues of the pamphlet have been long debated. For purposes of clarity, I am going to refer to its author as Charles, although there is clear evidence that the cleric John Gauden was at least the coauthor, if not the author outright. . John Milton, Eikonoklastes, in Answer to a Book Intitl’d Eikon Basilike (London, ), . . Ibid., . . Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, ), . . Milton, Eikonoklastes, preface.

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. Ibid., . . Ibid., . . See Ernest Sirluck, “Eikon Basileke, Eikon Alethine, and Eikonoklastes,” Modern Language Notes , no.  (November ): –. . See, for example, [Anon.], A Miracle of Miracles: Wrought by the Blood of King Charles the First (London, ), about a woman afflicted by blindness whose eyes were healed by a handkerchief dipped in the king’s blood. . Laura Lunger Knoppers, “‘Paradise Regained’ and the Politics of Martyrdom,” Modern Philology , no.  (November ): . . See Jason Peacey, Politicians and Pamphleteers: Propaganda during the English Civil Wars and Interregnum (Aldershot: Ashgate, ), . . Brad Gregory, Salvation at Stake: Christian Martyrdom in Early Modern Europe (Cambridge, MA: Harvard University Press, ), . . Andrew Lacey, “‘Charles the First, and Christ the Second’: The Creation of a Political Martyr,” in Martyrs and Martyrdom in England, c. –, ed. Thomas S. Freeman and Thomas F. Mayer (Woodbridge, UK: Boydell Press, ), . . [Anon.], Eikon basilike, . . [Anon.], His Maiesties Complaint. Occasioned by his Late Sufferings and a Not Right Understanding Between him and his Parliament ([London], ), . . Note that an early tract (His majesties complaint to his subject, []) includes a poem modeled on George Herbert’s Sacrifice (contained in The Temple [Cambridge, ]). Herbert was a favorite author for Charles; on this, see Lacey, “Charles the First, and Christ the Second,” . . Milton, Eikonoklastes, . . [Anon.], Eikon basilike, –. . Ibid., . . Milton, Eikonoklastes, . . For the argument that Charles avoids the political issues, see Lacey, “Charles the First, and Christ the Second,” . . Hobbes, Leviathan, . . Ibid., . . Ibid., . . Ibid., . . Ibid. . More generally on Jephthah, see Debora Kuller Shuger, The Renaissance Bible: Scholarship, Sacrifice, and Subjectivity (Berkeley: University of California Press, ), esp. chap. . . Hobbes, Leviathan, . . Ibid., . . Ibid., . . Ibid., . . van der Walt, Law and Sacrifice, . . Hobbes, Leviathan, . . John Milton, Paradise Lost, ed. Gordon Teskey (New York: Norton, ), .– . . Ibid., :, –.



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. Hobbes, Leviathan, . . Ibid., . . Ibid., . . [John Cooper], “Aristides,” in Plutarch’s Lives, ed. John Dryden (London, ), :. . Hobbes, Leviathan, . . Ibid., . . “Aristides,” in Plutarch’s Lives, :. . See, for example, A. P. Martinich, The Two Gods of Leviathan: Thomas Hobbes on Religion and Politics (Cambridge: Cambridge University Press, ). . On this, see Thomas Bisson, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton: Princeton University Press, ); James Brundage, The Medieval Origins of the Legal Profession: Canonists, Civilians, and Courts (Chicago: University of Chicago Press, ); and the classic work of Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (Princeton: Princeton University Press, ). . Hobbes, Leviathan, . . Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, ), . . Here see Quentin Skinner, Hobbes and Republican Liberty (Cambridge: Cambridge University Press, ), –.

chap ter four

National Security and Secularization in the English Revolution of 1688 r ache l weil

Societies under threat, including ostensibly secular ones, have often turned to religious identity as a way to discern political loyalty. It was in the United States that atheism was equated with communism in the s, and where, as late as , John F. Kennedy was hard pressed to prove that his Catholicism did not undermine his allegiance. More recently, Muslims have found themselves labeled politically suspect in the modern, “secular” West. Religious tests of political loyalty in these situations are not seen by the members of the “secular” society as calling their secularism into question; rather, they are thought to be justified by the inherently political nature of the religious beliefs under attack. The persistence in apparently secular states of tests of political loyalty that hinge on religion raises important questions about what we mean by “secularization” and about how secular societies draw the line between politics and religion. This essay examines the use of religious tests of political loyalty by the English state immediately after the Revolution of , a historical moment that is often identified as a milestone on the road to secularization, meaning the disassociation between religious identity and political loyalty. It explores how, in the pursuit of what we would call “national security,” the mechanisms used by the state for distinguishing the politically disloyal from the politically loyal intersected with those distinguishing Catholics from Protestants, and what such intersections can tell us about how the process of drawing the line between politics and religion actually worked during a supposedly “secularizing” moment.



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The so-called Glorious Revolution, wherein the Catholic James II was deposed and replaced by the Protestants William and Mary of Orange, has long held a privileged though problematic place in narratives of secularization. Classic Whig historiography celebrated the appearance in print of Locke’s Letter Concerning Toleration and the passage of the Toleration Act of , which for the first time decriminalized Protestant dissent. The late-eighteenth-century radical Richard Price thus named “the right to liberty of conscience in religious matters” one of the principles upon which the Revolution of  was founded.1 It has become harder recently for historians to ignore the fact that the Revolution of  led more or less directly to the harsh code of anti-Catholic penal laws that established the Protestant ascendancy in Ireland, and to the  Act of Settlement, which, for the first time, made the throne of England a Protestant monopoly. It is likewise hard to reconcile the advent of secular modernity with the recommendation made by the anonymous author of A short and sure method proposed for the extirpation of Popery in the space of a few years () that “every individual [Catholic] person should be asked whether he would rather leave his country, or his religion,” and that those who would not promise to leave their religion be expelled.2 Given the centrality of anti-Catholicism to the Revolution of , it is not surprising that there has been much disagreement among historians recently regarding whether that revolution can really be considered secular or modern. Some, like J. C. D. Clark or (with more moderation) Tony Claydon, have emphasized the persistence of religiously driven politics well into the eighteenth century, and rejected the idea that  was a secularizing moment.3 Others, however, have tried to defend this idea. Quoting approvingly the comment of Williamite memoirist Gilbert Burnet that Catholics after  “enjoyed the real effects of the toleration,” these others argue that anti-Catholicism was softened by William III’s need to work with Continental Catholic allies in his war against France, his desire to win over the population of Ireland, and his personal tolerationist outlook.4 Perhaps the most innovative attempt to reconcile the anti-Catholic rhetoric and practices of the Williamite regime (or at least of its supporters) with a narrative of secularization comes from Steven Pincus, who has made two linked arguments. First, the defense of Protestantism in  was understood at the time not to be a matter of crusading for the true religion but simply of defending the “religion by law established,” a civic right of English subjects. It can therefore be understood as a form of secular nationalism. Second, the Catholicism that James II’s subjects found so threatening was not the Roman Catholic religion per se, but rather a particular strand of avantgarde Catholic political thought, associated with Louis XIV and the Jesuits,

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which was highly congenial to political absolutism. Catholicism, Pincus argues, when it was the object of fear and hatred in the late seventeenth century, was regarded as a political ideology and practice rather than a religion.5 Two points are important for our purposes. First, Pincus’s intervention is unlikely to settle the matter. His argument presumes that English men and women in the late seventeenth century were capable of distinguishing between loyal and disloyal Catholics, in much the same way that some today might separate “good” and “bad” Muslims. But such distinctions, then and now, can be difficult to make, and the very idea of making them is rejected by those who see the religion in question as a form of political ideology rather than a mere “religion.” It should not surprise us, then, that evidence as to whether English men and women in  were able to make a distinction between Catholicism as a mere religion and Catholicism as a political ideology, to decide if Catholics could be loyal to the Williamite regime, is ambiguous. This brings us to the second point. Any “yes” or “no” answer to the question of whether a disassociation between religious and political identity occurred in  will be unsatisfying. This essay will try to explain why the evidence on this point is so contradictory, and will refrain from deciding if the Revolution of  was secular. Let me state my argument briefly here. The Revolution of  might be considered a moment of secularization in one crucial respect: the familiar equation of Catholicism and disloyalty was disrupted by the unprecedented and hitherto oxymoronic phenomenon of Anglican disloyalty. Some members of the Church of England, known as non-jurors, refused to take oaths of allegiance to William and Mary, while many other Anglicans were suspected to have taken them in an insincere, casuistical manner that cloaked their secret Jacobitism (that is, their support for the deposed James II). However, the Tory Party—essentially, the political wing of the Church of England—had a large interest in obscuring the implications of the fact that Jacobite Anglicans existed. The presence of non-jurors cast doubt more generally on Tory loyalty to the revolution, as well as on the status of the Church of England as being the essential pillar of the new regime and therefore entitled to have its monopoly protected. Because the new government needed Tory support, legislation concerning loyalty oaths and the treatment of suspected persons was tailored (at least until ) to the Tory agenda. The legislation minimized both the exposure and the punishment of disloyal Anglicans, while maintaining a sharp line between Catholics and Protestants. In fact, the equation of Catholicism with disloyalty was cemented in new ways by the introduction of an unprecedented doctrinal test (the Declaration against Transubstantiation) to identify a category of political suspect. A politically motivated inability to talk about the new and disturbing problem of



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Protestant disloyalty thus produced a sharpened sense of religious distinction, even while that distinction was demonstrably less relevant to political loyalty. This explains why we find secularizing and antisecularizing impulses at work simultaneously in this period. My argument avoids explaining the treatment of Catholics and Catholicism after  in terms of lingering prejudice or incomplete enlightenment, as if confessional definitions of loyalty belong to a premodern, religiously bigoted world that either has or will inevitably give way to a modern, secular one. Rather, I privilege politics. I ask why particular players in postrevolutionary England would have a political stake in identifying Catholicism with disloyalty, or in refusing such an identification. Stated most abstractly, my claim is that the security legislation and practices that constructed the relationship of Catholicism to loyalty were shaped by political struggles among Protestants. While the case study is highly specific, the larger argument—namely, that whether a religion comes to be described as either “mere religion” or as a form of political ideology has much to do with the political agendas of those who describe it—should have wider resonance.

Catholics and the English State before the Revolution of 1688 Looking at the treatment of Catholics by the English state in the sixteenth and early seventeenth centuries (the reigns of Elizabeth I and James I) will provide the necessary point of contrast with later developments, letting us see what was old, new, newly secular, or newly nonsecular about how the category of “Catholic” operated in the Williamite regime’s security practices and legislation after the Revolution of . It will also dispel a common misconception that the early modern state persecuted religion for the sake of religion, and can on that basis be distinguished from a modern secular polity in which religion is proscribed only if it is really a form of politics. The debate over how to draw the line between a “mere religion” and a religion that is really a form of politics and potentially a threat to the state that we now see occurring with respect to Islam was conducted in early modern Protestant societies with respect to Catholics. Elizabethans thought political disloyalty was inherent in Catholicism. Many people in secular Europe and the United States now see in Islam what Elizabethan Protestants saw in Catholicism—that is, a religion that cannot be treated as a mere religion because it is inherently a form of seditious political ideology. The question to ask, as we seek to understand historical change, is not “when did persecution on religious grounds cease?” but “how was the line between so-

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called mere religion and religion-that-is-really-politics drawn, who got to draw it, and what needs did that line serve?” Asking these questions will not yield a linear narrative of progress toward secularism. The equation of Protestantism with political loyalty and Catholicism with political disloyalty was founded on the Erastian structure of the Church of England, which put the monarch at the head of the church, making conformity to the Anglican Church a matter of political obedience. In this sense, the equation was present from the time of the Henrician Reformation. However, in the late sixteenth century, it was intensified. The pope’s assertion of his right to depose princes in his  Bull Regnans in Excelsis gave Protestants grounds to consider Catholicism as in itself a form of allegiance to an alien power (and hence to dub it “popery”). Moreover, the Catholic clergy’s development of a system of casuistry (a set of protocols and justifications for telling untruths to persecuting authorities) reinforced the association in Protestant minds between Catholicism and deception.6 For most Protestants, Catholicism was constituted not only by erroneous beliefs and offensive rituals (transubstantiation, Latin masses, priestly celibacy, and so on) but also by a license for sinful and rebellious impulse, which meant that it inevitably spilled over into evil action. Although some lay Catholics tried to assure Queen Elizabeth that they could be loyal subjects even while retaining the Catholic faith,7 it seemed axiomatic to most Protestants by the late sixteenth century that Catholics were rebels and liars, and that they would lie about their rebellious intentions. This axiom made it imperative that Catholics be identified, but also complicated the process of identifying them. The Elizabethan and Jacobean legislation aimed at identifying Catholics simultaneously presumed and reinforced the premise that Catholicism was a political stance, an act of disloyalty to the sovereign, rather than just a set of religious beliefs. Catholics were known by political acts rather than merely theological positions. In Elizabeth’s reign, Catholics were recognized not through any doctrinal interrogation of suspected individuals but by recusancy, the failure to attend the Church of England, which was by definition a breach of the law. Following the Gunpowder Plot, an attempt by a group of provincial English Catholics to blow up the Parliament in the reign of James I, persons already identified as Catholic by their recusancy were, in addition, tendered the  Oath of Allegiance. On the surface, the Oath of Allegiance opened the possibility of distinguishing disloyal Catholics from loyal ones who, in James I’s words, “though blinded with the superstition of popery, yet carried a dutiful heart towards our obedience.”8 However, the opportunity that the  Oath offered Catholics to reconcile their religious belief with loyalty to the English monarch



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was a bit deceptive. The oath required the taker to acknowledge James I as the lawful and rightful king, and to swear that “I do from my heart abhor, detest and abjure as impious and heretical, this damnable doctrine and position, that Princes, which be excommunicated or deprived by any Pope, may be deposed or murdered by their Subjects or any other whatsoever.”9 The characterization of the pope’s position as “impious and heretical” posed immense difficulties for Catholics, who experienced the phrase as an attack on their belief. The position of a Catholic tendered this oath might be compared to that of a twentyfirst-century Muslim woman required to remove her headscarf in school: the requirement is presented by the state as a religiously neutral matter of showing membership in the political community, but is experienced by the individual as an assault on her religion. Because the “impious and heretical” clause of the Oath of Allegiance made it hard for Catholics to take, its effect was to solidify the equation of Catholicism and disloyalty, even if its stated intention was to give Catholics the chance to prove this equation wrong.10 If the two available mechanisms for identifying Catholics (recusancy and the refusal to take the Oath of Allegiance) solidified the identification of Catholicism with disloyalty, the very unreliability of those mechanisms and the fact that they were understood at the time to be unreliable only made that identification stronger. It was notorious that Anglican churches were full of “church papists,” secret Catholics who conformed in order to avoid recusancy fines, and that the Oath of Allegiance might be taken by Catholics with “mental reservations” (that is, they could take it but not mean it). It was impossible, then, for contemporaries (as well as modern historians) to identify Catholics with certainty.11 The very lack of a clearly definable group of Catholics, of course, only confirmed the view of Protestants that Catholics were deceivers. Moreover, because Catholics could not be recognized in any other way (say, by holding a specific belief about transubstantiation or grace), they could only be recognized by a propensity for rebellion. The full extension of this logic was that any rebel was secretly a Catholic—a claim which, however improbable it may sound to modern ears, was made repeatedly in the later seventeenth century when the civil war and regicide were blamed on papists disguised as Presbyterians.12 We see, then, that a combination of elements—familiar stereotypes about Catholics, the actual behavior of the pope and the missionary Catholic clergy in England, and attempts by the English state to solve its “Catholic problem” and the intended and unintended consequences of those solutions—worked together to forge a very close identification of Catholicism with disloyalty, making it almost impossible for English Protestants to see Catholicism as a

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mere religion rather than a political ideology. This was true even for John Locke, a thinker generally credited with advanced views about the possibility of separating religion and politics. Locke’s  “Essay on Toleration” excepted Roman Catholics from toleration, “it being impossible, either by indulgence or severity, to make papists, whilst papists, friends to your government.”13 His  Letter concerning Toleration (published in English in ), without explicitly naming Roman Catholics, denied toleration to any sect that held, even if only covertly, “that men are not obliged to keep their promise; that Princes may be dethroned by those that differ from them in religion; or that the dominion of all things belongs only to themselves,” and to any church wherein “those who enter into it do, ipso facto, deliver themselves up to the protection and service of another Prince.”14 Locke’s repetition of the classic tropes found earlier in the seventeenth century should prevent us from assuming that such attitudes changed dramatically in  as the result of a more “enlightened” worldview. What, then, did change in ? The security policies of the new regime in many ways built upon previous practices. At the same time, the context for these familiar policies was different. A crucial new element, and a surprising one given the supposed “secularism” of the revolution, was the introduction of a new kind of mechanism to identify Catholics (for purposes of disarming them and expelling them from London) based entirely upon their views of transubstantiation and ritual, in other words, upon beliefs alone. But at the same time, the new measures taken to identify Catholics were coupled with the use of loyalty oaths that exposed a disturbing lack of allegiance on the part of Anglican Protestants. We seem at once to see a tightening and a loosening of the link between religious identity and political loyalty. The next section seeks to explain this paradox.

Anti-Catholic Measures in 1688 The new regime that took power shortly after William of Orange’s invasion of England in November  immediately identified “papists” as a threat to its existence. The House of Lords, at that point the only legitimate institution of government left standing, issued orders on December  that all papists, with the important exception of householders who had resided there three years, depart from London, Westminster, and the surrounding area ten miles adjacent. Justices of the peace accordingly issued warrants to constables to search out popish recusants and ask them to depart, and to report lists of names.15 Parliament at the earliest opportunity acted to formalize these orders as legislation. The early (prelegislative) orders, declarations, and warrants respecting “pa-



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pists” gave no directions as to how they were to be identified. In fact, their language defined the target group as “papists and reputed papists,” suggesting that definitions were hazy.16 On occasion, the term “popish recusant” was substituted.17 It is possible that constables relied on actual convictions for recusancy (nonattendance at church) to identify “papists.” Recusancy, certainly, had been the criterion for defining the target group in earlier Jacobean legislation which had prohibited recusants from keeping arms beyond what was necessary to the defense of their homes, and required them to depart London unless they were licensed to be there, practiced a manual trade, or had lived there three years with no other habitation.18 However, it is unlikely that a recusancy conviction per se would have been regarded as a useful indicator that a person should be targeted under the new measures. First, the emergence of Dissenting Protestant sects in the later seventeenth century meant that nonattendance at an Anglican Church was no longer the distinguishing mark of Roman Catholics. Second, James II had done his best to vitiate the force of penal laws and make it easy for Catholics to avoid recusancy proceedings and fines.19 It would have been difficult, therefore, to find up-to-date, reliable lists of convicted recusants. It is more likely that it was simply left to constables to come up with names. There was some precedent for this practice: in , during the Popish Plot crisis, London constables submitted “returns of lodgers,” street-by-street lists in which the constable endeavored to label the residents of each household by religion and nationality. Significantly, the word “reputed” figured heavily in these documents. Richard Palmer’s four lodgers in the parish of St. Martins in the Fields, for example, were described by Constable Thomas Beaver as “Jeremiah Bateman a Dutchman a Papist, Katherine his wife and Englishwoman a Papist, John Garrard an Englishman a reputed papist, Barbary his wife an Englishwoman a reputed Papist.”20 The inclusion of the phrase “reputed papist” in the House of Lords’ orders in  was meant precisely to indicate that judgments as to who counted as a “papist” were based on perception and reputation. Given that James II’s reign had allowed Catholics to be open about their religion, it would have been reasonable to expect that communities would know the Catholics among them. Perhaps it was also thought reasonable to assume that a person perceived to be a papist would be dangerous, no matter what his or her actual religious beliefs were. Given the absence of precision in the identification of Catholics that we see in these early efforts to secure the new regime, it is significant that when formal legislation passed in the new Parliament it contained a mechanism for testing religious identity, creating a category of what one member of Parliament called a “legal papist.” The “Act for amoving papists and reputed papists from the cit-

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ies of London and Westminster and ten miles distance from the same” and the “Act for the better securing the government by disarming papists and reputed papists” each provided that suspected persons would be summoned and tendered the Declaration against Transubstantiation, in which the taker denied a belief in this doctrine and affirmed that, among other things, the invocation of the virgin and saints, and the sacrament of the Mass, “as they are now used in the Church of Rome, are superstitious and idolatrous.”21 The Declaration against Transubstantiation had first been used during the Popish Plot crisis to determine the religious identity of members of Parliament.22 The  acts extended the use of the Declaration against Transubstantiation more widely, in effect replacing conviction for recusancy with a refusal to take the declaration as the identifying mark of a Catholic. For the first time, belief itself rather than disobedience to the law or a refusal to take a loyalty oath was what defined a person as Catholic and rendered him or her politically suspect. This could be said to represent a step toward understanding Catholicism as a “religion.” However, the fact that the entire point of identifying Catholics by their belief was to impose restrictions on them so as to disable them from rebellion indicates that Catholicism was not really being divorced from putative political disloyalty. The London Metropolitan Archives contain several examples of records kept by authorities documenting their implementation of the Act for amoving papists and the Act for better securing the government. Three points of importance can be gleaned from these records. First, the Declaration against Transubstantiation was tendered to people already suspected of being Catholic. Justices of the peace summoned suspected Catholics to appear on a given day, or series of days, to be tendered the Declaration against Transubstantiation in a public place.23 Those suspected Catholics who refused to take the declaration were made to declare their refusal aloud; their names, as well as names of the takers of the declaration and those who simply did not show up, were systematically recorded, usually on large vellum sheets.24 It is reasonable to suppose that the work done by constables in gathering lists of “papists and reputed papists” in accordance with the orders of the House of Lords the previous December and January laid the groundwork for the issues of summons to individuals by justices of the peace in May and June . Since the vast majority of those summoned refused to take the declaration, we must suppose that the decision about whom to summon was based on some previous knowledge of likely “papists.” Also worthy of note is the attempt by some officials to create an indexing system. In Westminster, justices of the peace wrote down the names of each refuser of the Declaration against Transubstantiation on the day when the refusal was made. In addition, they subsequently created a separate “calendar”



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of refusers, with names in rough alphabetical order, which enabled a reader to find the name of any given refuser in the original sheets recording the daily refusals.25 They also created a separate calendar for the much smaller number of the takers of the declaration. That they bothered to undertake this labor suggests that they intended for the calendars to be kept as a permanent and usable record of “legal papists.” It is also significant that the “legal papists” identified through the public ritual of tendering the declaration were not subjected to a further tendering of the Oath of Allegiance. This omission marks an important departure from Jacobean practices wherein the Oath of Allegiance was administered as an additional ordeal to persons convicted of recusancy.26 The list of takers of the declaration from Middlesex shows that those who did take the Declaration against Transubstantiation were also offered the new Oath of Allegiance, whereas those who refused to take the Declaration against Transubstantiation were not.27 Thus, whereas convicted recusants in previous reigns had been further asked to affirm or deny their loyalty, the “legal papists” of William’s reign were not. They were put in limbo, vulnerable to preventive measures such as having their houses searched for arms or (if not householders or tradesmen) expelled from London, but without having their loyalty either proven or disproven. One can imagine that, in practical terms, the creation of a category of perpetually suspected persons was convenient for government officials concerned with security, or perhaps just concerned with the appearance of maintaining security. “Papists” certainly constituted a readymade set of “usual suspects” to be rounded up at moments of crisis. Moreover, targeting “papists” for searches or round-ups was doubly convenient because officials felt little obligation to limit themselves to “legal papists” once a search began. The assertion that a papist or reputed papist was present in a group, or was the owner of a house where a group met, was enough to license a search that would include disaffected persons regardless of religion. Thus, a warrant might be given to “apprehend several dangerous and disaffected persons who meet and cabal at the houses of several persons in Westminster who are papists or reputed papists.”28 Colonel Edward Matthews was ordered to “search for concealed arms belonging to papists, and to apprehend all Irish papists together with other traitors and conspirators.”29 Lord Lumley received instructions for “disarming papists and [their] adherents.”30 The promiscuous accretion of terms—papists and reputed papists, Irish papists, adherents of papists and disaffected persons—suggests that authorities knew perfectly well that Catholicism in and of itself was not the equivalent of disloyalty, and that not all the people they wished to target were Catholic.

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The fact that searches and round-ups licensed by anti-Catholic legislation netted non-Catholics, together with the difficulty of defining (in the absence of any other test of loyalty) what it was about “legal papists” that put them into a category of perpetual suspect, points to a contradiction in the language and practices of national security after . On the one hand, it was well understood that Catholicism and disloyalty were not synonymous. On the other hand, the equation was alive and useful, for those who wrote and implemented law. Why? Why wasn’t the Oath of Allegiance used, as it had been in the earlier seventeenth century, to confirm the disloyalty of “legal papists”? And moreover, why, given that the concern of the regime seems to have been security and not religion, were “papists” rather than refusers of the Oath of Allegiance the targets for preventive measures, even when at a practical level non-Catholics were also a threat to the regime? Part of the answer to this question is that the Oath of Allegiance had itself in the s come to be seen by many contemporaries as an unreliable test of loyalty. Its content had been watered down to the point where it was thought it could be taken even by closet Jacobites. Thus, it may have been feared on the one hand that having “legal papists” take the Oath of Allegiance would discredit it further, and on the other that the Oath of Allegiance itself would not really disclose their loyalty or disloyalty. Understanding the relationship between the “papists” and the “disloyal,” and how that was articulated in the s, therefore requires an understanding of the meaning and use of the Oath of Allegiance in the same period.

The 1689 Oath of Allegiance The  Oath of Allegiance adapted and updated the  Jacobean Oath of Allegiance. In making use of the  Oath, William and Mary followed in the tradition of all seventeenth-century English monarchs. Nonetheless, the meaning and function of the oath, as well as a key part of its text, was radically altered after the Glorious Revolution. Although the stated goal of the  Oath of Allegiance—to distinguish between loyal and disloyal Catholics—might well (as noted above) be regarded as disingenuous, the  Oath did at least raise the possibility of making that theoretical distinction, and it is worth recalling that some Catholics took the oath with exactly that distinction in mind.31 The  Oath, although it employed language similar to that of , functioned very differently. It was no longer applied exclusively to recusants or suspected Catholics. Indeed, as we saw above, it seems that authorities did not bother to tender it to “legal papists.”



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Instead, the Oath of Allegiance functioned to discover the unprecedented disloyalty of Anglican Protestants to the new regime. To understand the hitherto unheard of phenomenon of Anglican disloyalty, some background is necessary. Anglican non-jurors were a remnant of the Tory Party, the party that had identified itself during the late seventeenth century as the upholder of the monarchy and the Church of England (in contradistinction to the Whigs, who emphasized limitations on royal authority through law and Parliament, and who were more sympathetic to Protestant Dissenters). Tories maintained that passive obedience and nonresistance to the monarch were core doctrines of the Church of England, and that the king should therefore persecute Protestant Dissenters because they were a threat to both the church and the monarchy. So committed were Tories to their role as defenders of monarchy that, despite their anti-Catholicism, they welcomed James II to the throne in the hope that he would continue to uphold the Anglican monopoly. Instead, he threatened it. He put Catholics into offices from which all non-Anglicans were by law excluded, claiming that as king he had power to dispense with such laws. Moreover, James tried to win support for his pro-Catholic policies from Protestant Dissenters by promising that both groups would get the benefit of religious toleration. To this end, he issued a Declaration of Indulgence (establishing toleration for Catholics and Dissenters by royal fiat, without the consent of Parliament). To add insult to injury, James ordered the clergy of the Church of England to read the declaration from their pulpits. Many clergymen refused, and seven Anglican bishops (including William Sancroft, the Archbishop of Canterbury) who had spearheaded the resistance were thrown into the Tower and tried for sedition. As a result, high-church Tories who had brought James II to the throne joined with their Whig opponents to overthrow him. In a dramatic reversal of their monarchist principles, the majority of Tories supported the transfer of power to William and Mary. They did so, however, with some ambivalence. Retaining the allegiance of Tories was thus an important area of concern for the new government. A minority of Tories, however, refused to take the  Oath of Allegiance. Although small in number, they were prestigious, and Archbishop Sancroft was among them. When King William deprived the non-juring bishops and clergy of their offices, the non-jurors proclaimed themselves the “True Church of England.” They refused to recognize the new bishops that William appointed, they continued to hold services, and they printed up a liturgy for use by their adherents. Their status as the “True Church” rested on a principle of episcopal succession stretching back to St. Augustine of Canterbury, the first English bishop. Adopting a strongly clericalist, anti-Erastian ecclesiology, they main-

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tained that William had no right to deprive bishops of their sees, and that the deprived bishops had the power to ordain ministers and pass on authority to their own successors. The claim to be the “True Church of England” was also a reference to ideological consistency, their adherence to the core doctrines of passive obedience and nonresistance. The important point for our purposes is that non-jurors were disturbing in disproportion to their numbers. Their existence and eloquent polemic raised questions about the juring “not-so-true” Church of England at the very moment when the continuation of the Anglican monopoly on established religion was in doubt. If passive obedience was the core doctrine of the Church of England, juring Anglicans who had switched allegiance from James II to William and Mary appeared to have betrayed their religion. If passive obedience was not the core doctrine of the Church of England, then the claim of Anglicans that they were entitled to a monopoly on legitimate religion in England, which depended on an identification between the church and the monarchy, looked baseless. The unprecedented deprivation of bishops and clergy by the king was further embarrassing to Anglicans, as it seemed to suggest that the Church of England was merely a tool of state, a point that they were eager to deny. For the Dissenters and their allies who formed the backbone of the Whig Party and were hostile to the Anglican monopoly, the claims by non-jurors to represent true Anglican belief proved a useful stick with which to beat the Tories. The existence of Anglican non-jurors raised a question about how firm the Anglican jurors were in their adherence to the new regime: would Tories, often visibly wrestling with their ambivalence about having deposed a sovereign, revert in a paroxysm of conscience to their former support of James II? Whigs accordingly made repeated efforts to construct a stricter loyalty oath, one that would require the taker to describe William and Mary as “rightful and lawful,” or to abjure James II, in the hope that this higher standard would expose the shaky loyalty of hitherto juring Anglican Tories, lead them to refuse the oaths, and hence drive them from power. The embarrassment that Anglican non-jurors created for juring Anglican Tories explains much about the way that legislation concerning loyalty oaths was written and implemented right after the Revolution of , mostly at the insistence of Tories. First, the penalties for refusing the Oath of Allegiance were extraordinarily mild. In  refusers of the oath were subject to imprisonment and the penalties of premunire, the outlawry and forfeiture inflicted on English subjects found guilty of obeying a foreign authority. Refusers of the oath in , by contrast, paid fines of not more than £ïœ±ïœ°, gave sureties for good behavior, and suffered only exclusion from political office. Second, Tories



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fought to stretch out the time frame for taking the  Oath of Allegiance, on grounds that the oath was highly taxing to the conscience of pious Anglicans, and that a person of conscience would need time to wrestle with it. To make it more palatable, moreover, the language of the  Oath was made relatively undemanding, so that even the ambivalently loyal could take it. The  Oath had required takers to acknowledge James I as the “lawful and rightful king,” but the  Oath simply required the taker to “promise and swear that I will be faithful and bear true allegiance to their majesties William and Mary.” The standard of loyalty in the  Oath was substantially lower. As Whig critics repeatedly pointed out, the omission of the words “rightful and lawful” meant that a person taking the  Oath might continue to view James and not William as the “rightful and lawful” king, and only swear allegiance to William as the de facto ruler to whom allegiance was owed only as long as he maintained power. The Oath of Allegiance in , then, was easy to take, even for the ambivalently loyal, and in any case its imposition was often delayed. The net impact was to minimize the spectacle of Anglican disloyalty. At the same time, the policies surrounding the administration of oaths of allegiance served to draw attention to disloyalty by Catholics. The law contained a mechanism for distinguishing between Protestant and Catholic non-jurors, and punishing the latter more harshly. After refusing to take the oaths of allegiance, a person could be tendered the Catholic-detecting Declaration against Transubstantiation; upon refusing the declaration, he would be subject to the laws affecting Catholics. Thus, instead of creating, as the  Oath of Allegiance had done, a distinction between loyal and disloyal Catholics, the  Oath created a distinction between disloyal Protestants and disloyal Catholics, with Protestants given lesser penalties and a privileged status in relation to Catholics. At the very moment when realities on the ground and the actual experiences of authorities securing the regime made nonsense of the equations of Catholicism with disloyalty and Protestantism with loyalty, those equations were solidified by the new legislation. Their ideological power is evident in many arenas during the s. For example, the infamously massacred members of the MacDonald clan of Glencoe, who antagonized the Williamite regime in Scotland, were in fact Anglican, but as Alan MacInnes points out, they have often been assumed by both contemporary and modern writers to have been Catholic.32 The interaction of oaths of allegiance and the antipapist legislation further cemented the equation of Catholicism and disloyalty, shutting down even the theoretical possibility of Catholic loyalty and distinguishing disloyal Protestants from Catholics in a way that penalized the former less harshly.

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The Persistent Equation of Protestantism and Loyalty, Catholicism and Disloyalty The distinction between Protestant disloyalty and Catholic disloyalty was insisted upon in the early s, even at moments when one would think that nonconfessional ways of testing political allegiance should have triumphed. A fascinating example is the abortive “Papist Toleration Bill,” or “Act for exempting their Majesties’ Popish subjects from the penalties of certain laws,” which was drafted in a committee of the House of Lords in December  but never came to a vote.33 The bill created an oath that (like the normal  oath) required a promise of true allegiance and a denial of papal deposing power but that omitted the “impious and heretical” clause. It was meant to pose no religious obstacles for Roman Catholics. Those Catholics who took the oath would be freed from the stiff financial penalties (a £ per week fine) that had been imposed on recusants, and allowed to reside within London and its environs. They would have the same freedom of worship enjoyed by dissenters under the Toleration Act, though this freedom did not extend to the public exercise of the Catholic religion. John Bossy has discussed this draft legislation as evidence of King William III’s tolerationist intentions.34 And indeed, it does seem (except for the restriction on the public exercise of religion) to have been an attempt to make loyalty religiously neutral at last. However, even had the bill passed, it would still have treated Catholics very differently from Protestants. Those who did take the new oath would have been allowed to live in London, but the draft bill neglected to exempt them from the laws preventing papists from possessing weapons and horses. I cannot believe this omission was a mere oversight. Moreover, the Papist Toleration Bill, which made oath-taking mandatory for all popish recusants, created penalties for Catholic non-jurors (an immediate £ïœ±ïœ°ïœ° fine, and six months’ imprisonment), which were far harsher than the penalties imposed on Protestant non-jurors. It is especially telling that a person could avoid these stiff penalties by taking the Declaration against Transubstantiation. This allowed Protestants who could not swear “true allegiance” to William and Mary to nonetheless prove that they were not Catholics, and thus to suffer only the normal penalties for non-jurors (small fines, sureties, exclusion from office). Had the bill become law, then, it would have maintained and even sharpened a distinction between disloyal Protestants and disloyal Catholics, and (if  laws about disarming all papists remained in place) also put loyal Catholics in a different category than loyal Protestants. In any case, the bill died in committee, which suggests that the idea of a religiously neutral loyalty test had little support.



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The maintenance of a Catholic/Protestant distinction, I have suggested, was driven by the desire of high-church Tories to occlude the existence of Anglican Jacobitism, or rather (since one could not hide its existence completely) to give Protestant non-jurors a privileged status in relation to Catholics. What was being protected was not non-jurors as individuals but the principle that Protestantism was by definition loyal, and hence that the loyalty of Protestants, including Tories themselves, need not be questioned.

1696: The Moment of Secularization? I have been arguing that the complex of legislation designed to identify disloyal subjects in the s essentially worked to the benefit of Tories, occluding the existence of Anglicans who were disloyal to the new regime. In , however, Whigs gained the initiative, rewriting legislation in a way that dragged Anglican disloyalty into the limelight. The immediate trigger was the Assassination Plot, in which several non-juring Protestants were involved in a scheme to assassinate William III. The crisis had a profound effect on the way in which English men and women were asked to define and demonstrate loyalty. A new “Association Oath,” required of officeholders and widely tendered to ordinary citizens, demanded that its subscribers adhere to a stricter and more active standard of loyalty than did the  Oath of Allegiance: they now had to explicitly declare their king the “rightful and lawful” monarch, similar to the  Oath. Meanwhile, although the  Oath remained in existence, Parliament rewrote the legislation governing its administration in a way that put non-juring Protestants on the same legal footing as Catholic recusants. Any person refusing to take the  Oath would be “liable to incur forfeit pay and suffer all and every the penalties forfeitures sums of money disabilities and incapacities which by the laws and statutes of this realm .€.€. are inflicted upon Popish recusants duly convicted of recusancy.”35 If Protestant non-jurors were now to be treated as if they were recusants, some “legal papists” were finally in  given an opportunity to distinguish themselves from disloyal Protestants. It is fascinating to compare the vellum roll labeled “returns of papists” for  in Middlesex with the documents pertaining to the tendering of the Declaration against Transubstantiation in  discussed above. On the surface,  was a repetition of : suspected persons were summoned, tendered oaths, and had their names recorded on big vellum sheets. But there were important differences. First, the persons summoned by the Middlesex justices of the peace sitting at Hicks Hall on November , , were described as “papists, reputed papists and persons suspected

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to be disaffected to his present Majesty and the government.” Thus, a category of non-Catholic disloyalty was acknowledged. Moreover, instead of tendering the Declaration against Transubstantiation, the justices tendered the  Oath of Allegiance. Finally, the vellum roll includes a list of six “names of the persons who did appear and declared themselves Roman Catholics and only took the oath of fidelity.”36 It is maddening that no text of this “oath of fidelity” is given. We can assume with confidence, however, that it was some kind of allegiance oath designed to be acceptable to Catholics, perhaps one modeled on the abortive “Papist Toleration Bill” and omitting the “impious and heretical” clause. In short, Middlesex justices of the peace found a way to allow self-confessed Catholics to establish their loyalty to the new regime. We might then propose that  was the moment when the equations of Protestantism with loyalty and Catholicism with disloyalty were dismantled. My intention, however, is not to reinstate a teleology of secularization with a seven-year delay. The real lesson of  is that the possibility of Catholic loyalty being recognized as something other than an oxymoron depended entirely on the outcome of partisan struggles among Protestants. Just as the identification of Catholicism and disloyalty had served Tory interests by occluding Anglican disloyalty toward the new regime, so the breaking of that identification served Whig interests. In , in a moment of panic and anger, Whigs were able to push their agenda. But of course, precisely because it was the outcome of a particular political conjuncture, the shift we see in  toward defining loyalty in religiously neutral terms did not last. In , new legislation for “further preventing the growth of Popery” targeted the ability of Catholics to educate children and pass on estates. It prohibited Catholics from running schools, and it required heirs to property to take the Declaration against Transubstantiation or lose their inheritance.37 In other words, it seems there was a continuing impetus to avoid putting Protestants and Catholics into the same category, even if their political disloyalty was identical. This explains, in turn, why despite the many reasons we can give as to how Catholics in the s might have, should have, or could have been recognized as loyal subjects of the Williamite government, the equation of Catholicism with disloyalty persisted in language and law.

Conclusion This essay has grappled with the Janus-faced character of security legislation after  as being at once secular and not secular, religion-based and not reli-



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gion-based. Although this case is rooted in particular historical circumstances, its larger points, I hope, are of wider interest. First, the term “secular” itself needs to be scrutinized. Polities that do not persecute “religion” may persecute what they see as “religion-that-is-really-seditious-politics-and-therefore-notreligion.” Our attention, then, should focus on how that line between “religion” and “religion-that-is-politics” is drawn, and who gets to draw it. This will give us a different sense of historical change. It will disabuse us of the idea that there has been a simple development from the bad old days of religious persecution to the secular tolerationist present. As I have suggested, there are significant similarities between how Elizabethan Protestants understood Catholicism—as a religion that is really a form of politics—and how many today in Western secular polities see Islam. Moreover, we have seen that the degree to which disloyalty was mapped onto Catholicism shifted after the Revolution of , but not in a consistent direction, and for reasons that stemmed primarily from the exigencies of power struggles between Protestant Whigs and Protestant Tories rather than from the behavior of Catholics. The analysis presented here as to why the equation of Catholicism with disloyalty persisted after  might, by way of analogy, be helpful in explaining recent discourses about Islam in U.S. society. Anglican Tories who worried that their own allegiance to the new government might be questioned had a large stake in keeping the equation of Catholicism with disloyalty alive. We might generalize from this example to say that whether a religion is or is not defined as inherently productive of disloyalty may have less to do with that religion and more to do with the political needs of those who make the definitions. Moreover, one political need that is served by equating a given religion with disloyalty is to make the loyalty of adherents of a different religion appear to be beyond doubt. It might therefore help us to understand the dynamics of Islamophobia in the United States today if we put anxieties surrounding the loyalty of non-Muslims into our frame of analysis. There are, after all, non-Muslims in the United States who reject the authority of the federal government and embrace violence, as well as larger legitimate political movements that do not use violence but nonetheless have some ideological affinities with those who do. Perhaps one purpose of equating Islam with disloyalty has been to occlude the possibility that Christians might be disloyal as well. This is only a hypothesis. But I hope that an awareness of how and why apparently secular polities may reinscribe religious categories of political identity in unexpected ways may help illuminate our present as well as our past.

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Notes Acknowledgments: Thanks to the editors and to Michael Questier for comments on earlier drafts. . Richard Price, A Discourse on the Love of our Country, delivered on Nov. ,  (London: T. Cadell, ), . . Anonymous, A short and sure method [], . For penal laws, see S. J. Connelly, Religion, Law and Power: The Making of Protestant Ireland (Oxford: Clarendon, ). . J. C. D. Clark, English Society, –: Ideology, Social Structure, and Political Practice during the Ancien Regime (Cambridge: Cambridge University Press, ); Tony Claydon, William III and the Godly Revolution (New York: Cambridge University Press, ). . Gilbert Burnet, Bishop Burnet’s History of His Own Time, vol. II (London: Joseph Downing, ), . This is quoted by both John Bossy and Steven Pincus in sources cited below. Steven C. A. Pincus, “The European Catholic Context of the Revolution of –: Gallicanism, Innocent XI, and Catholic Opposition,” in Shaping the Stuart World, –: The Atlantic Connection, ed. Alan MacInnes and Arthur Williamson (Leiden: Brill, ), esp. –; John Bossy, “English Catholics after ” in From Persecution to Toleration: The Glorious Revolution and Religion in England, ed. Ole Peter Grell et al. (Oxford: Clarendon, ); Jonathan Israel, “William III and Toleration,” in From Persecution to Toleration. . Steven C. A. Pincus, “‘To Protect English Liberties’: The English Nationalist Revolution of –,” in Protestantism and National Identity: Britain and Ireland, c. – , ed. Tony Claydon and Ian McBride (Cambridge: Cambridge University Press, ); Pincus, “The European Catholic Context of the Revolution of –”; Steven C. A. Pincus, : The First Modern Revolution (New Haven: Yale University Press, ), esp. ch. . . Perez Zagorin, Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern Europe (Cambridge: Harvard University Press, ); Janet E. Halley, “Equivocation and the Legal Conflict over Religious Identity in Early Modern England,” Yale Journal of Law and the Humanities  (): –; Peter Lake, “Antipopery: The Structure of a Prejudice,” in Conflict in Early Stuart England, ed. R. Cust and A. Hughes (London: Longman, ), –. . Arnold Pritchard, Catholic Loyalism in Elizabethan England (Chapel Hill: University of North Carolina Press, ); Peter Holmes, Resistance and Compromise: The Political Thought of the Elizabethan Catholics (Cambridge: Cambridge University Press, ). . James I, A Proclamation for the Due Execution of all Former Lawes against Recusants [June , ] (Robert Barker, ), . . “An Act for the better discovering and repressing popish recusants,”  Jac.  cap. , Statutes of the Realm (London: Dawsons of Pall Mall, 1810–1828), vol. , –. . I have relied on the argument of M. C. Questier, “Loyalty, Religion and State Power in Early Modern England: English Romanism and the Jacobean Oath of Allegiance,” Historical Journal  (): –. But compare Johann P. Sommerville, “Papalist Political Thought and the Controversy over the Jacobean Oath of Allegiance,” in Catholics and the Protestant Nation, ed. Ethan Shagan (Manchester: Manchester University Press, ), –; Questier responds in “Catholic Loyalism in Early Stuart England,” English Historical Review  (): –.



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. Alexandra Walsham, Church Papists: Catholicism, Conformity, and Confessional Polemic in Early Modern England (Woodbridge: Boydell, ). For the problem modern historians face in recognizing early modern English Catholics, see Lisa McClain, Lest We Be Damned: Practical Innovation and Lived Experience among Catholics in Protestant England, – (New York: Routledge, ), ch. ; Michael Questier, Catholicism and Community in Early Modern England (Cambridge: Cambridge University Press, ). . Tim Harris, London Crowds in the Reign of Charles II: Propaganda and Politics from the Restoration until the Exclusion Crisis (Cambridge: Cambridge University Press, ), –. . John Locke, “Essay on Toleration” [], in John Locke: Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, ), . . A Letter concerning Toleration, d ed. (London: Awnsham Churchill, ), , . For a nuanced discussion of Locke’s views, see John Marshall, John Locke, Toleration and Early Enlightenment Culture (Cambridge: Cambridge University Press, ), –. . Declaration of his Highness of Prince of Orange concerning Papists not departing from the Cities of London and Westminster, and Ten Miles adjacent [given January , /] (London: J. Starkey and A. and W. Churchill, ). This establishes the date of Lords’ orders as December . For reports by clerks of the peace on the performance of Lords’ orders, see, for example, “Certificate of John Smith,” January , , Manuscripts of the House of Lords, – [HMC Lords], item no. , ; “Certificate of John Hardisty,” HMC Lords, item no. , –. . Declaration of his Highness of Prince of Orange; “Certificate of John Smith.” . “Certificate of John Smith,” describing warrants issued to high constables of Holborn, Finsbury, and Tower divisions to “search all Popish Recusants and tell them to depart.” .  Jac.  cap. , “An Act to Prevent and Avoid Dangers which may Grow by Popish Recusants,” Statutes of the Realm, vol. , –. . John Miller, Popery and Politics in England, – (Cambridge: Cambridge University Press, ), –. . “Return of Thomas Beaver,” November , , London Metropolitan Archives [LMA] WR/R/R/. For similar documents, see LMA MR/R/R/, LMA MR/R/ R/. .  G&M cap. , Statutes of the Realm, vol. , –;  G&M cap. , ibid., –. For arguments by MPs about the need to create a test to convict “legal papists,” see  March /, Grey’s Debates IX, – for March , /. . “An Act for the more effectual preserving the King’s person and government by disabling papists from sitting in either house of parliament,”  Charles  cap. , Statutes of the Realm, vol. , –. . See LMA MR/R/R/, sheets  and  (for Middlesex); LMA WR/R/R/, sheet  (Westminster). . This discussion is based on LMA MR/R/R/, sheets –; WR/R/R/. . The original sheets recording refusals are LMA WR/R/R/, sheets –. The calendar is on sheets –. . See Section VIII of  Jac.  cap. , requiring authorities to tender the Oath of Allegiance to any non-noble person over the age of eighteen who stands indicted or

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convicted of recusancy, has not received the sacrament twice in the previous year, or has confessed to being a recusant. . LMA MR/R/R/, sheet . . December , , in William John Hardy, ed., Calendar of State Papers, Domestic Series [CSPD], 1689–90 (London: Eyre and Spottiswood, 1895), . . April , , in CSPD –, . . April , , in CSPD –, . . Questier, “Loyalty, Religion and State Power in Early Modern England”; Miller, Popery and Politics in England, –, –. . Allan I. MacInnes, “Slaughter under Trust: Clan Massacres and British State Formation,” in The Massacre in History, ed. Mark Levene and Penny Roberts (New York: Berghahn, ). . HMC Lords , no. , –. . Bossy, “English Catholics after ,” –. . “An Act for the Better Security of his Majesty’s Royal Person and Government,” & Gul. III, cap. , Statutes of the Realm, vol. , –. . “Returns of Papists for ,” LMA MR/R/R/, sheet . .  Gul. III, cap. , Statutes of the Realm, vol. , –.

chap ter five

“Intolerance of Intolerance” in the Unitarian Controversy The Theology of Baker v. Fales stephanie l. phil l i p s

The centerpiece of this essay is a series of disputes over church property in early-nineteenth-century Massachusetts, key events in what is known as the “Unitarian Controversy.” In broad outline, the controversy concerned a Christian denomination that split in two, ostensibly because of theological differences over the question of the divinity of Christ. One faction, the Unitarian, clearly won the fight: predominantly Unitarian judges made rulings awarding property owned by at least eighty churches to Unitarians, thus divesting Massachusetts Calvinists of property they had long held. In the process, the supposedly liberal, tolerant Unitarians inflicted the same sort of sectarian oppression of which they perennially accused their Calvinist opponents. The first part of this essay provides a legal and theological description of the state-supported churches; the second part describes the outbreak of the Unitarian Controversy, the particular dispute that arose between Calvinists and Unitarians in Dedham, Massachusetts, and the opinion written by Isaac Parker, Chief Justice of the Massachusetts Supreme Court, in the Dedham case, Baker v. Fales. The third part of this essay more deeply probes the theological underpinnings of the opinion, and the final section describes the continuing pertinence of the Dedham case and the Unitarian Controversy in the twenty-first century, as precedents for present-day church property disputes, and as case studies for the emergence of new theologies of religious tolerance.

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Law and Religion in Massachusetts at the Dawn of the Nineteenth Century To those who were not orthodox Calvinists, the early colonists of Massachusetts Bay extended neither tolerance—respect, benevolence, and restraint—nor toleration—the legal right to practice their religions. As elsewhere in early New England, the Massachusetts Calvinists, “certain that their way was the only one, forbade the erection of other churches. If a man could not qualify as a visible saint, he was wholly outside any church. He could not be baptized. He could not have his children baptized. He could not take communion.”1 Nor could he vote.2 Massachusetts Bay subsequently underwent dramatic evolution, from its first decades when it enforced Calvinist orthodoxy by such heavy-handed measures as hanging Quakers and banishing Baptists,3 to the Revolutionary era when the theory and practice of religious toleration had taken hold. Article II of the Declaration of Rights in the Massachusetts Constitution of  guaranteed freedom of conscience. However, Article III of the constitution reaffirmed a system of taxing the public for support of religion. While written as though there were no legal preference to be given to any Protestant denomination, Article III operated, in practice, to perpetuate a de facto Congregationalist establishment, often referred to as “The Standing Order.”4 Massachusetts Congregational churches, so-called because they recognized no hierarchical ecclesial authority outside the local congregation, traditionally had been Calvinist in theology and composed of “saints” joined to each other by a covenant.5 Each territorial parish had one official parish church, almost always a Congregational one, which was supported by taxes levied on inhabitants of the parish.6 Dissenting Protestants, while permitted to form their own churches that were entitled to receive a proportionate share of the religious tax revenues, often complained that they had not received their due. Dissenters who were too few in number to form a church, as well as nonbelievers, paid religious taxes to support the official parish church. In sum, the territorial parish system and tax support of religion amounted, in practice, to a system that benefited Congregationalism and disadvantaged other religious denominations. By the beginning of the nineteenth century, some of the Massachusetts Congregationalists, particularly among the Boston elites, had turned to Unitarianism. The denomination now included both Calvinists and Unitarians within its institutional network. For a while, adherents to one tendency continued to be willing to treat adherents to the other as brethren in Christ: ministers of different schools of thought were willing to swap pulpits and to preach at ordinations. Very soon, however, the Calvinists and the Unitarians would stop



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extending to each other these traditional measures of Congregational comity. The first crack in the Congregational establishment came in , at Plymouth, where the church—the tiny number of local residents who had experienced conversion—and the parish—the residents of the geographical subdivision where the meetinghouse was located—voted to engage the Reverend James Kendall, a Unitarian. “Although the vote of the church was only twenty-three to fifteen in his favor, the vote of the parish was two hundred and fifty-three to fifteen. Three years later the Trinitarian members of the parish withdrew to establish the Third Church in Plymouth.”7 What was going on here? The designation of the factions as “Unitarian” and “Trinitarian” seems to imply that the doctrine of the Trinity was at the heart of the dispute, making this simply the most recent of the fights that had been recurring for fifteen hundred years. The doctrine of the Trinity holds that there is one God, but that God has three aspects: the Father, the Son, and the Holy Spirit. Because the doctrine is arguably unbiblical,8 represents an apparent deviation from strict monotheism,9 and implicates the danger of idolatry,10 Christianity has been plagued with major Trinity-related disputes and heresies ever since the year  of the Common Era.11 Whenever Christendom as a whole has taken up the issue, however, the Trinitarian position has always prevailed. The Massachusetts Trinitarians who seceded from the Plymouth church, in , undoubtedly saw themselves as part of this history, engaged in a battle against heresy. For them, the doctrine of the Trinity was so fundamental that they could not, in good conscience, attend a church where the presiding minister did not uphold the divinity of Christ. However, while the Trinity was at the center of the Plymouth controversy for the Trinitarians, the same cannot be said for their opponents. Undoubtedly, the liberal Christians in Massachusetts rejected the doctrine of the Trinity, insisted on the oneness of God, denied the divinity (or deity) of Christ, and therefore came to be called “Unitarians.”12 However, there is no evidence that the parish and church majorities in Plymouth voted to call a Unitarian minister in order to take a stance on Christology. However important the issue may have seemed to theologians and to Trinitarian church members who had been galvanized into action, the lay people who voted in favor of the new minister very likely found the differences between Unitarian and Trinitarian discourses on Christ to be all but imperceptible. The Christian Unitarian ministers then preaching in Massachusetts held such an exalted view of Jesus that listeners might easily fail to notice the omission of references to Christ’s divinity.13 For example, the ministers continued “to acknowledge Jesus Christ as our Lord and Master.”14 If it seems unlikely that the church and parish in Plymouth were motivated

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by Christological concerns, why did they elect a “Unitarian” minister? One likely explanation, which is supported by the evidence, is that the inhabitants of the parish wanted a change in the requirements for church membership.15 Many Massachusetts Calvinists at the beginning of the nineteenth century imposed one or both of two very stringent criteria for church membership. First, the simple covenants that had prevailed in many churches were being replaced by detailed, doctrinal statements.16 Only those willing and able to swear to the terms of the covenant could become members.17 In addition to or instead of this requirement, the stricter Calvinists held that only those who credibly could relate a conversion experience were entitled to church membership.18 By comparison, the Unitarian membership criteria were much easier to meet, because of differences in theologies of the church and of the process of salvation. Unitarians strongly objected to the Calvinist doctrines of the total depravity of man, predestination, and election,19 and did not believe that Christian regeneration was a matter of “instantaneous and miraculous change.”20 The Calvinist conception of a church of the “elect” was therefore anathema to the Unitarians, who held, instead, “that the condition of membership was the desire and intention of getting good and doing good.”21 Thus, Unitarians “think it is possible for the church to be united on a basis of study and action rather than on that of attainment. Instead of having it consist of those who have formed opinions, let it consist of those who wish to form them. Instead of having it consist of those who have been converted, and who believe themselves pious, let it consist of those who wish to be converted, and who desire to be pious.”22 In sum, while Calvinists and Unitarians agreed that regeneration was a gift from God,23 their disagreements about the particulars of this process were such as to make Unitarians vastly more open than Calvinists on the question of who could be admitted to church membership. Not surprisingly, when the Constitution of  and subsequent judicial rulings gave parish inhabitants the exclusive right to elect ministers, they repeatedly chose Unitarians, thus giving themselves the right to be church members. The processes of defining the “church” and setting membership criteria are theological projects of the highest order, which, until , had been controlled by regenerate Christians. Thereafter, the power to determine these matters was vested in a group that was defined by geography, rather than by spiritual attainment. Two likely ramifications of the shift were pressure on the churches to change their doctrine and pressure on the state to dismantle the territorial parish system. In Massachusetts, both things happened. The Plymouth case, which attracted relatively little attention at the time, turned out to be a foretaste of shattering events to come.



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Baker v. Fales: The Infamous Dedham Case For fifty years, from  until , Massachusetts as a whole was embroiled in a contest that later historians came to call the “Unitarian Controversy.” In one battle after another, Unitarians wrested control of public and private institutions, beginning with Harvard College. Upon victory over their Calvinist foes, the liberal Unitarians congratulated themselves on saving Harvard from sectarianism,24 all the while blind to the extent that they had done the very thing of which they accused their adversaries: they had imposed their version of Christianity on those who differed from them in opinion and practice.25 Of all the imbroglios, the fights between Unitarians and Calvinists over church property proved most traumatic and most historically significant. The contest came dramatically before the public eye in the so-called Dedham Case, Baker v. Fales.26 The controversy in Dedham resulted from a collision between exclusionary Calvinist ecclesiology, pursuant to which only regenerate Christians could be full church members, and the inclusiveness of a territorial parish system, wherein all residents were taxed for support of the local church, to which they were presumptively attached. The Dedham fact pattern, legal dispute, and court decision formed a template for a long succession of cases that turned Massachusetts inside-out. In , the pulpit in the Dedham parish fell vacant. By majority vote, the parish—that is, the local residents—decided to extend an offer to the Reverend Alvan Lamson, a Unitarian. The church membership, however, disapproved of Lamson’s appointment, by a vote of seventeen to fifteen.27 The parish then convened a council of ministers in order to confirm its choice of Lamson, and to ordain him as minister. This deviated from long-established Congregational practice, in a key particular: ordinarily, it was the church, rather than the parish, that convened an ordaining council. Furthermore, the ministers invited to constitute the parish-called council in Dedham were all Unitarians, including such notables as the Reverend William Ellery Channing, Professor Henry Ware of Harvard Divinity School, and Harvard University president John Thornton Kirkland.28 The council was well aware of the controversy between the church and the parish, and admitted that, in general, for a council to cooperate in ordaining a minister in accord with the wishes of the parish, but over the vigorous objections of the church, would be very bad policy.29 Nevertheless, apparently rejecting the position strongly advanced by the church members,30 the council voted to ordain Lamson. In response, in accord with a pattern that was to be repeated

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in more than eighty parishes during the succeeding two decades, the majority of the original church members seceded and formed their own church. The seceding church members had to abandon the official parish meetinghouse in Dedham, but they took with them the church’s intangible and movable property, including bonds, other securities, documents, and records. Then they were sued, facing allegations that all the church property belonged to the parish, and that the former church majority had lost any right to it upon secession from the parish. The Supreme Judicial Court of Massachusetts, in a lengthy and incendiary opinion by Chief Justice Parker, ruled in favor of the remnant of the church that remained affiliated with the parish. The first legal issue confronting Chief Justice Parker was whether the disputed property belonged to the territorial parish or to the church, which consisted of the small number of parish residents who had met the strict requirements for church membership. Even though the property in dispute was derived from grants that had been made to “the church at Dedham,” Parker interpreted all the grants as having been made to the church as mere trustee, for the beneficial use of the parish. Therefore, when members of the church seceded from the parish, they could not take the property with them. In coming to this conclusion, Parker’s biggest mistake was historical; he justified his conclusion that the property belonged to the parish with the assumption that, in times past, when the grants were made, there was little distinction between the parish and the church.31 This was wrong; because of strenuous membership requirements, it had always been the case that fewer than half the residents of a Massachusetts territorial parish were members of the church.32 His erroneous view of Massachusetts history also led Chief Justice Parker to misinterpret a  statute that empowered church deacons to hold property for the church.33 Additionally, Parker drew the questionable inference that the grantors must have intended the parish inhabitants to be the beneficiaries of the trust, “because the effect of the grants was to relieve them from an expense they would otherwise have been obliged to bear, or forego all the benefits of a Christian ministry.”34 Actually, however, the opposite inference seems more supportable: if the disputed property was not derived from taxes paid by parish inhabitants, that would seem to be a plausible argument for concluding that the parish did not have a beneficial interest in the property. In sum, Parker’s grounds for holding the parish the beneficial owner of the property were flimsy, at best. Comparatively, he had clearer legal authority for his resolution of the second issue in the case. The second legal question presented was whether the plaintiffs, representatives of the church members who remained with the parish, were legally the



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deacons of the “First Church in Dedham,” and thus entitled to custody of the disputed property. This was thought to turn on the question whether Alvan Lamson was legally selected and ordained as the minister,35 which Parker resolved by holding that Lamson’s selection and ordination were in accord with the provision of the Massachusetts Constitution of  that gave parishes the “exclusive right” to choose ministers and enter into contracts with them.36 Therefore, the fact that the parish violated Congregational practice by overriding the church majority and by calling the ordaining council was accorded no legal consequence. Parker’s constitutional interpretation probably was correct, in that the text of Article III of the constitution explicitly gave parishes the exclusive right to select ministers.37 However, because Article III left some ambiguity regarding details of the process for selecting a minister and because Parker’s opinion was otherwise objectionable, the seceding Calvinists and their allies throughout the Commonwealth suspected Chief Justice Parker, a Unitarian, of bias.38 In their view, he had relied upon ill-supported grounds to divest orthodox Calvinists of their property and to bestow it upon Unitarians. The suspicion of bias was all but confirmed by an extremely indiscreet action by the chief justice: he chose to publish a defense of his Dedham decision in a Unitarian periodical.39 Moreover, Parker’s pro-Unitarian predilection had been clearly evident in the very text of the Dedham opinion. Parker’s opinion in the Dedham case is full of allusions to Unitarian theology, of which he approved, and to Calvinist theology, of which he disapproved. This aspect of the Dedham opinion may not be immediately obvious to a modern reader, because Parker never uses the words “Calvinist” or “Unitarian” and never mentions the precise objection that the seceding church members had to the new minister—that is, his Unitarian theology.40 However, despite Parker’s omission of the theological labels that belonged to the contending groups, it would have been quite clear to his contemporaries that he had taken the occasion of the Dedham opinion to propound Unitarian principles and to castigate orthodox Calvinism, particularly on the question of church membership. Parker’s promotion of Unitarianism was by no means subtle. For example, in discussing why the parish should have the exclusive right to choose a minister, he held up the example of Boston’s Brattle Street Church,41 mentioning its “long line of able, pious, learned ministers,”42 and speculating that, with respect to Article III of the Declaration of Rights, “[as] in former times, particularly at the period of forming our constitution, many distinguished citizens belonged to this society, it is not improbable that the constitutional provision emanated from them, for it is exactly conformable to the practice of this society since

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its foundation.”43 The reference to the Brattle Street Church was not precisely on point, because that church was in Boston, which did not have territorial parishes. The Brattle Street Church therefore had not had to contend with the precise issue presented in Dedham: whether inhabitants of a territorial parish could control selection of a new minister. Nevertheless, Parker was correct in asserting that the Brattle Street founders, as early as , “wished that all baptized adults who shared in a minister’s support, whether in full communion or not, should have a voice in his election.”44 Even more significantly, by the time of the Dedham opinion, the Brattle Street Church had become “a stronghold of Unitarianism.”45 Thus, Parker’s subtext was that Article III of the Declaration of Rights had been written by Unitarians who enthroned Unitarian principles, which he strongly endorsed in the dicta at the center of the opinion. Using the presumably most genuine churches at the dawn of the Christian era as a yardstick, Chief Justice Parker informed the litigants and observers that the better eucharistic practice was “to have the sacrament administered to all the flock or parish.”46 This was a jibe against Calvinist churches, for most of them restricted access to the Eucharist to those who had undergone conversion,47 whereas Unitarians permitted all decent, baptized persons to partake.48 Also, Parker made two allusions to the Unitarian practice of permitting all parishioners to vote on all phases of selection of a minister, in contrast to the Calvinist position, that church members, regenerate Christians, had the primary role to play. In Parker’s opinion, the Unitarian practice was in accord with early, authentic Christian practice.49 By contrast, Parker referred to the Calvinist position as “pretensions.”50 Finally, Parker concluded with nice, strong, Unitarian flourishes. He opined that the authority, if any, of the church over the parish would arise only if the parish so chose, motivated by admiration of the comportment of the church members.51 To the contrary, of course, Calvinists thought the authority of the church was derived from the fact that it consisted of regenerate Christians, whom God had chosen and transformed, and who therefore could be relied upon to assure adherence to the good and the true. The Calvinists did not, however, completely exclude parishioners from decision-making. While Calvinism protected doctrinal orthodoxy by limiting the franchise on certain decisions to church members “in full communion,” participatory democracy was a fundamental tenet of Congregational ecclesiology. To ensure both orthodoxy and participation, Calvinists thought that church members should nominate ministers and that parish inhabitants should then vote on the church members’ nominees.52 Led by Parker, the predominantly Unitar-



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ian judges demolished this system,53 by holding that ministers were to be both nominated and elected by the majority vote of parish inhabitants. In response to the Calvinist objection that permitting the whole parish to both nominate and vote would undermine the doctrine that a true Christian is one who has been regenerated by God,54 Parker responded: it cannot be supposed “that the doctrines of a minister are of no consequence to any but church members.” 55 Here, again, by denying that church members who had experienced conversion had special abilities or qualities, Parker took a stance on a key theological tenet. Parker’s theologizing, combined with his dubious legal interpretations, unwarranted historical assumptions, and snide comments, gave rise to a storm of controversy.56 Nevertheless, his legal holdings were treated as persuasive in eighty church property cases in following years, all resulting from Trinitarian secession. By the time of the Brookfield case,57 the pattern was well established: “[In] most of the cases the seceders constituted the overwhelming preponderance of the church membership, and without exception they lost control of the properties of the churches involved.”58 Scholars continue to be troubled about where the equities lay, as between the parties to the disputes. On the one hand, from the perspective of democratic principle, it seems only fair that the parish residents, who paid religious taxes to support the minister and maintain the meetinghouse, should be empowered to vote on all phases of selecting the minister and should be able to become members of the church.59 On the other hand, there are matters of religious truth, such as the divinity of Christ, that are manifestly inappropriate for resolution by majority vote of those who happen to live in the neighborhood. Furthermore, the disputed property in the Dedham case was not derived from parish taxes; it came from grants to “the church at Dedham” made by particular individuals.60 Legally and equitably, the best result probably would have been to permit the parish majorities to both elect the minister and control access to the meetinghouse, while permitting the church majorities to take the movable and intangible property with them as they formed new religious associations. Reaching a fair result would have required only that the court interpret donations to “the church at Dedham” in accord with their plain language, and recognize that church deacons constituted corporations who could hold property in perpetuity, as they had since .61 Instead, palpably unfair rulings bestowed all the church property on Unitarians; even some of the Unitarians were troubled.62 The transfer of wealth occasioned by these decisions was considerable. The contested property was worth an estimated $,, which is more than $ million at today’s rates.63

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In addition to the debatable legal, democratic, and equitable justifications implicit in the line of cases following Baker v. Fales, this is a troubling story because Unitarians, including the majority of the judges, ordinarily prided themselves on tolerance and benevolence toward those of differing religious opinion. The uncomfortable fact is that Unitarian theologians had contributed to an atmosphere in which unfairness to Calvinists might be construed as a virtue.

The Liberal Protestant “Paradox”: Intolerance of Intolerance Nineteenth-century Unitarians adhered to seemingly contradictory principles on the topic of tolerance. On the one hand, Unitarians prided themselves on adherence to religious tolerance; nevertheless, they were unwilling to be tolerant of Calvinists. The core issues surrounded the Calvinists’ claims that they had apprehended the will of God, beyond any doubt, and that salvation required adherence to Calvinism. The theological critique often launched against such religious absolutism has been captured in the phrase that liberal ideology is “intolerant of intolerance,”64 and has been described as a “paradox.”65 However, from the point of view of most liberal Protestant theologians from the dawn of the nineteenth century until now, the phenomenon has presented no paradox: religious tolerance is due only to those who seem to be in a good-faith search for a relationship with God. Because idolatrous elements, including undue certainty about religious truth, are evidence of lack of good faith, tolerance certainly does not extend so far as to embrace such ideas and practices, or those who adhere to them. In the Unitarian Controversy, the leading exponent of these ideas was William Ellery Channing, the guiding light of Christian Unitarianism in the United States. William Ellery Channing was indisputably the most influential liberal Protestant theologian of the early nineteenth century. The significance of the rise of Unitarianism, and of Channing’s role in it, has been described thus: Theologically, it was an American Reformation—the distinctive transformation of Christianity and Calvinism in the eighteenth century through Arminianism and other Enlightenment influences into nineteenth-century liberal Christianity. This movement, which became especially strong among the Harvard-educated clergy of eastern Massachusetts, assumed its basic character by  and despite attacks and criticism was maintained without major alteration as a fundamentally Christian synthesis. The American Reformation saw itself as an attempt to restore primitive Christianity. Boston became its center; Channing, its Luther.66



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In short, it would be virtually impossible to overstate Channing’s influence. It can certainly be presumed that the Unitarian judges who presided over the church property disputes were familiar with Channing’s ideas on the substance and the scope of religious tolerance. What did Channing mean by “tolerance” of those who had differing religious views? He associated tolerance with benevolence and good will: I need not express to you our views on the subject of the benevolent virtues. We attach such importance to these, that we are sometimes reproached with exalting them above piety. We regard the spirit of love, charity, meekness, forgiveness, liberality, and beneficence, as the badge and distinction of Christians, as the brightest image we can bear of God, as the best proof of piety. On this subject, I need not, and cannot enlarge; but there is one branch of benevolence which I ought not to pass over in silence, because we think that we conceive of it more highly and justly than many of our brethren. I refer to the duty of candor, charitable judgment, especially towards those who differ in religious opinion.67

In this very sermon, however, Channing had much to say about his theological opponents that was not, to say the least, loving or charitable. For instance, in a transparent allusion to revivalism and to the Calvinist doctrine regarding instantaneous conversion, Channing opines, “We owe it to truth and religion to maintain, that fanaticism, partial insanity, sudden impressions, and ungovernable transports, are any thing rather than piety.”68 Immediately after reemphasizing the Christian’s duty “to abstain from condemning men of apparent conscientiousness and sincerity, who are chargeable with no crime but that of differing from us in the interpretation of the Scriptures,”69 he presents this diatribe, again obviously referring to Calvinists: We are astonished at the hardihood of those, who, with Christ’s warnings sounding in their ears, take on them the responsibility of making creeds for his church, and cast out professors of virtuous lives for imagined errors, for the guilt of thinking for themselves. We know that zeal for truth is the cover for this usurpation of Christ’s prerogative; but we think that zeal for truth, as it is called, is very suspicious, except in men, whose capacities and advantages, whose patient deliberation, and whose improvements in humility, mildness, and candor, give them a right to hope that their views are more just than those of their neighbors.70

From this passage can be inferred two justifications for the sharp tone Channing adopts in reference to the Calvinists. First, no benevolence is due to Calvinists because they don’t seem to be genuine Christians, as proved by the fact that they don’t exhibit the Christian virtues of “humility, mildness, and candor.” Second, and more important, attacks upon the Calvinists are warranted by the fact that they are guilty of “usurpation of Christ’s prerogative” by, among

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other things, “making creeds for [Christ’s] church.” Calvinists are idolatrous, as is made even clearer in another passage in the sermon. Talking about the shameful history of Christians persecuting each other because of their differences, Channing says: An enemy to every religion, if asked to describe a Christian, would, with some show of reason, depict him as an idolater of his own distinguishing opinions, covered with badges of party, shutting his eyes on the virtues, and his ears on the arguments of his opponents, arrogating all excellence to his own sect and all saving power to his own creed, sheltering under the name of pious zeal the love of domination, the conceit of infallibility, and the spirit of intolerance, and trampling on men’s rights under the pretence of saving their souls.71

Who is the hypothetical “Christian” in this passage? Presumably, the “idolater” is a Calvinist zealot who purports to know God’s will as an objective fact.72 Given this theology, which the Unitarian judges heard preached on Sundays, it is not surprising that some of them felt justified in using their power to undermine Calvinist interests.73 Moreover, while the law and theology deployed during the Unitarian Controversy are certainly of great historical import, they are also forerunners of present-day fights over church property in the Episcopal Church U.S.A., as well as cautionary tales for those working toward new theologies of religious tolerance.

Of Church Property Disputes, First Amendment Jurisprudence, and Theologies of Religious Tolerance The Unitarian Controversy has enormous present-day resonances. Therefore, it is not surprising that Baker v. Fales has attracted renewed interest in recent decades.74 Perhaps most strikingly, the Unitarian Controversy is seen as an antecedent to fierce church property disputes now raging as the Episcopal Church U.S.A. and multiple other denominations split over the question of gay ordination.75 The fights over church property in both epochs, the dawn of the nineteenth century and the dawn of the twenty-first, have been integral to major social and religious upheavals. The Unitarian Controversy led to the complete disestablishment of religion in Massachusetts, and to the eclipse of predestinarian Calvinism. The present-day battles triggered by gay ordination are part of larger struggles for LGBT rights and inclusive theologies of biblical interpretation. In a faint echo of Baker v. Fales, contemporary courts have generally held that seceders from the Episcopal Church U.S.A. could not take the church property with them,76 even if they had been the purchasers of the property.77



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More generally, beyond its iconic status in the history of church property disputes, the Unitarian Controversy should take its place as part of the revisionist legal and theological projects that are now reassessing liberalism’s project of separating the secular from the religious and relegating the latter to the private sphere.78 On the history of liberal theology, it is worth taking note that Channing, of the early nineteenth century, certainly was not the last liberal theologian to accuse conservative Christians of “idolatry.” A twentieth-century theologian of this lineage was Paul Tillich, who, like Channing, excoriated the conservative Christians of his time as idolatrous.79 In legal academic literature, Michael Perry, citing Tillich, likewise suggested that adherence to a doctrine of infallibility is idolatrous.80 Like Channing, Tillich, and Perry, I am a theological liberal, but I advocate theological tolerance—that is, I recognize conservative ideas and practices as spiritually legitimate. Barack Obama is, perhaps, at the forefront of such a shift toward respect and tolerance for conservatives, both theologically and politically. Although there are many obvious religious differences between them, Obama has often seemed willing to presume that conservative evangelical Christians are treading one of many paths to God.81 In this, Obama is quite different from those liberal theologians who have, historically, advised intolerance of conservative Christianity. Of course, Obama’s respectful regard for certain features of conservative Christianity has not required him to defer to conservative Christians on policy matters,82 or to deny that toleration has limits.83 However, if liberals follow Obama’s lead by recognizing the spiritual worth in what the conservatives have to offer, this shift could eventually be the precursor to major changes. Such changes include the conversion of some conservatives to more moderate Christianity,84 reversal of the decline in the mainline Protestant denominations, and revivification of American political culture on a more richly principled basis. Obama, as well as Ronald Dworkin, pursue “liberal aims within a vision of a wider democratic partnership that would include conservatives, even if conservatives refuse their overtures.”85 The fate of these gestures toward tolerance of the intolerant remains to be seen.

Notes I dedicate this work to the memory of my sister, Dorothy Phillips Prude. Many of my colleagues, former professors, and friends have contributed valuable ideas and support. I wish to extend particular thanks to: Winni Sullivan, Fred Konefsky, and Betty Mensch, for their generosity in sharing knowledge and insight; to my research assistant, Finbarr Lane, who first alerted me to the existence of the “Unitarian Controversy”; to Leonard Kaplan and

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Marie Failinger, for their review of my early drafts; and to Duncan Kennedy, under whose tutelage I first delved into nineteenth-century legal history. . Edmund S. Morgan, Visible Saints: The History of a Puritan Idea (New York: New York University Press, ), . . Williston Walker, A History of the Congregational Churches in the United States [] (New York: Charles Scribner’s Sons, ), . . For an account of the persecution of Baptists and Quakers in seventeenth-century Massachusetts, see ibid., –. . See, for example, Conrad Wright, The Liberal Christians: Essays on American Unitarian History (Boston: Beacon, ), –. . For a description of New England Congregationalism, see Walker, A History of the Congregational Churches in the United States, –. . See Wright, The Liberal Christians, –. . Jacob Conrad Meyer, Church and State in Massachusetts from  to  (Cleveland: Western Reserve University Press, ),  (footnote omitted). . For a fairly typical example of the argument over whether the doctrine of the Trinity can be supported scripturally, see George E. Ellis, A Half-Century of the Unitarian Controversy (Boston: Crosby, Nichols, and Co., ), –. Unitarians raised the general objection “to the doctrine of the Trinity, that it is an invention of the human mind, for which Scriptures afford no warrant; and that its prominent effect is to introduce into the system of truths taught in the Scriptures an extraneous, artificial, and perplexing dogma, wholly inconsistent with, utterly unlike to, the acknowledged and accepted doctrines of Scripture.” Ibid., . . This critique has been consistently and pointedly asserted by Jews and Muslims, in addition to liberal Christians. See Conrad Wright, The Beginnings of Unitarianism in America (Boston: Beacon, ), . . The danger of idolatry—that is, treating as God that which is not God—is implicated in the doctrine of the Trinity to the extent that the doctrine holds that a human, Jesus, was part of God and appropriately the object of worship. . Henry Melvill Gwatkin, The Arian Controversy (London: Longmans, Green, and Co., ), . According to Gwatkin, the Arian controversy stormed for sixty years, spawning doctrinal disputes that went on continuously for three centuries (p. ) and are likely to recur until the Second Coming (p. ). . See Ellis, A Half-Century of the Unitarian Controversy, xvii. . The distinctiveness of their Christology was so difficult to discern in Unitarian sermons that Channing and others had to defend themselves against the charge that they were deliberately trying to hide their true views. William E. Channing, “A Letter to the Rev. Samuel C. Thacher,” in An American Reformation: A Documentary History of Unitarian Christianity, ed. Sydney E. Ahlstrom and Jonathan S. Carey (Middletown: Wesleyan University Press, ), , –. . Ibid., . . See James Thacher, History of the Town of Plymouth (Boston: Marsh, Capen and Lyon, ), . . Wright, The Beginnings of Unitarianism in America, –. In fact, the members of the Plymouth church had resisted when a new, stricter covenant was put in place. After their minister died, they called Kendall, a liberal, and went back to their old, simple covenant. Ibid.



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. Charles Warren, Jacobin and Junto, or: Early American Politics as Viewed in the Diary of Dr. Nathaniel Ames – (Cambridge: Harvard University Press, ), –. A fortiori, “[A]ll the parishioners who held liberal views were excluded from the church.” Ibid., . . For a synopsis of the long history and mixed success of New England Calvinist attempts to limit full church membership to regenerate Christians, see Wright, The Beginnings of Unitarianism in America, –. . See Ellis, A Half-Century of the Unitarian Controversy, –. . See William Greenleaf Eliot, “Regeneration,” in An American Reformation, . Actually, while the Calvinists held that a person could very often perceive the precise moment when he or she had received God’s saving grace, other modes of receiving grace were also acknowledged. See Morgan, Visible Saints, . . James Freeman Clarke, “The Christian Church,” in An American Reformation, . The Calvinist Congregationalists derided the Unitarians for such formulations, accusing the Unitarians of preaching “mere ethics.” See Walker, A History of the Congregational Churches in the United States, , . . Clarke, “The Christian Church,” . . See Eliot, “Regeneration,” –. . An article published by a prominent Unitarian in  “argues that Harvard College should be kept free from sectarian control, and that the way this is to be accomplished is to make sure that the Unitarians control it.” Wright, The Liberal Christians,  n.  (citation omitted). . See Wright, The Beginnings of Unitarianism in America, –. In fact, it has been said that the entire fifty-year controversy was “precipitated by the election of Henry Ware as Hollis Professor of Divinity at Harvard.” Ibid., . In support of this view, see also Ellis, A Half-Century of the Unitarian Controversy, –. . Baker v. Fales,  Mass. ( Tyng)  (). . Meyer, Church and State in Massachusetts from  to , . The number of church members was small because of the church’s strict criteria for membership. Ibid.,  n. . . Ibid., . . See ibid., . . “The Trinitarians maintained that the action of the council was a dangerous innovation because it subjected the church to the will of the majority in a town or parish. That majority might consist of the unconverted.” Ibid., . A Unitarian response was that it was absurd to speak of non-church-members, some  percent of parish inhabitants, as “either infidels or vicious.” Ibid. . Baker v. Fales,  Mass. at , –. . Leonard W. Levy, “Chief Justice Shaw and the Church Property Controversy in Massachusetts,” Boston University Law Review (1950): 219, 228; Walker, A History of the Congregational Churches in the United States, . . Indeed, most commentators agree that the first part of the court’s holding, that a church could not receive and hold property, was either debatable—see, for example, Meyer, Church and State in Massachusetts from  to , —or wrong. On interpretation of the  statute, see Parker v. May,  Mass. ( Cush.)  (). For a discussion of Parker v. May, see Levy, “Chief Justice Shaw and the Church Property Controversy in Massachusetts,” –.

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. Baker v. Fales,  Mass. at . . Ibid. at –. . Ibid. at . . Article III provided “that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.” Ibid. . See Warren, Jacobin and Junto, –, estimating that the majority of people in Massachusetts thought the Dedham decision resulted from “the bias of religious prejudice.” Ibid., . . Isaac Parker, “Reply to the Reverend Parsons Cooke,” Christian Examiner (Boston)  (July–August ): –, cited by Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill: University of North Carolina Press, ),  n. . Furthermore, in this article, Chief Justice Parker referred to Cooke, a minister who had criticized the Dedham decision, as “an inexperienced subaltern.” Meyer, Church and State in Massachusetts from  to , . . Chief Justice Parker may have been evasive because, as a legal matter, if Unitarianism were significantly different from orthodox Calvinism, that would have undermined the result Parker preferred; an inference might have been drawn, from the fact that Calvinists were the grantors of the property, that Calvinists were the intended beneficiaries of the trusts. While Parker mentions, in passing, the ancient doctrine whereby “a designation of the use of the property might be inferred from the denomination of the grantee,”  Mass. at , that principle was not treated as implicated in the Dedham case. .  Mass. at  and n. . . Ibid. at . . Ibid. . Walker, A History of the Congregational Churches in the United States, . . Ahlstrom and Carey, An American Reformation, . . Baker v. Fales,  Mass. at –. . Wright, The Liberal Christians, . . The Unitarians were not only more generous in permitting access to communion, but made a point of denigrating the exclusivity of the predominant Calvinist practice. See, for example, Orville Dewey, “On the Uses of the Communion,” in An American Reformation, –. . Baker v. Fales,  Mass. at . . Ibid. at . . Ibid. at . . Walker, A History of the Congregational Churches in the United States, . . At this point, the majority of judges were Unitarian. Meyer, Church and State in Massachusetts from  to ,  and n. . . For the discussion of the New England Calvinists’ insistence that church membership should be confined to persons who had been converted (that is, transformed in the wake of being touched by God), see generally, Morgan, Visible Saints. . Baker v. Fales,  Mass. at . . See Meyer, Church and State in Massachusetts from  to , –. . Stebbins v. Jennings,  Mass. ( Pick.)  (). . Levy, The Establishment Clause, –.



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. See ibid., . Apparently, the taxes went primarily or exclusively for the support of the minister. See Baker v. Fales,  Mass. at –. . Baker v. Fales,  Mass. at –. . These legal principles were applied to resolve a subsequent church property dispute, in a case decided long after the furor of the Unitarian Controversy had cooled. See Parker v. May. . See Ellis, A Half-Century of the Unitarian Controversy, –. . Meyer, Church and State in Massachusetts from  to , . . Virtually every liberal theorist since Locke has wrestled with the question whether the intolerant are to be tolerated and, if so, to what extent. See, for example, John Locke, A Letter Concerning Toleration [], ed. Patrick Romanell (Indianapolis: Bobbs-Merrill, ), ; John Rawls, A Theory of Justice (Cambridge: Harvard University Press, ), – ; Michael Walzer, On Toleration (New Haven: Yale University Press, ), –. . For example, Nomi Stolzenberg’s excellent article is entitled “‘He Drew a Circle that Shut Me Out’: Assimilation, Indoctrination, and the Paradox of a Liberal Education,” Harvard Law Review 106 (1993): 581–667 (emphasis added). Stolzenberg also refers to the problem as an “irony.” Ibid., . . See introduction to Ahlstrom and Carey, An American Reformation, xii–xiii. . William E. Channing, “Unitarian Christianity,” in An American Reformation, , . The editors explain that this sermon, given by Channing on May , , “has been justly regarded as the chief manifesto of American Unitarianism.” Ibid. The sermon, which was published after it was preached, won new adherents to Unitarianism and triggered attacks by the Calvinists. Ibid., –. . Ibid., . . Ibid., . . Ibid., . . Ibid., . . In this sermon, Channing makes no reference to the idolatrous danger characteristic of his own tradition: the tendency to equate the fruits of human reason with God. For a reprise of the history of Christian deployment of varying notions of “idolatry,” to define “true” religion and to stigmatize adherents to practices deemed out of bounds, see Jakob de Roover, “Secular Law and the Realm of False Religion,” this volume. . Of course, not all Unitarians, on the bench or elsewhere, were so intolerant and hostile to the Calvinists. In fact, a Unitarian historian estimated that only a small minority of the early-nineteenth-century Unitarians were aggressive and confrontational; he referred to them as “sectarian.” Ellis, A Half-Century of the Unitarian Controversy, xi–xiv, xviii. . See, for example, Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, – (Cambridge: Harvard University Press, ), –; Johann N. Neem, Creating a Nation of Joiners: Democracy and Civil Society in Early National Massachusetts (Cambridge: Harvard University Press, ), –; Jonathan D. Sassi, A Republic of Righteousness: The Public Christianity of the Post-Revolutionary New England Clergy (New York: Oxford University Press, ), –; Conrad Edick Wright, ed., American Unitarianism, – (Boston: Massachusetts Historical Society and Northeastern University Press, ), . . Collin Hansen, “Christian History Corner: When Denominations Divide,” Chris-

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tianity Today, October (Web only), , http://www.christianitytoday.com/ct//octoberweb-only/--..html. The subtitle reads: “The two-century-old Unitarian Controversy suggests a grim prognosis for the current crisis in the Episcopal Church.” . In , the California Supreme Court held that, when a parish had seceded from the Episcopal Church, “the local church property reverted to the general church.” Episcopal Church Cases,  Cal. th , ,  P.d ,  Cal. Rptr. d ,  Cal. LEXIS  (); modified,  Cal. LEXIS  (Cal. February , ); cert. denied,  S. Ct. ,  L. Ed. d ,  U.S. LEXIS ,  U.S.L.W.  (U.S. ). Other courts have been nearly unanimous in reaching the same conclusion.  Cal. th at  (with multiple citations). . Episcopal Church Cases,  Cal. th at –. Here, the seceders lost the property despite holding record title. Ibid., . In , the Supreme Court of Virginia held that a statute that vested control of church property in local congregations, upon “division” of the church, had no application to the current disputes in the Episcopal Church U.S.A. The Protestant Episcopal Church in the Diocese of Virginia v. Truro Church,  Va. ,  S.E.d ,  Va. LEXIS  (). . Several essays in the present volume are part of this revisionist history project. See, for example, de Roover, “Secular Law and the Realm of False Religion”; Tomoko Masuzawa, “The University and the Advent of the Academic Secular: The State’s Management of Public Instruction”; Rachel Weil, “National Security and Secularization in the English Revolution of .” . Paul Tillich, Dynamics of Faith (New York: Harper and Row, ), –, . . Michael J. Perry, Love and Power: The Role of Religion and Morality in American Politics (New York: Oxford University Press, ), – nn. –. . See Barack Obama, The Audacity of Hope (New York: Three Rivers Press, ),  (acknowledging that conservative evangelical Christians are helping people to fulfill “a sense of purpose” and are providing them with “assurance that somebody out there cares about them”). . For example, despite conservative Christian objections, Obama lifted the ban on federal funds being used for stem cell research. See Exec. Order No. ,  Fed. Reg.  (March , ). . See Obama, The Audacity of Hope,  n.  (criticizing religiously motivated intimidation or violence). . See Frances FitzGerald, “The Evangelical Surprise,” New York Review of Books (April , ):  (exploring a trend from conservative toward centrist or moderate evangelicalism); available at http://www.nybooks.com/articles/. . Paul Starr, “Liberalism for Now,” New York Review of Books (July , ): , reviewing Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton University Press, ).

chap ter six

The University and the Advent of the Academic Secular The State’s Management of Public Instruction tomoko masuzawa

Despite the medieval ancientness of many European institutions that are today called by the name, the university as we know it is quintessentially modern. It is a fruit of the radical reconstitution undertaken everywhere in the course of the nineteenth century. This transformation of the university may be said to epitomize the very process of “becoming modern” and “becoming secular.” By examining closely some of the deeds and events that contributed to the formation of the modern university as a premier site for knowledge production and expert training, we may hope to obtain a view of modernization and secularization at a level more credibly material and historical, a view more exact than the received notion of secularization as a vaguely felt, poorly understood alteration in sentiments and social norms that somehow began in the West and spread elsewhere. Such an empirically grounded understanding is essential if we hope to obtain a view of modernity that is not just laterally or serially comparative—as if different regions of the world could be presumed discrete and analytically isolable. The university may serve as a useful focus because it has been an extraordinarily successful institution. Having its roots in the European past, the university is now found in or near every metropole across the globe, each with a form and character that may be variable and particular, but still recognizable as a specimen of the same institution. The university’s success may be put into relief especially when it is contrasted with that of the Christian church. For, after centuries of concerted missionary efforts and untold European wealth and personnel pouring out for the cause of its evangel, the structurally significant

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presence of the Christian church is particular to certain spheres of Africa and Latin America, and limited locations in Asia, such as South Korea and the Philippines. The role of the university, however, is far from negligible; some are richly endowed, some not, but all serve more or less the same function. Whence comes the university’s success—its utility, adaptability, and versatility—that made it ubiquitous? If the answer to this question seems too obvious and the question therefore gratuitous, it is no doubt because those of us who typically write, and read, treatises such as this are too close to the institution; we tend to be either located squarely within, or inextricably tied to, the university. For us, the efficacy of the university is self-evident, its mission is inscribed in our preconscious, and its raison d’être, however we may articulate it, a necessary condition of our own being. This makes the question all the more difficult to address. By the same token, we find it difficult to explain the fundamental secularity of the academy. For, this, too, is a precondition of our vocation, something we take for granted. My purpose in this essay is to find an entry into the intricate history that produced the present regime of the secular academy in order to understand it better, so as not to be unduly rattled when, as in the present moment, the topic of religion unexpectedly surges everywhere, disturbing the placid order of knowledge, research, and instruction that we have come to expect as a condition of the learned profession. Precarious equilibrium though it may be, we have come to trust this order, above all, as a middling-threshold protection against excessive interference from outside entities, religious or political. Unless this demarcation of inside and outside the academy proves heavenly decreed and eternal, it must have a history, one that will reveal the logic of this demarcation as well as the stakes involved. I aim to pursue in the following pages, not the question as to how the academy has dealt with religion, but another: how the emergent idea and reality of the public, and the modern state as an organ that claims to articulate its will and to ensure its polity, have procured the modern academy as a domain distinct and separate from the ecclesiastical sphere. It is generally acknowledged that the German states, particularly Prussia, led the way and provided a model for university reform, which was later adopted by the rest of the world. The institutions especially significant in this regard were not Germany’s ancient universities, of which there were many, and which had been nearly moribund by the dawn of the eighteenth century, certainly in no better condition than their counterparts elsewhere in Europe. Far more significant were the more recently established universities, earliest in Halle (), then in Göttingen (), and, most importantly, in Berlin (). It is



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beyond dispute that through the German-initiated reform measures, universities everywhere came to be—or aspired to be—the kind of institutions dedicated to research, science, and all manners of cultural production and preservation. Viewed another way, this reform/reconstitution was the process in which the medieval university, exemplified by the cloistered residential colleges with special privileges for their fellows and pupils all under ecclesiastical dominion (Oxford and Cambridge being typical), was transformed into a public forum open to all—though perforce competitively selective—all in the service of truth, knowledge, and the common good. The making of the modern university thus told fits comfortably into the story we often tell of modern science coming of age and coming into its own, at long last breaking free from the tutelage of religion and the traditional mode of authoritarian teaching and rote learning. This way of thinking about the advent of the modern university seems to presuppose that science (in the broader sense of Wissenschaft), like law, is inherently rational and universal, and as such destined to emancipate itself, sooner or later, from the communal particularisms of religious and tribal polity. But how did all this come to pass, and for what reasons and through what channels did the Prussian example come to exert such an overwhelming international impact? These questions call for empirical answers.  By the eighteenth century, universities across Europe were in serious decline. Perceived as increasingly useless remnants of the past, they seemed either destined for extinction through steady attrition and neglect, or slated for abolition in the hands of an impatient vanguard of modernity. For the most part they were archaic and impoverished institutions, shunned by the powerful and wealthy elites who preferred a more fashionable and practical learning offered by alternative venues, such as princely academies (Ritterakademie). They were avoided by the rising middle classes as well, among whom were some of the more serious seekers of new knowledge, but who found their scientific aspirations better served elsewhere. Charles McClelland, in a study published in , describes the condition of universities on the eve of the reform: In the German states, as in most other parts of Europe in the eighteenth century, universities were under frequent attack. At the beginning of the century, many outstanding German thinkers, Leibniz among them, considered the universities hopelessly wedded to the past and suggested the establishment of other paths to higher knowledge and science, notably scientific academies. At the other end of the century, just before the French Revolution, literati of the German Enlightenment mounted sweeping attacks on the universities, and many called for their outright abolition.1

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Thomas Albert Howard sounds a similar note in an important recent monograph, which opens with this paragraph: In September of , the year Louis XVI met the guillotine, universities throughout France were suppressed by government decree, their endowments, treated as ecclesiastical properties, having already been nationalized the previous March. As the armies of the French Revolution spread social upheaval and uncertainty abroad in the following years, universities across Europe, alongside the aristocracy and the church, fell on hard times. Wherever the French went, university endowments were taken over by the state, curricula drastically altered, and faltering universities shut down or turned into professional and technical schools. The process resulted in the closing of several of Europe’s most prestigious universities. .€.€. Between  and , sixteen universities went under in the lands of the Holy Roman Empire alone.2

The sweeping university reform movement that began in northern Germany, or more precisely, the founding of the University of Berlin in  as its most emblematic moment, was preceded and instigated by Prussia’s humiliating defeat at the hands of Napoleon’s army in . In the British Isles, the decline of the universities was equally palpable. In Scotland, “widespread public and national concern over the declining status” of their four ancient universities was reported in the early nineteenth century; “indolence and corruption which inhibited their meeting the changing demands of a changed society” were pointedly mentioned. From the time of Reformation in the sixteenth century, the Scottish Presbyterian understanding of universities had been that they were national institutions vital for the well-being of the commonwealth; but much to their dismay, the Scots saw these venerable institutions “converted into private, secretive corporations .€.€. so poorly cared for that buildings were crumbling, teaching was outdated and often perfunctory, the curriculum was too limited, and remarkably few students bothered to go through the full ‘gowned’ course and graduate.”3 To the south, in England, there had been only two universities until the nineteenth century: Oxford and Cambridge. Well endowed and luxuriant though these universities were by comparison, they typified all the more the ills of the indolent, cliquish, and ossified institution. As the author of another recent monograph on the subject quipped: “Oxbridge possesses a long academic tradition, but on the whole an inglorious one. Relatively few academics [today] seem to be aware of that.”4 Some distinguished contemporaries who could speak their firsthand experience left some famously damning accounts. The well-born Edward Gibbon mordantly described the intellectual depravity and moral complacency he saw at Oxford as a young student, pronounced the fourteen months he spent at Magdalen College as “the most idle and unprofitable



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of my whole life,” and declined to acknowledge any debt to his would-be alma mater.5 The rather more impecunious Adam Smith, like many Scots in similar circumstances, came to Oxford on a scholarship and spent over six years at Balliol College—that is, while the money lasted. But he held no less negative views on the matter. He exhibited these views, well reasoned and analytic, in a famous chapter in his Wealth of Nations ().6 The Anglican Irish author Oliver Goldsmith—frequently seen in the circles of Samuel Johnson, Joshua Reynolds, and the like—reportedly studied law, theology, and medicine at Dublin, Edinburgh, and Leiden, apparently with very limited results. He is somewhat more charitable in his assessment, but his account betrays the same reality.7 However they are to be explained, indicted, or excused, the current infirmities of English universities, according to these authors, stemmed from their ancient charters. In Gibbon’s words: The schools of Oxford and Cambridge were founded in a dark age of false and barbarous science, and they are still tainted with the vices of their origin. Their primitive discipline was adapted to the education of priests and monks, and the government still remains in the hands of the clergy, an order of men whose manners are remote from the present world, and whose eyes are dazzled by the light of philosophy. The legal incorporation of these societies by the charters of popes and kings had given them a monopoly of the public instruction, and the spirit of monopolists is narrow, lazy, and oppressive.8

All in all, it is fair to say that the future prospect of the European university at the end of the eighteenth century was looking rather grim, and from that vantage point it was entirely unexpected that it did not become altogether extinct but instead accomplished a dramatic transformation in the following century. So successful was this metamorphosis, indeed, that much of its “inglorious” past seems to have been occluded, disavowed, and effectively forgotten.  The most conspicuous theme that emerges in surveying existing accounts about the advent of the modern university is the preeminence of Germany. The radical transformation of the university everywhere in the West in the course of the nineteenth century has been attributed nearly exclusively to the impact of the German—especially Prussian—reform movement, whose quintessential moment was the founding of the University of Berlin in . The outstanding success of this new institution and its enormous international influence were due above all to the fact that it was a vital organ of the increasingly powerful Prussian state, and to the matchless renown of its professoriate from the early days—Schleiermacher, Savigny, Fichte, Schelling, Hegel, and Ranke among

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them. Only a few decades after Berlin’s founding, the stellar reputation of German universities in general reached such heights that, it seems, their prestige effectively posited a virtual “Germany” before there was an actual material state by that name. As a Swiss-born, German-educated, American academic theologian, Philip Schaff, put it in : The Universities are the pride and glory of Germany. They exert more influence there than similar institutions in any other country. They are the centers of the higher intellectual and literary life of the nation, and the laboratories of new systems of thought and theories of action. They reflect a picture of the whole world of nature and of mind under its ideal form. They develop the talents and form the principles of nearly all who filled the places of power and influence in church and state. .€.€. They receive the best minds, from the lowest as well as the highest ranks, to mould them for the learned professions, and fit them for public usefulness. From them emanate principally the ideas and maxims which rule the land, either in the service of the existing order of things, or in the interest of progress.9

The apogee of this development, the founding of the University of Berlin, did not materialize overnight. Some of the popular accounts, however, may impart an impression that this university directly issued from the German genius that came of age at that particular moment, out of the spirit of enlightened modernity and rationality then finally awakening from a long medieval slumber. This impression may be partly due to the fact that there was a figure of singular importance associated with the founding: Wilhelm von Humboldt (–), whose oversized statue—together with that of his equally illustrious younger brother, the naturalist and explorer Alexander—graces the main entrance to the now eponymous university. An accomplished scholar and linguist, the elder Humboldt was most visibly instrumental in the historic event during his brief tenure as Director of the Department of Ecclesiastical Affairs and Public Instruction, then a newly created governmental agency under the Ministry of Interior, but which was soon to be elevated to the ministerial level, known thereafter as Kultusministerium. What Humboldt and his coadjutants upheld as the cardinal mission of the university may be expressed in the constellation of three related concepts, with which the rest of the educated world has since become familiar: Bildung (culture/cultivation), Wissenschaft (science), and Forschung (research).10 From our present standpoint, the very thought that these were somehow new ideas that came to be associated with the university as recently as the nineteenth century seems surprising, strange, perhaps vaguely disturbing. So thoroughly do we take these ideals for granted that we find it difficult to imagine the time the notion of “research imperative” was utterly unknown.



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But before Berlin, there were significant predecessors, important for the light they shed on the conditions of the German states at the time. Among these harbingers of reform were, first, the University of Halle (founded in )—Prussia’s flagship university before Berlin—and, second, the University of Göttingen (), officially named Georgia Augusta after its patron, King George II of Great Britain, the Elector of Hanover. Here we remember that well into the second half of the nineteenth century “Germany” was but a somewhat loose, sometimes belligerent confederation of many principalities or “territories,” nominally united under the Holy Roman Empire until the latter’s formal dissolution in . Soon thereafter, Prussia’s diplomatic and military maneuvers brought about a stronger unity, first in the form of the North German Confederation () and eventually, after the Franco-Prussian War, in the form of the German Empire (). In fact, the numerousness of universities in Germany during the early modern period (well over thirty, even excluding the Swiss and other adjacent German-speaking regions) was largely because each territory sought to establish its own. This oversupply of universities relative to the existing demand, moreover, contributed to their poverty and vulnerability before the time of reform.11 (By comparison, England had only two universities during the same period, each sitting comfortably on ancient endowments.) The plurality of territories entailed a plurality of religious denominations. In the Protestant region of Germany, there were in effect as many “state churches [Landeskirchen]” as there were “states”; for, in accordance with the so-called Erastian principle (cujus regio, ejus religio), each territorial ruler determined the religion of his realm, with varying degrees of toleration and accommodation with respect to those who did not conform to it. Particularly interesting in this regard was Prussia, where the ruling Hohenzollern Dynasty, which had been Calvinist since the early seventeenth century, reigned over a majority Lutheran population. In the interest of more effective governance of their territory, the Hohenzollerns adopted a policy of religious toleration, which also affected their policy concerning their universities; most significantly, “the crown did not have the same interest as many central European leaders in perpetuating the strictly confessional character of universities.”12 Accordingly, in relation to the new university at Halle, not only was the state motivated to reduce polemics among different denominations but also to lessen the acrimony that existed among different faculties, above all between the theology faculty (traditionally positioned as the “first” and “highest”) and all the rest, but particularly between theology and the increasingly important faculty of “philosophy” (or, “arts and science” faculty, traditionally considered the “lowest” and merely preparatory or ancillary to other faculties). Although the ideal of relative peace and har-

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mony was never realized to the desired degree at Halle, Prussia’s religiously tolerant—and to that extent “liberal,” or even “secular”—policy in turn meant that the university came to be tied less to confessional entities of any kind, and more directly to the state. This general principle came to be deployed at the University of Göttingen to a greater degree. This was in no small measure due to the acumen of Johann Lorenz von Mosheim (–), a theologian of great repute and irrefragable orthodoxy, who was specially sought after for the task. As Howard notes: “Mosheim proposed that the traditional control-function of right of censorship .€.€. of the theological faculty be done away with or at least severely limited; theologians should no longer have the prerogative to censor the opinions and publications of their colleagues in other faculties.” Even more daring was Mosheim’s advocacy of the idea that “while .€.€. theology professors should swear allegiance to the Bible, the Augsburg Confession, and Luther’s Longer and Shorter Catechisms .€.€. in matters not directly and clearly addressed by these documents, each theologian should have a ‘complete freedom .€.€. to assert, with modesty and love, what his knowledge and conscience tell him is right and true.’”13 He argued, moreover, that “a principle of freedom” was thoroughly consistent with Protestant faith—an enormously consequential claim, which would be repeated with ever greater emphasis, and with ever higher stakes, throughout the nineteenth century.14 In short, “academic freedom” in the German sense was, first, intricately tied to the ideal of Bildung and Wissenschaft as a spiritual vocation—implicitly as an alternative to an ecclesiastical calling—and driven by the “research imperative.”15 Secondly, it signified freedom from ecclesiastical control and denominational pressures, freedom secured at the hand of the state, which in turn claimed far more direct involvement and vested interest in the affairs of the university. This complex of ideals and conditions was realized to a visibly greater degree at the University of Berlin, which was to be the only properly German university representing reform after , Halle and Göttingen having been lost for a time to a French satellite state then called the Kingdom of Westphalia. Yet this turn of events was by no means an isolated result of a Prussian state policy focused on the academy alone. Rather, it was part and parcel of a broader policy of state involvement in (Protestant) church affairs. It is therefore best understood in view of the shifting relation between church and state at around the time the University of Berlin was coming into existence. The first task of the aforesaid Department of Ecclesiastical Affairs and Public Instruction (Sektion des Kultus und des öffentlichen Unterrichts; forerunner to the Kultusministerium) when it was established in  was to dissolve



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“the long-established consistories of the three main Protestant bodies in Prussia”—that is, the ecclesiastical senates of the Lutheran, the German Reformed (Calvinist), and the French Reformed Churches respectively. In their place, state-appointed provincial regulatory bureaus (Geistliche und Schuldeputationen) were established to oversee the affairs pertaining to churches as well as to schools. Concurrently, many church properties were secularized, and the traditional patronage system curtailed. As with the university reform of Mosheim at Göttingen, these measures had a double objective: on the one hand, ameliorating intra-Protestant differences and acrimony, and on the other, increasing state oversight of ecclesiastical and educational affairs. In —the same year the Kultusministerium was officially established—these maneuvers went as far as inducing a state-orchestrated unification of the Lutheran and the Reformed Churches, resulting in the creation of a new communion called the Evangelical Church of Prussia. Largely initiated by King Friedrich Wilhelm III—a Hohenzollern Calvinist who married a beloved Lutheran princess from Mecklenburg—the outcome was a politically procured ecumenical union, which also caused in its wake a wave of dissident emigration to the New World.16 The political intervention into religious affairs by the Prussian and other German states was not directly instigated by any strong anticlerical sentiments, as was the case in revolutionary France. Nor was the states’ disposition fundamentally adversarial to religion. Rather, the state was apparently eager to take ownership of both churches and schools to a greater extent than before, with the understanding that these traditionally interrelated institutions were in fact matters pertaining to the polity and therefore of public interest, and as such, properly the business of the state. This mode of thinking also explains to a significant extent why the faculty of theology—for long a site of festering anachronism and backwardness in the eyes of its reform-minded critics—was not eliminated altogether in the new state-operated university at Berlin, but on the contrary came to play a novel leadership role, especially under the watch of Friedrich Schleiermacher, the theologian of the hour. The radical overhaul of the theological faculty had far-reaching consequences in the decades to come. For, after it was systematically reshaped and properly accommodated in a modern university dedicated to science, in a climate rife with expectations of new knowledge, new methods, and new resources (especially vibrant in classical and historical scholarship), theology was given a new lease, new tasks, and new spheres of operation, no longer serving only or primarily the needs and pleasures of whatever denominational church happened to be dominant in a particular territory. In effect, this led to the birth of what may be appropriately called academic theology. While Schleiermacher,

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in concert with other prominent university theologians, took pains to ensure that traditional, so-called practical theology remained a vital part and the ultimate anchor of all theology, he proposed, in an influential treatise published in , a tripartite division of the theological curriculum: “philosophical theology,” “historical theology,” and “practical theology.” Thus the ground was prepared, wittingly or not, for the exuberant growth of a new kind of “theology” unfettered by church doctrines, feeding upon the rich soil of philological, historical, and archaeological research.17 At its most outré, this neo-theology came to be called “neology” by its detractors. This development contributed mightily to the reputation of Germany and the German academy in particular as “ultraliberal,” “rationalist,” and finally “secular,” or possibly worse, a seedbed of all manners of “infidelity” and “irreligion” —all this in spite of the generally pious national population and the palpably conservative and authoritarian character of the political state.  Later in the nineteenth century, a variation of this bifurcation of the theological faculty into “academic” and “practical”—or “scientific” and “confessional”—occurred in the universities in the Netherlands as well. (This event is often credited by scholars of religion today as an important moment in the origin of the science of religion.) Theirs was a population equally serious in their piety and reputedly much given to learning, as in Germany. They were predominantly Calvinist Protestants yet long accustomed to the condition of a de facto religious diversity, with sizable Catholic presence, a number of small but often vocal minority Protestant communions, as well as thriving Jewish enclaves within their cities. It is not surprising that the matter should come to a head here not long after those events in Germany. In one of the earliest accounts of this event published in English, Morris Jastrow wrote in : To Holland belongs the distinction of having been the first country to make adequate provision for the study of the subject [science of religion] in her higher schools. A decree was passed in , by which the theological faculties of the four Dutch universities—Leiden, Amsterdam, Utrecht, and Groningen—were changed from mere training schools for ministers of a certain denomination into purely scientific bodies of the same order as the philosophical, law, and medical faculties. All the subjects represented—Old and New Testament, Church History, Dogmatics—were henceforth to be taught as purely historical disciplines and from a purely scientific point of view, the specific training for the service of the Church being left to supplemental courses provided for by each denomination, or relegated to non-official separate seminaries. At the same time the important step was taken of adding to each of the four faculties a chair for the general and comparative History of Religions.18



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This celebratory account does not make clear the fact that, as Arie Molendijk describes with greater precision in a recent monograph, between the initial introduction of the bill to the Dutch Parliament in  and its final passage in  (effective October ) a compromise was struck in such a way that in all four universities, this newly reconstituted faculty was not to be called “history of religion in general” or “philosophy of religion,” as initially proposed by the reform advocates, but the old name “faculty of theology” was retained.19 This compromise was more than a matter of nomenclature. There were concerns over the possible consequences of allowing not only the majority Dutch Reformed Church but also, potentially, all other denominations to establish their own educational outfit for the training of their clergy outside the staterun universities and, to that extent, outside state control. In the end, the university retained the clerical training of the majority church within its domain, but as a separate entity from the newly reconstituted “scientific” theological faculty. In effect, the Dutch Reformed Church was allowed to establish “state-funded church professorships” in traditional fields including dogmatics and practical theology within the universities. “Thus a dual structure emerged (the so-called ‘duplex ordo’), in which ordinary state-appointed professors work next to extraordinary church-appointed professors.” From this Molendijk reasonably infers that “the passionate discussions concerning science of religion in the Netherlands were not about the introduction of a new discipline; rather, they were centered on the transformation of the traditional faculty of theology.”20 Here, then, was another instance of the bifurcation of “theology,” which entailed two distinct budget lines with distinct protocols for the hiring of professors—in other words, another birth of “academic theology” departing from the confessional community and its principal concerns for sectarian dogma, doctrine, and orthodoxy. The difference from the Prussian case consisted in that, in the Dutch context, this new enterprise was understood by its proponents to be not really theology at all—even though still called “theology”—but rather “the science of religion.” The situation in the Netherlands, therefore, actually had much resonance with what had taken place in Germany half a century earlier—a resonance easy to miss, unless one is attuned to the fact that “theology” (or even “academic theology” or “theology in the university”) remained a volatile, mercurial category, permitting politicians, academics, and churchmen alike to deploy it in a variety of ways in order to pursue their divergent, and often conflicting, aims. How these university reforms, and the shifting position of “religion” within the university, were transmitted to North America will be sketched in broad outline in the remaining pages.

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 It is well known that nearly all of the institutions that are considered major research universities in the United States today were either formed or radically reformed in the mid to late nineteenth century. As Laurence Veysey put it: [T]he American university of  was all but unrecognizable in comparison with the college of . Judged by almost any index, the very nature of the higher learning in the United States had been transformed. Intellectually, purposes were being nurtured of which the mid-th century academic custodian had had only an alarming premonition.21

Noah Porter, one of the alarmed observers of these commotions, upon assuming the presidency of Yale College in , described the overall climate as “convulsed by a revolution.”22 In fact, it was not until a year after his retirement that Yale College finally became Yale University, in . Even so, Yale was nominally a decade ahead of the College of New Jersey, which warily took the occasion of its sesquicentennial in  to change its name to Princeton University; any substantive reform of this institution, however, had to wait until the  inauguration of its next university president, Woodrow Wilson, who had been among the earliest graduates of the Johns Hopkins University, and as such, armed to the hilt with the Germanic ideals of high academic seriousness. The factors contributing to the massive change in American institutions of higher learning are no doubt many and complex, yet one conspicuous fact is that this “revolution” in the United States, as in much of Western Europe, took place either in conscious emulation of, or else in grudging awareness of and reaction to, the preeminent German universities.23 Of all the German-inspired reforms, the founding of the Johns Hopkins University in  is reputed to be the most emblematic and successful.24 To be sure, the problems typical in American institutions were not the same as those of their counterparts in the Old World. Lacking a medieval legacy, the American problem had less to do with “corruption,” “hopeless stagnation,” or iniquities originating in a distant past, but more to do with the immaturity of cultural institutions more generally and the inchoate formation, if not total absence, of any educational system.25 The university as the highest hall of learning in any real sense was yet to be realized in the United States. As to the potential role of public instruction as a countermeasure to religious divisiveness, this nation being a republic and, in many respects, a federation of multiple states each with its own constitution and statutes and none with an established church,26 the kind of “solution” the Prussian monarch adopted to counteract the denominational disunity of his realm was neither avail-



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able nor desired. By the same token, maintaining or instituting a theological faculty in the system of public instruction—however “theology” was to be conceived, be it confessional and practical, or academic and scientific—would run afoul of the constitutional as well as political reality of the nation. Taking these factors into account, Daniel C. Gilman, shortly before assuming the inaugural presidency at Johns Hopkins, summarized the desiderata, at once echoing and amplifying the principles upheld by the German reformers. He wrote to one of the Hopkins trustees: The Institution we are about to organize would not be worthy of the name of a University, if it were to be devoted to any other purpose than the discovery and promulgation of the truth; and it would be ignoble in the extreme if the resources [that] have been given by the Founder without restrictions were limited to the maintenance of ecclesiastical differences or perverted to the promotion of political strife. As the spirit of the university should be that of intellectual freedom in the pursuit of truth and of the broadest charity toward those from whom we differ in opinion it is certain that sectarian and partisan preferences should have no control in the selection of teachers, and should not be apparent in their official work.27

The period between the end of the Civil War and the end of the century— punctuated by such events as the founding of Cornell University (), Johns Hopkins University (), and the University of Chicago ()—may be considered a high water mark of American university reform after the German fashion. Yet if we limit our perspective to the vantage point of this crest, we would run the risk of remaining oblivious to the factors that had gathered forces earlier to produce this surge. The danger, in short, is to consider this enthusiasm for reform—and the attraction of the Prussian model in particular—as predicated solely or primarily on the nascent desire to introduce, and institutionally promote, advanced scholarship and graduate education, and the desire to mount the academy on its own footing at a distance from any ecclesiastical jurisdiction.28 From statements such as Gilman’s, indeed, one might get the impression that the effort to keep religious forces at bay stemmed from some rarified notion of academic freedom, rather than resulting from an acutely felt need to maintain a measure of social equilibrium appropriate for a public institution, regardless of its principal funding sources. A closer look at the reform era everywhere will reveal that what was universally admired about the German model above all during the nineteenth century was not the triumvirate of research (Forschung), science (Wissenschaft), and cultivation (Bildung) as constituting a new ideal for university education—which is almost exclusively the focus of later commentaries—but rather Prussia’s novel state policy vigorously promoting a comprehensive educational

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system, of which the university was to be at once a crown jewel and commanding overseer. In other words, what attracted the attention of so many intellectuals, educators, and politicians alike, particularly in the early to mid-nineteenth century, was the idea of a state-sponsored integrated system of educating the entire population, giving them necessary skills, discipline, and literacy, while at the higher end, fostering the formation of competent leaders in every sphere, materially enabling all manners of scientific and technological innovations that would aid in the general well-being of the state and its people. In effect, the stress was first and foremost on the university’s role as the apex of what was in the nineteenth century uniformly referred to as public instruction (öffentlicher Unterricht; l’instruction publique). The fact that this matter of mass education should prove critically important for the body politic of the recently independent settler nations such as the United States hardly requires explanation. In order to appreciate the full significance of the subject of public instruction and the university within that system, however, it is necessary to look back earlier in U.S. history than the triumphant success stories of the s, ’s, and ’s. For, by then, an unprecedented amount of suddenly acquired private wealth started pouring into the cause of higher learning and higher culture. What the largess of Johns Hopkins, Ezra Cornell, the Rockefellers, the Carnegies, the Mellons, the Vanderbilts, the Stanfords, and the like made possible, when these new oligarchs founded or boosted their (often eponymous) universities in the last decades of the nineteenth century, significantly altered the meaning of “higher learning” and “universal access” to education, departing from the way these concepts had been praised and idealized as the “Prussian system.” Earlier, there had been a number of notable efforts in antebellum America to reform or establish educational systems. By and large, these attempts were not immediately or visibly successful at the higher end. (For one thing, no neo-Gothic compound rose from the ground overnight during this period.) At the same time, some of these earlier schemes followed more closely and self-consciously the Prussian model as a total system, in the sense that they presupposed more direct involvement of the public and the state in the affair of education. It may be useful to recall in this connection that the iconic figure for the founding of the University of Berlin, Wilhelm von Humboldt, was renowned not only because he supplied a certain philosophic vision for the institution but, more consequentially, because he was the inaugural occupant of the newly established governmental agency, then called Department of Ecclesiastical Affairs and Public Instruction (Sektion des Kultus und des öffentlichen Unterrichts) under the Ministry of Interior. As noted earlier, in  this agency was



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promoted to the ministerial level, thenceforward officially named Ministry of Ecclesiastical, Educational, and Medical Affairs (Ministerium der geistlichen, Unterrichts- und Medizinalangelegenheiten), but commonly called Kultusministerium (variously translated as “Ministry of Education,” “—of Culture,” “—of Public Worship and Education,” “—of Education and the Arts”). The first to be appointed to the post as minister, Karl Sigmund Franz von Altenstein, exerted a powerful influence in this capacity during his quarter-century tenure, and it was the achievements of his bureau that became the basis of the extraordinary international reputation of the Prussian school system. Elsewhere in Europe, movements to organize and to implement school systems were everywhere afoot. Immediate motives might have been various in different nations and localities, yet the urgently felt need for public education seemed constant across the board. This general sentiment has been effectively summarized by Sarah Austin, an English writer and translator of several important tracts on the subject: “The men who .€.€. were content to tread step by step in the paths wherein their fathers trod, are gone. Society is no longer a calm current, but a tossing sea. Reverence for tradition, for authority, is gone. In such a state of things, who can deny the absolute necessity for national education?”29 Only recently having attained political independence, Americans of the early nineteenth century were nevertheless eager to learn from the Old World with regard to education.30 Several state legislatures commissioned, or actually sent abroad, suitable men to study and to report on the condition of education in some of the European nations. The examples ranged from a certain Archibald D. Murphey, who reported to the legislature of North Carolina in , to Calvin E. Stowe—Harriet Beecher Stowe’s husband—who wrote a Report on Elementary Public Instruction in Europe addressed to the governor and the legislature of Ohio in .31 An exceptionally celebrated channel of influence, however, came in the form of a French philosopher and prominent public figure, Victor Cousin. He was sent on a mission by the French government in  to several German states, including Prussia, for the express purpose of inspecting the educational systems practiced in those lands and reporting to the Minister of Public Instruction at the time, François Guizot. The result was a much praised and widely read “Rapport sur l’état de l’Instruction Publique dans quelques pays de l’Allemagne, et particulièrement en Prusse,” which received an extremely laudatory, detailed summation by Sir William Hamilton in the Edinburgh Review in .32 Hamilton’s review article in turn was immediately circulated and widely read in the English-speaking world, and a full translation of Cousin’s Report— by the aforementioned Sarah Austin—appeared the following year. It has been

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suggested that “the report of Victor Cousin is among the most important of all reports on educational condition in Europe during the second quarter of the nineteenth century.”33 The state legislatures of Massachusetts and New Jersey distributed copies of this report to their respective school systems at the state’s expense.34 A more visible implementation of the entire system of public education top to bottom, however, was attempted in a region farther to the west, still in an early stage of European settlement.  As early as , when the settler population of its vast area hardly exceeded six thousand, concerns for public education moved the territorial government of Michigan to develop what an early historian called “a curiously elaborate plan of a university.” This scheme was to be executed, in due course, in accordance with a territorial law passed the same year, that “not only made the University a part of the school system of the State, but it also provided for the ample support of the University by an extraordinary addition of no less than fifteen per cent to all existing taxation.”35 When the law was amended in , a policy regarding religion was clearly specified, as Charles Kendall Adams makes clear in his Historical Sketch of the University of Michigan: “[P]ersons of every religious denomination were capable of being elected trustees, and no person, president, professor, instructor or pupil was to be refused admittance for his conscientious persuasion in matters of religion.”36 Still later, with its statehood imminent, Michigan’s first state constitution was adopted in , declaring the legislature’s duty to ensure public instruction for all citizens, and the state governor’s duty to appoint, with the legislature’s approval, “a Superintendent of Public Instruction”—a position clearly modeled after Altenstein’s in Prussia’s Kultusministerium. The first superintendent to be appointed, John D. Pierce, to whom the responsibility of “preparing a system for common schools, and a plan for a university” were entrusted, was said to have “become especially interested in the Prussian system of education through the celebrated ‘Report’ of Cousin.”37 Evidence abounds, however, that the idea of the university system in Michigan, as initially conceived and chartered by the territorial government in the first quarter of the nineteenth century, was based on the French Napoleonic “imperial university,” which was but a name for a massively centralized and nationalized school system.38 By the time the University of Michigan took recognizable form and the first bona fide president, Henry P. Tappan, was installed in midcentury, the general understanding was that the ideal of public instruction was expressly Prussian.39 As Charles Kendall Adams observed in , it fell sin-



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gularly upon this first president to implement the long-held plan. For, “up to the advent of President Tappan, that policy [to shape the university according to the Prussian system] had lain practically dormant. .€.€. [T]here was nothing about the institution on his arrival, to remind one that the Prussian system had ever been so much as thought of, much less recommended and decided upon.”40 In , a little over ten years after his inauguration, Tappan was summarily removed from his post by a highly controversial action on the part of the university regents. One major source of the friction between Tappan and his opponents had to do with the policy for the hiring of professors. As Adams describes: From the first [Tappan] maintained that officers of instruction should be selected solely on account of their ability to instruct. When he was pressed to make appointments on denominational grounds, he not only declined to do so, but maintained that such appointments were wrong in principle and highly injurious in practice. “Egregiously do they mistake,” declared he, “the character and ends of this institution who imagine that because it belongs to no sect or party in particular, it therefore belongs to all sects and parties conjointly and of equal right. It not only does not belong to any sect or party in particular, it belongs to no sect or party at all. The prime object of a seminary of learning is not like that of a church, to inculcate religion or perform its services, but to afford education.”41

This policy was consistent with the general thrust of Prussian reform—as in Mosheim’s Göttingen and Altenstein’s Berlin—which Tappan was on excellent grounds to claim was fully endorsed by Michigan’s state legislature, as spelled out in its constitution. Tappan’s policy was, at least in its practical consequence, directly opposed to the policy of religious neutralization that was informally but regularly practiced in the university up to the time. The prevailing strategy until then was to accommodate the fact of religious disunity and to alleviate any potential for discord by granting each of the dominant Protestant sects its representation, while assuming an attitude of limited accommodation toward non-Protestants. In contrast, by explicitly asserting that the university belongs to “no sect or party at all,” Tappan was effectively proclaiming the absence of religion in the university as the norm—that is, the essential secularity of the institution. The point was not missed on his audience, supporters and detractors alike. Moreover, Tappan from the beginning dismissed the idea of maintaining a theological faculty within the university. Citing the difference between the American situation and that of Prussia, he and the university took this deviation from the supposed prototype as a matter of course. Thus we read, toward the end of his inaugural address of :

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Our Institution being a State Institution, and, therefore, connected with no particular denomination, cannot establish a Theological School on the University fund. But it is to be hoped that the different denominations will establish professorships in the different branches of theological science in this town. In some of these branches they might unite; in others they would choose to establish separate professorships.42

Thus allowing—indeed, “hoping”—that some kind of theological faculty, singly or multiply, would operate across the street, as it were, Tappan cut a new path for configuring the relation between religion and the university, a seemingly paradoxical arrangement of absolute separation and proximity. This amounted to a third path, different from both the Prussian way (incorporation of a new, scientific theology within the university) and from the Dutch way (which was, on the one hand, encysted incorporation of the predominant denominational church within university grounds as an organ of vocational training, and on the other hand, creation of a separate, strictly nondenominational science of religion, now called “theology”). What Tappan suggested here in the midcentury has been, indeed, a prototypically American solution.  If the university became secular in the course of the nineteenth century, this was not the result of some external influence affecting a long established institution. Rather, the modern university is better understood as at once an agent and a product—an accomplishment and a crucial hinge—in the transformative process that we have come to call secularization. The nineteenth-century educational reform was instigated above all by the rising need and desire to instruct the entire population, defined as the public; it was predicated on the belief that children from a variety of religious backgrounds could be, and should be, instructed together, wholly or substantially at the state’s expense and under its supervision. If this increasingly powerful and effective state activism was secularizing, this was not a result of the state’s direct intervention in religious organizations and their affairs but rather a consequence of its intent to regulate public instruction. State-managed education was secular in the specific sense that it willfully disregarded denominational differences, not in the sense that all signs of religion should be expunged from its premise, its vicinity, or its legacy. This may be an apt moment to recall, indeed, that a majority of the reform-minded university officials of the period—Tappan included—were ordained ministers who regularly preached in the university chapel. So was Michigan’s first Superintendent of Public Instruction, John Pierce, who was a Protestant home missionary, and perhaps the person most materially responsible for instituting the “Prussian



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system” in the region—who came to minister to the largely unchurched settlers of the Michigan Territory in the s. For those early nineteenth-century political leaders and educational reformers, the problem of “religion” needing to be curtailed and contained was not religious doctrines and beliefs that might clash with the emerging sciences. What they crusaded against most was the disunity and disparity that religion was seen to cause and perpetuate, all to the detriment of the public and universal institution.

Notes . Charles E. McClelland, State, Society, and University in Germany – (Cambridge: Cambridge University Press, ), . . Thomas Albert Howard, Protestant Theology and the Making of the Modern German University (Oxford: Oxford University Press, ), ; see also –. . “[Editors’] Introduction,” in Scottish Universities: Distinctiveness and Diversity, ed. Jennifer J. Carter and Donald J. Withrington (Edinburgh: John Donald Publishers, ), . See also Withrington, “The Idea of a National University in Scotland, c. –,” in ibid., –. . William Clark, Academic Charisma and the Origins of the Research University (Chicago: University of Chicago Press, ), . . Oliver Farrar Emerson, ed., Memoirs of the Life and Writings of Edward Gibbon (London: Athenaeum,  []), –. . Adam Smith, The Wealth of Nations, vol. II (London: Dent,  []), esp. – . . Oliver Goldsmith, Enquiry into the Present State of Polite Learning in Europe, d ed. (London:  []), –. . Gibbon, Memoirs of the Life and Writings of Edward Gibbon, . . Philip Schaff, Germany: Its Universities, Theology, and Religion (Philadelphia: Lindsay and Blakiston, ), . . See R. Steven Turner, “The Growth of Professorial Research in Prussia,  to —Causes and Context,” Historical Studies in the Physical Sciences  (): –; Turner, “The Prussian Universities and the Concept of Research,” Internationales Archiv für Sozialgeschichte der deutschen Literatur  (): –; Friedrich Paulsen, The German Universities: Their Character and Historical Development, translated by Frank Thilly and William W. Elwang (New York: Scribners, ; original German edition published in ). . Schaff ’s  monograph lists all German universities up to his time in chronological order of their founding, including their respective denominational orientation. Schaff, Germany, –. . Howard, Protestant Theology and the Making of the Modern German University, . . Ibid., . . Howard refers to F. C. Bauer, theologian of the Tübingen School, who defended his adaptation of critical historiography by claiming that this method represented “‘the

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highest principle of Protestantism’ and the only sure defence against ‘the authority principle of Catholicism.’ The association of Protestant principles with advances in critical scholarship, and the invoked foil of Catholicism, served as a common trope among progressive Protestant theologians throughout the century” (ibid., ). While this argument was often characterized, especially by its detractors, as “German,” it traveled far. This was the pith of W. Robertson Smith’s defense when he was accused of heresy by the Free Church of Scotland (–) (see John Southerland Black and George Chrystal, The Life of William Robertson Smith [London: Adam and Charles Black, ], –). Charles A. Briggs argued along similar lines during his own heresy trial shortly thereafter in the tribunal of American Presbyterians. See Mark Stephen Massa, Charles Augustus Briggs and the Crisis of Historical Criticism (Minneapolis: Fortress Press, ). . See McClelland, State, Society, and University in Germany –, –. . Howard, Protestant Theology and the Making of the Modern German University, –. . Friedrich Schleiermacher, Kurze Darstellung des theologischen Studiums (Berlin, ). . Morris Jastrow, The Study of Religion (New York: Scribner’s, ), . . A. G. van Hamel emphasizes the “completely modified” character of the “faculty of theology.” “L’Enseignement de l’histoire des religions” (), reprinted in Maurice Vernes, L’Histoire des religions, son spirit, sa méthode et ses divisions, son enseignement en France et a l’étranger (Paris: Ernest Leroux, ), –, esp. –. . Howard, Protestant Theology and the Making of the Modern German University, . . Laurence R. Veysey, The Emergence of the American University (Chicago: University of Chicago Press, ), . . Quoted in ibid., . . This theme is rehearsed in nearly all treatises written on the subject. For example: Margaret Eliza Maltby, A Few Points of Comparison between German and American Universities ([s. l.]: Association of College Alumnae, ); Charles Franklin Thwing, The American and the German University: One Hundred Years of History (New York: Macmillan, ); Abraham Flexner, Universities: American, English, German (New York: Oxford University Press, ). . See Francesco Cordasco, Daniel Coit Gilman and the Protean Ph.D.: The Shaping of American Graduate Education (Leiden: Brill, ). . On the longer history of American higher education, see George N. Rainsford, Congress and Higher Education in the Nineteenth Century (Knoxville: University of Tennessee Press, ); Donald G. Tewksbury, The Founding of American Colleges and Universities before the Civil War: With Particular Reference to the Religious Influences Bearing upon the College Movement (s. l. [New Haven]: Archon Books,  []). . This was true as of the early nineteenth century, when Connecticut and Massachusetts disestablished their state churches. . Gilman to Reverdy Johnson [Jr.], January , , quoted in Cordasco, Daniel Coit Gilman and the Protean Ph.D., –. . This is an impression received from some of the twentieth-century accounts of this period, for example: Flexner, Universities: American, English, German; Richard J. Storr, The Beginnings of Graduate Education in America (Chicago: University of Chicago



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Press, ); Cordasco, Daniel Coit Gilman and the Protean Ph.D.; Veysey, The Emergence of the American University. . Quoted in Edgar W. Knight, ed., Reports on European Education, by John Griscom, Victor Cousin, Calvin E. Stowe (New York: McGraw-Hill, ), . . This is not to underestimate the newly reawakened religious zeal of many others who sought to create denominational colleges in the first half of the nineteenth century, contrary to the generally secularizing trend in European education at the time. See Tewksbury, The Founding of American Colleges and Universities before the Civil War, esp. –. . Knight, Reports on European Education, , . . [Sir William Hamilton], “Cousin on German Schools,” Edinburgh Review  (): –. . Knight, Reports on European Education, –. . Horace Mann, the first Secretary of the Board of Education in the State of Massachusetts, implemented an expressly Prussian style compulsory education system. His Annual Reports of the Board of Education of the State of Massachusetts (–) also had an impact in Britain. See George Combe, “Notes on the New Reformation in Germany; and On National Education, and the Common Schools of Massachusetts” (Edinburgh, ); Combe, “Remarks on National Education: Being an Inquiry into the Right and Duty of Government to Educate the People” (Edinburgh, ); Donald K. Jones, “Lancashire, the American Common School, and the Religious Problem in British Education in the Nineteenth Century,” British Journal of Educational Studies , no.  (October ). . Charles Kendall Adams, Historical Sketch of the University of Michigan (Ann Arbor: The University, ), . . Ibid., . For a complete record of legislation relating to the founding of the university, see Records of the University of Michigan – (Ann Arbor: The University, ). . Adams, Historical Sketch of the University of Michigan, . See also Burke A. Hinsdale, History of the University of Michigan (Ann Arbor: The University, ), –; Knight, Reports on European Education, . . See Hinsdale, History of the University of Michigan, –. . Francis W. Shearman (Superintendent of Public Instruction, State of Michigan), System of Public Instruction and Primary School Law of Michigan (Lansing, MI: Ingals, Hedges, ), . . Adams, Historical Sketch of the University of Michigan, . For a detailed account of the early legislative history, see Andrew Ten Brook, American State Universities, Their Origin and Progress: A History of Congressional University Land-Grants; a Particular Account of the Rise and Development of the University of Michigan and Hints toward the Future of the American University System (Cincinnati, OH: Robert Clark, ). . Adams, Historical Sketch of the University of Michigan, . . A Discourse Delivered by Henry P. Tappan, on the occasion of his Inauguration as Chancellor of the University of Michigan, December st,  (Detroit: Advertiser Power Presses, ), –.

chap ter seven

Stasiology Political Theology and the Figure of the Sacrificial Enemy ban u bargu The One—to Hen—is always in uproar—stasiazon—against itself— pros heauton.1

Perhaps no other term has become as relevant and ubiquitous as “political theology” in today’s world marked by the increased prominence and visibility of religion. Indeed, it uniquely captures the spirit and spiritual contradictions of the times. If the prevalence of the term can be attributed, at least in part, to the resurgence of theological politics in recent decades, the term owes its success no less to the recognition that our ostensibly secular and profane political horizon is replete with concepts that retain theological residues or evoke sacred connotations. Has secularization become a failed, or at best incomplete, project of human emancipation? Is the re-emergence of theological politics a “return of the repressed”? Or perhaps the idea that the theological could be separated (if not purged) from the political was illusory to begin with? It is to the perspicacity of Carl Schmitt that we owe the introduction of the concept of “political theology” into intellectual debate and academic circulation in .2 The meaning of “political theology” is plausibly coeval with that of religion and cannot be considered Schmitt’s innovation; nonetheless, “whoever poses the question today asks it within the horizon of the debate that Schmitt inaugurated,” as Heinrich Meier has aptly put it.3 However, it is not the evolution of this important debate that I would like to address here. Rather, my agenda is limited to delineating how the different meanings of “political theology” in Schmitt’s various interventions operate at multiple levels, in each of which it is possible to locate a distinct kind of relationship between the theological and the political.4 I am also interested in the broader implications of this shifting relationship for Schmitt’s thought.



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The ambivalent relationship between the political and the theological as two constitutive axes of Schmitt’s thought has three identifiable moments of articulation: a more or less static structural homology; a dynamic affiliation, mixture, or convergence; and finally, a combination of both elements into a new “form” that is quite different from the original elements initially drawn together.5 My analysis will thus proceed according to these three levels. First, on an epistemological level, I will revisit Schmitt’s own claim regarding the structural correspondence between the domains of theology and jurisprudence. Certain concepts—most notably the “exception”—act as manifestations of a common underlying worldview and bring into life this correspondence. Here, I will suggest that the concept of “sacrifice” is an important albeit neglected bond between the theological and the political. Secondly, there is the level of convergence, the question of the rapprochement of the theological and the political. Here, I will question the potential implications of this rapprochement, particularly for the autonomy of each of these spheres. The final level concerns how Schmitt envisions the combination or fusion of the two elements and the theoretical consequences that emerge out of this combination. By exploring Schmitt’s later work, I will show how he reformulated “political theology” as a polyvalent theoretical tool that is expansive and encompassing. I maintain that through Schmitt’s construction of “political theology” as mirroring the form of a circle from which there is no escape, he found a way to neutralize any critique of “political theology” that seeks to get out of the circle. While pitting Schmitt’s project against “political philosophy” as a theoretical rival or alternative, Meier argues that the “core of Schmitt’s theoretical enterprise” is grounded in “political theology,” that Schmitt is, in the last instance, a “political theologian,” that his “claims [are] founded on faith in divine revelation.”6 In my opinion, this is an overestimation. If Schmitt most approximates a “political theologian,” this comes late in his career when he radically reformulates “political theology” into “stasiology,” the knowledge of stasis, which is a succinct expression of the ineradicability and autogenesis of political antagonism. In other words, when we assume a more diachronic perspective of “political theology” within Schmitt’s thought, we can see significant change.7 I argue that the three forms of relationship between the political and the theological roughly indicate different moments in an evolution toward a hybrid fusion (which finds its expression in the novel concept of “stasiology”) that has an independent existence and logic of its own.8 Let me elucidate how Schmitt’s “political theology” evolves into “stasiology” by working through the three levels I am suggesting.9

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Secularized Theology In his Political Theology, Schmitt points to the theological roots of political concepts, asserting both a historical development of the political emerging out of the theological, and an epistemological homology between them.10 “All significant concepts of the modern theory of the state,” Schmitt famously argues, “are secularized theological concepts not only because of their historical development—in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver—but also because of their systematic structure.”11 Schmitt’s historical suggestion sets forth a theory of secularization that explains the commonalities between the fields of religion and politics in a narrative of evolution.12 Accordingly, the sciences of law and politics have borrowed their “significant concepts” from the conceptual repertoire of theology. In the process of this borrowing, they have modified these concepts by replacing their theological referents with political referents. However, this narrative leaves unresolved the question of how or why the process of secularization, while purging explicit references to the divine, imputes the qualities of the divine to the profane referent that takes its place. In Schmitt’s own example, the transfer from God to the (earthly) lawgiver preserves the omnipotence associated with God and imputes this to the lawgiver. The absolute and unquestioned obedience to God in divine sovereignty becomes the absolute and unquestioned obedience to the shadow of God on earth in monarchical sovereignty. Even when sovereignty is democratized, the resonance between the people and the divine does not disappear: the voice of the people is the voice of God. If this is the movement Schmitt has in mind, secularization is not detheologization, but rather the sacralization of the new referent of the borrowed concept. Expressed in a different formulation, the political continues to partake in the sacred by a redistribution of the sacred from the divine to the earthly; however, the earthly is now the no less immaterial idea of “the people.” Either way, secularization appears as the insidious theologization of the political. It is perhaps in this spirit that Schmitt reiterates the aforementioned formula in a slightly different form: “The juridic formulas of the omnipotence of the state are, in fact, only superficial secularizations of theological formulas of the omnipotence of God.”13 Secularization does not lead to the progressive disappearance of the theological; on the contrary, the theological always leaves its trace in the structure of the secular, and this trace has a determining quality. On the one hand, the theological is written into the secular, becoming a latent participant in its meaning, connotations, and implications. On the other, the sacred and the secular coÂ�



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exist in the self-consciousness of an era that, in turn, fashions the political after its own image: “[T]he metaphysical image that a definite epoch forges of the world has the same structure as what the world immediately understands to be appropriate as a form of its political organization.”14 This brings us to the second sense in which Schmitt calls political concepts “secularized theological concepts”—that is, on the basis of the similarity in their conceptual structure.15 Accordingly, the structure of political and theological concepts reflects an underlying metaphysical paradigm. The change in this paradigm finds expression in the change of political consciousness, action, and organization as well as in concepts. In this light, let us look at various concepts that exemplify the latent connections between the political and the theological. Sovereignty and the Exception Schmitt finds that the success of the modern constitutional state parallels the triumph of Enlightenment rationalism over theology and the replacement of theism by deism. The personalistic and decisionistic dimension of sovereign power, its power of intervention into crisis situations, and its position of transcendence vis-à-vis the state and the legal order, all wither away into the positivist, organicist, and immanent constituent power of the people expressed in the national-liberal constitutional state. These changes are accompanied by the emergence of deism. Hence, the theological rejection of the miracle goes hand in hand with the political repudiation of the exception. Schmitt holds, “[T]he exception in jurisprudence is analogous to the miracle in theology.”16 From this perspective, the insistence on naming the exception as the distinguishing feature of sovereignty can be read, rather transparently, as Schmitt’s attempt to salvage the miracle in the political sphere as a means to protect and ensure the continuation of the political order. Schmitt’s parallel between the miracle and the exception is based upon how both involve “direct intervention”: on the one hand, by God, in transgression of the laws of nature, and, on the other hand, by the sovereign, in suspension of the laws of the commonwealth. The miracle is unforeseeable and impossible to circumscribe factually. So is the exception. Both the miracle and the exception disrupt regularized repetition not only by their interruption of the regular, but also by reasserting the origin of that repetition, the underpinning force that enables and supports the repetition. The miracle confirms divinity, God’s will, his originary power of creation; the exception confirms sovereignty, the sovereign’s will, the originary power that produces the political collective. Insofar as the miracle is God’s exception, the exception is the sovereign’s miracle. By

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reclaiming the exception, Schmitt therefore calls for the recovery of that latent theological trace from within the realm of the political itself, in response to the failures of the constitutional state to reproduce order in general. This theoretical move can also be interpreted as Schmitt’s reaction to the devaluation of theism and the erosion of the sacred in the wake of the Enlightenment project. Sovereignty and Sacrifice The parallel that Schmitt draws between the miracle and the exception fails to exhaust the possible conceptual bridges between the political and the theological in his oeuvre. Another pivotal concept that points to the enduring trace of the theological in the political is “sacrifice.” Whereas the exception epitomizes the personalistic moment in Schmitt’s theory of sovereignty, as it concentrates on the leader, sacrifice brings into focus the relationship between the people as constituent actors and the state as the political entity that signifies their existence and “way of life.” Sacrifice also brings in legitimacy as a consideration of sovereign power, a consideration that remains mostly alien to a discussion circumscribed by the exception and the decision. Sovereignty, argues Schmitt, inheres in the monopoly of decision over the distinction between friend and enemy. The actualization of this distinction as the “real possibility” of killing and dying in confrontation with the enemy is a latent potential that is always determinant in the last instance, as an outcome and precondition, an always-already present facet of the constitution of the political. In fact, the capacity and will of a people to distinguish between friend and enemy is so foundational that Schmitt calls it “the essence of its political existence” and predicates the autonomy of a people upon it.17 The monopoly of decision on the enemy entails the authority of the political entity to galvanize individuals to engage in violent combat and to sacrifice their lives. The authority of the sovereign entity, therefore, resides as much in its ability to decide as in its ability to carry this decision through. The latter depends on its capacity to command sacrifice in support of that decision.18 The willingness to sacrifice is the primary manifestation of enmity. If the elimination of war is the elimination of politics altogether, the elimination of sacrifice is the dissolution of the very possibility of the political. Schmitt argues: “The state as the decisive political entity possesses an enormous power: the possibility of waging war and thereby publicly disposing of the lives of men. The jus belli contains such a disposition. It implies a double possibility: the right to demand from its own members the readiness to die and unhesitatingly kill enemies.”19 The state’s power of decision, then, should be understood to incorporate not only the monopoly of legitimate violence à la Weber but also



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a monopoly over the legitimate demand for political sacrifice. In other words, while other entities may exercise a power over life (such as the family) or encourage individual sacrifice (such as the church), the exercise of the power over life in the form of sacrifice for the collective against a public enemy is reserved to the sovereign entity. Since the very legitimacy of sovereignty is predicated on the necessity of defending the existence of the political entity, the state’s loss of its hold on the monopoly over political sacrifice is strong proof of its loss of legitimacy.20 According to the interpretation of Schmitt that I am advancing through the concept of sacrifice, sovereignty emerges as a relation between the state and individual members of that entity, a relation in which life becomes the main object and stake.21 Since the survival of the political entity, without which the core political relation cannot have a concrete existence, is prior to the survival of its individual members, the capacity of the state to compel its members to kill and die, based on the right over life and death, constitutes the sovereign relation and keeps alive the link between the state and the sacred.22 Sacrifice enables the continual invocation of the theological referent. Without reference to the sacred, violence would be just that—force and bloodshed. The sacred transforms violence into sacrifice and imbues it with meaning, value, and function, by establishing a communicative link with the profane.23 Sacrifice partakes of the sacred and in turn imparts sacredness on the entity in the name of which it is undertaken. Self-sacrifice is a particularly exalted (or accursed) form of sacrifice because it collapses the subject and object of sacrifice and consecrates both.24 It represents the ultimate act of devotion by its negation of human life. Like the crucifixion of Jesus, the supreme self-sacrifice for the atonement of humanity, which serves as the ultimate sign of the existence of a divine sovereign, sacrificial death in war for the security of the political collective functions as the ultimate sign of the existence and strength of the earthly sovereign power. For Schmitt, instances of violent conflict are the definitive moments in which the existence of a political entity is confirmed. Each act of self-sacrifice imparts sacredness on the political collective and in turn derives its martyrological quality from that sacredness. Even if sacrifice may no longer retain its immediately religious connotations with the secularization of political rule, it continues to bridge the political and the theological as a vivid example of a “secularized theological concept.” In this spirit, Schmitt’s dismissive evaluation of liberalism is particularly revealing. Schmitt argues that there can be “absolutely no liberal politics, only a liberal critique of politics” because the individualism of liberal thought pre-

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cludes it from compelling the sacrifice of life for the political entity.25 Insofar as the liberal state falls short of being able to mobilize political sacrifice, it loses its sovereignty and its legitimacy. This is both because the collective conditions of possibility of the political are foundering and because the liberal state cannot translate its decision on the enemy (assuming that it is able to make that decision) into political action. Liberalism, then, is the extremely individualized form of pervasive secularism in which the search for neutrality and the absence of antagonism lead to a paradoxical situation where community is no longer possible and where, while there may remain private meaning, the political has lost the sacred common ground and turned into its opposite—nihilism.26 Therefore, Schmitt’s emphasis on the demand for sacrifice is an important call for understanding sovereignty as a bulwark against the loss of meaning in the modern world. Sacrifice as the sine qua non of the political entails establishing the connection between violence and the sacred as the constitutive quality of sovereign power. Sacrifice, by virtue of being the extreme act animated by the friend-enemy distinction, can now be understood as the politico-theological act par excellence.

The Autonomy of the Theological? Concepts such as the “exception” and “sacrifice” indicate the foundational relation between the political and the theological in Schmitt’s oeuvre. However, Schmitt’s insistence on the term “political theology” indicates more than simply a structural parallel. This brings us to the second level or form of relationship between the political and the theological, their dynamic affiliation and rapprochement. Indeed, “political theology,” as Schmitt begins to deploy the term, also weaves together the theological and the political in a malleable yet intersecting opposition to two strategic targets. The conceptual alternatives to “political theology” are important, if only because they reveal the polemical nature of Schmitt’s intervention and how he envisions the conjunction of the two terms.27 On the one hand, “political theology” constitutes a polemic against the reduction of the politico-theological to the political. On the other hand, “political theology” constitutes a polemic against the reduction of the politicotheological to the theological. The major target of the polemic against the reduction of the theologico-political to the political is the radical left in general (perhaps with the exception of Georges Sorel), and Mikhail Bakunin in particular. Schmitt recognizes in Bakunin “the first to give the struggle against theology the complete consistency of an absolute naturalism.”28 Bakunin links his critique of an extrinsically



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imposed morality with a critique of authority in the family, church, and political power. In this context, Schmitt’s use of “political theology” is put to work as a defense of sovereignty (as well as religion and the sacred) against Bakunin’s radically secular, atheistic (if not antitheistic) anarchism, which conjoins an opposition to the state with an opposition to religion. However, the anarchist alternative is not the only target of Schmitt’s polemic. Schmitt’s deployment of “political theology” also aims to dismantle the reduction of the theologico-political to the purely theological, a tendency that he finds in the proponents of the ostensibly apolitical or antipolitical status of religion. His argument against the theologian Erik Peterson, who criticizes any kind of “political theology” in the name of the autonomy of the theological, is revealing in this context.29 This is an intriguing though hardly accidental theoretical move. It is well known that Schmitt is adamant on establishing the autonomy of the political. The friend-enemy antithesis is the “ultimate distinction” that delineates the political as an independent and specific sphere of human “thought and action.”30 While it tends to correlate with and even depend on moral, aesthetic, economic, and other antitheses, it is neither derived from them, nor reducible to them: “[T]he morally evil, aesthetically ugly or economically damaging need not necessarily be the enemy; the morally good, aesthetically beautiful, and economically profitable need not necessarily become the friend in the specifically political sense of the word.”31 In other words, the friend-enemy distinction is purely formal and expresses the logic of the political as “the intensity of an association or dissociation.”32 In fact, any antithesis, if radicalized, can potentially constitute the content of this formal distinction. For example, Schmitt argues, for an economic antagonism between different classes to become a political antagonism, it needs to be transformed into a concrete separation of antagonistic camps, which may, in the extreme case, resort to actual conflict and culminate in political sacrifice in civil war. If this transformation takes place, “then the relevant antithesis is no longer purely religious, moral, or economic, but political. The sole remaining question then is always whether such a friendand-enemy grouping is really at hand, regardless of which human motives are sufficiently strong to have brought it about.”33 The politicization of independent antitheses is possible, but Schmitt is not willing to grant the converse movement. In other words, while morality, religion, and economics can serve as motives that become political, thereby losing their purely moral, religious, economic qualities, the political seems to preserve, in fact even augment, its autonomy by the very conversion of other previously autonomous fields into friend-enemy groupings.34 The vortex of the political,

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as depicted by Schmitt, appears to draw into itself any difference strong enough to be transformed into an existential antagonism. However, the moralization, aestheticization, or economization of the political, when possible, seems to indicate not a mutual interpenetration but an irretrievable loss, especially if this comes with the neutralization and dissipation of the antagonism (for example, by its transformation into individualized belief, taste, and opinion or a matter of conscience) that animates the political. In this light, the meaning of “political theology” should point us not in the direction of the transformation of the political into theology, but in the opposite direction—namely, the politicization of the theological antithesis (between God and devil, good and evil, Catholicism and Freemasonry), its intensification into opposing positions. Thus, insofar as theology is transformed into “political theology,” the theological and the antitheological, the sacred and the secular, are interpreted as political positions that are in existential antagonism, with the possibility of lethal combat. Here, “political theology” becomes synonymous with a theological politics or politicized theology. The enmity between the theological and antitheological positions determine its groupings.35 Schmitt’s paradoxical comments about Bakunin’s fervent atheism, in which he characterizes Bakunin as the “theologian of the antitheological,” are meaningful in this light.36 Similarly, Schmitt avers, Peterson’s insistence on the autonomy of the theological and the theological impossibility of “political theology” boils down to a position taken up within the field of politics. In other words, insofar as the polemic about theology generates a friend-enemy constellation and creates a substantial antagonism worthy of theoretical (and ultimately existential) confrontation, it has already become a political antithesis. Bakunin and Peterson are therefore in opposing camps, even though they might not have recognized this antagonism in the terms that Schmitt assigns them. Schmitt’s “political theology,” by translating such divisions and “dissociations” into political terms, affirms both the malleability of the political antithesis and its ontological primacy vis-à-vis other antagonisms in different spheres of human activity. In theological politics, the autonomy of the political comes at the expense of the theological whose heteronomy it feeds upon.

Politicized Theology Schmitt’s view of the inherently political nature of theology evolves into a sharper and more evident form in his controversy with Erik Peterson in Political Theology II (). Schmitt’s belated critique of his once close friend Peterson’s work, decades after it was written, is important because it is indicative



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of both how he envisions the heteronomy of the theological to be the basis of “political theology” and the new form of articulation between the theological and the political that this heteronomy occasions. This form, which Schmitt names “stasiology,” is, I contend, altogether different from the affinity he had proposed when he first introduced the concept “political theology.” A convoluted battle regarding a fissure within early Christianity frames the terms of both Peterson’s theological refutation of the possibility of “political theology” and Schmitt’s response. Gregory of Nazianzus and Eusebius of Caesarea play symbolic roles, perhaps even act as surrogate figures, in the controversy on “political theology.”37 Peterson is critical of Eusebius of Caesarea, whom he refers to as the “panegyrist of Constantine the Great,” because Eusebius’ praise of the emperor infuses politics into theology by intimating a parallel between divine dominion and earthly rule, thereby instrumentalizing religion, or at least jeopardizing its autonomy in order to legitimate Emperor Constantine’s rule. “It is said about him [Eusebius],” Schmitt writes, “that he started to politicize the idea of God’s monarchy after Tertullian had attempted to juridify it.”38 Eusebius’ attempt, Peterson believes, goes against the Augustinian separation of the two cities and implies the possibility of the “political realization” of divine rule. The implication that Constantine’s monarchy corresponds to the realization of God’s rule on earth is problematic because the idea of rule by one is not analogous to the Trinitarian conception, with its doctrine of the Incarnation and the Second Coming. Eusebius’ portrayal of the Roman Empire as the harbinger of peace, the equivalent of the katechon—the eternal restrainer that keeps the forces of chaos and disorder at bay—is also problematic because it conflates the idea of peace on earth with real peace, one that can only be established in the final unity in God as put forth in Christian eschatology.39 In this light, Eusebius becomes theologically suspect for not recognizing the uniqueness of the Trinitarian conception of the Christian faith and its ultimate untranslatability to the political realm. This suspicion seems to be reinforced due to Eusebius’ alleged friendship with Arius of Alexandria, on the one hand, and his proximity to Constantine, on the other. The former, who is deemed to be a heretic, casts upon Eusebius the doubt of heterodoxy, the latter the doubt of authoritarianism, or caesaro-papacy.40 These aspects make Eusebius into a “political theologian,” according to Peterson. In contrast to Eusebius, Peterson invokes (and possibly personally identifies with) Gregory of Nazianzus, whose affirmation of the Trinitarian conception of Christianity against heterodox interpretations becomes central (along with that of Augustine) for Peterson’s case against “political theology.” In one of the most divisive controversies about the nature of the Trinity, the Arians, traced

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to Arius of Alexandria, questioned the eternal unity between God and Jesus and saw the latter as a creation of God, of “like” essence or being (homoiousia) rather than of the “same” essence or being (homoousia) with God.41 After Constantine’s legal recognition of Christianity, the Council of Nicea was convened in order to resolve this controversy. Even though most of the attendant bishops formally signed on to the orthodox position, traced to Athanasius, positing the eternal unity, the Arian position (with its many variations) continued to be embraced by many. Gregory’s work served a crucial role in strengthening the defense of the Trinitarian position and the deity of Jesus against the heretical views.42 Hence, referring to the figure of Gregory enables Peterson to posit the Trinity as the impenetrable and undisputable theological foundation that is not amenable to questioning, controversy, and thereby, politicization. It also allows for uncoupling the dominion of the Trinity from any identification or analogy with the earthly dominion of the Roman Empire under the (albeit Christian) emperor. In this light, Peterson can sever the link between the theological and the political and attribute “political theology” only to non-Christian theology, non-Trinitarian monotheism, or other pagan (and polytheistic) influences.43 It should come as no surprise that Schmitt disagrees with the exemplary status accorded by Peterson either to Eusebius as the “political theologian” or to Gregory as the representative of orthodoxy who ends “political theology” once and for all. Schmitt discovers in Peterson’s attack more than simply a substantive theological critique of Eusebius’ position. In Peterson’s designation of Eusebius as a heretic, Schmitt discerns the implication of an equivalence between heterodoxy and “political theology”: “[T]he heretic appears eo ipso as the one who is political, while the one who is orthodox, on the other hand, appears as the pure, apolitical theologian.”44 More important, Schmitt finds Peterson to be putting forth an esoteric critique of the absolutist state and totalitarianism from the point of view of Christianity.45 Particularly damaging in this respect is Peterson’s insinuation that associates Eusebius with Schmitt, who supported Hitler as Eusebius supported Constantine. In Peterson’s view, the “One God—One World—One Empire” transposition stands and falls as much for the German Empire of the s as it does for the Roman Empire of the s. It is highly likely that Schmitt took personal offense at such commentary from a former friend. As is well known, the long shadow cast on Schmitt’s ideas and scholarship due to his affiliation with the Nazi Party in the s was never dispelled. Despite his personal reaction to Peterson’s insinuations, Schmitt obviously realizes that Eusebius’ glorification and justification of Constantine (and perhaps his own justification of Hitler) as the political figure who could bring



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peace to multiple populations with different beliefs (that is, to act as katechon) have not been vindicated by history: “Neither Caesar nor Augustus nor Constantine the Great [was] able to put an end to wars and civil wars.”46 But he is quick to point out, in his own defense and contra Peterson, that neither has peace been attained in the ensuing millennium in which Christianity ruled. Thus, while Augustan peace did not hold, Augustinian peace did not hold, either: “The millennium of Christian popes and emperors who recognized the Augustinian theology of peace was also a millennium of wars and civil wars.”47 In fact, it was Hobbes’ Leviathan, which forcefully affirms civil sovereignty as the highest authority, that constituted the innovation through which there culminated a relative peace, capable of quelling religious conflict and civil war, at least within the sphere of the jus publicum Europaeum. However, the European nomos, which Schmitt exalts as the highest achievement of civilization for its ability to bracket violence, has now crumbled without any replacement. Schmitt therefore remains convinced that Peterson’s assertion of the incommensurability of Augustan and Augustinian peace, based on the autonomy of theology, fails to measure up to the demands of the present conjuncture.48 Schmitt contends: The categorical distinctions between the two kingdoms and spheres, which were handled in a practical way in epochs which recognized the institutions of state and church, do not work any longer when the religious cannot be clearly differentiated from the church and the political from the empire [Reich] or state. For the walls collapse and the spaces which were once distinct intermingle and penetrate each other, as in a labyrinthine architecture of light. The façade of the absolute purity of the theological is then no longer convincing.49

If, in Schmitt’s view, the erosion of the neat separation between church and state renders impossible the isolation of theology from the vortex of the political, how can this point be transposed back into the early Christian controversy, which, in Peterson’s view, should be the litmus test for “political theology”?50 To assert the always-already politicized nature of theology, Schmitt turns to the figure of Gregory, whom Peterson had upheld as the exemplary apolitical theologian. In stark contrast with Peterson, Schmitt interprets Gregory to have injected the criterion of the political into the very heart of the theological with his statement: “The One—to Hen—is always in uproar—stasiazon—against itself—pros heauton.”51 In this statement, Schmitt finds the friend-enemy distinction, which constitutes the core of the political in his theory. The term “stasis” creates the basis for this interpretation. Stasis, Schmitt explains, has a dual and contradictory meaning. In one sense it signifies “quiescence, tranquility, standpoint, status; its

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antonym is kinesis, movement”; in another, it means “(political) unrest, movement, uproar and civil war.”52 The duality of this concept, going back to Plato, cuts through the Trinitarian orthodoxy that Gregory (and Peterson) seek to establish as apolitical, for it actually points to the autogenesis of the political by one splitting itself into two and always being incommensurate with itself.53 The instability of the meaning of the central term, asserted to prove decisively the unquestionable consubstantiality of the Trinity (homoousia), brings with it the possibility of its own mutation into its exact opposite: the term itself is in unrest and uproar against itself. Schmitt maintains: “If every unity implies a duality and therefore the possibility of uproar, or stasis, is immanent, then theology seems to become ‘stasiology.’”54 The slippage from theology into “stasiology” is an indication: even in the firmest, most organic, perfect, and natural of all unities, the possibility of faction is inherent and ever threatening. Antagonism is ineradicable; it is not contradictory to but deeply entwined with and ingrained in unity. If, therefore, duality is inherent in unity, then even the most orthodox basis of theology is not immune or closed up to the political: “At the heart of the doctrine of Trinity we encounter a genuine politico-theological stasiology. Thus the problem of enmity and of the enemy cannot be ignored,” argues Schmitt.55 Hence, not only does Schmitt take Gregory’s ambivalent statement to prove decisively the ontological primacy of the political, but he also finds Peterson’s theological refutation of the possibility of “political theology” implausible. In fact, Schmitt shows that the effort to prove the closure of “political theology” is itself political.56 Through this convoluted debate with Peterson over Eusebius and Gregory, Schmitt turns the tables, exposing Peterson’s idea of an undisputable theological position against heresy, a position that decides what is and what is not heresy, as a contradiction insofar as it pretends to be purely theological. The theoretical/theological closure that Peterson is asserting with respect to “political theology,” with the intent of ending all heresy, is a political statement on theology by virtue of its dissociation of heresy from orthodoxy and by its denial of political status to orthodoxy. After all, as Schmitt had argued four decades ago, “[A]ny decision about whether something is unpolitical is always a political decision, irrespective of who decides and what reasons are advanced. This also holds for the question of whether a particular theology is a political or unpolitical theology.”57 Yet Schmitt’s assertion of the continuing plausibility of “political theology” against Peterson’s refutation is also already more than an intellectual exchange on the roots and possibility of “political theology”; it is “political theology” in action. The closure that Schmitt is vehemently denying,



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by pointing to the inherent instability of the orthodox position, is not only a polemical position, a counterinterpretation, within the same field of “political theology”; it is also an interpretation that (further) politicizes theology by embedding the friend-enemy distinction within the center of the Trinitarian conception. It appears that we are locked in a circle—even the negation of “political theology” is political theology.

The Autogenesis of Enmity: The Circle of Political Theology According to the ancient Greeks, the circle was the most perfect of all forms. Its symmetry and continuity was taken to represent eternity and divinity. It should not be a coincidence that what best suits Schmitt’s image for the combination of the theological and the political, as the highest degree of their relation, is itself a circle. The representation of the fusion of “political theology” in a new form brings us to the circular world of “stasiology.” “Stasiology,” or the knowledge of stasis, is a gateway to the core of Schmitt’s political thought. It entails the creation, ex nihilo, of antagonism. It points to the impossibility of bringing conflict to a final end. There is no field of human activity that is immune to conflict, no thought or action that is categorically outside the political. Even the most antipolitical position, by virtue of its intensity, is drawn within the self-reproducing, eternal circle of “stasiology.” In other words, antagonism is ever self-creating; one splits itself into two, one is transformed into its opposite, one remains in tension with itself, always producing and reproducing the possibility of antagonism. “Stasiology” is the permanent possibility of conflict; it is the autogenesis of the political.58 What are the implications of this conceptual innovation for Schmitt’s thought? The reformulation of the problematic of “political theology” in the form of “stasiology” is significant, for it points to the severing of the political from the question of the state, or the loss of the state’s monopoly on the political.59 It is now through the friend-enemy constellations and the mutations of enmity that one can access the politico-theological problem, not through the state as the ultimate site of the decision on the enemy—a decision that has been the sign and seal of its sovereignty.60 As enmity becomes radicalized, the enemy becomes the absolute other, the devil—the “axis of evil.” The withering away of clearly demarcated boundaries between institutions and actors, the injection of social conflict into hitherto apolitical matters, the crumbling of the European nomos, all render the state-centric focus impossible.61 Perhaps one could call this moment in Schmitt’s theory a move toward “public theology,” rather than

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“political theology,” given how much the political is originally implicated in statehood.62 Now, the break with the statist orientation of “political theology” and the recognition of how the theological contributes to the constitution of the political sphere through different communal interpretations and politicizations of faith lead to the formulation of a theology that is antagonistic without being state-centric. The exception, the decision, and the personalistic dimensions of sovereign power lose their centrality for “political theology”; however, sacrifice gains further significance. With the modern state, particularly with universal conscription and technological capabilities of warfare, political sacrifice, as the tie that continuously articulates the theological and the political, becomes more and more routinized and secularized, immanent and profane. In contrast to the modern state’s weakening bridge with the sacred, insurgent movements bring sacrifice to the center stage of politics. This is because their strategy of struggle deploys the sacrificial mobilization of their fighters, without, however, a globally recognized and legitimate state as their object of allegiance.63 These insurgents challenge the state’s monopoly on the demand for sacrifice and take into their hands the right over life and death commonly assigned to the sovereign state. By doing so, they not only threaten the sovereign power of established states, but they also reverse their secular pretensions by openly appealing to the sacred, thereby theologizing political struggle. In this realm, therefore, sacrifice further accelerates the disentanglement of the political from the state. The waning Leviathans around the world, weakened from within and without, Schmitt would say, parallel the resurgence of the theological. In our day, “political theology” merges with “theological politics.” Stasis remains. In the realm of theory, sacrifice, much more than the decision or the exception, constitutes the primary stasiological concept. Perhaps the absolutization of the enemy, in line with the irregularization of warfare, simply indicates the failure (or at best, the incomplete and inadequate nature) of the project of secularization. The theological was never eliminated from the political. Moreover, the very pretensions of radical secularism that professed the successful eradication of the theological from the public sphere seem to have brought it back with a vengeance. Of course, one could interpret this as a “return of the repressed.” However, what Schmitt’s “stasiology” allows us to see is precisely this: that even if secularization had not led to the resurgence of theologized enmity, theology itself would have still given way to divisions amenable to enmity. In other words, a “constitutive outside” or an external “other” is not really necessary for the generation either of enmity or of one’s identity. Just as one splits itself into two, the self turns against itself and



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becomes the other. In fact, the very absence of an external “other” may occasion the autogenesis of the “other” from within. The enemy may therefore be understood, as Theodor Däubler cogently put it, as “the embodiment of [our] own question.”64 Having reviewed the different meanings of Schmitt’s “political theology” and the various forms of the relationship between the political and the theological, we are now equipped to revisit the question of whether it is at all possible to get out of the circle Schmitt has drawn for us, the question of whether there is an outside. Schmitt teaches us that this question, formulated as such, is incorrect. What he recommends is that we ask not how to get out of the circle but how to remain within it. Against the background of an outside in which nothing is meaningful (and hence, deemed worthy of sacrifice), the eternal circle of “political theology” is the only solution Schmitt could offer—an inside in which the self-reproducing and pervasive nature of enmity provides a continuous source of faith and meaning. If Schmitt’s “stasiology” convincingly points out that we just might become our own (worst) enemies, it also proffers itself as the panacea: (only) “political theology” can save us from ourselves. “Stasiology” is Schmitt’s katechon against the nihilism he so fears in a world of democratized enmity and global injustice. However, following Schmitt, conceding the political nature of theology may also inspire us, going against the current of Schmitt’s thought, to engage and confront that nihilism squarely, and perhaps eventually, without the veil of theology.

Notes I am grateful to Richard F. Bensel, George Shulman, Bruce Rosenstock, Tim Jensen, the editors, and the anonymous reviewers for their valuable comments. . Carl Schmitt, Political Theology II: The Myth of the Closure of Any Political Theology, trans. and intro. Michael Hoelzl and Graham Ward (Cambridge and Malden: Polity Press, ), hereafter PT II, . . Carl Schmitt, Political Theology: Four Concepts of the Concept of Sovereignty, trans. George Schwab, intro. Tracy B. Strong (Chicago and London: University of Chicago Press, ), hereafter PT. Coined by Varro, the term was used by Bakunin against Mazzini in a pamphlet from which Schmitt has allegedly borrowed it. See Anna Schmidt, “The Problem of Carl Schmitt’s Political Theology,” Interpretation: A Journal of Political Philosophy , no.  (): –. . Heinrich Meier, Leo Strauss and the Theologico-Political Problem, trans. Marcus Brainard (Cambridge: Cambridge University Press, ), . . The meaning of neither term is free of contestation, of course. While the meaning of the political is relatively more obvious in Schmitt, via the friend-enemy criterion, the theological seems to indicate (and oscillate between) faith and revelation, on the one

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hand, and the systematization and institutionalization of religious experience, including its cultural and political manifestations, on the other. . The concept of “elective affinity,” inspired by Weber’s famous thesis of Wahlverwandtschaft between Protestantism and capitalism, is helpful to describe this relationship. Still, the relationship remains underspecified unless different degrees of affinity can be distinguished. Löwy’s elaboration of the concept approximates what I have in mind. He defines elective affinity as “a very special kind of dialectical relationship that develops between two social or cultural configurations, one that cannot be reduced to direct causality or to ‘influences’ in the traditional sense. Starting from a certain structural analogy, the relationship consists of a convergence, a mutual attraction, an active confluence, a combination that can go as far as a fusion.” See Michael Löwy, Redemption and Utopia: Jewish Libertarian Thought in Central Europe, A Study in Elective Affinity, trans. Hope Heaney (Stanford: Stanford University Press, ), –. . Meier, Leo Strauss and the Theologico-Political Problem, . See also Heinrich Meier, The Lesson of Carl Schmitt: Four Chapters on the Distinction between Political Theology and Political Philosophy, trans. Marcus Brainard (Chicago and London: University of Chicago Press, ). . Many reasons can be suggested to account for this evolution. Briefly, Schmitt may be responding to the shift in political conditions, the emergence of alternative “political theologies” (such as liberation theology), his own changing evaluation of modernity and modern technology, among others. For the latter position, see John P. McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, ). . Compare Jianhong Chen, “What Is Carl Schmitt’s Political Theology?” Interpretation: A Journal of Political Philosophy , no.  (): –. . For a succinct overview of Schmitt’s “political theology,” see Michael Hollerich, “Carl Schmitt,” in The Blackwell Companion to Political Theology, ed. Peter Scott and William T. Cavanaugh (Malden: Blackwell, ), –; and Jan-Werner Müller, A Dangerous Mind: Carl Schmitt in Post-War European Thought (New Haven and London: Yale University Press, ), –. . In this essay, I bracket Schmitt’s direct reflections on the Roman Catholic Church. Schmitt argues that Catholicism is “eminently political” not because it can survive (and even thrive) in every political situation (ranging from monarchy to democracy) but, rather, because it embodies an idea, an “ethos of belief,” without which politics cannot exist and with which the economic thinking of either liberalism or communism cannot contend. Catholicism’s political nature resides in “representation,” a personalistic vest for authority. Schmitt’s position here already points to the conceptual entwinement of politics and religion, a linkage that he develops theoretically in the works I analyze below. Carl Schmitt, Roman Catholicism and Political Form, trans. G. L. Ulmen (Westport, CT: Greenwood Press, ). . PT, . . For an alternative to Schmitt in the secularization debate, see Hans Blumenberg, The Legitimacy of the Modern Age, trans. Robert M. Wallace (Cambridge and London: MIT Press, ), –. . Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago and London: University of Chicago Press, ), hereafter CP, , my emphasis.



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. PT, . . Ibid., . . Ibid., . . CP, –. . The punishment of the criminal and/or the enemy may also constitute forms of “sacrifice” that go into the making and performance of sovereign power. While my treatment of sacrifice in this essay is limited to that of citizens in war, a broader conceptualization of sacrifice would also take into account the influence of de Maistre’s thought on Schmitt. For de Maistre’s ideas on sacrifice, see Joseph de Maistre, St. Petersburg Dialogues: Or Conversations on the Temporal Government of Providence, trans. and ed. Richard A. Lebrun (Montreal and Kingston: McGill-Queen’s University Press, ), –. . CP, . . Paul W. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (Ann Arbor: University of Michigan Press, ), . . For an interpretation of Schmitt’s “decision” from a sacrificial lens, see Wolfgang Palaver, “A Girardian Reading of Schmitt’s Political Theology,” Telos  (Fall ): –. . Agamben’s reading goes in a different direction. He argues that structurally linked with sovereignty is the figure of the “sacred man” (homo sacer), “the one who can be killed but not sacrificed.” This link is forged through the structure of the ban, a structure deriving from the separation of the one to be sacrificed from the world of the profane by passing over the threshold of violence. I understand “homo sacer” to refer to those who are rendered victims through the operation of sovereign power and not to those who sacrifice their lives in the name of sovereignty. Compare Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, ). . Henri Hubert and Marcel Mauss, Sacrifice: Its Nature and Functions, trans. W. D. Halls (Chicago: University of Chicago Press, ). . For the dual meaning of sacrifice as “august and accursed,” see Émile Benveniste, Indo-European Language and Society, trans. Elizabeth Palmer (Coral Gables: University of Miami Press, ), –. . CP, –. . Carl Schmitt, “The Age of Neutralizations and Depoliticizations,” Telos  (Summer ): –. . As Schmitt himself notes, “[A]ll political concepts, images, and terms have a polemical meaning” (CP, ). . PT, . . Erik Peterson, Le Monothéisme: Un Problème Politique et Autres Traits, intro. Bernard Bourdin, trans. Anne-Sophie Astrup and Gilles Dorival (Paris: Bayard Centurion, ). . CP, . . Ibid., . . Ibid., . . Ibid., , my emphasis. . Even technology, which is sought as the most depoliticized domain, is not im-

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mune to politicization, contends Schmitt, but will become another arena of conflict between forces that are able to master and take advantage of it according to their disputes (“The Age of Neutralizations and Depoliticizations,” –). . Blumenberg, The Legitimacy of the Modern Age, . . PT, . . György Geréby, “Political Theology versus Theological Politics: Erik Peterson and Carl Schmitt,” New German Critique , no.  (): –. . PT II, –. . For an insightful discussion on the katechon, see Steven Ostovich, “Carl Schmitt, Political Theology, and Eschatology,” KronoScope , no.  (): –; and Wolfgang Palaver, “Carl Schmitt’s ‘Apocalyptic’ Resistance against Global Civil War,” in Politics and Apocalypse, ed. Robert Hamerton-Kelly (East Lansing: Michigan State University Press, ), –. . PT II, . . Brian E. Daley, S.J., Gregory of Nazianzus: Early Church Fathers (Oxfordshire and New York: Routledge, ). . St. Gregory of Nazianzus, On God and Christ: The Five Theological Orations and Two Letters to Cledonius, trans. Frederick J. Williams and Lionel R. Wickham (Crestwood: St. Vladimir’s Seminary Press, ). . PT II, . . Ibid., . . Ibid., . . Ibid., . . Ibid. . Carl Schmitt, Theory of the Partisan: Intermediate Commentary on the Concept of the Political, trans. G. L. Ulmen (New York: Telos Press, ), and The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, trans. G. L Ulmen (New York: Telos Press, ), esp. part IV. . PT II, . . According to Phillip Gray, Schmitt’s is a “re-paganized” political theology specific to post-Reformation societies in which the rivalry between the church and state has given way to the absolute primacy of secular authority. Phillip W. Gray, “Political Theology and the Theology of Politics: Carl Schmitt and Medieval Christian Political Thought,” Humanitas , no. – (): –. . PT II, . . Ibid., . . On “stasis,” see Nicole Loraux, The Divided City: On Memory and Forgetting in Ancient Athens (New York: Zone Books, ), –. . PT II, . . Ibid., . . Schmidt, “The Problem of Carl Schmitt’s Political Theology,” –. . PT, . . Unlike Meier and Schmidt, I do not think that the enemy is always defined according to the (hidden) theologico-political problem for Schmitt. See Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue (Chicago and London: University of Chi-



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cago Press, ), , –, and The Lesson of Carl Schmitt, ; and Schmidt, “The Problem of Carl Schmitt’s Political Theology,” . . PT II, . . For different kinds of enmity in Schmitt’s thought, see Gabriella Slomp, “The Theory of the Partisan: Carl Schmitt’s Neglected Legacy,” History of Political Thought , no.  (): –; G. L. Ulmen, “Return of the Foe,” and George Schwab, “Enemy or Foe: A Conflict of Modern Politics,” Telos  (Summer ): – and –. . PT II, ; CP, . . Max L. Stackhouse, “Civil Religion, Political Theology and Public Theology? What’s the Difference?” Political Theology , no.  (): –. . Schmitt, Theory of the Partisan. I make this point in greater detail in my “Unleashing the Acheron: Sacrificial Partisanship, Sovereignty, and History,” Theory and Event , no.  (Spring ). 4. The verse in German reads: “Der Feind ist unsre eigne Frage als Gestalt” (Theodor Däubler, “Sang an Palermo,” Hymne an Italien [Munich: Georg Müller, 1916], 58). Schmitt’s numerous allusions to Däubler’s verse are traced and discussed in Meier, The Lesson of Carl Schmitt, 44, 53, 58; and Meier, Carl Schmitt and Leo Strauss: The Hidden Dialogue, 4, 27–28, 70–71, 82, 87.

chap ter eig ht

Against Sovereign Impunity The Political Theology of the International Criminal Court bruce rosensto ck As unerring justice dwells in a unity, and as one judge will at last judge the world beyond all appeal, so—though often here below justice be hard to attain—does man come nearest the mark when he imitates that model divine. —Attributed to King Media of Odo in Herman Melville’s Mardi

Justice and Impunity In Eichmann in Jerusalem, Hannah Arendt suggested that one might perhaps encounter international criminal justice in its purity when the offender is punished by a single individual acting alone rather than by a state or even a coalition of states. Arendt was not endorsing vigilante justice, but rather attempting to disclose the special problem posed by prosecuting individuals who have committed crimes against humanity. Who can better represent the offended party—humanity—than the single individual? Crimes against humanity are not thought to be violations of the “rights of the citizen” but of the fundamental human dignity of the single individual. Also, crimes against humanity, as the legal phrase goes, “shock the conscience,” and it is the single individual whose conscience is the seismograph registering the “shock” of the crime. And, finally, the offender on the dock is being tried not as an official of a state, but as a single individual. The justice brought to bear when one tries crimes against humanity, then, is in its essence a justice exercised between single individuals. But there can be no system of justice where a single individual is judge, jury, and executioner. The single individual must ultimately surrender her claim to be humanity’s conscience to an institution in which the “shock” of her conscience can be publicly recorded, measured, and, if the evidence warrants, vindicated. The two cases



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Arendt mentions—Shlomo Schwartzbard’s killing of the Ukrainian pogromist Simon Petlyura and Soghomon Tehlirian’s killing of the Armenian pogromist Talaat Bey—took place where no institutions existed to prosecute the pogroms. Both men gave themselves over immediately to be tried for murder, thus creating an institutional framework in which to bring justice to bear upon monstrous crimes that had been perpetrated with impunity, which, following the Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights in , we might define as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account.” Schwartzbard and Tehlirian acted not only to punish criminals but also to rectify the law itself. Their aim was to put an end to impunity. “[He] who takes the law into his own hands,” Arendt writes, “will render a service to justice only if he is willing to transform the situation in such a way that the law can again operate and his act can, at least posthumously, be validated.”1 I will argue in this essay that the International Criminal Court (ICC) is the embodiment of such a sovereigntyless conscience of humanity. With every case it brings, it places itself on trial for the charge that it is merely a tool of ideologies and vested interests hiding beneath the legal veneer of universal jurisdiction. Acting in the name of the Schwartzbards and Tehlirians of the world, the ICC is no less fallible than the single shocked conscience it seeks to represent: its justice is never assured, even if (perhaps better: especially when) all procedural principles have been duly followed. In the next section I will begin with a brief account of the origin and aims of the International Criminal Court, and then turn to the task of explicating its implicit political theology. Since, as I will argue, its political theology subordinates sovereign power to divine rectificatory justice, I will need to address Carl Schmitt’s defense of sovereignty as the highest instance of legitimate theologico-political power in the modern world. Schmitt, like the fictional King Media of Odo in the epigraph to this essay taken from Melville’s Mardi, claims that human justice must imitate and take the place of the “divine model” that will operate “at last”—that is, in the Last Judgment. Human justice, dwelling in the “unity” of the sovereign as divine justice dwells in the one God, imitates its divine model, according to Schmitt, in being “beyond appeal.”2 If this is the true nature of human justice, it is clear that the ICC, an international tribunal without sovereign power, cannot embody it. In order to defend the ICC as the representative of the “shocked conscience” of the single individual, I will turn to a concept of justice that stands precisely in opposition to sovereign justice as the sole embodiment of divine justice on earth. This oppositional concept of

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justice, I will argue, is seen most clearly in John Locke’s notion of a justice that allows the single individual to “appeal to Heaven” against his sovereign. Rather than the apocalyptic justice of the Last Judgment, this oppositional justice is modeled on divine rectificatory justice, which restores justice when sovereign power acts with impunity. In making my argument, I follow the lead of Ernst Bloch in Natural Law and Human Dignity.3 In this book, Bloch seeks to recuperate a tradition of legal thought concerning natural law, without endorsing all the philosophical and theological concepts that have historically accompanied it. Bloch’s history of natural law thinking is intended to reveal a human impulse to reject oppression and appeal to a higher justice than mere might. Bloch finds what he calls “justice directed from below” in places where one might least expect it: in Dante’s Divine Comedy, for example, where one finds popes in Hell but the prostitute Rahab in Paradise. “Dante did not learn this justice from a Thomism that is respectful of authority,” Bloch writes, “but from his exile, from a pathos for a prophetic justice instead of a pathos for an administrative and forensic justice.”4 I find this same “pathos for a prophetic justice” in John Locke’s notion of an “appeal to Heaven,” and I will explicate this formulation of “justice directed from below” as the basis of the justice pursued by the ICC against crimes against humanity perpetrated under cover of sovereign immunity, an immunity that is merely another name for sovereign impunity.

The ICC, Carl Schmitt, and the Two Sides of Divine Justice In February  the trial of Thomas Lubanga began in The Hague at the ICC. The trial of Lubanga for war crimes committed in the Democratic Republic of the Congo is the first trial to be carried out at the ICC since the treaty governing the ICC known as the Rome Statute entered into force in .5 The Democratic Republic of the Congo is a States Party to the ICC and referred the Lubanga case, along with two others, to the ICC. Uganda and the Central African Republic have also referred a total of four cases to the ICC, but no trial is currently underway (as of October ). In March , the ICC also issued an arrest warrant for ‘Umar Hassan al-Bashir, the sitting head of state in Sudan.6 The case against President al-Bashir was referred to the ICC by the Security Council of the United Nations. It is perhaps disconcerting to see that the “situations” on which the ICC has so far focused are all found in postcolonial African states. I am not willing, however, to call the integrity of the ICC into question at this early stage of its history, and will in fact propose a concept of justice by which the integrity of the ICC might be measured.



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The ICC is established to be an independent judicial institution constituting a world court of last resort when, in the words of the Preamble to the Rome Statute, the “gravest of crimes” that “shock the conscience of humanity”7—war crimes, crimes against humanity, and genocide—go unpunished, either because of the unwillingness or the inability of municipal judicial orders to investigate and prosecute the crimes.8 The Rome Statute provides for jurisdiction of the Court over all signatory States Parties as well as any state that registers with the Court in order to grant it temporary jurisdiction. Crimes may be referred to the Court by the States Parties or the United Nations Security Council, or they may be investigated proprio motu by the prosecutor of the court.9 The jurisdictional claims of the ICC have not gone unchallenged. The universalist claims of a world “court of last resort” clearly are in tension, for example, with a sovereign state’s claim that final judgments issued in its municipal courts cannot be appealed to or overturned by courts of a putatively “higher,” supramunicipal jurisdiction. States Parties to the Rome Statute, however, are required by Article  to surrender up to the ICC a national who has been acquitted in one of its municipal courts if that acquittal was, in the eyes of the ICC prosecutor, “inconsistent with an intent to bring the person concerned to justice.” This possibility of “double jeopardy” represents a serious qualification of municipal due process, a qualification that has been flatly rejected by the governments of China, Iran, Israel, and the United States. Alfred P. Rubin, a jurist who has written extensively on the theoretical and practical problems facing international criminal tribunals, asks pointedly, “[Is] it a ‘progressive’ development of the ‘law’ which eventually gives to some person or organization the authority to decapitate a major state or its army in the interest of what its ‘administrators’ define as a ‘community’ demand for ‘justice’?”10 I will argue in what follows that the conflict between the jurisdictional claims of the ICC and the opposing claims of sovereign states must be understood within the horizon of the shift in political theology that emerged in the seventeenth century with the Peace of Westphalia treaty in . The political theology of the new order of Christian states, the so-called ius publicum Europaeum, was shaped first and foremost by the idea that peace among Christian states did not rest upon the old medieval notion that all sovereigns stood beneath the spiritual rule of the Catholic Church. That order was shattered with the Protestant Reformation. After a century of religious wars, the new European order of sovereign states neutralized all further theologico-political strife by declaring each sovereign state to be the final arbiter of its Christian identity. No Christian state can declare another to be an instrument of the “Antichrist” and use this declaration as a pretext for war. Every Protestant monarch and

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every Catholic monarch agreed, in other words, no longer to wage total war against the other. On the other hand, beyond the borders defined by the ius publicum Europaeum, each sovereign state was free to declare its enemy to be an embodiment of the Antichrist, an enemy of (Christian) humanity itself. The first such “enemy of humanity” (hostis humani generis) was the pirate, then the “infidel” (whether the “Turk” or the native of the New World). As a defender of the security of Christendom, each sovereign was tasked with the responsibility of at least holding at bay such Antichristian forces. If the pirate as “enemy of humanity” became one of the key figures of international jurisprudence, this signifies that the international legal order stands within a theologico-political horizon that seeks to neutralize apocalyptic war by projecting the Satanic elements beyond the borders of Christendom. However, according to Carl Schmitt, the twentieth century witnessed the disappearance of the post-Westphalian boundary separating total, apocalyptic war from “just wars” based upon the premise that a peace treaty is the goal of the conflict. Schmitt points to the fact that after World War I, many European international jurists sought to criminalize war itself, making the “aggressor” state into a “criminal against humanity,” thus turning it into a “pirate” or “rogue” state. We may see the beginnings of this new concept of international law, coming to the fore in the Kellogg-Briand Pact of , already in the nineteenth century. In the first quarter of the century, the European slave trade was placed in the same legal category as piracy. Although it may seem as if international law was becoming more morally enlightened and more humane, what was actually happening, Schmitt argues, is that sovereign power (the power to declare who is and who is not an enemy to be fought as the embodiment of the Antichrist) was being stripped away by a new claimant to this sovereign power, whether it be the League of Nations or the United Nations. Schmitt sees this delegitimizing of sovereign power to be, in fact, nothing more than the power grab of the strongest sovereign power(s) acting under the cover of defending humanity itself against its enemies, the “rogue” states that resist the hegemony of the international order. Schmitt argues that the putatively morally enlightened international order represented in the Kellogg-Briand Pact was simply a hypocritical cover for the realpolitik of the victors of World War I. After World War II, Schmitt took aim against the Nuremberg war crimes tribunal, consisting as it did of judges from the victorious nations who placed the leaders of the defeated enemy on trial for the crime of waging a “war of aggression.” After nuclear bombs fell on Hiroshima and Nagasaki, Schmitt concluded that it is an inescapable reality of the new international order that an apocalyptical enemy will be targeted for annihilation. That enemy will be declared a “criminal against



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humanity.” The only question for Schmitt is: Who will judge? (Quis iudicabit?). It is axiomatic for Schmitt that the power that judges is always sovereign power. If this is true, then there can be no true international justice over and separate from sovereign power. There is only a new form of sovereign power wielding weapons of annihilation and claiming to act in the name of humanity itself. If Schmitt is right, the ICC, whatever the intentions of its creators, can be nothing more than an instrument of sovereign power(s) using the legal category of “crime against humanity” to “decapitate” other states, as Alfred Rubin puts it. I will argue against Schmitt that, rather than sovereign justice, the ICC represents what I call “rectificatory justice,” which is the same as the “justice directed from below” that Ernst Bloch discovered at the heart of the natural law tradition. In order to uncover a conception of justice that counters the Schmittian conception of sovereign (apocalyptic and annihilationist) justice, I will revisit the historical scene where sovereign power and the ius publicum Europaeum emerged in the period of the Treaty of Westphalia. At exactly this time a countervoice against the rising absolutist state began to be heard, the voice that spoke from a “pathos for prophetic justice.” It is that countervoice that I want to attend to now.

Sovereign Impunity and the “Appeal to Heaven” I have previously described the emergence with the Peace of Westphalia of a new political theology of sovereign power, but it bears a brief recapitulation. Seventeenth-century theoreticians of the absolutist state, such as Jean Bodin and Thomas Hobbes, defined the sovereign as the judge of last appeal in all cases, including cases of religious disputes, within his territory. No higher judge is recognized with the power to try and condemn the sovereign under natural, positive, or divine law. The fundamental law of war between Christian sovereign states is that no war will be pursued to the point where the enemy is annihilated, as if God had empowered them to execute the Last Judgment upon the other. Each sovereign agrees to end hostilities with a peace treaty that leaves the other sovereign state with territorial integrity and, to put it simply, more time on earth. Holy wars are, in principle, excluded among the European powers. As noted earlier, outside the boundaries of the European territorial peace, each sovereign state may, and indeed is obligated to, defend Christendom against the “infidel.” Thus, in North America for example, we find Increase Mather framing the English colonists’ war with the Indians that took place from  to  (the so-called King Philip’s or Metacom’s War) as an end-time war against the enemies of the Lord. Mather declared that “if we keep in mind the means

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and way whereby our deliverance hath thus been accomplished, we must needs own the Lord in all. .€.€. God hath wasted the Heathen, by sending the destroying Angell amongst them.”11 Despite the fact that Mather believed that the Roman Catholic Church was “the Antichristian state,” he affirmed that it was only against the “Heathen” that one may legitimately take up arms under the banner of the Lord’s “destroying Angell.” With the investiture of the sovereign as the final arbiter of justice on earth, the peace of Christendom is secured. The human sovereign is no longer, as he was for Aquinas, for example, a figure hemmed in by natural and divine law, both of them graspable by human reason, albeit in the case of divine law not without the aid of revelation. The human sovereign after the Peace of Westphalia has become a law unto himself, and this law may seem utterly outside of reason. It is not without justification that Walter Benjamin begins his major essay on Kafka, the modern writer most concerned with the operations of law beyond the limits of reason, with a story told about the absolutist court of Catherine the Great in which the Chancellor Potemkin, the empress’s highest minister, has retreated into his bedroom in a melancholic fit. One minor official, named Shuvalkin, takes it upon himself to force Potemkin to sign the documents that are necessary for the state to function. He enters the bedroom, puts a quill in Potemkin’s hand, and simply says, “Sign.” Potemkin distractedly complies. Shuvalkin proudly brings the documents before the other court officials, but his accomplishment is revealed to be worthless after all: all the signatures read “Shuvalkin.” “Potemkin,” Benjamin explains, “is an ancestor of those holders of power in Kafka’s works who live in attics as judges or in the castle as secretaries, no matter how highly placed they may be, they are always fallen or falling men.”12 In the baroque absolutist court, divine power has fallen into human hands; human sovereignty is authorized—underwrites itself—by its sheer power to continue to enact statutes even in a world from which God has withdrawn himself. The signature “Shuvalkin” unmasks the pretense of power, though it does nothing to change it.13 If we therefore may, with Benjamin’s guide, apply Kafka’s insight to the baroque world of the absolute sovereign, we see that that sovereign is a theologico-political monster. It is an artificially constructed hybrid creature, part god and part human (Hobbes’s “mortal god”). The divine realm has metamorphosed into the shape of an all-powerful sovereign whose acts embody justice simply because they are his acts.14 The intentionality of the acts may be hidden from view (secrets of state) or the acts may have no comprehensible intentionality at all. Whatever the case may be, it is definitionally impossible that a sovereign’s judgment concerning a subject’s guilt or innocence could be found



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“inconsistent with the intent to bring the person to justice” in the words of the Rome Statute Preamble. Such is the nature of the indictment brought against K. in Kafka’s The Trial: its condemnation of K. is just even in the absence of a trial. It is not that the absolute sovereign always intends justice. Rather, intention is not a criterion of the justice of the sovereign’s judgment. However incomprehensible and arbitrary his acts may be, the absolute sovereign always acts justly. The sovereign is the monstrum—the visible and concrete sign—of a divine justice that has acquired human form without the animating intention to do what is just. It simply judges who shall live and who shall die. The sovereign, operating in the void without any higher authority, is a sort of “perpetual motion” machine: it issues and enforces its judgments without any inertial drag. It functions like Kafka’s execution machine in “In the Penal Colony,” simultaneously promulgating and enacting the law on the body of its subjects. We may see in Kafka the pre-eminent writer of the twentieth century for whom the monstrosity of sovereign power is the hidden reality of modern life. For Schmitt, that hidden reality must once again reveal itself if the hypocrisy of the new international legal order after Versailles is ever to be overcome. It is time now to listen to the countervoices who continue to speak of a justice challenging sovereign power’s immunity—in other words, a justice beyond the monstrosity of sovereign impunity. The theologico-political monstrosity of the absolutist state becomes the object of vigorous critique in the seventeenth century. John Locke, one of its more moderate critics, allows us to see quite clearly the theologico-political horizon within which both the absolutist and the later Enlightenment conception of sovereignty operate. In his Second Treatise of Government, Locke describes the state of nature in which all humans are equal and independent, the property and “servants of one sovereign master,”—God—and each human is required not only to preserve his own life, but to “preserve the rest of mankind.”15 When there is no “superior on earth to appeal to,” the condition is a state of nature in which each individual represents a judge in a court of last appeal. This is not a lawless and rightless state, but rather a state in which humans are administrators of divine justice. This divine justice, however, is not divine apocalyptic justice, where the other human is an existential enemy to be annihilated. Rather, the state of nature represents divine restorative justice in which injured rights are restored and threatened rights are protected. Men living together according to reason, without a common superior on earth, with authority to judge between them, is properly the state of nature. But force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an

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appeal gives a man the right of war even against an aggressor, tho’ he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defense, and the right of war.16

Locke thus counters Hobbes’s view that the state of nature is a “war of every man against every man” in consequence of which “nothing can be unjust.” Hobbes sees the absence of a “superior on earth to appeal to” as evidence that it is wrong to speak of any aggression in the state of nature as unjust: “Where there is no common power, there is no law; where no law, no injustice.”17 Since for Locke the state of nature is one where humanity is bound by laws obligating each individual to preserve the life of all others, then in the state of nature each individual has universal jurisdiction to prosecute those who break the law of nature. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.18

Locke thus argues that every individual in the state of nature has a “right .€.€. of preserving all mankind” that grants him universal jurisdiction over all those who injure all mankind. Any individual injures all mankind if he commits a crime “which consists in violating the law, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature.”19 Such a “degenerate” criminal has, “by the unjust violence and slaughter he hath committed upon one, declared war against all mankind, and therefore must be destroyed as a lion or a tiger, one of those wild savage beasts, with whom men can have no society nor security.”20 In acting on behalf of all humanity, the individual in the state of nature is not like an absolute sovereign whose judgment is, by definition, just. Rather, each individual in the state of nature appeals to God as judge: “Where there is no judge on earth the appeal lies to God in Heaven,” Locke declares.21 There is a grave danger, however, that the individual in the state of nature might turn into someone whose entire being is consumed with executing judgment upon the “savage beasts” who diabolically refuse to recognize the law of God and nature. There is clearly a need to place a curb on the individual right to execute divine punitive justice over the enemies of humanity, but Locke is persuaded that the sovereign state (or even a federation of sovereign states) is not the place to lodge that right.



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Locke seeks the curb on the individual’s right to execute divine justice in the idea of an “appeal to Heaven.” His view that every individual has a right to such an appeal is central to his critique of the Hobbesian absolute sovereign. The absolute sovereign is the very embodiment of divine apocalyptic judgment—that is, of the Last Judgment, over his subjects. There can be no “appeal to Heaven” against the absolute sovereign. But, for Locke, no human gives up his right to appeal to Heaven when entering civil society, and therefore the individual retains a right to re-enter a state of nature and put an end to the compact by which he joined a commonwealth: The old question will be asked in this matter of prerogative, “But who shall be judge when this power is made right use of?” I answer: Between an executive power .€.€. and a legislative that depends upon his will for their convening, there can be no judge on earth. As there can be none betwixt the legislative and the people, should either the executive or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them, the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven. .€.€. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior to determine and give effective sentence in the case, yet they have reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to make their appeal to Heaven. And this judgment they cannot part with.22 [emphasis mine]

For Locke, a state of war exists between an executive and the people when the executive, no longer willing to allow for the legal redress of the people’s complaints, is “made licentious by impunity.”23 In a condition where those in power can act with impunity, the civil state can be (indeed, ought to be) dissolved. The people can then “make their appeal to Heaven” and go to war against the “licentious” power that seeks “to enslave or destroy them.” Locke ultimately rests this right of civil war upon the conscience of the individual: “For where there is no judicature on earth to decide controversies amongst men, God in heaven is judge. He alone, it is true, is judge of the right. But every man is judge for himself, as in all other cases so in this, whether another hath put himself into a war with him, and whether he should appeal to the supreme Judge.”24 Civil war was precisely the thing Hobbes’s sovereign was set up to avoid; for Locke, civil war is the only remedy for (and the only curb upon) sovereign impunity, when there is no higher human court of appeal to hear one’s grievance and rule against the sovereign. To understand the nature of the rectificatory justice that Locke is employing in his doctrine of the right of an “appeal to Heaven,” it helps to note that Locke’s rectificatory justice is exactly what contemporary authors spoke of as “equity.”

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Equity is a justice of the exception—that is, the justice that holds when “every man is judge for himself ” in cases that cannot be settled by the normal application of a standing rule. In the seventeenth century, it was to principles of equity that religious and political dissenters appealed when attacking the “tyranny” of royal rule. Equity justice was in Roman jurisprudence thought to reside not in a written code but in the conscience (in foro conscientiae) of the judge. Indeed, in British and American equity law decisions one frequently finds that the price paid to a property owner in certain cases was declared to be so “grossly” out of proportion to the value of the property as to “shock the conscience.”25 We have seen that this phrase appears in the Preamble to the Rome Statute. The conjunction of equity principles, conscience, and seventeenth-century dissent is perhaps most clearly expressed in a text of the Quaker founder George Fox.26 Here Fox addresses himself to Chief Justice Glynn concerning the injustice of being forced to remove his hat in the presence of ministers and magistrates in Cromwell’s government: Surely, friend, that must needs be a very great offence which deprives a man of justice, of being heard as to wrong, of the benefit of the law, and of those laws aforerehearsed, to defend the justice and equity of which a man hath adventured his blood and all that is dear to him. But to stand covered (or with the hat on) in conscience to the command of the Lord, is made by thee such an offence (which is none in law) and rendered upon us (who are innocent, serving the living God) effectual to deny us justice, though the laws of God, and of man, and the oath, and equity, and reason, saith the contrary.27

Locke’s vehement rejection of the absolutist monarch’s pretension to represent justice on earth without appeal leads him to argue for a right of civil war as a consequence of the people’s conscientious “appeal to Heaven.” The same antiÂ�absolutist spirit infuses the Quaker conscientious rejection of oaths and removal of hats in the name of a divinely legitimated equity justice, and also informs the emancipatory discourses that emerge the following century in the French and American revolutions. These emancipatory discourses, which Michel Foucault has described as “counterhistorical,” first make their appearance “in the context of the popular or petit bourgeois demands that were being put forward in prerevolutionary and revolutionary England,” demands that continue to inform Locke’s Two Treatises.28 Foucault speaks of these demands as forming a “counterhistorical” discourse because they stand opposed to the history of sovereignty—a “Jupiterian” history—descended from the Roman Empire, a history that stresses the sovereign as the pacifier, bringing order to chaos and holding at bay the enemies at the frontier. Foucault puts his finger on the religious basis of this counterhistorical, antiabsolutist discourse when he says it



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is “articulated around the great biblical form of prophecy and promise.” 29 The divine justice to which this discourse appeals is not the unappealable justice of the Last Judgment, but precisely the justice that emancipates the Israelite slaves from their Egyptian bondage. It is not focused on punishing the pharaoh as the enemy of God, but on “hearing the cry” of those who have been oppressed by his power. This “appeal to Heaven” is the appeal for emancipatory, revolutionary justice against the unjust order created in the name of a false peace. The most insidious assault against the “counterhistorical” discourse in Locke is the one launched by Hegel. When in his Philosophy of Right Hegel declares (quoting Schiller) that “world history is a court of judgment,” he has restored sovereign power to its right of exercising the Last Judgment over both its subjects and the rest of the world.30 The Last Judgment, however, is no longer an apocalyptic end of history: it is history itself. Once the state emerges on the world scene, every war ends history and begins a new history. Locke’s conscientious “appeal to Heaven” is utterly foreclosed, not just because history itself is, for Hegel, the court of last appeal, but because the appeal to conscience—an appeal based on one’s sense that one has been made into a mere object of another’s enslaving force—is only answered in the progress of history itself as the unfolding of Freedom. For Hegel, “[W]orld history is not the verdict of mere might” but rather “the necessary development, out of the concept of the mind’s freedom alone, of the moments of reason and so of the self-consciousness and freedom of mind.”31 Whenever a state becomes in a particular epoch the “vehicle in the world mind’s development,” Hegel asserts, “the minds of the other nations are without rights and they .€.€. count no longer in world history.”32 In Hegel’s historicist defense of sovereign power, the human conscience has become an empty and abstract form of self-consciousness that can be filled only by the ethical substance of the state. In order to recover Locke’s notion of the conscience as seat of an “appeal to Heaven,” it is necessary, first of all, to take back the foundational idea that neither the state nor History can be the locus of the court of last appeal. One can then allow the conscience to acquire its “ethical substance,” as we already see in Locke and George Fox, precisely in its rejection of the sovereign state as court of last appeal. It is necessary, in other words, to find a way to allow the conscience to declare its “No” against Hegelian historicism. Neither a nation-state nor a national culture can represent the shocked conscience of humanity itself. Human rights advocates often speak eloquently of the rights of what Hegel calls “the minds of the other nations” when they defend the rights of all peoples to flourish within their separate and autonomous cultures, but they remain squarely within the Hegelian historicist

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perspective. A multicultural “world mind” still privileges the nation and the people over the individual, and still is deaf to appeals from the individual conscience. An international law regime that protects cultural rights is certainly desirable, but it does not break with the discourse of sovereignty. I am not advocating a return to Locke’s concept of natural law and the universal jurisdiction of the individual to judge crimes against all humankind. Hegel is right that “to have a conscience, if conscience is only formal subjectivity, is to be on the verge of slipping into evil.”33 As Arendt pointed out in discussing the killings committed by Schwartzbard and Tehlirian, any conscience that seeks to exercise its universal jurisdiction over humankind must submit itself to the law, but what law? The Rome Statute of the ICC, I believe, offers one, albeit imperfect, example of what such a law might look like.

The Rome Statute and “Impunity” It is significant, I think, that the Rome Statute makes no mention of human rights in its Preamble, but rather appeals in its first paragraph to a historicist description of the “delicate mosaic” of “cultures pieced together in a shared heritage.” International criminal law, it affirms, seeks to protect this delicate mosaic from “shattering.” This historicist justification for the international criminal law governing the ICC seems rather weak, and, as I have just argued, it ultimately capitulates to a Hegelian view of world history as a world court. In effect, the ICC would be a defanged “world mind” transformed into a “delicate mosaic.” This world mind cannot be a source of justice. It is appropriate to declare one’s principled opposition to Hegel’s idea that national “minds” can lose all their rights as History passes them by in its march toward Freedom, but the justice to which the Rome Statute appeals must, in the end, stand beyond History, and must not require legitimization by any verdict of History. It is not in the name of any historical value attaching to cultural diversity that the Rome Statute opposes genocide. The Rome Statute does not establish a world museum, but a world tribunal. It is in the name of the shocked conscience of humanity that it bases its claim to be a tribunal of last appeal. And what exactly shocks the conscience of humanity? It is not only the crime itself. It is the impunity with which the crime has been perpetrated. The kind of justice in whose name the ICC operates is not that which unfolds in history or that ends history. It is the justice that Locke’s counterhistorical, emancipatory discourse called upon. The Rome Statute Preamble makes no explicit theological declarations. It certainly does not appeal to natural law, nor does it even gesture in the direction of a “law of nations” that undergirds posi-



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tive law. It relies almost entirely on the claim, first, that certain crimes “shock the conscience” and, second, that such crimes should not go unpunished. I have shown that the expression “shock the conscience” has its origin in equity jurisprudence and is used to refer to a “gross” disparity between two valuations of property. Crimes against humanity “shock the conscience” because of the gross disparity in the valuation of human life itself: its “infinite” worth even in the single human, as compared with its reduction to a valueless thing, the equivalent of a waste product, by the criminal. But the shock to conscience also comes from the disparity between the enormity of the crime and the failure of the law to punish it. To restore justice it is necessary to establish a permanent record of the crimes, to publicly record the shock to the conscience, and to bring an end to such impunity. This is what rectificatory, equity justice demands; it is not a police action against “rogue states” with the aim of eradicating a threat to the global order of “civilized” nations. The Rome Statute may not invoke theological concepts, but its insistence that the ICC is established primarily to ensure that grave crimes that shock the conscience do not go unpunished suggests that it sees itself as a court before which the naked conscience’s “appeal to Heaven” can be heard. Such legitimacy as it has is not different from the legitimacy of the acts committed by Schwartzbard and Tehlirian. Although the ICC places the punishment of the criminal at the end of the judicial process, this process does not really begin with a defendant believed to be innocent in any more than a purely formal sense. The judicial process aims to create a permanent record of crimes that have gone unpunished. Its impartiality and scrupulous protocols of evidence are not intended to protect the defendant so much as to protect the integrity of the record against him. The memory of the victims is at stake. The focus on ending the perpetration of grave crimes with impunity moves in the direction of the idea that certain types of injustice call out for punishment if the very existence of justice in the world is to be sustained. We find this notion in the Hebrew Bible when it uses the metaphor of “blood calling out” to God to characterize an egregious injustice committed with impunity. The Rome Statute, whether deliberately or not, conjures a form of justice that restores the very principle of justice itself, against the stain of impunity. While drawing most significantly from Foucault’s “counterhistorical” discourses that demand a restoration of rights from what Locke called “power made licentious by impunity,”34 the Rome Statute also situates itself within a theologico-political framework of a divine justice that will not let human power grow unchecked. If one asks after the foundation of this repugnance for impunity, I think it would not be possible to do better than to answer with Ernst Bloch that

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it lies in the “noble power of anticipation of something ‘better’ than that which has ‘become.’”35 Anticipating a future more in conformity with its aspirations for both happiness and dignity, oppressed humanity envisions justice as the principle that overturns self-legitimizing violence. This “justice directed from below” speaks its complaint in the name of what Bloch calls “uprightness as a right.”36 Uprightness as a right is not some innate property of the human being; it is created in the very fact of standing upright before proud impunity and appealing for justice beyond the sheer facticity of a deed that seeks to shock the conscience into mute awe. Against the onslaught of “shock and awe” there is only one recourse: to stand upright before the tribunal of justice and voice one’s charge. The ICC is a unique institution in the history of international criminal jurisprudence. There have been ad hoc tribunals set up to try grave crimes after World War II, after the wars in Serbia and Croatia, and after the genocide in Rwanda. Hannah Arendt famously argued that the Eichmann trial should have been undertaken not by a national Israeli court but by a supranational court sitting in Jerusalem whose charge was to prosecute “crimes against humanity perpetrated on the body of Jewish people.” Even if the judges were all Israeli citizens, Arendt would have wanted them to claim universal jurisdiction to act on behalf of all humanity. She objected to making Eichmann’s crime of genocide into a crime against one people, so that jurisdiction to prosecute depended upon a sovereign state representing that one people. Arendt was sensitive to the charge that the Nuremberg tribunal represented the interests of those sovereign nations with the power to enforce their jurisdiction upon their defeated enemy. No less a figure that Hans Kelsen had advanced this very critique.37 Arendt believed that if Israel was to create a morally and legally persuasive precedent in the prosecution of the crime of genocide, it would need to do better than Nuremberg. It would need to enact justice on behalf of all humanity, and be willing to hear evidence even if it suggested moral and possibly legal culpability on the part of some Jews. Whatever one may think of Arendt’s critique of Israel’s prosecution of Eichmann, her larger point remains important: when it comes to crimes against humanity, the tribunal that prosecutes and tries such crimes must not do so in the interests of any single nation. It must represent the conscience of humanity acting against “power made licentious by impunity.” The ICC precisely is constituted in the spirit of Arendt’s plea for a justice that transcends the power and the interests of the sovereign nation. The ICC was deliberately separated from the governance of the United Nations because it represents neither one nation nor any group of nations, however extensive. Rather, the ICC seeks to represent



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“the international community as a whole.” These words are vague, to be sure, but the phrase “as a whole” suggests that something other than a collectivity of sovereign states is meant. Indeed, the court is created by the Rome Statute as possessing its own “international legal personality.” It is not the creature of any international body. Its institutional basis is as fragile as the shocked conscience of the individual in whose name it declares that it is acting. Significantly, it summons individuals to appear before its tribunal, and it makes no pretense of judging states. The justice it represents, if it is true to its principles, must remain at the level of the single individual: one conscience confronting one perpetrator, one conscience against “power made licentious by impunity.” One final point. By focusing on impunity as the source of the right of appeal to the ICC, the Rome Statute disavows any attempt at bringing an end to crimes against humanity. Its goal is not pacification. It does state that the existence of the tribunal may act as a curb against such crimes, but it seems certain that sovereign power will never cease to tempt regimes into acting as executors of apocalyptic, punitive justice against enemies both within and without their borders. Nor will nonstate agents with an apocalyptic or eschatological sense of mission cease to pursue their aims in the name of divine punitive justice. The only recourse against apocalyptic justice is the side of divine justice that cannot bring itself to end history until every appeal has been heard and answered, every injury repaired. Walter Benjamin’s “Angel of History” is the melancholic symbol of this side of divine justice. She wields no “terrible and swift” sword, and her only ally is the naked human conscience that dares to claim uprightness as its right and dares to say “No” to sovereign impunity. The ICC, although it is a court of last appeal, is not and never should seek to become the tribunal of the Last Judgment.

Notes . Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Viking, ), . . In Römischer Katholizismus und Politische Form (Hellerau: Verlag von Jacob Hegner, ), –, Schmitt relates a story told by Ernest Hallo where, at the Last Judgment, a criminal cries out, “I appeal,” when Christ condemns him to Hell. With these words, Hallo writes, “the stars were extinguished.” Christ asks the condemned man, “To whom do you appeal?” The response comes: “I appeal from your justice to your glory.” The story’s point is that the foundation of justice is “glory” or, as Schmitt had earlier glossed it, “might” (). Schmitt thus contends that neither Christ nor the Roman emperor is limited by any objective standards of justice, and, if either wished, he could overturn himself simply to reveal his glorious, supralegal power. . Ernst Bloch, Natural Law and Human Dignity, trans. Dennis J. Schmidt (Cam-

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bridge, MA: MIT Press,  []). . Ibid., . . Rome Statute of the International Criminal Court, UN Doc. A/CONE / (Rome: United Nations, July , ). . New York Times, February , , p. A. . The phrase “shock the conscience” was used as a technical expression in equity jurisprudence in which a sale of property is set aside because the price was so inadequate (“gross”) as to “shock the conscience.” See Joseph Storey and Melville Madison Bigelow, Commentaries on Equity Jurisprudence, as Administered in England and America (Boston: Little, Brown and Co., ), . The phrase has recently been extended to cover genocide and crimes against humanity (as in the Preamble to the Rome Statute, as discussed below). For a discussion of the problems associated with the phrase, see Peter Singer, One World: The Ethics of Globalization (New Haven: Yale University Press, ), –. The transfer of the phrase from equity jurisprudence to the Rome Statute Preamble is facilitated by the fact that the injustices in both spheres have not been addressed by the normal procedures of municipal law. . See Benjamin N. Schiff, Building the International Criminal Court (Cambridge and New York: Cambridge University Press, ). . While nothing in the Rome Statute can be construed as granting the court de jure universal jurisdiction to prosecute grave crimes that would otherwise go unpunished, the aim of the ICC is clearly to move toward de facto universal jurisdiction. There is no alternative if the ICC is to act upon the premise of the Preamble that “the most serious crimes of concern to the international community as a whole must not go unpunished.” For a discussion of the ICC as a court of universal jurisdiction, see Kingsley Chiedu Moghalu, Global Justice: The Politics of War Crimes Trials (Westport, CT: Praeger Security International, ). . Alfred Rubin, Ethics and Authority in International Law (Cambridge and New York: Cambridge University Press, ), . For a more detailed critique of the ICC, see Rubin, “Opposing Views on the International Criminal Court—Challenging the Conventional Wisdom: Another View of the International Criminal Court,” Journal of International Affairs. , no.  (): . I hope to address in particular Rubin’s claim that “the term ‘justice,’ while it appears in many provisions of the statute, is not defined” (ibid., ). The justice that the ICC aims to address is best defined in negative terms: no impunity. . Increase Mather, A Brief History of the Warr with the Indians in New England (), . . Walter Benjamin, Illuminations (New York: Schocken Books, ), . . For Benjamin on sovereignty, see Eric L. Santner, On Creaturely Life: Rilke, Benjamin, Sebald (Chicago: University of Chicago Press, ). . For a brilliant analysis of Shakespeare’s Tempest as an allegory of the workings of such monstrous sovereignty in the person of Prospero, and of Caliban as the hybrid human-animal over whom sovereignty is constituted, see Julia Reinhard Lupton, CitizenSaints: Shakespeare and Political Theology (Chicago: University of Chicago Press, ), –. . John Locke, Two Treatises on Civil Government (London: G. Routledge and Sons, ), – (ch. ); emphasis mine.



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. Locke, Two Treatises on Civil Government, , ch. .. . Thomas Hobbes, Leviathan; or, the Matter, Form, and Power of a Commonwealth Ecclesiastical and Civil (London and New York: G. Routledge and Sons, ),  (I.). . Locke, Two Treatises on Civil Government, , ch. .. . Ibid., , ch. .. . Ibid., , ch. .. . Ibid., , ch. .. . Ibid., ; ch. .. . Ibid., , ch. .. . Ibid., , ch. .. . See note 7 above. . John Marshall, John Locke, Toleration, and Early Enlightenment Culture: Religious Intolerance and Arguments for Religious Toleration in Early Modern and “Early Enlightenment” Europe (Cambridge, UK, and New York: Cambridge University Press, ), offers a full account of Locke’s association with Quaker figures and his reading of Quaker tolerationist texts (see esp. ch. ). . George Fox, William Penn, and Margaret Askew Fell, A journal or historical account of the life .€.€. of George Fox, vol.  (London: W. Philips, ), . . Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France, – (New York: Macmillan, ), . . Ibid., . . George Wilhelm Friedrich Hegel, Hegel’s Philosophy of Right, trans. T. M. Knox (Oxford: Clarendon Press, ), , par. . . Ibid. . Ibid., , par. . . Ibid., , par. . . Locke, Two Treatises on Civil Government, , ch. .. . Bloch, Natural Law and Human Dignity, . . Ibid. . Hans Kelsen, “Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?” International Law Quarterly , no.  (): –.

part ii

Ethnographies of the Legal Secular

chap ter nine

Sovereign Power and Secular Indeterminacy Is Egypt a Secular or a Religious State? hussein ali ag r a m a

In this essay I offer a thesis about secularism as a modern historical phenomenon, through a consideration of state politics, law, and religion in contemporary Egypt. Egypt might seem an unlikely place for theorizing about modern secularity. As a state where politics and religion seem to constantly blur together, giving rise to continual conflict, Egypt seems, at best, only precariously secular. These facts, however, go to the heart of my thesis: that secularism itself incessantly blurs together religion and politics, and that its power relies crucially upon the precariousness of the categories it establishes. Egypt’s religiouspolitical ambiguities, I argue, are expressions of deeper indeterminacies at the very foundation of secular power. I begin with a famous Egyptian apostasy case.

Hisba, Apostasy, and the Case of Abu Zayd In the summer of , the High Court of Egypt issued a stunning decision.1 It concerned Nasr Abu Zayd, a Cairo University professor of Arabic and Islamic studies. Based on his scholarly writings, the High Court declared Abu Zayd an apostate from Islam even though he professed to be a Muslim, and it annulled his marriage, against both his and his wife’s will.2 Under Islamic law (shari‘a), which governs personal status relations among Muslims in Egypt, a non-Muslim man, including an apostate from Islam, cannot be married to a Muslim woman. The case was brought against Abu Zayd by a group of private citizens using an Islamic concept that was nowhere to be found in the Egyptian legal

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codes. That concept, hisba, technically means “the commanding of the good, when it has become neglected, and the forbidding of the evil, when its practice becomes manifest.”3 It was introduced in this case through a kind of loophole in the Egyptian personal status law that makes possible the use of uncodified Islamic principles for civil litigation. The Court’s decision was stunning not only because of its interference in Abu Zayd’s marriage, and not only because it legitimized the legal use of hisbaÂ�. What was most stunning was its declaration that hisba was a duty of all Muslim citizens, who should raise a case in court anytime a wrong in society becomes manifest. The Court argued that the legitimacy of the use of this principle derived from the public interest and especially from the requirement to protect the public order (al-nizam al-‘aam)—an interesting legal concept whose salience for secular practice and power has been largely neglected, and which I will discuss in some detail later in this essay. The Court emphasized that its decision did not violate constitutionally guaranteed rights to religious freedom, because that freedom included maintaining the conditions for the practice and cultivation of religious belief. Nevertheless, the decision created widespread anxiety partly because no limits had been specified on this now legalized duty of hisba. A whole range of Islamic practices might now be called into question, and potentially by anyone—a prospect that seemed to undermine the very integrity of a private domain of personal rights. To quell this anxiety, the legislature enacted a new law restricting the use of hisba to state officials. But this didn’t reduce the indeterminate range of hisba nor much of the anxiety caused by it. Indeed, both Islamists and secular liberals opposed the legislation: Islamists, because it reserved the power of hisba for the secular state and restricted their religious rights as private citizens, and liberals, because it recognized the legitimacy of a religious principle for public decision-making and reserved that power to the state, in contradiction to its constitutionally espoused principles of religious freedom. Meanwhile Abu Zayd, fearing for the security of his family and himself, left the country.

A Secular or a Religious State? The hisba decision poignantly demonstrates the blurring of religion and politics in Egypt today. First, hisba became a public, coercive power that could potentially be used to punish people for holding to religious beliefs and practices defined as heretical.4 It thus violated liberal secular prescriptions for religion’s proper boundaries. Second, and more important, within the shari‘a hisba



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had been part of a set of carefully gradated disciplinary practices that aimed to cultivate and secure certain moral virtues.5 The Abu Zayd court judgments and subsequent legislation converted hisba into a legal practice connected to the protection of public interest, public order, private rights, and religious beliefs.6 Hisba thereby became attached to liberal legal concepts and concerns even as it violated secular precepts. The hisba decision provoked a question that had long been asked about Egypt: whether it is a secular or a religious state. This has been asked both within and outside of Egypt because the state exhibits a number of peculiar ambiguities. Although Egypt’s constitution names shari‘a as the principal source of law,7 its legal system is largely derived from European, mostly French law. Consequently, many fundamental provisions of shari‘a are patently ignored and unimplemented. Moreover, although Egypt’s personal status law, which deals with the private affairs of family, is based on codes derived from religious law, the state has continually tried to reform it in a liberal direction. Although the Constitution guarantees freedom of religious belief and worship, the courts have banned some forms of women’s headscarves in public schools and professions.8 At the same time, they have upheld the use of religious principles—such as hisba—for private litigation. While some religious institutions, like Al-Azhar and its Fatwa Council, are officially under the state, their role in state policy formation remains highly circumscribed. The state has also prohibited official status to any explicitly religious party and severely repressed such unofficial party formations, such as the Muslim Brotherhood, even though they have long renounced violence. Yet it has allowed Brotherhood members to run and win as independent candidates. So, is Egypt a secular or a religious state? Its ongoing conflicts and ambiguities have only led to a widely held view that it is an incompletely or precariously secular state, prone to serious setback at any time. The reasoning that supports this is circular. The fact that Egypt has conflict between religious and secular principles is taken as evidence that the country is still incompletely secular. At the same time, the country’s incomplete secularity is also cited as the cause of such conflict. Such circular reasoning doesn’t provide insight into the conditions of secularism in Egypt. It doesn’t tell us about the criteria we use to define incompletely secular states, or even fully secular ones; it doesn’t tell us about the processes by which secularism is implemented, and it doesn’t tell us how our criteria might be connected to these very processes. Moreover, this view implicitly posits a scale of secularity whose pinnacle is defined by the paradigmatic secular states of Western Europe and North America; it thus takes as analytic categories secularism’s normative standards, instead of exploring the

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processes that put and keep those standards in place. In other words, this view all too readily accepts secularism’s own criteria for judging its failure or success, without carefully looking into the characteristic practices these criteria are historically embedded in, and their consequences for social life. Here I pursue an alternative thesis that will allow us to see the hisba case, and the larger question of whether Egypt is a secular or religious state, in a very different light. It is secularism itself that incessantly blurs together religion and politics in Egypt. In other words, the question of whether Egypt is a secular or a religious state arises out of tensions within modern secularism itself and its distinctive modes of power. Those tensions and modalities of power are not peculiar to Egypt; they are also characteristic of many states considered to be paradigms of modern secularity, such as France, Germany, and Britain.

Secularism as an Historical Problem-Space Secularism has been the subject of much recent theorizing.9 Much of this theorizing has emphasized that secularism involves less a separation of religion and politics than the fashioning of religion as an object of continual management and intervention, and the shaping of religious life and sensibility to fit the presuppositions and ongoing requirements of liberal governance. These newer approaches have thus effected a separation between secularism’s normative standards and the analytic categories used to understand them, in an effort to trace the processes of power by which these normative standards were fashioned. My argument here is in line with these more recent theorizations. However, I worry that there is a way in which they lay themselves open to collapsing the normative and the analytic all over again. Because even in tracing the processes by which normative secularity is fashioned, one can still speak of them as being fully, or only partially, completed. So that when it comes to Egypt, it doesn’t matter whether one holds an older view or embraces recent theorizations of secularism: one can still cast Egypt as only partially, or precariously secular. And this, in turn, reinstates secularism’s own criteria for success or failure. A scale of secularity, with the paradigm secular states at its pinnacle, thus sneaks back in.10 It is just such a scale, with its collapsing of the normative with the analytic, that I wish to avoid. As an alternative approach, I want to highlight two aspects of modern secularism that haven’t together received enough attention. First, as a process of defining, managing, and intervening into religious life and sensibility, secularism is historically and remains today an expression of the state’s sovereign power.11



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Second, secularism, as a feature of the modern state’s growing regulatory capacity, has long been, and is increasingly, fraught with an irrevocable indeterminacy. For the peculiar intractability of secularism lies not in the normativity of its categories, but in the particular indeterminacies and anxieties it provokes. Focusing on these two aspects together shifts our attention more securely to what secularism does, without invoking its normative categories and criteria for success or failure. To better understand these two aspects together, I approach secularism as a set of processes and structures of power wherein the question of where to draw a line (and a presupposition that there is a line to be drawn) between religion and politics continually arises and acquires a distinctive salience. I say a distinctive salience because under a secularist framework this question never arises as a simply technical or merely academic one. On the contrary, it is ineluctably invested with high stakes, having to do with the definition and distribution of the fundamental rights and freedoms of citizens and subjects. Because the answers to it are thought to be of utmost consequence for how fundamental freedoms are identified, it is a question always suffused with affects, sensibilities, and anxieties that mobilize and are mobilized by power. In this approach, I adapt anthropologist David Scott’s notion of a “problemspace,” which he describes as an ensemble of questions and answers around which a horizon of identifiable stakes (conceptual as well as ideological-political stakes) hangs. That is to say, what defines this discursive context are not only the particular problems that get posed as problems as such (the problem of ‘race,’ say), but the particular questions that seem worth asking and the kinds of answers that seem worth having. Notice, then, that a problem-space is very much a context of dispute, a context of rival views, a context, if you like, of knowledge and power. But from within a problem-space what is in dispute, what the argument is effectively about, is not in itself being argued over.12

Approaching secularism as a problem-space means to see it in terms of the ensemble of questions, stakes, and range of answers that have historically characterized it. At the center of this ensemble is, as I have noted, the question of where to draw a line between religion and politics. The identifiable stakes are the rights, freedoms, and virtues that have become historically identified with liberalism, such as legal equality, freedom of belief and expression, tolerance, as well as the possibilities and justifications for peace and war. This approach has many virtues. In focusing on the questions as much as on the range of answers given, it forestalls the tendency to single out any one answer as more or less correct. What matters in this approach is less the correctness of the distinctions made than what they are made in response to, the

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stakes that are involved, and the social consequences. It therefore does not easily lend itself to a scale of normative secularity. This approach also prompts us to consider the conditions under which the questions and connected stakes arise, endure, and acquire their compelling character, as well as the concepts, practices, and processes by which they are answered. My argument is that the processes by which secular doctrine is implemented incessantly generate the very question that doctrine aims to answer—namely, where to draw a line between religion and politics. Thus, what best characterizes secularism is not a separation between religion and politics, but an ongoing, deepening entanglement in the question of religion and politics, for the purpose of identifying and securing fundamental liberal rights and freedoms. This ongoing entanglement is a feature of the expanding regulatory capacities of the modern state, and it is something we see throughout the history of the paradigmatic secular states right up to the current moment. I do not mean to say that we are all incompletely secular—that is, to contrast an ideal with a reality. Nor is this an attempt to “unmask” secularism, to show it up as a myth and thus a kind of religion that has its own articles of faith. Neither is my point simply to say that the secular and the religious mutually interpenetrate. These positions presuppose in one way or another normative conceptions of the secular and the religious, as if they each had distinct, transÂ� historical essences. They thereby ignore the processes and practices by which the essences of the secular and religious are continually defined and redefined. Moreover, they keep us focused too singularly on the normative categories, and thus on the idea that the power of secularism lies in their normativity. But this is mistaken, as the constant, often strident questioning and redefinition of these very categories has also been a distinctive historical feature of secularism. The notion of a problem-space prompts us to consider instead how secularism’s power may lie more in the underlying question it continually provokes and obliges us to answer, than in the normativity of the categories it presupposes. Approaching secularism as a problem-space highlights its durable structures of power and instability, and shows how they incessantly generate a question whose answers and whose high stakes are ones to which no one, secular or religious, can today remain indifferent.

Public Order, the Modern State, and the Active Principle of Secularism What are these structures of power and instability, and how do they continually raise the question of religion and politics? This is a complex issue and



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I will only highlight three features, all of which underscore the centrality of the modern state, and especially its legal power, for secularism. The first is what I have elsewhere called the active principle of secularism.13 This is the principle that the state has the power and authority to decide what should count as essentially religious and what scope it can have in social life. It is through this principle that, crucially, secularism has been established historically. And it is this same principle that is presumed in secular practice today.14 Now this does not necessarily mean that the state can decide on matters of religious doctrine. But it does mean that it can decide what about doctrine is essentially a religious matter; it also decides which authoritative texts are relevant to making such a determination. More concretely, the state is authorized to distinguish between the “civil” and “religious” dimensions of an act and thus decide whether the act is enforceable, punishable, or otherwise deserving of protection or exemption under the law. And that process always involves often unarticulated understandings about what religion in the abstract is, or should be. Hence, the state is always drawing a line between the religious and the secular, and reserving its sole authority to do so. So one way to think about the active principle is to see the state as promoting an abstract notion of “religion,” defining the spaces it should inhabit, authorizing the sensibilities proper to it, and then working to discipline actual religious traditions so as to conform to this abstract notion, to fit into those spaces, and to express those sensibilities. This leads to the second feature: the centrality of a public/private distinction. It is a distinction without which secular power could not be brought to bear. And since the state is typically responsible for maintaining it, the state plays an important role in maintaining the integrity of public and private spaces. These spaces, however, are never just empty ones. They are always suffused with and structured by various affects, sentiments, and sensibilities. Maintaining the integrity of those spaces therefore means authorizing the various affects and sentiments that structure them. But if it is indeed the state that has the power and authority to draw the line between religion and politics, and to authorize and maintain the integrity of the proper spaces of religion, then we are already involved in a sort of contradiction. That is because the state is always seen as a pre-eminently political entity. To have it draw a line is therefore to collapse politics into religion in a way that threatens to subvert fundamental liberal freedoms. This takes us to the third feature, whose importance cannot be overstated: the rule of law. The rule of law is important because it implies a law based on constitutional principles and which the governors and the governed must both obey. It is therefore a law that is supposed to be relatively insulated from those whims and trends

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of political power and fashion that would threaten basic liberties. The state’s authority to draw a line, and to define the spaces and sensibilities appropriate to religion, is typically vested within the rule of law: in the courts, the constitutions, and the codes. Vesting this power and authority within a modern rule of law, however, doesn’t eliminate the contradiction; it only shifts it into a different register. That is because the rule of law is itself a complex structure, bound up with questions of sovereignty and governmentality within the modern state. This complexity is most fully expressed by a concept central to the liberal rule of law—namely, the legal concept of “public order,” which refers to the fundamental legal rules and values of a particular society. Importantly, the three features I have highlighted—the active principle of secularism, the centrality of a public/private distinction, and the reliance on independent judicial authority—are all brought together and embodied in this legal concept of the “public order.” However, this concept embodies a number of peculiar contradictions that render it deeply indeterminate. To illustrate these points, I now turn to concrete examples from Egypt. Note that my argument here is that Egypt has adopted these three characteristic features of secular power, with all of their consequent entanglements. In other words, the problem-space of secularism is firmly entrenched in Egypt.

The Public Order Paradox and Christian Polygamy Family matters in Egypt are governed by religious law. Muslims are subject to Islamic law, and Christians to the specific laws and rites of their respective denominations. However, in cases of mixed marriage—that is, between a Muslim and a Christian, or between Christians of different denominations—Islamic law prevails. Because Islamic law allows for polygamous marriage the question arose as to whether a Christian in a mixed denominational marriage could also be polygamous. This question was addressed in a court case during the late s. My discussion of the case is based partly upon the analysis by legal scholar Maurits Berger.15 A Christian man in a mixed denominational marriage took a second wife. His first wife sued him, saying that the second marriage was null and void, and that it violated the principles of public order (al-nizam al‘aam), since Christian laws do not allow for polygamy. The husband argued that he had a right to polygamy, since his mixed marriage was subject to Islamic shari‘a, which allows polygamy. Thus, to prohibit him from marrying another would itself be a violation of the public order.



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The High Court found that the husband was technically correct. But it was required to determine just what is entailed in the public order, which it described as follows: [Public order] comprises the principles (qawa’id) that aim at realizing the public interest (al-maslaha al-‘amma) of a country, from a political, social, as well as economic perspective. These [principles] are related to the natural, material and moral state of affairs (wad‘a) of an organized society, and supersede the interests of individuals. The concept of [public order] is based on a purely secular doctrine that is to be applied as a general doctrine (madhab ‘amm) to which society in its entirety can adhere and which must not be linked to any provision of religious laws. However, this does not exclude that [public order] is sometimes based on a principle related to religious doctrine, in the case when such a doctrine has become intimately linked with the legal and social order, deep-rooted in the conscience of society (damir al-mujtama), in the sense that the general feelings (al-shu’ur al-‘amma) are injured if it is not adhered to .€.€. . The definition (taqdir) [of public order] is characterized by objectivity, in accordance with what the largest majority (aghlab ‘a amm) of individuals in the community believes.16

The public order, as defined by the Court, expresses a seemingly irresolvable tension. On the one hand, the public order is to apply equally to all citizens. On the other, it expresses the sentiments and the values of the majority, even if they are rooted in religion, so long as they have become integral to the cohesiveness of society. The Court saw Islamic shari‘a as integral to society, being the belief of the majority, and as allowing for polygamy. Therefore, this allowance had to be applied to all. The husband was technically correct. However, the Court also said that exceptions can be made in those cases where following a law of the public order would violate the essence of one’s religion. Reviewing the theological literature, the Court determined that monogamy is essential to Christianity, and that a violation would render a Christian an apostate. Thus, it made an exception to the requirements (or in this case, allowances) of the public order and prohibited the husband from polygamy, rendering his second marriage null and void. This case illustrates how the active principle of secularism is rooted in the legal notion of public order. To make an exception to public order requirements, the Court presumed its authority to determine what is essential to Christianity. Further, it decided that, as the belief of the majority, shari‘a was integral to the cohesiveness of the society. Thus, the Court’s right to determine what is entailed in the public order also amounts to a right to decide and interpret which are essential religious principles of society. Berger discusses another case in which the “question laid before the court was whether Catholic spouses of different rites could use their rights of divorce

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as stipulated under Egyptian Muslim family law,”17 even though divorce is prohibited for Catholics. The Court declared that shari‘a is essential to the public order, and that an essential principle of the shari‘a is the protection of the faiths of the Peoples of the Book (Ahl al-Kitab)—that is, Jews and Christians, which means exempting them from following certain shari‘a provisions.18 They were thus exempt from Islamic divorce provisions, and prohibited from using them. What was before an exception to the public order here becomes a substantive norm of the public order, based on the Court’s reading of the shari‘a’s essence. These cases show how the public order is a basis for the state’s legal power to define the essence of both Christianity and Islam in Egypt. They also highlight just how contradictory the concept of public order is, as it expresses a tension between the principles of equality and the values of the majority, and between norm and exception. These contradictions, however, are not specific to the Egyptian notion of public order. They are also features of the concept as defined within European and international law, from which the Egyptian one was derived. Public order took its distinctive form during the mid-to-late-nineteenth century as part of European private international law. Private international law concerns relations among private persons from different states, and thus deals primarily with commercial and personal status issues. It guides judges in the application of foreign laws in their own states in cases between private persons. Public order is defined within it as those laws and values that are essential to a state’s social and legal cohesion and that are usually held by the majority of its citizens. As an international law concept, public order consists of the general principles of liberal legality, such as procedural fairness and formal legal equality. But as a concept bound to the state, it also consists of the particular values and laws deemed by specific states to be foundational to their own social and legal cohesion. The public order is therefore an intrinsically flexible concept whose contents, because they change over time and between states, are for judges to decide. It is in this capacity that the concept acquires its importance for private international law; it enables a state to invoke a “public order exception” to reject foreign laws or judgments that it should normally honor, if it finds them to be repugnant, or threatening, to its public order. Thus, the public order became a legal expression of the state’s domestic sovereignty. This was happening at a time, however, when states were vastly expanding their regulatory capacities through a spate of social reform legislation and legal codification.19 What could therefore count as part of the public order, and therefore of the state’s domestic sovereignty, correspondingly widened.



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Public order also became an important expression of state sovereignty in public international law during the time when sovereignty was becoming the doctrinal foundation of statehood.20 It remains an important expression of state sovereignty today. This is attested to by its inclusion in all the fundamental international rights declarations and covenants that together define contemporary liberal legality,21 as a basis for the suspension of the rights agreed upon in them. As part of the continual expansion of the state’s regulatory capacities, the public order has also come to partake of a broader semantic and conceptual field. Thus, it is often associated in judicial reasoning with the notion of public interest, and sometimes with “public sentiment.” In authoritative legal documents, both national and international, it is generally coupled with the notion of morality, as in the phrase “public order and morality.” These, in turn, are often explicitly linked with public health and national security. And, as we will see through the case of Egypt, public order has a constitutive historical relationship with the notion of family. In current and historical legal practice, the distinctions between these concepts are diffuse, frequently slipping into each other, even though in principle they entail very different concerns. The public order expands out of the judicial domain and into that of executive authority, and, through its links to national security, becomes associated with exceptional and emergency powers. While much has been written on the public order,22 its history and role in secular power and decision-making has not been given much systematic attention. This is despite the fact that religious freedoms are always subject to concerns of public order, morals, family, health, and national security, even and especially within international law. Interestingly, international forums, such as the European Court of Human Rights, have accorded greater latitude to individual states in interpreting public order and morals for deciding religious freedoms, as opposed to political ones. And on the basis of public order considerations, states have successfully argued in-principle prohibitions on proselytizing and conversion, as well as the upholding of blasphemy laws for specific religions.23 What is important here is not just that public order considerations typically trump religious freedoms. It is that through the public order the state enacts its sovereign authority to decide what counts as essentially religious and what scope it can have in the social order, as we saw in the court cases described above. This underscores the fact that the active principle of secularism is a principle of sovereign state power. Public order is not the only means by which the active principle of secu-

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larism is exercised.24 It is, however, a common one, employed by a very wide variety of states—including and especially the paradigmatic secular ones,25 and is recognized within international law. It tersely expresses some basic contradictions of liberal thought and practice, and demonstrates how the active principle of secularism is connected to the state’s sovereign power. My attention to the public order also aims to show how indeterminacy goes to the very heart of secular power and decision. To see that, let us return briefly to the polygamy case. As a personal status case, it is governed by religious law. Yet the court finds it necessary to invoke the public order, which it defines as an essentially secular concept. After defining this concept as secular, however, the court states that it is composed of essential Islamic values. Is the public order now an Islamic, and thus, religious order? After determining that Islamic values are essential to the public order, the court makes an exception to it so as to protect essential religious beliefs that contradict those values, which is a characteristic secular practice and principle. Yet it thereby restricts the rights of the defendant (the husband) whose beliefs it aims to protect. Has the court thereby defended religious freedom or diminished it? The indeterminacy goes to the very core of secularism’s categories and connected stakes. In blurring the difference between legal equality and majority values, between norm and exception—and thus, the restriction and protection of rights—the concept of public order relentlessly raises the question of religion and politics, without resolving it.

Family and State Sovereignty How did this notion of public order, which is originally European and ostensibly secular, become part of a religiously derived law in Egypt, and linked with concepts of family? The answer takes us back to a set of wide-ranging procedural reforms of the shari‘a courts instituted in . The reforms included a seemingly nondescript provision requiring public hearings except when, in the judgment of the court, considerations of “public order and morals” warrant secrecy.26 Before these reforms, the shari‘a court codes did not express any explicit policy as to whether proceedings were public. The novelty and significance of this provision can only be understood within the broader context of legal reform in Egypt. In the late s, Egypt instituted a national court system, based largely on French law, alongside the older shari‘a courts. This was an attempt by the state to establish a liberal rule of law, in order to consolidate its sovereignty over and against broad European influence.



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As part of this process, the shari‘a courts were gradually reorganized to reflect liberal procedural precepts, and their jurisdiction was increasingly restricted, making space for the national courts. This was done, in part, by redefining the essence of the shari‘a as composed of “family” matters (one result of the  reforms). Classical shari‘a treatises, however, had never featured a distinct category of family, or even personal status law. These reforms, then, helped carve out a legal space that came to be inhabited by a new concept of family. This was happening, moreover, at a time when a (largely European-derived) discourse of family as a distinct unit of intimate, personal relationships had taken hold very widely among Egyptian reformers and became pivotal to emerging nationalist discourses.27 The shari‘a courts existed alongside the national court system until , when they were absorbed into it as the Personal Status division of a newly unified court structure. While the substance of personal status was still based in the shari‘a, its procedures came to be governed by the general law of civil procedure.28 We thus have three specific reforms coming together: shari‘a courts were confined to a new, distinctive domain that helped define a new concept of family; family came to be seen as essentially involving personal, intimate relations, which corresponds to the formula whereby “religion” is placed within a “private” domain; finally, shari‘a court proceedings were required to be public. The reforms were advanced by the modernizing Egyptian state as part of the establishment of a liberal rule of law. But they pulled in opposite directions, toward publicity in court hearings on the one hand, and toward family as an intimate space of secrecy on the other. This was a contradiction, however, that the state empowered itself to resolve, through its determination of what constituted the public order. In other words, the  provision, understood in context, can be seen as facilitating the emergence of a new legal distinction between public and private, one that the state was now responsible for defining and upholding. It is a well known—though never banal—fact that public and private domains possess multiple, related, overlapping, and often shifting meanings, and that the distinctions between them are rarely stable. What I wish to highlight here is the historical emergence of a particular set of conceptual and affective relationships through which these distinctions continue to be both mutually entailed and undermined, where a domain of intimacy has become attached to the public order as part of the development of a rule of law and the consolidation of the state’s sovereign power through it. These relationships have been crucial to the way that secular power has worked. More precisely, these reforms established and brought into affinity a new set of concepts and affects—family, intimacy, publicity, secrecy, and pub-

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lic order—through which the domains of public and private could be mutually entailed and authorized by the state. These concepts and affects have become only more tightly bound to each other through subsequent legislation. The  shari‘a court codifications expanded the concept of public order to include “the sanctity of family.” And the Constitution of  under Gamal Abd el-Nasser declared the family to be the foundation of society. Despite the absence of any explicit requirement, today almost all family court cases are held in secret and High Court judgments have shown a willingness to overturn lower courts’ decisions whose sessions were held publicly.29 The  reforms were therefore a pivotal moment in the establishment of state secular power in Egypt, setting in place the three features of secular power described earlier. They not only introduced the notion of public order into religious law, but also placed it at the center of the concepts and affects through which the state defines a public/private distinction, and to which religious practice must conform. However, the very conceptual and affective affinities used to define this public/private distinction also work to undermine its integrity. That is because religion has become identified with family, and family has been placed at the foundation of the public order. The principles of public order therefore blur into the principles of religion. At the center of secular power and indeterminacy in Egypt, then, lies an historical relationship between family and the state. But the connections between religion, family, and public order that enable this indeterminacy aren’t exclusive to Egypt. We find them also in the history of the paradigmatic secular states of Europe, where they were crucial to developing conceptions and practices of sovereignty. In France, whose law was the basis for Egypt’s, the rise of “family” as a special domain of intimacy was historically tied up with the notion of public order, as part of a process whereby the state acquired and demonstrated its sovereign authority over its territory and against the church.30 They were thus connections that the state maintained as necessary for its own unity. But they also took hold more broadly across Europe,31 during the very period that public order became the focus of systematic elaboration within domestic and international law. Within international law today, family is still seen as the nucleus of society and foundational to the public order. Egypt therefore only brings into bold relief a contradictory setup characteristic of the paradigmatic secular states more generally: on the one hand, “religion” as defined by the state is placed in a private space, separated from the state. On the other, family is also placed in this private space, but the state con-



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tinually sees the need to regulate and authorize it as part of its sovereign power to maintain and regulate the public order. The historical relationship between family and state sovereignty thus becomes a source of continual entanglements between religion and politics. This is not simply because of the intrusion of public power into private life. For, as we have seen here, public order can be used not only to represent public sentiment and values but to authorize private sensibilities as well. This means that principles deemed proper to a private domain can emerge as practices of public power, blurring the difference between them. That is exactly what happened with hisba, which we discussed at the beginning, and to which we now return.

Hisba: The Indeterminacy of Secular Power As implied by the story I have told, the shari‘a in Egypt, under the law, has become significantly shaped by liberal legal concepts and precepts. Indeed, my broader field research has shown how, under the law, the shari‘a has become largely “liberalized”—that is, restricted to a private domain of family, imbued with recognizably liberal sensibilities, and highly circumscribed from state policy-making.32 This brings us back to the hisba case against Nasr Abu Zayd, which seems to violate liberal secular expectations. A professed Muslim, Abu Zayd was declared an apostate by the court and his marriage dissolved. The state, instead of granting him amnesty, or legally abolishing hisba, enacted legislation reserving its use solely for itself. We are thus led to ask: how can a liberalized shari‘a and the hisba decision arise out of the same legal framework? Was hisba just an anomaly? If so, why did the state subsequently reserve its usage solely for itself? As should be clear now from our discussion, hisba and liberalized shari‘a are not as incompatible as they might first seem. The perception that they are arises from the view that accepts secularism’s own criteria for its success or failure. But if we see secularism in terms of the historical structures of power and instability I have described, particularly how secular power and decision arise out of the legal principle of the public order, then we get a different picture. Both the intimate nature of family as the core of shari‘a and the legitimacy of hisba litigation were justified by considerations of the public order. The public order that imbued the shari‘a under the law with a private sensibility and authorized the protection of family secrecy also transformed the religious practice of hisba into a wide-ranging, anxiety inducing, public power. More im-

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portant, hisba represented a power to decide what was essentially religious and what scope it could have in society. That is, hisba, as presented in the courts, was not so different from the active principle of secularism. The state’s reserving of hisba to itself and out of the hands of private citizens could therefore be seen as a move of secular power, toward maintaining and extending the state’s sovereign authority to decide on the essence of religion and of politics. In reserving the power to do this, is Egypt so different than, say, France, which recently invoked public order considerations to decide which symbols were essentially religious and where and how they should be displayed?33 Or even its consistent past practice of compelling religious divorce actions in some cases for couples who had undergone a civil divorce?34 Is it so different from England, which successfully resorted to notions of public sentiment to uphold Christian blasphemy laws?35 But then, one might ask, is hisba, as now reserved by the state and rooted in the public order, a secular principle, or does it remain a religious one? My answer is that this is precisely the indeterminacy of secular power that relentlessly entangles us in such questions and conflicts of religion and politics, even as it consolidates and extends the state’s sovereign power to decide them.

Conclusion Is Egypt a secular or a religious state? I have argued here that this is neither an answerable, nor a false question. Rather, it expresses a question at the heart of secularity itself—namely, where to draw the line between religion and politics so as to secure fundamental liberal rights and freedoms. This question, in turn, is raised incessantly by the very conditions of secular power, and especially through the indeterminacies of the public order, whereby religion and politics continually blur into each other. The question of Egypt’s secularity or religiosity is therefore an expression of secularism’s characteristic tensions and its distinctive modes of power, sensibility, and instability. Secularism, supposed to separate religion from politics, hopelessly blurs them; ideally a principle of peace, it fosters political-religious conflict instead. Law offers no way out, being instead a condition of this intractability. Should we then conclude that secularism undermines itself? To make such a conclusion would be to accept secularism’s own criteria for its failure or success, to collapse its normative categories into the analytic ones we would use to understand what it is and does.36 This is just what I have tried to avoid by approaching secularism as a problem-space—in terms of its historical ensemble of questions and stakes, the processes and practices of power



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used to variously answer them, and the conditions that continually raise and entrench them within social life. What this approach has helped clarify is that secularism is less a principle of peace than an historical practice of state sovereignty, and thus, an expression of its constitutive indeterminacies and anxieties. The indeterminacies of secularism should not therefore be seen as undermining it; on the contrary, they tend, as in the case of hisba, to further consolidate and extend the state’s sovereign power of decision over social life. The indeterminacies of secularism are integral to its workings, and the state sovereign power that it secures.

Notes This chapter is a revised version of an article that originally appeared in Comparative Studies in Society and History , no.  (): –. . By “High Court” I mean the Court of Cassation (Mahkamat al-Naqd), Egypt’s highest civil and criminal appellate court. A separate high court exists for administrative law: the Council of State (Maglis al-Dawla). There is also a Supreme Constitutional Court. See Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics and Economic Development in Egypt (New York: Cambridge University Press, ). . The decision upheld the Appeals Court’s verdict from a year before. The case was initiated in . . Fadl Al-Hay, Al-Hisba (Cairo: Dar ul-I’tisaam, ). . It was public initially in that it was a power of the people—that is, of citizens, and subsequently, after state legislation, of state officials who ostensibly represent their interests. . Hussein Ali Agrama, “Law Courts and Fatwa Councils in Modern Egypt: An Ethnography of Islamic Legal Practice” (Ph.D. diss., Department of Anthropology, Johns Hopkins University, ). . See ibid.; Muhammad Salim Al-‘Awwa, al-haq fi al-ta‘bīr (Cairo: Dar al-Sharuq, ); Killian Balz, “Submitting Faith to Judicial Scrutiny through the Family Trial: The ‘Abu Zayd Case,’” Die Welt des Islams , no.  (): –; Maurits Berger, “Apostasy and Public Policy in Contemporary Egypt: An Evaluation of Recent Cases from Egypt’s Highest Courts,” Human Rights Quarterly  (): –; Baudoin Dupret, “The Inner Self and Public Order,” in Muslim Traditions and Modern Techniques of Power, ed. Armando Salvatore (Munster: LIT Verlag, ); Baber Johansen, “Apostasy as Objective and Depersonalized Fact: Two Recent Egyptian Court Judgments,” Social Research , no.  (): –. . Article  of the Constitution of the Arab Republic of Egypt states, “Islam is the religion of the State, Arabic is its official language, and the principles of the Islamic Shari‘a are the main source of law.” . Kilian Balz, “The Secular Reconstruction of Islamic Law: The Egyptian Supreme Constitutional Court and the ‘Battle over the Veil’ in State-Run Schools,” in Legal Pluralism in the Arab World, ed. B. Dupret and L. Al-Zwaini (The Hague: Kluwer Law International, ).

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. Talal Asad, “Trying to Understand French Secularism,” in Political Theologies: Public Religions in a Post-Secular World, ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham, ); Akeel Bilgrami, Crisis of Secularism in India (Durham, NC: Duke University Press, ); William Connolly, Why I Am Not a Secularist (Minneapolis: Minnesota University Press, ); Winnifred Fallers Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, ). . See, for example, philosopher Charles Taylor’s magisterial work on secularism, which casts secularity as a European, Western achievement only partially evident in the rest of the world. Charles Taylor, A Secular Age (Cambridge: Harvard University Press, ). Some works of José Casanova display a similar tendency. See Talal Asad, “Response to Casanova,” in Powers of the Secular Modern: Talal Asad and His Interlocutors, ed. David Scott and Charles Hirschkind (Stanford: Stanford University Press, ). . See Asad, “Trying to Understand French Secularism.” . David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Durham, NC: Duke University Press, ). . Hussein Ali Agrama, “Asking the Right Question: Two Engagements with Islam and Modernity,” Political Theory , no.  (): –. . One example is a decision by a U.S. court giving atheism the constitutional protections accorded traditional religions. Derek H. Davis, “Is Atheism a Religion? Recent Judicial Perspectives on the Constitutional Meaning of ‘Religion,’” Journal of Church and State , no.  (): –. . See Maurits Berger, “Is an Islamic Polygamous Marriage Allowed for a Christian Egyptian? (The Court of Cassation on Public Policy and the Status of Non-Muslims),” unpublished manuscript; “Public Policy and Islamic Law: The Modern Dhimmi in Contemporary Egyptian Islamic Law,” Islamic Law and Society , no.  (): –; “Regulating Tolerance: Protecting Egypt’s Minorities,” in Standing Trial: Law and the Person in the Middle East, ed. Baudouin Dupret (New York: I. B. Taurus, ); “Secularizing Interreligious Law in Egypt,” Islamic Law and Society , no.  (): –. . Berger, “Public Policy and Islamic Law,” . Berger translates “public order” into “public policy,” its Anglo-American legal term; I maintain the term “public order,” as it better reflects that concept as expressed in Continental, international, and Egyptian law. . Berger, “Regulating Tolerance,” . . Ibid., . . D. Rueschemeyer and T. Skocpol, eds., States, Social Knowledge and the Origins of Modern Social Policies (Princeton: Princeton University Press, ). . For the intertwined histories of private and public international law, see Alan Mills, “The Private History of International Law,” International and Comparative Law Quarterly , no.  (). . Thus: the Universal Declaration of Human Rights (article :); European Convention for the Protection of Human Rights and Fundamental Freedoms (:); International Covenant on Civil and Political Rights (:; :; :b; ; ); International Covenant on Economic, Social and Cultural Rights (:a; :c). . Maitre J. B. Bernier, “Droit Public and Ordre Public,” Transactions of the Grotius Society: Problems of War and Peace: Papers Read Before the Society in the Year   (): –; M. Forde, “The ‘Ordre Public’ Exception and Adjudicative Jurisdiction Conventions,” International and Comparative Law Quarterly  (): –; Max Hibicht, “The Application of Soviet Laws and the Exception of Public Order,” American



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Journal of International Law , no.  (): –; Gerhart Husserl, “Public Policy and Ordre Public,” Virginia Law Review , no.  (): –; Dennis Lloyd, Public Policy: A Comparative Study in English and French Law (London: Athlone Press, ); Mills, Alan “The Private History of International Law,” International and Comparative Law Quarterly , no.  (): –. . Tad Stahnke, “Proselytism and the Freedom to Change Religion in International Human Rights Law,” Brigham Young University Law Review , no. (): –; Bernadette Meyler, “The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law,” St. John’s Journal of Legal Commentary , no.  (): –. . Thus, while “public policy,” the term used in Anglo-American law, is rarely invoked in U.S. religion cases, many of its associated concepts are. See Sullivan, The Impossibility of Religious Freedom; and Stanley Fish, “The Religion Clause Divided against Itself,” New York Times, March , . . On public order thinking in France, see, for example: John Bowen, Shari‘a, State and Social Norms in France and Indonesia (Leiden: ISIM, ). . Law for the Organization of the Shari‘a Courts and Its Associated Procedures, May , , Book , Chapter , Article , in Compendium of High Decrees and Ordinances Issued for the Year  (Cairo: Bulaq, ). . See Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ), –, especially his discussion of Muhammed Abduh’s  report on shari‘a court reform. See also Hanan Kholoussy, “Talking about a Revolution: Gender and the Politics of Marriage in Early Twentieth-Century Egypt,” Journal for the Arts, Sciences, and Technology , no.  (): –; Lisa Pollard, Nurturing the Nation: The Family Politics of Modernizing, Colonizing, and Liberating Egypt (Berkeley: University of California Press, ). . For histories of nineteenth- and twentieth-century Egyptian legal transformation, see Nathan Brown, The Rule of Law in the Arab World: Courts in Egypt and the Arab States of the Gulf (Cambridge: Cambridge University Press, ); Byron Cannon, Politics of Law and the Courts in Nineteenth-Century Egypt (Salt Lake City: University of Utah Press, ). . See M‘aud Abd-al Tawwab, The Commentary on Law # for the Year  (Cairo: El-Entesar Press, ). . Ursula Vogel, “Private Contract and Public Institution: The Peculiar Institution of Marriage,” in Public and Private: Legal, Political and Philosophical Perspectives, ed. Mario D’Entreves and Ursula Vogel (New York: Routledge, ). . Vogel, “Private Contract and Public Institution.” For Anglo-American law, see parens patriae doctrine. . Agrama, Law Courts and Fatwa Councils in Modern Egypt. . Asad, “Trying to Understand French Secularism.” . Patrick Glenn, “When Heavens Meet: The Compelling of Religious Divorces,” American Journal of Comparative Law , no.  (): –. . Julian Rivers, “From Toleration to Pluralism: Religious Liberty and Religious Establishment under the United Kingdom’s Human Rights Act,” in Law and Religion, ed. Rex J. Ahdar (London: Ashgate, ). . For a similar take on secularism, see Markus Dressler, “The Religio-Secular Continuum, or Secular Law as a Theological Discourse in Turkey” (this volume).

chap ter ten

The Ruse of Law Legal Equality and the Problem of Citizenship in a Multireligious Sudan noah salomon

Politicians, the aid and development community, and a cadre of academics are at near consensus that the problems of citizenship that plague diverse postcolonial African societies can be alleviated through an emphasis on the “rule of law.” In its most basic formulation, “rule of law” is the principle that law, rather than the arbitrary will of those in power, should govern a citizenry whose members stand equal before it. Rule of law discourse tends to contain many components—protection of civil liberties in sync with universal human rights norms, the idea of due process, accountability of government and its officials to the judiciary, protection of the independence of that judiciary from political pressure, and so forth—yet it is the idea of “equality before the law” that often proves the most contentious, particularly in plural societies where there is little consensus over the normative identity of such law. Despite the rise of demands for legal pluralisms in both the West and the developing world (for example, Jewish courts of marriage arbitration in New York, shari‘a courts in Kenya), the equality principle as exported to postconflict and developing nations has not been seriously rethought in international development literature in light of the challenges raised by this twenty-first-century “politics of recognition.” Is a stable, unified nation made up of subjects who call themselves citizens secured when the law is blind to religious or ethnic identities, or only when it recognizes them and codifies such recognition either as separate parallel legal systems or explicit exceptions to adjudication based on identity? What about in societies emerging from ethnic conflict: is a unified legal system, in which subjects are equal before the law, the most effective mechanism through which



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citizens may think of themselves as part of a common project, or are other alternatives possible? Further, if a primary building block of rule of law is the principle of legal equality (a recognition of “citizens” in the generic, regardless of color or creed), what sorts of challenges are posed by minority demands for the legal recognition of creed or culture as a redress to the lack of consensus on the identity of the law? The following essay will attempt to answer these questions through examining the case of Sudan in the years –, as it was emerging from twenty-two years of civil war in which a diverse set of actors was attempting to construct a state that would at once abstract a nation from a multiplicity of identities as well as integrate the diversity of these identities into the personality of the state (however fraught and unequal that process eventually became).1 This difficult balancing act was often attempted through the mechanism of the law, as well as articulated in public discourse both about and in tension with the law as a vocal means of political expression in a country where political freedom still remained quite limited.

Exporting Equality The equality principle is central to rule of law discourse as it is forwarded by international NGOs and global development agencies that work actively with governments in conflict and postconflict situations such as Sudan to promote “rule of law.” The optimism with which such projects are inaugurated seems to misrecognize the law as a means of regulating societies innocent of the various political, ethnic, and religious tensions that got these countries into conflict in the first place. Here, “rule of law” is posed as a nonideological solution to the difficult problems that these countries face. The argument goes that if the law is applied correctly, if it is procedurally sound, it is in some measure apolitical. For example, Thomas Carothers, a development expert at the Carnegie Endowment, writes, “Despite the close ties of the rule of law to democracy and capitalism, it stands apart as a nonideological, even technical, solution. In many countries, people still argue over the appropriateness of various models of democracy or capitalism, but hardly anyone these days will admit to being against the idea of law.”2 While Carothers rightly recognizes that rule of law discourse has become naturalized in even the most seemingly antithetical of locales (as we too will see when we analyze the discourse of the Sudanese government below), his contention that its hegemony is a mark of its neutrality is deeply misguided. Law, the institutions that promote it, and our relationship to them enfold deep ideological and political commitments which require a whole host of presumptions about justice and how best to achieve it. Statements like those

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of Carothers distract us from recognizing the way in which certain political stances get enfolded (and recoded) in legal discourse and make the process of teasing back out such commitments, when the law runs us into intractable dilemmas such as those we will observe arising in Sudan, nearly impossible. A recent United Nations Development Program report adds to the confusion by removing “rule of law” from conversations about power. It states, “From a conflict prevention and recovery perspective, the notion of ‘the rule of law’ represents a situation that is diametrically opposed to ‘the rule by force.’”3 Such dichotomies between law and power mask the way in which the very establishment of a modern legal system, the fostering of judicial culture, determing whether law is codified or interpretive, whether we have courthouses (and the attendant judicial apparatus) in every far-flung village or we rely on local authorities to mediate conflict and to guarantee contracts, are inherently political acts, often founded upon the forceful imposition of a variety of regulatory norms.4 Thus here the notion of “equality before the law” attendant to rule of law discourse can disable arguments made by a variety of actors that the law, from its too often nonconsultative birth, already embeds massive inequalities and that any attempt to apply the law equally over a diverse citizenry would simply perpetuate them.5 For those who have no part in the authorship of the law, the law can be very much understood as a mechanism through which arbitrary force is exerted on minority populations, and not its opposite as rule of law discourse claims, thus limiting our faith in the ability of law to be a panacea to the problems of unequal citizenship that plague diverse postcolonial societies. It is important also to note that it is not only international organizations promoting the “rule of law” that have come to the conclusion that a unified legal system is the best way to unify postconflict societies. Those who hope for a postracial politics have critiqued the “institutional segregation” enacted by the colonial legacy of customary law that fuels the kind of ethnic politics which predominates across divided nations.6 Indeed, the agenda of the most progressive postcolonial states was a deracializing one in service of effective citizen-formation (on the model of Julius Nyere’s Tanzania). How, then, should we respond to current calls by aggrieved ethnic and religious minorities for legal pluralism, such as that which we observed in Sudan in the years directly following the conclusion of the north-south civil war?7 In Sudan, moreover, processes of legal unification and systematization under the rubric of “rule of law” have been critiqued on both sides of the negotiating table for establishing a set of “false universalisms.” On the one hand, according to Islamists such as the ruling National Congress Party (NCP), such false universalisms emerge in the call for secular “religion-blind” civil law, which they



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contend is never in fact blind to religion or culturally unmarked, but rather masks a cultural and religious imperialism from the West upon whose principles it is founded.8 On the other hand, members of the northern left and the majority non-Muslim Sudan Peoples’ Liberation Movement (SPLM) decry the kind of aggressive Islamization of law forwarded by the ruling Islamists in their early projects of consolidation as another form of imperialism, making minorities live by a religious creed to which they do not subscribe. It was perhaps due to the unique degree of consensus among two otherwise conflicting parties on the inappropriateness of the equality principle, before a law that could never be universal, that the seemingly intractable discord between those who supported shari‘a and those who advocated for “secular law” was imperfectly navigated through a system wherein it was agreed that it would be the unequal application of the law that was to be the guarantor of social stability. That is, it was when non-Muslims were not subject to laws concerning alcohol, dress, and social relations that the southern opposition deemed that the multireligious and multiethnic nature of Sudan was being respected. Strengthening the formal legal system in this instance was tacitly agreed to be a recipe for disaster, as, in lieu of an actual repeal of the shari‘a-inspired criminal code (which never seemed forthcoming), the identity of the law would always be a bone of contention for minorities. Thus it was precisely the odd practice of law enforcement (directed, of course by political forces) not enforcing certain laws that was deemed the guarantor of stability and harmony. If one reads, for example, the Sudanese Criminal Code of , one finds a whole series of laws (regarding dress, alcohol, and so forth) that while applied early on during the Islamist revolution in Sudan, are employed much less actively today (though they seem often to re-emerge at politically opportune moments). These informal “repeals” of the laws—what in the U.S. context would be called “prosecutorial discretion”—began to take place during the north-south peace talks as a trust-building measure. In order to get beyond the impasse of shari‘a, which was holding up the signing of the landmark Comprehensive Peace Agreement (CPA) between the NCP and the SPLM, the SPLM agreed to allow shari‘a to stay in the capital with a rather vague assurance that there would be exceptions made for non-Muslims. It was this legislative impasse (that is, the lack of agreement on what sources the laws of the capital should be based), that made the drafters of the CPA turn to judiciary or law enforcement to protect the rights of non-Muslims. It seems that the consensus was that the building of a state that respects religious diversity was only possible in spite of the law—that is, when the law was unequally or inconsistently applied—and not by crafting a law that would be acceptable to all. Rather than equality before the law being

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the marker of a healthy nation, it was the deliberate but often informal unequal application of the law that was what was to keep Sudan stable against the pull of numerous forces dragging it in other directions.

Shari‘a in the Interim Indeed such a system of exceptions was written into the very document of the  Interim Constitution, which was passed shortly after the signing of the CPA. In many ways, one might say that the CPA and the Interim Constitution left the problem of shari‘a unanswered, or perhaps just upheld the status quo. In the new federalist arrangement, shari‘a remained the inspiration for the law of the north and one of the inspirations of federal law, while the south was to be governed by what many in the press called “secular law.” (And I should note, as an aside, that despite this colloquial insistence by intellectuals that the south is governed by “a secular legal system,” nowhere in the language of the Interim Constitution is the term “secular” used. Instead, in the section on the sources of law, it states that “popular agreement, the values and customs of the Sudanese people, along with their traditions and religious beliefs,9 with the diversity of Sudan taken into consideration, are [one] source of the law which applies at the national level and are applied [as the sole source of law] in the south of Sudan and its states.”10 So here the turn is actually to customary law, rather than secular or common law.) As for the laws that would govern the national capital in which both Muslims and non-Muslims live, these were supposed to be shari‘a-based, while non-Muslims were to receive un-named protections from subjection to punishments for crimes which are stipulated in Islamic scripture (and are at the same time not defined as criminal in the jurisprudential tradition of which these non-Muslims see themselves as part: acts such as certain varieties of extramarital sex [zina’], for example). Further, a council to protect the rights of non-Muslims (mufawwadiyyat huquq ghayr al-muslimin) was to be established and to report to the presidency, with the function, according to the Interim Constitution of , of “assuring [the presidency] whether or not non-Muslims are being harmed by the implementation of Islamic law in the national capital.”11 The duties of the council, and the presidency’s commitment to respond to it, were left extremely vague in the Constitution, and it was only in the first months of  that the council was even beginning to be established, its function uncertain. The liminal status of shari‘a in relation to non-Muslims, neither applied over them nor explicitly rescinded, was expressed in the Constitution as a series of tensions, and even seeming logical inconsistencies, that were written into the language of the document itself. The Constitution obliquely recognizes a friction within liberal discourse that asks nations both to envision their subjects as



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citizens with common humanity (and thus rights—that is, to be equal before the law) as well as to recognize, celebrate, and make exceptions for ethnic and religious diversity, thus raising that essential tension between “the politics of equal dignity” and “the politics of difference,” as Charles Taylor famously termed them in his “The Politics of Recognition.”12 Early on in the Constitution under the heading “Equality before the Law (al-musawa imam al-qanun),” it states, “People are equal before the law and they have the right to enjoy the protection of the law without distinction between them because of race, or color, or gender, or language, or religious creed, or political opinion or ethnic origin (al-asl al-‘irqi).”13 Yet, somewhat later in the document such a promise of equality is seemingly annulled by another article written in the spirit of respecting religious diversity: [It is decreed] that the courts [extant in Sudan] should, in practicing their powers in authorizing punishments on non-Muslims, show deference for the deep rooted principle in Islamic shari‘a that non-Muslims among the population are not subject to the necessary punishments stipulated in the Qur’an [known as the hadd punishments] but rather that what is applied to them are judicially discretionary punishments (‘uqubat ta‘ziriyya) in accordance with the law.14

Thus in this article of the Constitution and elsewhere it appears that law is not as blind to “religious creed” as the “equality before the law” article assumes. Here we see that non-Muslims and Muslims are in fact not to be equal before the law, but instead that the Constitution asks courts to recognize explicitly the religious identity of the individual and make exceptions accordingly, even justifying this politics of recognition within the mechanisms of the Islamic jurisprudential tradition (fiqh). If citizenship was to be based on equality, then it seems from the Sudanese Interim Constitution that the law could not be the well from which it was drawn.

Celebrating Difference in the Service of Unity What was at stake in whether Sudan was to be a nation made up of citizens formed on the principle of absolute equality or one in which religious identity was inseparable from legal personhood? To answer this question we must fill in the contours of the political situation in which Sudan found itself at the time I was conducting my research (–), when the question of the rule of law and how it was to be adjudicated seemed essential to the very survival of the nation, at least in its present form. It is important to recognize that conversations about citizenship were intricately intertwined with another set of discourses that had taken center stage since the signing of the CPA around the concept of “national unity” (al-wahda al-wataniyya). The founding of the Government of National Unity (hukumat

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Figure .. “Khartoum: The Meeting Place of Arab and African Culture (with greetings from the General Secretariat for ‘Khartoum the Capital of Culture,  AD’).” Photo by the author.

al-wahda al-wataniyya) between the NCP and the SPLM was posed as Sudan’s last chance to stay together: if it failed, Sudan would break apart. In the six-year interim period from the signing of the accords to the referendum on secession in January , both parties committed as a stipulation of the CPA to “make unity attractive” (‘amal ‘ala ja‘l wahda jadhiba). The intention was to set up an entirely new governing system that could be maintained in this “post-[at least one] conflict” period,15 and into the imagined future if the country were to stay unified. It should be recalled that twenty years ago, when ‘Umar al-Bashir and his backers in the National Islamic Front (NIF) came to power, an ambitious attempt to establish an “Islamic state” was undertaken. In the period in which I did my research in Sudan, when the virtues of multiculturalism were being celebrated in the words of top government officials and on billboards across the capital (see Figure .), a thorough reassessment of not only the polity but also the kinds of Islamic ideologies that are compatible with it was taking place. After the experience with Islamization in which Islamic organizations from Sufis to Islamists were mobilized to secure the religious identity of Sudan



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as Islamic, Muslim organizations were now trying to rethink their role within a nation that was to be defined on quite different foundations. If unity were to be achieved, this was to be a state based upon the notion that (as the Interim Constitution stated, under the heading “The Nature of the Country [tabi‘at al-dawla]”) it is “one nation gathering together religions and cultures which are a source of strength, consensus and inspiration,” and thus not solely on an Islamic definition as earlier constitutions stipulated.16 Around the time of the late SPLM leader John Garang’s arrival in Khartoum in July , for example, the Islamic slogans and Qur’anic verses that festoon billboards around the capital began to take a marked turn toward highlighting tolerance and respect for diversity within Islam, rather than jihad against a rebellious south as had earlier articulations of Islamic political solutions to the woes which Sudan faced. Figure . shows one such billboard which high-

Figure .. Sign on the left: “In the name of God the most merciful and compassionate .€.€. Oh people, indeed we created you as male and female and we made you into nations and tribes so that you may know one another .€.€. [surat al-hujurat ]. God almighty has spoken the truth (with greetings from the General Secretariat for ‘Khartoum the Capital of Arab Culture,  AD’).” Sign on the right: “: the year of Culture and Peace (with greetings from the General Secretariat for ‘Khartoum the Capital of Arab Culture,  AD’).” Photo by the author.

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Figure .. “Islamic Shari‘a: With the people it came and with the people it will remain (National Congress [Party], Khartoum State. With greetings from the media [sector] of the Congress).” Photo by the author.

lights this new politics of Islamic multiculturalism that the state was trying to forward,17 quoting the Qur’anic verse in which God exclaims, “Oh humanity! Indeed we created you as male and female and we made you into nations and tribes so that you may know one another” (surat al-hujurat, ). The verse suggests a divine intentionality, and perhaps inherent good, in diversity and calls on believers not to assimilate others but to learn from them. The relationship to the context in which it was hung—that is, the signing of the CPA and Garang’s imminent arrival in Khartoum—would have been clear to any viewer. Nevertheless, at the same time that the government commission for “Khartoum: Capital of Arab Culture ” was hanging such signs, the ruling party of the government was passing out stickers around the capital making it clear that this turn to tolerance did not mean a turn away from shari‘a. The stickers read “Islamic Shari‘a: With the people it came and with the people it will remain” (see Figure .). Tolerance, and the granting of rights to minorities, was understood to be very much part of an Islamic program (whose centerpiece was the defense of shari‘a), and in no way required its abandonment.



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Governing Religious Diversity: Thinking beyond the Law It was not just the Islamist figures in the ruling party who were rethinking the relationship between the legal arrangements of the state and the religiously diverse society that it governed. Independent religious organizations were also using their resources to think through the problem of multiculturalism that the potential of a unified Sudan raised. It is important to recognize that for such Islamic organizations, at stake in the  referendum were both the unity and integrity of the Sudanese state and the unity and integrity of the Muslim community as a political entity. The former threat was raised, of course, by the possibility of the south seceding, while the latter threat was raised by the opposite possibility, the south remaining part of the union and thus being integrated into the federal government as an equal partner with further legal recognition of the multireligious and multicultural nature of Sudan as its condition. This latter possibility introduced the question of whether the Islamic state which emerged as a result of the Islamist coup in  was merely on hold, or whether, in the service of national unity, its ideals had to be obliterated altogether in favor of a state based on multicultural foundations.18 In what follows, I will look at how the dilemmas posed by religious diversity in Sudan were grappled with at several governmental and non-governmental fora in a period when, as we have observed above, the law was clearly not offering a stable and long-term solution for the problem of coexistence. If standard models of “rule of law” had been shown to be inappropriate to the challenges facing Sudan, what might be the best way to secure unity without sacrificing Islamic ideals? Many of the groups with whom I worked in my field research— members of the government and allied Islamists (al-haraka al-islamiyya, alislamiyun), evangelist Salafis,19 and politically engaged Sufis—were struggling with the new political context in which they found themselves, offering unique, and sometimes surprising, solutions to the dilemmas it posed. As myriad legal anthropologists have contended, in order to understand the place of law in society it is not enough to look at the normative construction of the rule (which, as we have already seen, has been subverted at every turn), but rather we must also examine the process by which this rule is consumed, reworked, or rejected by the publics it aims to govern.20 In the remainder of this essay, I will discuss three contexts in which the future of Sudan was being rethought in the wake of both the failure of models of legal equality, on the one hand, and the continuing instabilities introduced by the judicial-discretionary multiculturalism that was posed as its solution, on the other. On July , , two separate but thematically related conferences were held

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in Khartoum, one throughout the day and one in the evening. Though there was no explicit mention of the other at either conference, the one in the evening was obviously organized in response to the daytime event. The conference during the day was organized by the Sudanese Ministry of Religious Guidance and Endowments (wizarat al-irshad wa-l-awqaf) and sponsored by the independent (but government-supported) Sudanese Council for Religious Coexistence (majlis al-ta‘ayyish al-dini al-sudani) and the Royal Institute for Religious Studies of Jordan (al-ma‘had al-maliki li-l-dirasat al-diniyya, al-urdun). The conference was entitled “The International Conference for Christian-Islamic Dialogue: For the Continuance of Peace and the Strengthening of National Unity.”21 The event featured several speeches by government officials, allied Islamists, as well as Christian and Muslim religious leaders, local and international. The event in the evening was held by a group that is part of the Salafi tradition in contemporary Islam,22 and which calls itself ansar al-sunna al-muhammadiyya, the Partisans of the Way of the Prophet Muhammad. This is a group that from the early years of the Islamist Republic in Sudan saw itself as a kind of religious conscience of the nation, throwing skepticism on both the government’s earlier claims to be embarking on an Islamic revolution and its more recent claims to be building a multicultural state.23 The nighttime conference was called “The Manner of Treating Non-Muslims as Revealed in the Life of the Prophet,”24 and the critique of the daytime conference was clear even in the title. While the goal of the daytime event was fostering “ChristianIslamic dialogue” in service of the “continuance of peace and the strengthening of national unity” (as the title of the conference made clear), the agenda of the nighttime conference was, simply put, to reread the life of the Prophet and to apply the manner in which he treated non-Muslims to the present-day situation, with no explicit reference to such “external” goals. Yet the very fact that this conference came only a few hours after the government-sponsored event showed that ansar al-sunna was responding to key political events in Sudan, despite their claims of a purely disinterested agenda. While the daytime event would forward a modernist interpretation of Islam in which it was fully compatible with a global human rights discourse of tolerance, the event at night would deny the legitimacy of the attempt at independent reasoning outside of the life of the Prophet, even condemning the very translation of Islam into liberal categories as damaging to Muslim doctrine, instead insisting on the unique ability of Islamic political theory to offer solutions that liberal thought had not imagined. The government-held event in the day was inaugurated by some words from the Sudanese president, ‘Umar al-Bashir, a man who only a year later would be



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indicted by the International Criminal Court in The Hague for crimes against humanity and yet who spoke in the very language of the international human rights community that condemned him. The president began his introductory remarks to the conference attendees as follows: Welcome to Sudan which has remained [over the centuries] a bridge for contact between peoples. Welcome to this country which is like a continent with various climates, beliefs and cultures, languages and dialects. It is unique in its co-existence (ta‘ayish) and tolerance (tasamuh). Many cultures have contributed to the formation of the family of Sudan (ahl al-sudan) .€.€. [a]nd we have not witnessed in the history of Sudan any confrontations or struggles between Christians and Muslims. The unitary Sudanese family includes the Muslim and the Christian in perfect harmony, and likewise in the neighborhoods are a mixture of Christians and Muslims. The environmental situation, struggle over resources, and political struggles, these are the real reasons behind the tribal struggles and wars which have ailed Sudan and its family from the time of independence in the s .€.€. [Today] we are committed in [our agenda to] implementing the Constitution, and to the dispersal of freedoms and the peaceful exchange of power, and to the protection of rights on the basis of equality, citizenship and human rights, and to extending [to all] the freedom of belief (huriyat al-mu‘taqad) and the freedom to proselytize (al-da‘wa) and to do missionary work (tabshir) in a gentle way (bilati hiya ahsan) .€.€. [and we call on you who are gathered here] to direct the work in which [Christians and Muslims] participate (al‘amal al-mushtarak) to support social cohesion (tamasuk al-mujtama‘) and to bring together the social fabric, and to call for tolerance and moderation, and to close the road in front of religious extremism and those who accuse others of heresy (al-fikra al-takfiriyya), and [to promote] tolerance between the social groups. In so doing, we can begin to create peace between social groups, values which are characterized by religious brotherhood and against extremism.

Here, in a carefully worded mixture of the language of the war on terror (“against extremism”) and international human rights discourse, the president of Sudan encapsulated both the promise and the problems evident in the global consumption of human rights norms such as rule of law, tolerance, and freedom. Here the term “tolerance” was clearly a means of depoliticizing the conflict, of promoting peace and harmony between peoples with little concern for examining the present and historical conditions of the injustices that brought them to war. Such a promise of toleration seems to miss the point that the demand of the southerners had always been for a role in defining the character of the state and thus not merely to be tolerated as a minority in a Muslim-majority state. Political theorist Wendy Brown offers a fascinating exploration of the way in which invocations of tolerance (mobilized in the post-/ world) are embedded in very specific discourses of power that appeal to moral outrage and emo-

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tion, thus masking the political issues at stake. She writes: When the ideal or practice of tolerance is substituted for justice or equality, when sensitivity to or even respect for the other is substituted for justice for the other, when historically induced suffering is reduced to “difference” or to a medium of “offense,” when suffering as such is reduced to a problem of personal feeling, then the field of political battle and political transformation is replaced with an agenda of behavioral, attitudinal, and emotional practices €.€. . [S]ubstituting a tolerant attitude or ethos for political redress of inequality or violent exclusions not only reifies politically produced differences but reduces political action and justice projects to sensitivity training, or what Richard Rorty has called an “improvement in manners.”25

In the case of ‘Umar al-Bashir’s speech, then, it is precisely the happy consumption of human rights discourse that has allowed the government to depoliticize matters of religion. The spirit of “tolerance” in which the conference was held was one that had permeated the discourse of the ruling NCP since the signing of the CPA. The notion that religion was epiphenomenal to the conflict, merely a language in which grievances over the real issues (oil, power, land) was coded, was a common tactic used by the ruling regime to downplay the very significant complaints that non-Muslims (and Muslims on the left) had regarding the Islamization of the state. Such dissidents argued that tolerance, coexistence, and indeed the identity of the state will never be based on firm foundations until the underlying issues of the role of religion in this state have been settled. One cannot help but wonder if it is precisely the stripping of the ideological foundations of rule of law by scholars and development agencies alike, which we observed at the outset of this essay, that has allowed those who respect few of its principles, such as the officials of the government of Sudan, to utilize it as a means of depoliticizing the conflicts they face, its procedural language masking projects deeply at odds with justice. The evening event, held at the headquarters of ansar al-sunna in the al-Sajana neighborhood of Khartoum and attended more or less solely by supporters of ansar al-sunna, had a markedly different flavor. Here, instead of relying on lofty principles such as “religious coexistence,” “tolerance,” the “freedom of belief,” and “equality,” the group mined the life of the Prophet Muhammad in order to see what it said about how Sudanese Muslims should confront nonMuslims in a Muslim-majority society. Though a critique of the government conference was never explicit at the nighttime event, ansar al-sunna problematized the notion of religious tolerance put forward by the government as not only incredibly naive but also out of sync with the proper way in which a Muslim polity should treat its minorities. The aim for ansar al-sunna, however is not to establish an antagonistic relationship to religious minorities—indeed, they



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pride themselves on positive relations with them and the principle of conducting a gentle proselytization that will not scare off potential adherents26—but rather to envision the relationship between Muslims and non-Muslims using a set of theoretical categories that emerge from their idea of Islamic doctrine as derived from the life of the Prophet, rather than the liberal language of human rights upon which the government conference relied. Interestingly, it was not only the arguments made in the government conversation about regulating religious diversity but also the very categories used in making them that posed problems for some of the Salafi speakers that night. When one of the speakers observed that the organizers of their own event had adopted one of these problematic categories in the very title of the gathering (that is, the term “non-Muslims”) he took his brethren to task for such carelessness: And a matter which demands my attention is the technical term “non-Muslim” (ghayr al-muslimin) [which dominates the conversation about religious diversity in Muslim states and which appears in the title of this conference]. In my estimation it is a term that is not precise, and also it is a term which is not fair, and perhaps internalizes a kind of defeatist condition. Yes, it is a term that is used by some of the modern people these days, but it is a term which is new in regards to the terms of Islam which preceded it. So in the insistence on repeating this term, as I see it, there is a kind of pushing forward of concepts such as these which we don’t want to have a place in fora like these .€.€. So what is required for us is to be specific, to use the terms which are used in the Qur’an and sunna in relation to these groups which are now called “non-Muslims.” The Qur’an and sunna use clear and frank expressions which carry clear references. God said, in brief: Those who believe (aladhin aminu) and those who are Jews and the Sabeans and Christians and Mageans and those who worship idols.€.€. [indeed God will separate them out (to render judgment on who is wrong and who is right) on judgment day. For God is the witness of all things (surat al-hajj )].27 Indeed this is a clear documentation that God gave each of them clear names, for among them are major essential differences. So the term “non-Muslim” is a term [that can be] criticized from this standpoint or vantage .€. . Anyhow, it may be appropriate to say these words call your attention to the fact [that we need] more specificity, especially when the matter concerns technical terms which have shadows. Playing with these terms harms the concerns of Muslims at the intellectual level, at the theoretical level, and, as we said, the pushing of such impressions could even be defeatist .€. .

For this speaker, the entire set of terms of engagement with which the conversation about religious diversity in Muslim lands has proceeded is highly inappropriate. The term “non-Muslim” lacks the necessary specificity to be a

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proper object of jurisprudential reasoning (fiqh). Instead, the speaker rightly recognizes that it is a category that is a product of modern Sudanese identity politics which has little to do with the traditional Muslim taxonomy of men. He contends that it is by adopting the language of human rights norms, the language of “the rights of Non-Muslims,” that Sudanese Muslims have lost what is unique about their own model of dealing with religious difference and entered a situation that he describes as “defeatist.” The issue of terminology is so important, the speaker stresses, because these terms do not just affect how we talk about non-Muslims but “have shadows” in Sudanese political practice as well. Thus, in addition to the conclusion at which Salafi shaykhs such as these have arrived—that is, that there are a whole host of relationships to God (“those who believe,” “Jews,” “Christians,” Sabeans,” and so forth) and thus that rights should never simply be extended (or withheld) generically to those who don’t accept Islam—it is the Salafi refusal to accept the terms of debate that makes their contribution a unique one. They seem to be asking: can we imagine a conversation about inter-religious coexistence that does not rely on the liberal categories bequeathed by internationalist human rights discourse, a discourse which we have seen, as in the case of ‘Umar al-Bashir’s speech, to be so inadequate? It is significant also to observe that the speaker focuses on surat al-hajj  here to speak about religious diversity, rather than the much celebrated surat al-hujurat , which we saw government agencies highlighting above in our discussion of the billboards they erected that celebrated tolerance. The focus of alhajj  is not on the necessity of cooperation in spite of difference (“know[ing] one another,” as al-hujurat  commands), but rather on humanity’s division into clearly marked categories. This is not a language of human rights (or even “the rights of non-Muslims”), but rather one in which the specificity of each religious category is recognized and engaged with in a manner appropriate to each kind. Thus the category of “non-Muslim” is opposed by the Salafis not merely for its lack of specificity, but for its lack of presence in the life of the Prophet and in the Qur’an, which makes no recognition of non-Muslims per se but rather recognizes Jews and Christians, idol worshipers and hypocrites, who, crucially, are afforded different identities within the law laid down by the Prophet not only depending on their specific creed (their religious identity, to put it in modern terms) but also depending on their relationship with Muslims at the point of history in question (at war, at peace, in contract, and so forth). Here minority groups are engaged not on the basis of a retinue of rights (either universal hu-



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man rights or those given to the minority as dhimmi within some notions of the ideal Islamic polity28), but rather using a form of adjudication which examines the situational criteria of that individual (or the group of which he is a part) in relationship to the Muslim community at large and its goals, and then compares this to analogous cases in the life of the Prophet, and decides accordingly. The third site in which I observed debates over the problems left unresolved by the law was located outside the capital in a town called Taqali al-‘Abasiyya, which once was the site of an old Muslim kingdom. Taqali lies in the Nuba Mountains just north of the traditional border between northern and southern Sudan. Like Khartoum, the Nuba Mountains are an extremely diverse place containing Christians and Muslims of various sects and followers of traditional beliefs as well, the diversity apparent even within individual families. Unlike Khartoum, however, the Muslims in the Nuba Mountains tend to side with the SPLM, the predominantly southern movement that has traditionally been thought of as representative of non-Muslim Sudanese. On a trip there two months prior to the July  conferences I just mentioned, while part of a caravan accompanying an important Sufi shaykh from central Sudan who is also an opposition politician, I attended a gathering at which Muslims were imagining a religiously diverse Sudan in a very different manner to that expressed in the government or ansar al-sunna events. The residents of this town, overwhelmingly made up of followers of this Sufi shaykh, held an event on the occasion of our visit that consisted of a series of impassioned lectures, stretching into the night. Here the Sufi Muslims of Taqali positioned themselves as being living examples of a Muslim body politic that was able to use the resources of Islam, and in particular the Sufi tradition, to imagine a Sudan where religion was immaterial to citizenship: theirs was SPLM leader John Garang’s vision of a new, postracial Sudan articulated in the language of Islam. The famous Sufi practices of accepting anyone regardless of their errors in religious doctrine or their corrupt practices (such as drinking alcohol) was seen as a model on which the future “New Sudan” could be based. The left-leaning Sufis of Taqali felt that the current political moment allowed them to reinsert their Sufi faith into the political conversation in a way that was impossible during both the Islamist revolution, when they were sidelined as anathema to the Islamist project,29 and in the leftist periods of the s and s, in which religious groups were sidelined in the atmosphere of secular politics. If surat al-hujurat  was the motto of the government conference, and alhajj  was the motto of ansar al-sunna’s event, here the oft-quoted sura al-kafirun (“The Unbelievers”) served as the centerpiece. “Say [oh Muhammad]: oh

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you unbelievers. I do not worship what you worship. And you do not worship what I worship. And I will not worship that which you have worshiped. And you will never worship that which I worship. To you your religion, and to me my religion.” While this verse has been subject to many interpretations, here it was being mobilized to support an argument for a new Sudan. If we can characterize the government position as a politics of difference (adjudicating on the basis of religion, despite promises of equality before the law), the Salafi position as rejection of the language of rights all together, here we have a “politics of equal dignity” wherein religion is immaterial to citizenship, an idea well suited to a city in which the population is Muslim but a distinctly secular party dominates political allegiance. In these three sites we can see how religious groups, and even the government itself, were reading Islam in order to grapple with the new context posed by the signing of the CPA. In so doing, we observe that such groups were thinking through solutions to Sudan’s problems beyond the reformation of the law, which had been such a shallow reservoir for solutions to the problems of Sudan’s instability. Whether it is the fashioning of an Islamism to support the liberal ideals of tolerance and freedom of belief, the construction of a Salafism as a voice of opposition not only to government programs but also to the discursive strictures that the discussion of such problems in terms of minority rights has posed, or the reassertion of Sufism as the variety of Islam most compatible with the vision of a new Sudan in which religion is immaterial to citizenship, it seems that these tensions—between equality and a politics of difference, between national unity and the threat of secession—forced Islamic groups to rethink coexistence in new terms.

Conclusion While the “rule of law” is promoted as an apolitical solution to problems of citizenship in postcolonial societies, the above examples begin to show how truly imbricated with often uneven displays of power it can be. We observe this both in how the guardians of the law consistently mobilize “rule of law” for projects often anathema to the securing of justice and in how the hegemony of its values over political practice (a hegemony backed by World Bank loans as much as the threat of arms) restrains the expression of solutions by those who do not share its basic ontological assumptions.30 The solution to the troubles of Sudan cannot be found simply through promoting the rule of law without a serious engagement with the question of the identity of the law and the political projects that go into supporting it. How-



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ever, the judicial-discretionary model of exceptions that is currently in place in Sudan is not sustainable, as when there are laws which exist on the books that are discriminatory, they can be reanimated at will. Creativity will be required, then, in order to look for alternatives to promote justice in Sudan other than supporting legal institutions that satisfy only one sector of the population or none.31 It seems solutions need to be devised that occur outside the legal arena in an age in which the promise of the law as the key to a unified citizenry has been revealed as a bitter ruse. The path Sudan will take, even if the South does secede in July of  as is expected, is not easy to predict. Yet, even without the southern third of the country, Sudan remains an extremely religiously and ethnically diverse nation and thus the problem of governing this diversity will linger on. In this context, it is those voices from civil society, which have heretofore been marginalized from the political process, that have the greatest potential to offer new interventions into those problem spaces in which local and international leaders remain so deeply stuck.

Notes The Wenner-Gren Foundation for Anthropological Research, the Fulbright-Hays Commission, and a grant from the American Council of Learned Societies and the Andrew W. Mellon Foundation generously funded the research on which this essay is based. Abdullahi An-Na‘im, Amel Gorani, Mark Massoud, Manuel Schwab, Winnifred Sullivan, Mateo Taussig-Rubbo, and Malika Zeghal all offered helpful suggestions on the essay, as did two anonymous reviewers from the press. Perhaps against better judgment, I did not always take all of their advice. I also benefited greatly from comments from the “Secularism: The Legal Story” working group at the State University of New York at Buffalo Law School, members of the Department of Near East Studies at Princeton University, the Institute for Advanced Study’s secularism workshop and my religion and law seminar at Carleton College to whom I presented versions of this essay. . I wrote this essay in early , three years prior to the affirmative vote on Southern Secession which occurred in January of . While I have made some edits to this essay to account for current developments, I have tried as much as possible not to project the current situation anachronistically back on the period in which I conducted my work so as to paint an accurate picture of the research field as I encountered it. Though by the time of the national elections in April of  southern secession seemed a fait accompli, this was not the case in the years directly following the signing of the Comprehensive Peace Agreement (CPA) with the South. The question of how to foster unity held a serious place in the national conversation in those years, even in spite of the lack of commitment to unity by some separatist actors. It is the attempt at unity, however problematic and eventually unsuccessful, that is the subject of this essay. . Thomas Carothers, Promoting the Rule of Law Abroad: In Search of Knowledge (Washington, DC: Carnegie Endowment for International Peace, ), , my emphasis.

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. United Nations Development Program (UNDP), “Strengthening the Rule of Law in Conflict and Post-Conflict Situations: A Global UNDP Programme for Justice and Security –,” (http://www.undp.org/cpr/documents/jssr/rol_final_apr.pdf), . . Such an argument is developed succinctly in Wael Hallaq’s An Introduction to Islanic Law (Cambridge: Cambridge University Press, ), and in Brinkley Messick’s The Calligraphic State: Textual Domination and History in a Muslim Society (Berkeley: University of California Press, ), –. . An excellent article which makes the argument that the question of identity of the law must be prior to the question of rule of law in Sudan is Peter Nyot Kok’s “Conflict over Laws in the Sudan: ‘From Pluralism to Monolithicism,’” in Sudan: History, Identity, Ideology, ed. Herve Bleuchot, Christian Delmet, and Derek Hopwood (Reading, UK: Ithaca Press, ). See esp. p. . . For a discussion of this phenomenon, see Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press, ), –. . It should be noted that the Sudanese legal system has always been deeply plural in nature even in the most robust periods of Islamization. Mark Fathi Massoud, “The Disintegration of the Legal Profession in Sudan,” in Fortunes and Misfortunes of Political Liberalism: The Legal Complex in the Post-Colony, ed. Terence C. Halliday, Lucien Karpik, and Malcolm M. Feeley (New York: Cambridge University Press, ). What was new in the immediate postwar context, however, was a reassertion of legal pluralism as the solution to instability at the moment when the nation was establishing mechanisms for unity for the first time in twenty-two years. . The “Sudan Charter” promulgated by the National Islamic Front (the party that later evolved into the NCP) states that a secular governmental system is “neither neutral nor fair, being prejudicial to [Muslims] in particular as it deprives them of the full expression of their legal and other values in the area of public life.” National Islamic Front (al-jabha al-qumiyya al-islamiyya), The Sudan Charter: Unity and Diversity (Mithaq alsudan: al-wahda wa-l-tabayin) (Khartoum: al-jabha, ), p. . . “Al-tawafiq al-sha‘bi wa qiyyam wa ‘araf al-sha‘b al-sudani wa taqalidu wa mu‘ataqadatu al-diniyya,” my emphasis. . The Interim Constitution of Sudan (), Article -. The  Sudanese Interim Constitution can be found at the website of the Ministry of Foreign Affairs, http:// www.mfa.gov.sd/arabic/contry_leader/.doc. . Ibid., Article , b. . Charles Taylor, “The Politics of Recognition,” in Multiculturalism, ed. Amy Gutman (Princeton: Princeton University Press, ). . The Interim Constitution of Sudan (), Article . . Ibid., Article , d. . While the north-south conflict has ended, sporadic clashes continue, and while the bulk of fighting has ended in the western region of Darfur, the specter of war still looms with massive portions of its population living in camps for the displaced. . “Al-sudan watan wahid jami‘ takun fihu al-adiyan wa-l-thaqafat masdar quwa wa tawafiq wa ilham.” Article -. . The new multiculturalist turn was so pervasive that even by , in the early



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stages of negotiations with the south, NCP cultural projects such as al-ta’sil (previously understood as the process of returning moral, political, economic, and scientific practice to an Islamic origin) were being redefined on a multiculturalist basis. Here al-ta’sil was reframed as “the return to its origins [with the meaning of,] going back to the noble deeds of morals from our popular inheritance (mawruthatna al-sha‘biyya) and our noble customs, that which is shared between [Islam] and between other religions, not in the fundamentals of doctrines about which they differ but in the programs of morals about which they agree”(Ahmad ‘Ali al-Imam, as quoted in al-Tayyib Ibrahim Muhammad Khayr, Masarat al-ta’sil wa tatbiqatuhu fi-l-sudan: ‘ard wa taqwim tajribat al-ta’sil fi-l-ta‘lim al-‘ali (Khartoum: markaz al-tanwir al-ma‘rifi, ), . However, though gestures toward defining Sudan as a nation of many religions and cultures were pervasive, in practice things were more complicated. One needed only to turn on Sudanese national TV and radio to see that the diversity of Sudan is in fact barely visible in a great portion of the public sphere, Islamic and Arabic culture being hegemonic. . See my discussion of this dilemma in: “‘Post-Islamism?’ Questioning the Question,” the Social Science Research Council’s Making Sense of Sudan blog, in two parts at http://www.ssrc.org/blogs/darfur////post-islamism-questioning-the-question/ and http://www.ssrc.org/blogs/darfur////post-islamism-questioning-the-question-part-/. . Al-salafiyya al-da‘wiyya. See note . . John L. Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago, ); John Bowen. Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning (Cambridge: Cambridge University Press, ). . Al-mu’tamar al-dawli li-l-hiwar al-islami-al-masihi hawl istidamat al-salam wa ta‘ziz al-wahda al-wataniyya. . The term “Salafi” has referred to a variety of reformist trends within Islam since the nineteenth century, some liberal and modernist, some conservative, which claim to represent a form of Islam on the model of the righteous forefathers of Islam (al-salaf al-salih, hence the name Salafi) and reject or re-evaluate the centuries of interpretive scholarship that have intervened between then and now. In present-day usage common in the Muslim world and its diasporas, the term “Salafi” refers to groups that have been influenced by the writings of the medieval theologian Ibn Taymiyya and the activism of the Saudi reformist movement of the Wahhabiyya, though they cannot be simply reduced to a reproduction of either. Such groups have a strong focus on what they refer to as the purification of Islamic doctrine (tazkiyyat al-‘aqida) that occurs through the designation of many contemporary Islamic developments as human innovation (bida‘) or giving loyalty to others which is due to God alone (shirk). Within this trend of Salafism there are jihadist groups (such as the branches of al-Qa‘ida), and explicitly pacifistic evangelical groups, such as ansar al-sunna, with whom I worked in Sudan. Each, of course, disavows the other. A sense of the range of modern Salafi activism is contained across the various articles in the volume Global Salafism: Islam’s New Religious Movement, ed. Roel Meijer (New York: Columbia University Press, ), and a discussion of the problems in defining this term appears in Henri Lauzière, “The Construction of Salafiyya: Reconsidering Salafism from the Perspective of Conceptual History,” International Journal of Middle East Studies , no.  (): –.

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. See my “The Salafi Critique of Islamism: Doctrine, Difference and the Problem of Islamic Political Action in Contemporary Sudan,” (in Meijer, Global Salafism, –) for a discussion of the Salafi critique of the Islamist project. . “Manhaj mu‘amalat ghayr al-muslimin fi al-sira al-nabawiyya.” . Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton: Princeton University Press, ), . . It is important to note that Sudanese ansar al-sunna upholds a critical distance from the classic Salafi approach to non-Muslims under the category of al-wala’ wa-lbara’ (the principle of loyalty to Muslims and extreme disasociation with non-Muslims or heretical Muslims), arguing that the principle should be eclipsed by their higher goal of da‘wa, proselytization. The essential duty to enjoin what is right and speak out against the wrong (al-amr bi-l-ma‘ruf wa-l-nahi ‘an al-munkar) discourages these Salafis from any degree of disassociation. . Note that the expectation was that the Qur’an was so well known that quoting merely the first few lines of a verse would indicate the remaining lines, which I have put in brackets. . Such a model is contained in Sayed Abul ‘Ala Maudoodi. Rights of non-Muslims in an Islamic State (Lahore: Islamic Publications, ). . Note that while these particular Sufis were sidelined during the Islamist revolution, other Sufi groups were integrated into the regime and played a crucial role in its success. See Ruediger Seesemann’s “Between Sufism and Islamism: The Tijaniyya and Islamist Rule in Sudan,” in Sufism and Politics: The Power of Spirituality, ed. Paul Heck (Princeton: Markus Weiner, ). . The argument that liberal models of equal citizenship attendant to rule of law discourse are not always a guarantor of stability is a point made forcefully by Ussama Makdisi in his discussion of the changes in models governing religious diversity adopted by the Ottoman Empire in the late nineteenth century. Ussama Makdisi, Artillery of Heaven: American Missionaries and the Failed Conversion of the Middle East (Ithaca: Cornell University Press, ), e.g. pp. –. The failures of the attempt at transcendence of difference through models of equal citizenship, and the way in which they spiraled into sectarian violence in Mt. Lebanon (ibid., –), should serve as an ample warning to us that liberal models of tolerance are not necessarily more conducive to social stability than alternative solutions. . Legal pluralism is not a simple solution either, as one wonders if such a system can be perpetuated that does not reproduce the colonial objects of divide and conquer or impose the arbitrary will of elites who define the customs or religious edicts that are to be enshrined as law (see Mamdani, Citizen and Subject). Further, the plethora of individuals who might not want to limit their identity in front of the law to a generically defined Muslim, Christian, Dinka, or Shilluk belies any simple solution.

chap ter e leven

The Religio-Secular Continuum Reflections on the Religious Dimensions of Turkish Secularism mar kus dressler

The Religio-Secular Continuum In the context of Western modernity, the secular has, to the extent that it has been defined in relation to the religious, become a self-evidencing construct. Whenever it asserts its own boundaries by claiming its difference from the religious it automatically revalidates the latter. In other words, through the processes of modernization notions of the secular and the religious have been drawn together and connected as a binary pair. Within the dynamics of this binary, the secular and the religious function like the opposite poles of a magnet. The more the distinctiveness of the two poles is emphasized, the more their interrelatedness comes to the forefront. This basic mechanism can easily be observed in many of the spheres of modern life—such as arts, sciences, politics, and law—which, as the classical narrative of functional differentiation holds, developed with the formation of the modern state. According to the theory of functional differentiation, the roots of which are closely connected with the emergence of the academic discipline of sociology, and particularly with the theories of Émile Durkheim and Max Weber, the process of secularization is grounded in the emancipation of social spheres from religious tutelage and control.1 Religion is thus also constituted as a separate sphere, and therefore, in a sense, also secularized. W. Cantwell Smith, for example, has remarked in a retrospective on his work “that ‘religion’ in its modern form is a secular idea.”2 With its appropriation by secularist discourses from the Enlightenment onward, religion has been subordinated to the new secular episteme.3

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But one might also ask, in turn, whether the so-called secular spheres are really secular. As Talal Asad has argued in critical response to José Casanova’s defense of the differentiation thesis, [w]hen religion becomes an integral part of modern politics, it is not indifferent to debates about how the economy should be run, or which scientific projects should be publicly funded, or what the broader aims of a national education system should be. The legitimate entry of religion into these debates results in the creation of modern “hybrids”: the principle of structural differentiation—according to which religion, economy, education, and science are located in autonomous spaces—no longer holds.4

I would like to suggest that the differentiation thesis and the rejection thereof, as here formulated by Asad, are not necessarily axiomatic antagonisms, but can be brought into fruitful conversation for an analysis of religio-secular dynamics. It is precisely by taking the differentiated modern situation as a heuristic starting point of analysis that the degree of differentiation and/or conflation between secular and religious symbols, practices, and discourses can be made visible. As long as we have not reached a language that allows us to go beyond the conceptual predicament that the religio-secular dichotomy poses,5 we need to systematically think differentiation and conflation together. If we perceive the religious and the secular as forming an opposition in an ontological sense our argument remains a circular one, wherein analysis of the secular reifies the religious and vice versa.6 By advocating the disentanglement of the secular and religious spheres, secularism presupposes their entanglement, and therefore takes for granted and contributes to the objectification of theses spheres. In other words, an approach that conceptualizes the religious and the secular as a binary pair reinscribes a secularist worldview and therefore is part of the problem that it aspires to understand. Careful analysis of the processes by which the boundaries between the religious and secular spheres, and the contours of licit and illicit religion, are defined shows that these processes are interrelated in more complex ways than a binary perspective suggests. Instead of scrutinizing an alleged “religio-secular divide,” which already implies a secularist perspective, we should, following the pioneering work of Asad, question the very logic of this supposed divide and research the genealogy of the discourses sustaining it.7 Arguing that the secular and the religious form a semantic continuum, I want to conjure up not arbitrariness of content, but rather a dynamic of mutual implication and fluidity of boundaries, where the meanings of particular symbols and practices are never entirely stable. The idea of the religio-secular continuum helps to imagine a space of discursive and symbolic interaction that bears tensions within itself,



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without however, and this is where it differs from the binary approach, making claims about these tensions being the outcome of or leading to any ontological otherness. It is rather that these tensions are part of the continuum, and that the naming of poles within the continuum as “secular” or “religious” is a normative rather than a descriptive act. It is the dynamics of particular public discourses that determine how notions of the religious and the secular are connoted and related to each other in the public space. The analysis of law provides attractive vantage points for an investigation into the religio-secular continuum. Secular law is concerned with strengthening and broadening its own sphere of influence, and thus with the definition and limitation of the sphere of the religious. This law is itself both a product and an agent of the differentiation between, and mutual constitution of, the secular and the religious. Reflecting on the French example, Asad has pointed out that “in order to determine its acceptable forms within the polity, the state must identify ‘religion.’ To the extent that this work of identification becomes a matter for the law, the Republic acquires the theological function of defining religious signs and the power of imposing that definition on its subjects, of ‘assimilating’ them.”8 This role of law in defining the boundaries of religious life is not specific to the French case, although it might be more aggressively pronounced in “laicist” contexts; it holds for secular modernity in general. In this study I analyze the politics of Turkish laicism within the semantics of the religio-secular continuum drawing on three empirical examples: () the role of the state in the regulation of religion, () the question of the recognition of the Alevi minority as legitimately different from the Sunni-Muslim majority, and () disputes over the wearing of the headscarf, and the formation of political parties with an Islamizing agenda.9

Laicism and the Hegemony of a Modernist Religion Concept A survey of the secularizing reforms in the early Turkish Republic shows that law played a major role in the implementation of secular Turkish modernity.10 The ultimate aim of this project was to limit the social and political influence of religion, and to subordinate religion to the national interest. In acknowledgment of its indebtedness to the French model, to which it owes its suspicion of institutional religion and the ideal of a strictly secular citizenship and public, the Turkish state policy of secularism was called laicism (laiklik).11 While most of the secularizing reforms from the early republic, especially the

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institutional reforms, are today broadly accepted even by conservative parts of the population, laicism understood as mandating a form of civilized, “Western,” lifestyle, and as a principle that organizes and controls religion in the public sphere has remained contested. The most contested issues that are discussed in Turkey in relation to laicism today concern the headscarf, and the legitimacy of political parties with an Islamizing agenda. Further contested issues that help to put the question of Turkish laicism in sharper focus are the state’s role in the organization of public religious practice, and the Alevi demand to be recognized as a socio-religious community different from Sunni Islam. With the establishment of Turkish laicism in the s, the regulation of religion was integrated into the state administration in the Directorate for Religious Affairs (DRA). The DRA, which has expanded considerably since its foundation in , is, together with the Ministry of National Education, charged with defining, organizing, and regulating public Islamic practices.12 It is a massive state bureaucracy, with a budget larger than most government ministries. Among the DRA’s main obligations are mosque construction and maintenance, provision of legal opinions (fatwas), and organization of the pilgrimage to Mecca. In the Constitution of  (Article ), the role of the DRA is defined as acting in accordance with the principle of laicism, and toward the goal of national unity. It embodies the normalizing side of Turkish laicism as far as Islam is concerned.13 Religious groups outside the oversight of the state—in the case of Islam that means outside of the control of the DRA—are perceived by the Kemalist establishment as a threat to laicism, and the range of their activities is severely constricted by law.14 It is worth taking a closer look at the DRA’s understanding of Islam. I argue that the DRA applies the rhetoric of Islamic revivalism to condemn as illegal innovations those “cultural” practices that are perceived as a threat to notions of Islamic purity and authenticity. As “cultural” the DRA designates those practices that it holds to be secondary to what it understands as original, and therefore more authentically “religious” practices. A typical example are the signs placed at popular mausoleums of saintly figures, which are visited to obtain blessing, such as, for example, at the entrance to the Eyüp Sultan Mausoleum in Fatih/Istanbul, the most popular pilgrimage site in Istanbul, believed to contain the remains of one of the companions of the Prophet Muhammad. The sign reads: Visitors please be aware, according to the Islamic religion in and around religious shrines[:]

• • •

No vows No animal sacrifices No binding of cloth on trees



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Figure .. Sign at the entrance to the Eyüp Sultan Mausoleum in Fatih/Istanbul. Photo by author.



• • • • • • •

No leaving of stones or money No crawling towards the tomb No leaving behind of food No sweeping of hand and face No expectation of divine help and healing from the shrine No circumambulation around the shrine No sleeping within the shrine

In our religion, these, and similar illicit innovations (bid’at) and superstitious practices (hurafeler) are absolutely forbidden. The Eyüp Office of the Müftü.

The prohibited practices are common in traditional, mostly, but not exclusively, rural forms of Islam. The list simultaneously invokes shari‘a law and underlines the monopoly of the laicist state regarding the definition of correct religion. (The state is represented here by the Office of the Müftü, subordinated to the DRA, whose principal function is to give Islamic legal opinions [fatwas].) One could also say that the list confirms laicism’s compliance with shari‘a law, which it subordinates qua integration into its secular structure. The sign shows how the DRA and its suborganizations use their privileged position to advance a

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Figure .. Sign at the entrance of Aya Yorgi Church on Büyükada/Istanbul. Photo by author.

particular understanding of correct Islamic practice. This is a blatant example of the conflation of religious legalism and secularist authority as they come together in the DRA, exemplifying the religio-secular continuum that forms Turkish laicism. Such rationalist legalism with regard to religious practice is not employed only by the state guardians of proper Islamic practice. A similar prohibition against “superstitious practices” can be found on a sign posted at the entrance to the church of the Greek Orthodox monastery Aya Yorgi (St. George) on Büyükada (the largest of the Prince’s Islands close to Istanbul) (See Fig .). The church is an important pilgrimage site, and a visit combined with certain



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devotional practices is believed to have beneficial effects. A sign placed at the entrance of the church, designed in the shape of an opened scroll, reads as follows: The various things such as yarn, pieces of cloth, and nylon bound to the branches of trees in the vicinity, as well as the [miniature] cars, houses, keys, and so forth sold around here as offerings stem from void (batıl) beliefs. Only by believing in Him with a clean and loving heart can our wishes be accepted by God. For that reason we ask our dear visitors not to consider those kinds of empty beliefs.—The Monastery of Aya Yorgi.

This example from a Greek Orthodox site, where one might have expected greater tolerance for popular devotional rituals, suggests that the concept of rationalist religion, which is defended vigorously by the Turkish state and the DRA, has had an impact beyond Islam. Both the sign at Sultan Eyüp and the sign at Aya Yorgi work by denouncing popular practices as “superstitious” for the defense of established positions of authority against “popular” practices. The signs at the pilgrimage sites of Sultan Eyüp and Aya Yorgi reflect an understanding of religion that is shaped by assumptions genetically related to Western modernist discourses. This understanding is radically dualistic, juxtaposing notions of a scientific, historical, authentic, universal, and laicist official religion with superstitious, contingent, syncretistic, culturally exclusive, and antilaicist deviations from this ideal. In the Islamic apologetic tradition, too, legitimate forms of inner-Islamic difference have been strictly limited. Those who stepped beyond the boundaries of the hegemonic discourse of proper religion (din) have at times been admonished, ostracized, and persecuted. Periodically, with the emergence of revivalist currents, concepts such as bidat (illicit innovations) and hurafe (void, superstitious beliefs) have been used as tools of “othering” those allegedly deviating from the correct din.15 There is thus an interesting convergence between Islamic revivalism, Islamic modernism, and Turkish laicism in their respective teleologies.16 Take, for example, the writings of Yaşar Nuri Öztürk, a professor of Islamic theology and prolific author of popular books on Islamic dogma and ethics. Öztürk appeals to broad audiences today due to his moderate Islamic views, and the conciliatory position he takes in the ideological battle between Islamists and Kemalists. His work shows neatly how Islamic revivalist, modernist, and secularist thrusts converge in the Kemalist understanding of religion. In his best-selling How Islam Became Corrupted: Deviations from Revealed Religion, Superstitions, and Illicit Innovations, he condemns as deviant Shi‘ism, political Islam, “popular,” and Sufi practices, while he endorses revelation, reason, and natural law as the only authentic sources of truth and religion. He defines superstitious belief (hurafe)

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as “the common term for beliefs, approaches, acceptances, claims, practices, and attitudes, which are contrary to the data of the example of the Prophet (to the laws of nature) [sic], to science, to reason, and to the revelation and which stem in their majority from the old traditions of the ancestors.”17 Öztürk’s work exemplifies how Turkish laicism, while rhetorically positioned in opposition to political Islam and a strong role of religion in public life, draws on a concept of religion that is in its basic grammar very similar to that of its Islamic revivalist and modernist others—namely, a concept of religion that is rationalist in structure and focused on essences and boundaries rather than fluidity and convergence between religions.

Striving for Recognition as Legitimately Different from Sunni Muslims: The Alevis The Alevis of Turkey are directly affected by the rationalist religion concept as sketched above. While DRA officials refrain from explicitly labeling Alevi practices as illicit innovations or superstitions,18 most of the traditional Islamic practices prohibited by the sign posted at the shrine of Sultan Eyüp are common in Turkish Alevism, which is a culture at the margins of Turkish Islamic discourse and with a strong Shi‘ite note.19 A largely rural tradition, Alevism is based on local customs, hierarchies that depend on sacred lineages, and a rich corpus of oral traditions comprising poems, songs, and epic narrations that would be difficult to unambiguously locate within the semantics and boundaries set by modern differentiations such as those between religion and the secular, or religion and culture.20 Roughly  to  percent of Turkey’s population has Alevi roots. Around a third of it self-identifies as Kurdish and/or Zaza, while the majority self-identifies as Turkish. Until recently, Alevi communities were found mostly in the central and Eastern provinces of the country, but from the mid-twentieth century onward Alevis began to move westward and into urban spaces. The scale of the urbanization has led to the dissolution of traditional Alevi culture, which was strongly anchored in rural socio-economic structures.21 In the last two decades, however, Turkey, and parts of Western Europe with a strong Turkish minority population, have witnessed a political and social revival of Alevism and the formation of a powerful transnational Alevi movement. Sparked by social and political developments that have favored the articulation of communal identities in terms of culture and religion, Alevis began to publicly assert their difference from Sunnis, and demand an end to discrimination by the state and by Sunni Muslims in everyday life. The Alevi revival was



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also stimulated by a heightened sense of threat felt in the face of strengthening Sunni Muslim sentiment and institutions since the s.22 Accelerated by acts of anti-Alevi violence in the s, the Alevis began to build extensive national and transnational networks, which were in themselves fragmented along the ethnic, cultural, and ideological fault lines of Turkish society. In this context, Alevis began to reformulate the meanings of Alevism (Turk. Alevilik) using the universalist languages of religion, human rights, and cultural difference, taking recourse to the discourses of identity and authenticity characteristic of secular modernity.23 Unsurprisingly, the emergence of newly invigorated Alevi voices in the public sphere created significant unrest in the already fiercely contested field of Turkish identity politics. Alevis did not challenge the principle of laicism directly. Positive association with laicism has, since the s, been one of the dominant themes in public proclamations of Alevi identity.24 Alevis tend to understand laicism as a principle aimed primarily at curtailing potential incursions of Sunni Islam into public life. For this reason very few Alevi voices openly criticize the principle of Turkish laicism in favor of more liberal forms of secularism. And for the same reason, one finds little common ground between Alevis and those Sunni Muslims who, hoping for an increase of religious freedom, strive for a liberalization of laicism.25 Political conflicts that emerge from the public contestation of the “Alevi question” are regularly externalized to the legal sphere. As a consequence, courtrooms have become a major arena for the negotiation of Alevi claims against the state. The issues that dominate the public and legal disputes over the “Alevi question” can be divided into three categories: () formal Alevi recognition—that is, whether the Alevis should be integrated into the state system of religious administration, and whether they should receive material support from the state; () who has the right to name and signify Alevi symbols and practices, especially when it comes to their religious significance; and finally, and intrinsically related to the first two points: () how to relate Alevism to Islam. In all of these disputes, the legitimacy of Alevi practices, even when negotiated in “secular” legal terms, is often implicitly or explicitly evaluated using theological arguments.26 The issue of legitimate Alevi representation—both Alevi representation visà-vis state institutions, and potential representation of Alevis by the state—is a matter of ongoing public controversy. To the degree that Alevism is considered part of Islam, the DRA is responsible for its religious aspects. Alevis claim, however, that the DRA is not doing anything for them and even works actively toward their assimilation into mainstream Islam, thereby violating the consti-

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tutionally sanctioned principle of equality and nondiscrimination with respect to religion. Alevis claim that the state supports only Sunni Islamic practices; that the DRA employees are almost exclusively Sunni; and that the DRA’s activities, in its publications, in the organization of religious education, in policies regarding places of worship, and in the organization of religious holidays, would exclusively follow the Sunni tradition.27 The state denies official status— and consequently any kind of funding, as well as any public role—to all forms of Islam that are outside its institutional control. This affects in theory not only the Alevis but also traditional Sufi orders and neo-Sufi formations such as the Fethullah Gülen movement. In the logic of Turkish laicism, all particularist claims of Muslim groups in public are seen as a threat to the principle of national unity. In practice, however, it is well known that certain Turkish Sufi orders, and in particular the Fethullah Gülen movement, are, unlike the Alevis, strongly represented in the state bureaucracy including the DRA. One of the most contested issues between Alevis and the state concerns the status of the cemevis (“houses of community”) where Alevis celebrate their communal rituals. Alevis claim that cemevis are places of worship and should, as such, receive the same recognition as the houses of worship of other religions. Since the DRA does not permit religious spaces outside its oversight, Alevis until very recently presented the cemevis as “cultural” instead of “religious” spaces in order to prevent direct confrontation with the state. The DRA justifies its nonrecognition of Alevi difference with the argument that special rights for the Alevis would mean favoritism over other practices of Islam that are also not recognized. The DRA claims to maintain equal distance from all such particularist interpretations of Islam, by supporting only those interpretations that are understood to be the “common share” of all Muslims.28 This argument allows the DRA to deny state support for Alevi cemevis. As Ali Bardakoğlu, then president of the DRA and in this function highest Islamic authority of the country, explains: “We cannot be against the Alevi cemevis, their traditional cultures, their supplications, their cem rituals—they are valuable, too. However, I do not think that it would contribute to the unity .€.€. of our society if we were to include them—that is these particularities beyond the common share [of Islam]—into the legal structure and make them part of the DRA’s services.” Differentiating between the “traditional cultures” of Alevism and the “common share” of Islam, and asserting the supremacy of the latter, Bardakoğlu conflates culturalist and theological arguments. In Bardakoğlu’s reasoning, the cemevi cannot be considered a place of worship because the only Islamic place of worship for all Muslims is the mosque.29 The opinion of the President of the



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DRA weighs heavily.30 He leads a government agency that is not only firmly anchored in secular law but also contributes actively to the normalization of Turkish laicism. It is precisely this convergence of secular and religious authorities that is characteristic of the religio-secular continuum of Turkish laicism. Given the state’s monopoly on religion, it was, until rather recently, widespread legal practice to prohibit Alevi associations if their names or governing documents included terms that signified them as “religious.” The term “Alevi” itself was considered a religious term, and prosecutors and lawyers tended to argue that language referring to identities and practices different from the officially recognized interpretation of Islam constituted an act of religious separatism; such particularism would undermine the unitary character of the (by implication Sunni Muslim) nation and constitute a threat to the public order.31 Interesting about these debates is that the defenders of the laicist order tend to themselves employ theological rhetoric in their defense of laicism; they claim the exclusive right to define the boundaries between religious and secular spheres, and to sanction and criminalize transgressions if deemed necessary. While the practice of outlawing Alevi organizations has stopped in recent years as a result of international pressure and Turkish public opinion, the institutional disadvantages of Alevism in comparison with state-sponsored Sunni Islam continue. An interesting point about Turkish laicism is that, in contrast to the widespread assumption that modern religion is more concerned with belief than with practice,32 its focus has remained on the latter. The state’s concept of licit religion is dominated by notions of legitimate practice. For the laicist discourse, which is ultimately about a particular fashioning of the public, matters of belief are of secondary concern, if of any concern at all. Turkish laicism’s focus on practice rather than dogma shows that, irrespective of its strong leanings from Western secularist traditions, it also has affinities with Islamic law. This focus on practice does not mean that Turkish laicism would be entirely indifferent to religious dogma. As a religion-defining discourse, laicism is keenly interested in clarifying the relationship between Alevism and Islam, an interest that has transnational implications. The question of the nature of Alevism and how to relate it to mainstream Islam also plays a role in the European Turkish diaspora, and in international arenas such as the European Court of Human Rights, to which Alevis have turned in recent years, often successfully, in their battle against discriminatory practices in Turkey. In a case challenging mandatory religious education in school, for example, the Alevi claimant’s advocate, himself president of an important Alevi umbrella organization, argued that “Alevism is both with respect to its teachings/philosophy as well as with

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respect to its religious practices totally different from Islam, and an entity for itself.”33 The Court, however, reaffirmed the connection between Alevism and Islam. In its judgment it maintained that Alevism was a “belief system, which has deep roots in Turkish society and history, [and] is generally considered as one of the branches of Islam, influenced in particular by Sufism and by certain pre-Islamic beliefs.”34 Still, the Court ruled in favor of the Alevi claimant and emphasized the state’s obligation to secure an impartial and pluralistic representation of religion in accordance with the European Convention on Human Rights.35 Between  and  the governing AK Party (Justice and Development Party, AKP)—which has its roots in the political Islamic movement that has since the s acquired much popular support, and the broadest goal of which can be described as a strengthening of Islamic institutions and a vaguely defined Islamization of public life—embarked on what has been labeled the “Alevi opening.”36 This was essentially a public campaign of symbolic acts and regular official workshops between representatives of the government and Alevi organizations, where Alevi claims were discussed. While one of the major issues has been the question of how to formally integrate the religious dimensions of Alevism into the state structure, the “Alevi opening” has not yet led to any substantial results.37 It has to be recognized, as has been remarked by journalist Oral Çalışlar, himself a participant in the workshops, that the very fact of the Alevi workshops organized by state institutions constitutes the foremost act of recognition Alevism has so far received. However, as Çalışlar also notes and severely critizes, the dialogue between the state and the Alevis has been severely hampered by the fact that the government and state representatives were not willing to bracket out their Sunni norms of Islam when approaching the Alevi question.38 The debate over the proper place of Alevism in Turkish society and over its relation to Sunni Islam, as the above discussed examples show, functions as an arena for the differentiation between religious and secular spaces, languages, and practices. This differentiation is inherent to the concepts of religion and the secular to an extent that even in secular legal discourse recourse is taken to theological arguments. The insistence of the laicist regime to define and control the contours of legitimate religion necessarily produces illegitimate expressions of religion, and the mantra of the necessity of this controlling function is used to justify the authority of laicism. This is the work of the religio-secular continuum that characterizes the grammar and practice of Turkish laicism, and the religion concept that it endorses. It reaffirms a unitary, Sunni, but secular, Islam as implicit state religion in conformity with Turkish nationalism.



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Laicism’s Others: The Headscarf and Political Islam The struggle over Alevi rights problematizes the state monopoly on the definition of Islamic practices and brings to the forefront the question of how much inner-Islamic difference the Turkish state is willing to allow. While the headscarf debate also revolves around contestations of the state monopoly regarding the definition of the rules for religion in the public sphere, laicism here takes issue with a practice associated with the Islamic mainstream. Whereas the state institutions take a rather Sunni-mainstream position in the debate on Alevism, in the headscarf debate they assume a position that challenges mainstream Islamic practice. This could be interpreted as the state acting as an agent of Islamization in one case, and of secularization in another. I will suggest a different perspective, one more attuned to the underlying notions of power that are asserted in these struggles. From this point of view, it appears that Turkish laicism has normalized a form of civil, secular, Sunni Islam that it defends aggressively independent of whether it is challenged by Alevis or by pious and/or political Muslims. Within the Kemalist order, the laicist containment of Islam legitimizes the authoritarian role of the state not only as supervisor of the political system but also as its major political agent. In other words, the restrictions that the state enacts both against Alevis and against women challenging the ban on headscarves in public spaces are undertaken with the aim to create a domesticated, secular Islam. This disciplining of Islam is a major legitimation strategy for the laicist state. The female body has, since the beginning of the republic, been a significant site of contention for the creation of a “modern,” secular public sphere. As Alev Çınar writes, “[in] the s, the Islamic veil took a central place in official discourse, where it was used as the symbol of backwardness, ‘barbarism,’ and the oppression of women by the Ottoman state.”39 In the Kemalist worldview, “the unveiling of the female body came to be the ultimate sign of the emancipation of women and the liberation of the nation” and was praised as an important step toward the modernization of the country.40 Subsequently, the practice of Islamic veiling was perceived as an antimodernist and potentially subversive provocation. This perception intensified with the emergence of a strong political Islamic movement beginning in the s. In the words of Nilüfer Göle: “As the most visible symbol of Islamization for the last three decades, the headscarf has been considered a threat to secularism and gender equality, two values that are cherished by those who are devoted to the heritage of Ataturk’s republican modernity.”41 The question of where to allow which kind of head coverings is one of the

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thorniest conflicts dividing laicist guardians of the Kemalist status quo on the one side, and, on the other, political liberals and pious Muslims, both of which groups advocate the right to wear the headscarf as a matter of human and religious rights. The most recent eruption of this conflict occurred when the AKP set out to change the constitution in order to allow certain kinds of “traditional” headscarves in universities. In February , Abdullah Gül, the first president of Turkey with a background in the Islamic movement, signed an amendment to the constitution that would have allowed women wearing a particular form of “traditional” headscarf—as opposed to the still banned tesettür-style veiling42—to enter the universities. It did not take long for the CHP (Republican People’s Party), which understands itself as the legitimate political representative of Kemalism, to bring the amendment to the attention of the Constitutional Court of Turkey. By June , drawing on the principle of laicism, the Court declared the amendment void and its application illegal. Until recently, the Kemalist establishment vigorously rejected any modification of the ban on veiling in certain public spaces. In early , however, leading up to the municipal elections in March of that year, some astonishing developments took place. Apparently in recognition that its public image as the party of a secular elite that cares mostly about its own political and material privileges was preventing it from making inroads into a relatively more traditional electorate, the Kemalist CHP, discovered Islamic symbols for their election campaign. Suddenly, pictures of party officials tacking Atatürk stickers on women wearing the all-black chador (which covers body and hair leaving only part of the face unveiled), pictures of covered women in front of CHP party banners and Atatürk pictures, and news about CHP election campaigners handing out headscarves as presents to women in religiously conservative neighborhoods appeared in the Turkish media—topped only by rumors that certain CHP branches were opening Qur’an schools. The public was stunned, with reactions ranging from amusement to disbelief. Among some laicists, there was a sense of betrayal. These pre-election activities do not, however, seem to have had any significant effect on the election results, and it will remain to be seen whether the CHP will continue this newly discovered tolerant stance toward practices that it used to mark as signs of a most threatening Islamization. Still, the CHP’s “headscarf opening,” as it has quickly been labeled, reflects a gradual softening of parts of the Kemalist establishment toward one of the most sensitive symbols of the Turkish modernization project. It shows that the previous tactic of externalizing the problem by calling on the law might have been recognized as



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a failed strategy since it made obvious that the political authority of Kemalism is in decline. In light of these developments it is not surprising that, when new regulations in the Fall of  made it possible for headscarf wearing women to enter universities, the secularists’ outcry remained relatively muted.43 Since the mid s, the evolving discourse of Kemalist laicism has asserted its monopoly as signifier of Turkish modernity through a repressive politics against those who questioned its hegemony. Since the early years of the republic more than twenty political parties have been banned based on charges of ethnic separatism or antilaicist activities. In July , the reigning AKP escaped the same fate only by an extremely close vote of the Constitutional Court.44 Confronted with political parties that carry an allegedly Islamist agenda, the Kemalist establishment faces a predicament similar to that posed by the headscarf. It can either try to refer the problem from the political to the legal arena— that is, try to have such parties banned based on the supposed threat they constitute for the laicist order—or accept them as a political challenge that ought to be addressed in democratic contest. Gradually, the latter option appears to be gaining weight. Public opinion, international pressure (mainly by the EU in the context of its membership negotiations with Turkey), and the growth of religiously conservative cadres in state institutions render radical laicist and statist positions less and less feasible as political options. The ideological conflict concerning the acceptable dose of religion in the public sphere can be described as a conflict about the right mode of Turkish modernization. From this perspective, the “headscarf student” and the “Islamist party” are agents of a modernization project that offers an alternative to Kemalist modernity.45 Islamically oriented political actors demand a voice in the public sphere and proportional access to political institutions and state services. In an expanding democratic environment, the emergence of new actors in the public sphere naturally necessitates adjustments in the distribution of political and cultural resources. These changes are bound to provoke some degree of resistance and resentment by those who have to pay the cost of such reshuffling of political capital. The strategy of resorting to the legal sphere is unlikely to solve the underlying political tensions, which are a product of the cultural lopsidedness of the Turkish modernization project. The Kemalist establishment is left with three basic options. The first option is to keep defending an uncompromising Jacobin Kemalism as Turkey’s only promise for successful advancement. The second option, represented by those Kemalist hardliners now accused in the Ergenekon trials, is to leave the constraints of the political game proper behind and seek restoration, by violence if necessary, of classical Kemalist modernity, defined by a return to a more

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authoritarian and restrictive laicism, an uncompromising attitude against the Kurds and other minorities, a stronger role of the state in the economy, a restoration of the political role of the army, and a strengthening of national sovereignty.46 The third and most likely option is a gradual softening of Kemalism, in other words its reconciliation with religiously more conservative segments of society.

Conclusion In the Turkish state tradition, the boundaries and the content of the public sphere are defined from above. Accordingly, segments of society that struggle to emancipate themselves from the dominant public discourse on sensitive political topics have to counter the prejudice that their criticism is directed against the authority of the state itself. In the authoritarian logic of Turkish modernity such criticism is quickly perceived as separatist—a view that then justifies the state in using force for its self-protection. But the power dynamics within the political domain of Turkey have changed considerably in the last two decades, and the parameters of the Kemalists have gradually lost hegemony over the definition of the public sphere. Characteristic of Turkish laicism is a specific relation between () a political discourse, which is concerned with national unity and the primacy of the state over civil society, () a legal discourse, which is charged with normalizing and defending the explicit rules of this political discourse, and () a theological discourse, which defines the contours and limits of Islam. These discourses are not contradictory, as a secularist perspective might suggest, but can be explained with reference to the notion of the religio-secular continuum, which helps us to imagine religious and secular approaches as dialogical in nature, and part of a single epistemic system. Viewed from the outside, it appears as if Turkish laicism has created a republic of secular religion experts, one in which theological arguments, albeit without acknowledgment of this fact, are integrated into secular discourse. The laicist religion experts exert a theological authority when they distinguish between “traditional” (that is, legitimate) and “Islamist” (that is, illegitimate) ways of covering, or when they conform Alevism to a projected ideal of Islam. It is precisely the characterization of Alevism as an “interpretation of Islam” linked to the “common share of Islam” argument that allows the laicist organs of the state to deny any support for or recognition of Alevi practices by branding them as particularist and thus in conflict with the supposedly impartial position of the state in its monopoly over religion in the public sphere. This



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dynamic is most visible in legal disputes, wherein laicism is employed as a regulating principle with a theological authority. Turkish laicism may appear as rather arbitrary with respect to the religious language and practices that it rejects and that it supports. Against the Alevis, it enforces the hegemony of Sunnism as the normative model of Islam in the public sphere, thereby denying them religious autonomy. But laicism is also employed against political Islam and tesettür-style veiling, where it is invoked against particular forms of Islamic discourse and practice. Both examples taken together show that laicism is not antireligious as such; rather, it is in charge of distinguishing between religious practices conducive and harmful to the ideals of national unity and a strong state, in this way securing the state’s control over religion in the public sphere. In very much the same way in which Turkish nationalism delegitimizes ethnic diversity, laicism is cast to protect national unity from uncontrolled religion, which it paints as a threat to public order.47 The kind of secularism that we see in the Turkish case, a secularism that is charged with protecting the public from legitimate religious practices and symbols regarded as a threat for the unitary nation state, appears caught in a circular argument, wherein laicist contestations of religious practices, spaces, and identities continuously reinforce both the laicist dogmas as well as its religious others. When Turkish secularism connects the question of formal state recognition of Alevism with theological debates about the latter’s origins and its relation to Islam, then this by itself encourages the framing of Alevism in religious terms. Within the religio-secular continuum, laicism and Sunni Islam are the two, outwardly oppositional but semantically complementary, discourses against which modern Alevism has to prove itself. Both discourses are intrinsically inimical to difference or pluralism, and this is the predicament Alevis face in their continuing quest for recognition. As the Turkish case shows, the involvement of laicism in the disciplining and normalization of religion is not only theological, but reveals the interconnectedness, spatially and semantically, of the religious and the secular in the modern context of the nation state. Within the framework of secularist modernity, the secular cannot but postulate the religious and is in that sense self-sustaining. The dialectic relationship between the secular and the religious as markers of modernity conjures up a functionalist organicity, which in itself resembles the modernist project at large. This points to a paradoxical aspect of secularization theory: it is precisely the perspective of structural differentiation, which has shaped modern views on religion and secularization in a paradigmatic way, that makes the conflation between the religious and secular spheres most visible. The structural differentiation thesis in this way can function as a heuristic tool to make visible

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the dialectic relationship between the vectors of differentiation and conflation through which the secular and the religious constantly reaffirm each other within the context of secular(ist) modernity. This move helps us to clarify the dialectical interaction between secularism and the things that it defines as “religious,” in a religio-secular continuum.

Notes I thank the editors, especially Winni Sullivan and Robert Yelle, for their very helpful suggestions during the rewriting of this text. . The thesis of structural differentiation is the one subthesis of secularization theory that is still held as valid by many sociologists. José Casanova, “Public Religions Revisited,” in Religion: Beyond a Concept, ed. Hent de Vries (New York: Fordham University Press, ), . . Smith, as quoted in Richard King, “Imagining Religions in India: Colonialism and the Mapping of South Asian History and Culture,” in Secularism and ReligionMaking, ed. Markus Dressler and Arvind-Pal S. Mandair (Oxford: Oxford University Press, ), . . Ibid., f. . Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ), . . There are certainly attempts in this direction, for example in the work of Asad and others that follow a genealogical approach inspired by Foucault, as well as in the work of Hent de Vries and others who recast the notion of “political theology” in order to break up the binary straitjacket of secularism theory. Asad, Formations of the Secular; Hent de Vries, “Introduction: Before, Around, and Beyond the Theologico-Political,” in Political Theologies. Public Religions in a Post-Secular World, ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham University Press, ), –. See also Arvind-Pal S. Mandair and Markus Dressler, “Introduction: Modernity, Religion-Making, Discourses and the Postsecular,” in Secularism and Religion-Making, –. . Compare the contribution of Hussein Agrama in this volume, who argues that secularism blurs the line between religion and politics. . See Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (London: John Hopkins University Press, ); Asad, Formations of the Secular. . Talal Asad, “Trying to Understand French Secularism,” in Political Theologies, . . This essay continues a series of reflections on the grammar and work of Turkish secularism. See Markus Dressler, “Public/Private Distinctions, the Alevi Question, and the Headscarf: Turkish Secularism Revisited,” in Comparative Secularisms in a Global Age, ed. Elizabeth Shakman Hurd and Linell Cady (New York: Palgrave, ), –; Markus Dressler, “Making Religion through Secularist Legal Discourse: The Case of Turkish Alevism,” in Secularism and Religion-Making, –. . E. J. Zürcher, Turkey: A Modern History (London: I. B. Tauris, ),  and –.



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. Characteristic for Turkish laicism are its authoritarian style and the dominance it gives to the state and the common interest as defined from above in comparison to notions of individual, and particularly religious, freedom; the distinctions it establishes between legitimate and illegitimate forms of religion in relation to particular notions of private and public; and its implicit goal of contributing to a homogeneous national body that is secular, Sunni-Muslim, and Turkish. See Dressler, “Public/Private Distinctions, the Alevi Question, and the Headscarf.” . Recognized non-Muslim communities (Jewish and Christian) have their own administrative bodies, which are, however, also subordinated to the state. . For a summary account of the history and politics of the DRA, see İ. Gözaydın, “A Religious Administration to Secure Secularism: The Presidency of Religious Affairs of the Republic of Turkey,” Marburg Journal of Religion , no.  (June ), http://www. uni-marburg.de/fb/ivk/mjr/pdfs//articles/goezaydin.pdf. . I use “Kemalist establishment” to describe those Kemalist circles who still hold positions of power in public institutions (such as the educational system, the judiciary, parts of the political spectrum, parts of the media, and the army)—in short, those parts of society that see their secular lifestyles under threat by growing conservative segments of Turkish society, and therefore support the dominance of the Kemalist state regime over politics. In everyday life, however, Kemalism and Islam are not necessarily in an antagonistic relationship with each other. Beyond the ideological cleavages between different political camps, everyday interactions between Turkish citizens are at least as much influenced by issues of social class and lifestyle preferences as they are by matters of ideology. . The latest wave of revivalist movements emerged as a result of Muslim confrontations with Western modernity and colonialism since the late nineteenth century, which led up also to an antitraditionalist backlash targeting forms of Islam that were perceived as heretical (especially Sufism) and responsible for the supposed weakening of the Islamic social body. Compare C. W. Ernst, The Shambala Guide to Sufism (Boston: Shambala, ), –. . Compare İsmail Kara, “İslǎmci Söylemin Kaynakları ve Gerçeklik Değeri,” in Modern Türkiye’de Siyasǐ Düşünce, vol. : İslǎmcılık, ed. Tanıl Bora, Murat Gültekingil, and Yasin Aktay (Istanbul: İletişim, ), –. . Y. N. Öztürk, İslam nasıl Yozlaştırıldı (Vahyin Dininden Sapmalar, Hurafeler, Bid’atlar) (Istanbul: Yeni Boyut, ), . . Not necessarily so lower cadres, such as Imams and mosque personnel, as a recent study has shown. See R. Çakır and İ. Bozan, Sivil, Şeffaf ve Demokratik bir Diyanet İşleri Başkanlığı Mümkün mü? (Istanbul: TESEV, ), d part. . For an overview of Alevi history, beliefs, and practices, see Markus Dressler, “Alevīs,” in Encyclopaedia of Islam, d ed., ed. Gudrun Krämer, Denis Matringe, and John Nawas (Leiden: Brill, ), –. . See Markus Dressler, “Turkish Alevi Poetry in the Twentieth Century: The Fusion of Political and Religious Identities,” Alif: Journal of Comparative Poetics  (): –. . Krisztina Kehl-Bodrogi, “Die ‘Wiederfindung’ des Alevitums in der Türkei. Geschichtsmythos und kollektive Identität,” Orient  (): –. . The different facets of the Alevi revival have attracted much scholarly attention.

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See E. Massicard, L’autre Turquie. Le mouvement Aléviste et ses territoires (Paris: PUF, ); Karin Vorhoff, “‘Let’s Reclaim Our History and Culture!’—Imagining Alevi Community in Contemporary Turkey,” Welt des Islams  (): –; P. J. White and J. Jongerden, eds., Turkey’s Alevi Enigma: A Comprehensive Overview (Leiden: Brill, ); M. Dressler, Die alevitische Religion. Traditionslinien und Neubestimmungen (Würzburg: Ergon, ). . Markus Dressler, “Religio-Secular Metamorphoses: The Re-Making of Turkish Alevism,” Journal of the American Academy of Religion  (): –. . A. Kelime, Alevilerin ilk Siyasal Denemesi (Türkiye) Birlik Partisi (–) (Ankara: Kelime, ). . For a discussion of the Alevis’ relation to Kemalism and laicism, see Dressler, Die alevitische Religion, –. . For a more detailed discussion of legal disputes on these issues, see Dressler, “Making Religion through Secularist Legal Discourse.” . For example, A. Yaman, Alevilik ve Kızılbaşlık Tarihi (Istanbul: Noktakitap, ), –. . Ahmet K. Gültekin, and Yüksel Işık, “Diyanet İşleri Başkanı Prof. Dr. Ali Bardakoğlu’yla Söyleşi,” Kırkbudak  (): –. . Ibid., f. . The current President of the DRA, Mehmet Görmez, who succeeded Bardakoğlu in November , has so far not shown any inclination to change this well established interpretation. . Adnan Keskin, “Alevi İsmi Sakıncalı,” Radikal, May , , http://www.radikal. com.tr/haber.php?haberno=. . Asad, Genealogies of Religion, . . “Tarihi Hata: AİHM’de ‘Alevilik, Ayrı bir Dindir’ Görüşü Savunulmuş!” Alevi Yolu, November , , http://www.aleviyolu.net/--/haricilerin-oyunlaridevam-ediyor.html. . Council of Europe, European Court of Human Rights, Case of Hasan and Eylem Zengin v. Turkey, /, Judgment, Strasbourg, October , , . . Although the Turkish State Council in another lawsuit on the same issue seconded the decision of the European Court of Human Rights, the judicial success has not yet led to a change of policy, and Alevi children are still obliged to attend the Sunnibased religion classes. “Danıştay: Bu Müfredatla Din Dersi Zorunlu Olamaz,” Radikal, March , . . “Opening” (açılış) has in recent years become the technical term with which to describe efforts by the government to “open” topics to public discussion that used to be taboo. Most of these “openings” concern aspects of the authoritarian legacy of nationalist Turkish modernism, especially its discrimination against ethnic and religious minorities. . Among Alevis, mistrust caused by the Sunni-Muslim orientation of the AKP and occasional discriminatory remarks and politics leveled against Alevis by some of its members is fairly common, and the workshops were therefore boycotted by significant Alevi organizations. . Oral Çalışlar, “Alevi Önraporu'ndaki Sorunlar,” Radikal, February , . On the “Alevi opening” see also Talha Kose, “The AKP and the ‘Alevi Opening’: Understanding the Dynamics of the Rapprochement,” Insight Turkey  (): –.



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. A. Çınar, Modernity, Islam, and Secularism in Turkey: Bodies, Places, and Time (Minneapolis: University of Minneapolis Press, ), . . Ibid., . . Nilüfer Göle, “A Headscarf Affair, a Women’s Affair?” The Immanent Frame, February , , http://blogs.ssrc.org/tif////a-headscarf-affair-a-womens-affair/. . In this style of veiling, which is considered a sign of a political Islamic demonstration in opposition to merely “traditional” styles of covering, the scarf not only covers the hair but is also closely tied under the chin, thus concealing the neck and also covering the shoulders; it is usually worn with coats or long dresses. . This acknowledged, I would like to add that I know from personal conversations at my own university, which is a state university with a strong positivist and Kemalist tradition, that the fact of covered women on campus creates much discomfort and even resentment among part of the faculty. . Markus Dressler, “The Rise and Fall of the AKP,” The Immanent Frame, July , , http://blogs.ssrc.org/tif////the-rise-and-fall-of-the-akp/. . Nilüfer Göle, “Snapshots of Islamic Modernities,” Daedalus  (): –. . Ergenekon is essentially a network of right-wing Kemalists led by high-ranking former army officials charged with executing and planning terrorist attacks and public campaigns with the goal to destabilize the country to a degree that would allow them to stage a coup against the AKP (see Serdar Kaya, “The Rise and Decline of the Turkish ‘Deep State’: The Ergenekon Case,” Insight Turkey  (): –). It is in this context important to note that public opinion rather unanimously rejects the use of violence and state nepotism/corruption as legitimate means to enforce a regime change. . The contestations around the Kemalist principles of nationalism and laicism should not be seen as of merely ideological nature. A closer look makes clear that matters of ideology and identity politics are often put forward in order to hide interests of a rather material kind. See Markus Dressler, “On Turkish Laicism,” The Immanent Frame, July , , http://blogs.ssrc.org/tif////on-turkish-laicism/. Compare Fuad Keyman, “Assertive Secularism in Crisis: Modernity, Democracy, and Islam in Turkey,” in Comparative Secularisms in a Global Age, esp. –.

chap ter t we lve

“The Spirits Were Always Watching” Buddhism, Secular Law, and Social Change in Thailand dav id m. enge l The combined presence and denial of the sacred go to form modern law operatively. —Peter Fitzpatrick1

In the later part of the nineteenth century, as the English and French imperial powers stood poised on Thailand’s2 borders with Burma, Malaya, and Indochina, the Thai monarch and his ruling elite conjured a European style nation-state. They predicted, correctly as it turned out, that a transformation of the traditional Thai polity would forestall colonial intervention and establish unprecedented forms of central control over the entire kingdom. Among the components of the new state put in place by King Rama V and his princes, a “modern” legal system was perhaps the most important. As they constructed a new bureaucracy, an economic and technological infrastructure, and a centralized educational system, they also drafted new law codes and established a new system of courts for the capital and the provinces. The royal administrators believed that a modern legal system would not only placate English and French critics of Thailand’s supposedly primitive ways and preserve Thailand’s independence, but it would also enhance Bangkok’s control over the outlying regions and would become an engine to drive all the other reforms. New laws would lead to new patterns of thought and behavior and would permit Thailand to assume its place among the “civilized” (in Thai, siwilai)3 nations. The story of the creation of the modern Thai state has been told by many scholars, yet their viewpoint is often Bangkok-centric and to that extent fails to convey how the transformation was experienced in more distant and formerly autonomous regions. Although Thailand was a victim of British and French colonial ambitions, it was also “a colonizing power with imperial ambitions of



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its own.”4 In this essay, I describe one distant but crucially important region known as Lanna (meaning “a million ricefields”), which comprises the northern provinces of Thailand and whose capital is Chiangmai. Thailand’s “imperial ambitions” included the annexation of Lanna and its political and cultural subordination to central Thai control. Focusing on the law of injuries, I trace the changing relationships between state and locality, code and custom, and law and religion during and after this period of transformation. I compare the preexisting practices for dealing with injury cases and those that were established by the new, secular law codes, and I consider the substantial differences that emerged between Thai law on the books and the actual behavior of injury victims, injurers, and mediators. From the perspective of Lanna, the creation of a “modern” nation-state and the enactment of secular law codes had unexpected consequences and did not necessarily lead to secularization of the consciousness or behavior of ordinary people who suffer injuries at the hands of others. This analysis will suggest that the “premodern” Lanna customary law of injuries, centered on local guardian spirits, persisted well into the middle of the twentieth century despite the legal reforms of Rama V aimed at abolishing such practices. Ultimately, however, the effects of centralization, later combined with the impact of profound socioeconomic changes at the end of the twentieth century, led to the demise of Lanna customary law, the decline of remedy systems associated with the guardian spirits, and the emergence of a delocalized form of Buddhism that injury victims understood to be opposed to law. Rather than an evolution from religious to secular law, which is often assumed to occur in the modernization efforts of societies such as Thailand, we see a shift from spirit worship to new forms of translocal religiosity and a rejection of law in any form by people who suffer injuries. If anything, the advent of the twenty-first century has witnessed a decline in the popular embrace of secular law in Lanna rather than an expansion of the legal consciousness and behavior of villagers, farmers, laborers, and office workers. Not coincidentally, these transformations have accompanied the steady decline of Lanna as a semiautonomous cultural region and its absorption into the social and political machinery of central Thailand.

Injury and Remedy before the Advent of Modern Thai Law The establishment of modern Thai tort law in Chiangmai and the north began with the creation of a European-style national judiciary in the late nineteenth century and was completed with the promulgation of the Civil and Com-

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mercial Code in . What legal rules, institutions, and processes for handling injuries in Chiangmai did modern Thai tort law displace? In this section, I will sketch features of the village-level customary law of injuries that most likely prevailed in the mid to late nineteenth century and will then discuss its links to the royal law codes, known as mangraisat, administered by the ruling princes of Chiangmai prior to the advent of the modern Thai courts and law codes. After two centuries of hegemony, the Burmese overlords were finally driven from Lanna in the late eighteenth century. The Lanna leader, King Kawila (r. –),5 reestablished Chiangmai as his capital but faced a massive reconstruction project, since the Burmese had taken or destroyed the people and treasure of many of Chiangmai’s towns and villages. Kawila’s rebuilding efforts were known as “putting vegetables into baskets and people into towns.”6 He attacked and captured towns throughout the north and forcibly repopulated the deserted population centers of Chiangmai, thereby solving the problem of manpower and productivity upon which his rule depended. As a result of Kawila’s resettlement efforts, towns and villages that now found themselves to be neighbors had very often brought their own traditional practices with them from elsewhere in the region. As Ongsakul observes, “The resettlements involved all social levels, from nobles to commoners. Resettled nobles were allowed to continue to govern their own people, under the supervision of Lan Na leaders.7 There is clear evidence that entire resettled mueang8 kept their old cultural systems.”9 Village-level practices in Chiangmai, therefore, exhibited a degree of diversity that remained a notable feature of the society for the next two hundred years. Cultural variability at the village level makes it particularly difficult to depict the local practices for dealing with problems of injury and remedy that must have prevailed prior to the transformation of Thai law under King Rama V. Nevertheless, making due allowance for the passage of time and for Chiangmai’s cultural heterogeneity, it seems reasonable to offer a few educated guesses based on more recent information about village-level injury practices and on a few scattered historical references. There is no reason to think that villagers in nineteenth-century Chiangmai had any particular consciousness of a customary law of injuries but were merely concerned with the maintenance of social order in conformity to thamma (dharma) and, most important, to the wishes of the guardian spirits. Breaches of social norms were significant primarily because they offended the spirits and placed the community in jeopardy. Wrongdoers had to apologize to the spirits through rituals they themselves performed or by compensating those they had harmed so that the victims and their families could perform the appropriate ceremonies, recall the “spiritual essence” (khwan),10 or improve their karma.



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Improper and injurious behavior could cause offense to the guardian spirits, but the spirits themselves could also be the cause of injury, illness, or other bad fortune. A villager who suffered an injury might later learn from a spirit medium that the origins of the mishap were to be found in his or her own misconduct or that of a family member who offended a guardian spirit and caused it to inflict physical harm on the accident victim in retaliation.11 Injuries and other misfortunes were thus bound up in causally complicated ways with the maintenance of social order by locality-based guardian spirits. There was probably no village-level equivalent to a law of torts, no clearly differentiated body of law meant to deal with the problem of injuries. Indeed, the concept of injury itself was probably not sharply defined, and there may have been no clear differentiation of physical injury from illness or psychic disturbance. We can assume that the law of the spirits at the village level was enforced with the help of spirit mediums, traditional practitioners (mo műang), village elders including the village chief, and Buddhist monks who performed ceremonies to make merit for injury victims who had been injured, distressed, or killed. Spirit worship and Buddhism mingled and supplemented each other. Revelation of the underlying cause of the misfortune was a key part of these procedures, but so was mediation between the parties and the performance of ceremonies to improve fortune, restore psychic and spiritual well-being, and extend one’s life and fortune (sűp chata). The goal of mediation by respected elders was not simply to impose sanctions on wrongdoers but also to compromise when necessary and to leave both parties satisfied. A disputant who was overly aggressive in his or her demands made it more likely that the cycle of injury and retaliation would continue, not only in this lifetime but in future lives—hence the importance both of propitiating the spirits and of restoring harmony between villagers. This system, which we may call in retrospect a customary law of injuries, did not operate in isolation at the village level. Rather, the enforcement of social norms by local guardian spirits was part of a broader cosmology connecting families and communities to the principality in which they lived. Richard Davis explains that “territorial spirits” in northern Thailand are “arranged in a hierarchy analogous to a political hierarchy.”12 The hierarchy of spirits comprises the household, the village, and the műang. Each level in the hierarchy is centered on a sacred post or marker that serves as its “ritual centre.”13 Each level is thus a symbolic replication of a cosmos, the arrangement of “four continents that lay around the base of Mount Sumeru (sometimes referred to simply as Meru), a peak that not only jutted out of the earth but that actually ascended into the

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heavens.”14 The miniaturized representations of this cosmic order in the household, village, and műang were homologous and interconnected. The replication of cosmic order at the household, village, and műang levels had great significance for the customary law of injuries. At each level, territorially based spirits presided over the enforcement of sociolegal norms. The three levels were not only embedded in a single sacred and political hierarchy but also were governed by a related set of legal principles and procedures. The interconnection of village law and legal practices to those of the capital is apparent in the texts of the royal law codes, the mangrai thammasat (mangraisat) or dharmaśa¯stras of King Mangrai, who was the legendary founder of Chiangmai. According to Ongsakul, the Chiangmai nobility continued to use the mangraisat as the basis for its legal administration up to the point where the traditional texts were displaced by the modern Thai law codes in the early twentieth century.15 Many different versions of the mangraisat have been discovered in temples throughout northern Thailand. These palm leaf manuscripts were inscribed during the nineteenth century but claimed a much more ancient provenance. The actual dating of the contents of the mangraisat texts remains uncertain.16 A number of mangraisat texts have now been recorded and preserved by scholars. Although we do not know which of these texts was familiar to Chiangmai nobles who presided over injury cases in the capital, the various versions have much in common. I will refer to a mangraisat text found in Wat Chiang Man in the city of Chiangmai, which is notable for its many provisions dealing with injuries.17 These provisions, like those of other mangraisat texts, point to significant linkages between village law and royal law. .╇ Some provisions of the mangraisat appear implicitly or explicitly to recognize and incorporate traditional rules of village law into the royal law codes. The following excerpts strongly suggest the codification of outcomes of actual cases involving injuries among villagers: If one leaves a knife, sharp stick, a spear, or a sword stuck in the ground and they fall on another and kill him, or if a person runs into them and kills himself, the owner of the spear, sword, or sharp stick must pay half the damages. If it is an animal that is killed, he must pay all the damages because an animal cannot understand human language. If there is no death, the injurer must pay for medical treatment.18 If a villager protects himself against kidnappers and robbers by erecting a barricade of sharp wood, and if an animal is killed as a result, the villager must pay its value but there is no fine. If the animal is injured, he must care for it. If it is crippled, he must pay its value and the animal will then be given to the villager. If an animal is killed during the daytime, the villager must be fined according to the law. If a person is killed during the daytime, he must pay the value of three people because during the daytime it is a necessity for people to go out and work.19



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.╇ Some provisions of the mangraisat incorporate traditional village remedies for injuries, such as the performance of a khwan ceremony, the payment of chickens or pigs that are associated with propitiatory offerings to the spirits, or the payment of funeral expenses that include Buddhist merit-making ceremonies: If one person forces another to climb a tree, and that person falls and kills himself, the one who forced him should pay  pieces of silver. He must also help the wife and children of the deceased to provide the funeral arrangements. If a person hires another to cut down a tree in the field but does not intend for him to die, if he does die then the person who hired him must pay  pieces of silver. He must also help the wife and children of the deceased to provide for the funeral arrangements. If the tree falls and the one who hired him does not call out a warning because he intends the death of the other, he must pay  pieces of silver and must be fined the value of three people, that is  pieces of silver. If he does not intend the death of the other, the one who hired him must pay the value and must be fined the value of two people. If the victim is injured and disabled, the one who hired him must pay  pieces of silver for medical treatment and must provide medicine until the victim has recovered. He must provide one vessel of liquor, one pair of chickens, and must perform a ceremony to recall the khwan if the victim is disabled. He must also be fined the value of two people, that is  pieces of silver.20

.╇ Certain provisions of the mangraisat explicitly mention and endorse village-level rituals, in particular rituals and ritual objects associated with the guardian spirits: If a person by stealth cuts down a hexed tree that is the habitation of a village guardian spirit, he must perform a ceremony for the spirit according to custom. If a pig is usually offered, he must offer a pig. If a buffalo is usually offered, he must offer a buffalo. But everything he offers must be four times the usual amount. If he fails to make this offering and a person in the village dies as a result, he must pay the value of that person (kha khon).21 If one kills a duck, chicken, pig, or dog in front of its owner, or if one shoots an arrow with a bow into the house of another, he must be fined , cowries (bia) or  pieces of silver. If one steals a log that has been marked by the owner, he must be fined  pieces of silver. If one destroys the boundary marker of a rice field valued at  baht silver, he must be fined nine times the value and must offer two vessels of liquor, two pairs of chicken, four candles, flowers and incense in a ceremony to propitiate the guardian spirit of the rice field and gardens. For the items he has damaged, he must pay  baht silver. If he is poor, he must pay  baht silver.22

To summarize, Chiangmai’s village-level customary law concerning injuries prior to the advent of the modern Thai legal system had certain key characteristics.23 First, law was based on religious beliefs and drew no distinction between

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the sacred and the secular. Legal practices of all kinds were founded on belief in the supernatural powers and interests of guardian spirits of the household, village, and műang, as well as Buddhist beliefs in thamma and the workings of karma. The wrongful quality of certain acts, including those that caused injury, was expressed in terms of their offensiveness to the spirits, to the khwan of the fields, house, or village, or to the dharmic order itself. Second, there was no separate and distinct law of injuries. The offensiveness of certain acts could manifest itself in various harmful results—illness, spiritual malaise, bad fortune, or physical harm. These ills were not sharply distinguished. Indeed, prevalent concepts of the person did not place any special emphasis on the separate, bounded quality of the human body but on the interconnectedness of souls and spirits within families and village communities. Whether an injury was viewed as tort or crime was not a matter of particular importance.24 Even when payment to the injury victim was required, the purpose of the remedy was to appease the spirits and protect the community as a whole. Third, village-level practices were part of a comprehensive view of social and political arrangements that linked household, village, and műang in a single cosmology. The arrangement of society around a sacred center was replicated at each level, as were the presiding guardian spirits, ensuring that symbols, beliefs, and practices among villagers were consonant with those that were recognized and enforced by the ruling elite in the capital. Customary law, including injury-related practices, was reflected in and protected by royal law. The guardian spirits of the műang were connected to those of the household and village in a single hierarchy.

Arrival of the Thai State and a New Law of Torts By the turn of the twentieth century, the central Thai government’s ambitious state-building program was well underway. Within the boundaries claimed by King Rama V for the Thai nation, the Bangkok-centered government imposed a nested set of administrative units: the region (monthon), the province (műang), the district, the subdistrict, and the village. Rama V created a centralized bureaucracy to administer these units, and he enacted laws and regulations to be applied uniformly throughout the country. Neither Chiangmai nor Lanna as a region was exempt from this process, although certain allowances were made for the unique history and traditions of the north. Chiangmai became the capital of Lanna’s Phayap monthon, which initially retained the unique power to adopt local laws and regulations subject to the approval of the king.25 The traditional Chiangmai nobility for a time played a part in adminis-



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tration of Phayap and the province of Chiangmai. The ultimate absorption of Lanna and Chiangmai into the legal and political framework of the emergent Thai state was, however, never in doubt. By , the government dissolved the monthon framework and administered each province directly from Bangkok. The distinctive identity and traditions of Lanna were no longer recognized officially, and Chiangmai became merely one among the many provinces of the Thai state, subject to centralized Thai laws and legal institutions. Creating a new legal framework, as we have seen, was key to the transformation of the Thai state and the preservation of Thailand’s independence. Thus, the creation of new administrative and judicial frameworks proceeded simultaneously with the drafting of new law codes, both substantive and procedural.26 The codification project continued from the late nineteenth century to its completion in , when the last sections of the Civil and Commercial Code were adopted. In this process, the French and German law codes were particularly influential; but the new law of torts provided little opportunity for courts to integrate preexisting legal traditions or village-level customary practices into state adjudication of injury cases. From the perspective of Lanna, the code-drafting commissions in Bangkok effectively erased both mangraisat and customary law from the Thai law of injuries. As the emergent Thai state implemented its fully articulated system of courts and law codes, it wiped the slate clean of history and local tradition. In this respect, the new law of “Wrongful Acts” in the Civil and Commercial Code of Thailand could not contrast more strikingly and dramatically from the provisions of the mangraisat quoted above. Consider, for example, the following provisions of the Thai Civil and Commercial Code: Section . A person who, wilfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor. Section . The Court, when giving judgment as to the liability for wrongful act and the amount of compensation, shall not be bound by the provisions of the criminal law concerning liability to punishment or by the conviction or non-conviction of the wrongdoer for a criminal offence. Section . The Court shall determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act. Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages to be granted for any injury caused. Section . In the case of causing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of

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earning on account of disability to work. If on account of the death any person has been deprived of his legal support, he is entitled to compensation therefor. Section . In the case of an injury to the body or health, the injured person is entitled to receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future. .€.€.

Several aspects of this new law of injuries are noteworthy. First, the law contains no references to Buddhist teachings or to guardian spirits. Its authority does not explicitly rest on any religious beings, symbols, or texts. Tort law has been stripped of all elements connected to Thai religious culture. Indeed, there is nothing in these provisions that identifies them as “Thai” in any sense. The codified law of injuries has become secular, deracinated, and seemingly suitable for use in any society in the world. Second, tort law has now emerged as a distinct and autonomous body of legal principles. It is distinguished from the criminal law in its purpose—compensation of the injured party rather than punishment of the injurer—and in its proof—as Section  makes clear, tort liability is entirely distinct from criminal liability, and neither a criminal conviction nor acquittal is binding in a tort case. Whereas customary village practices and the mangraisat did not draw sharp distinctions between fines and compensation,27 modern Thai tort law regards the tort-crime distinction as paramount. Third, village-level norms and practices are now irrelevant. The modern Thai law codes, unlike the mangraisat, contain no reference to the customary law of injury or to the spirits and rituals with which it is associated. It is true, as Andrew Harding points out,28 that Section  of the Thai Civil and Commercial Code contains a general provision requiring the application of local custom when no code provision is applicable: The law must be applied in all cases which come within the letter or the spirit of any of its provisions. Where no provision is applicable, the case shall be decided according to local custom (tam khlong jaritprapheni haeng thongthin—literally, “according to the lines of custom in the locality”) .€.€. .

This formulaic principle of interpretation, however, should not be understood as an official acknowledgment that prior to adoption of the Civil and Commercial Code there was a well-established law of wrongs, both oral and written, that was applicable to cases decided in the capital and in the villages of Chiangmai. It is doubtful that Section  was intended to recognize the preexisting law of injuries in regions such as Lanna, and I never observed it invoked in tort litigation. Formerly, the norms and procedures of “customary law” were explicitly connected to what was then state law (the mangraisat) and indeed were part of a single integrated cosmology. After promulgation of a new Bangkok-based



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state law—the Civil and Commercial Code—the customary law of wrongs was completely severed from official law. Customary law was delegitimated and its epistemological foundations were no longer accepted. In the mid-s, I had the opportunity to assess the extent to which the Thai state had succeeded in its efforts to substitute a codified tort law for the customary laws that had prevailed in regions such as Lanna. My study of Chiangmai Provincial Court documents dating from  to  and my interviews with litigants, village leaders, and others, suggested that an accommodation had been reached between code and custom.29 The customary law of injuries in northern Thailand remained a vibrant but unacknowledged alternative to official law at the local level. Chiangmai residents realized, of course, that the law courts would not hear cases alleging injuries caused by supernatural means or citing conduct that had allegedly offended the guardian spirits. Yet when individuals suffered injuries, they continued to perceive their experiences in terms of the interconnected frameworks of spirit worship and Buddhism. When possible, injury victims in Chiangmai pursued familiar nonjudicial remedial practices that included payment for ceremonies to propitiate offended spirits, to recall the khwan, and to make merit for injured or deceased victims. Yet none of these practices had a place in official Thai tort law. None could be mentioned in a Thai courtroom, nor could the religious practices on which they depended. Although the official legal system banished all discussion of the customary law of injuries, the official and unofficial legal systems continued to interact and influence one another throughout the middle part of the twentieth century in at least three important ways: First, low litigation rates for tort cases in Chiangmai could be attributed in part to the continued effectiveness of customary law in resolving injury cases at the unofficial level. Between  and , tort litigation rates in Chiangmai ranged from . to . cases per thousand population.30 By way of extremely rough comparison, the tort litigation rate in the state of New York in  was . cases per thousand population—more than fifty times greater than in Chiangmai at mid-twentieth century.31 Litigation of tort cases was thus relatively rare in Chiangmai, and internal evidence in the case files suggested that recourse to the provincial court took place only when local nonstate practices broke down. Only a trickle of tort cases reached the court when the injurer and victim lived in the same locality, since such cases could usually be handled by respected elders enforcing the normal customary procedures. In the majority of litigated tort cases, plaintiff and defendant came from different subdistricts or different districts.32 In these cases, geographical and social distance made it impossible for customary law to operate because the parties could not

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find a common mediator or community group to enforce it. But when distance was not an obstacle, it appears that the vast majority of injury cases were still resolved by customary legal practices. Second, the distinction between civil and criminal law remained less important to ordinary people than to the drafters of the codes. Consequently, some injury cases in the s and s were litigated as torts while others, similar in content, were litigated as private criminal cases with the injured party appearing as plaintiff in place of, or together with, the public prosecutor. This distinctive use of the criminal law by injury victims was significant, because in nearly  percent of the private criminal cases the suit was settled and withdrawn before a verdict could be rendered.33 The goal of the plaintiff, even in a purportedly criminal case, was to use the leverage of the official legal system to force the injurer to pay compensation. Apirat Petchsiri observes that using the criminal law in this way violates the tort-crime distinction of the modern Thai legal system,34 yet it is entirely consistent with customary law in which no sharp line was drawn between the two. Third, when injury litigation did occur, the plaintiffs’ goals were formulated with reference to customary law rather than official law. The goal of forcing a private settlement was apparent in civil as well as criminal cases. In the s and s, only  percent of tort cases proceeded to a verdict. The remaining  percent were either withdrawn (presumably because the parties had come to terms in most instances) or resolved by a court-approved settlement. Internal evidence in many of these cases suggests that the customary law of injuries provided a framework for measuring the extent of the defendant’s obligations. Payments by the defendant included the cost of performing merit-making ceremonies for deceased injury victims or the cost of performing sűp chata (life extension) ceremonies or rituals to recall the khwan for those who survived their mishaps. In these cases, it appears that customary legal procedures broke down for some reason, leading injury victims to pursue their traditional remedies with leverage provided by the official legal system. Once they succeeded in forcing the injurer to come to terms, however, the plaintiff was satisfied to obtain a customary law remedy and to withdraw from the official legal proceedings. In sum, the enactment of a codified Law of Wrongful Acts in early twentieth century Thailand was followed by a half-century of legal practices reflecting the sub silentio persistence of customary tort law and of the cultural and religious beliefs and practices on which it was founded. Customary law had become invisible within the new legal institutions of the Thai state, but it profoundly affected the use of official tort law. As a ghostly presence, customary law retained considerable vitality.



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The End of Customary Law and the Transformation of Buddhism When I returned in the late s and early s to study litigation in the Chiangmai Provincial Court and to interview injury victims, I found that the customary law of injuries had begun to disintegrate.35 Interviews with injury victims suggested that customary law’s unofficial and unrecognized role had all but disappeared. The discourse of spirits, karma, and ghosts remained very much alive in northern Thailand, but it was no longer associated with a nonstate system of norms and practices that could compel injurers to compensate injury victims and restore harmony to communities of humans and spirits. The collapse of the unofficial customary law of injuries in Chiangmai was apparently precipitated by massive socioeconomic, cultural, and demographic changes in the last decades of the twentieth century. Described in greater detail elsewhere,36 these changes in Thailand caused Lanna village communities to become less stable, and the ties between individuals and their birth communities were weakened or lost. Most interviewees spoke of diminished connections to their rural roots and to the worldviews and practices that had sustained the customary law of injuries in Lanna. Many had been compelled to leave their family households and establish residence in other towns or cities. They described a fragmentation of the close-knit communities of humans and spirits they recalled from their childhoods. Connections to the community and to the locality spirits were less strong and enduring than before. Interviewees told me that individuals nowadays were born in hospitals and not under the watchful eyes of the guardian spirits. They were married in hotels rather than registering with the spirits in village ceremonies. In many instances, they worked far from home and renewed their relationship to household and village guardian spirits sporadically at best. Conflicts and injuries were more likely to occur far from the sacred centers that formerly bound individuals and communities to customary remedial practices. People in their teens and twenties could no longer remember the traditional practices of their parents and grandparents. The norms, rituals, and obligations of customary law were unfamiliar to them and had, in any case, begun to lose their hold over people who lived far from the communities in which customary law was rooted. As the role of the spirits became less significant in regulating the everyday lives of villagers, the customary law of injuries began to fade. There are several indicators of the decline of customary law in the late twentieth and early twenty-first centuries. An examination of injury case files in the Chiangmai Provincial Court in the s strongly suggests that the court is no longer being used as a forum of last resort for informal customary dispute resolution. Of the

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sixty-six personal injury cases litigated in Chiangmai from  to , only sixteen contained any mention of nonjudicial negotiations prior to the filing of a lawsuit, and in every case the negotiations took place at the police station rather than under the auspices of village elders. It is unlikely that the police mediators would view themselves as enforcers of village customary beliefs and practices or that they would even understand the norms and procedures of the customary law of injuries. Thus, evidence from the case files suggests that the provincial court today retains few if any of the implicit connections to customary injury law that I observed in the s and s. Moreover, personal injury litigation rates appear to have declined sharply as the effects of social changes have been felt, a further indication that the court is no longer connected to customary law. The average number of tort cases litigated per thousand population in the s (. cases) compared with those litigated in the s and s (. cases) has more or less held steady. Since it is safe to assume that the number of injuries per population greatly increased during that time period, due to a nearly eighty-fold increase in the number of motor vehicles registered in Chiangmai province from  to ,37 the failure of tort lawsuits to increase proportionately suggests that the propensity of injury victims to invoke official law has actually dropped substantially. The decrease in tort litigation in proportion to the number of injuries in Chiangmai further supports the conclusion that the Chiangmai Provincial Court is less likely to be used as a forum of last resort for customary law by the growing number of injury victims. Interviews with injury victims who sought hospital treatment also confirm that the customary law of injuries has weakened significantly and is becoming little more than a memory. Many interviewees expressed a concern that belief in the guardian spirits and the traditions associated with them had declined. Consider, for example, the following statement by Bancha, a young groundskeeper employed by a local college: In the old days, the things people really believed in were the spirits of the house and village. If you wanted to do anything, you had to consider the spirits first. The spirits were always watching. People respected them. .€.€. But nowadays no one informs the spirits. .€.€. I’m afraid there will be no one to carry on these traditions and they will be lost little by little.

Similarly, a middle-aged government clerk named Saikham observed: If we followed the old customs, that would be good. But we don’t know how to do it now. Because we, how should I say it, we have entered the modern world now. How can I explain this? The old ways have ended; we don’t know how to do these things. I like them, but I can’t do them.



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Following their recent injuries, Bancha, Saikham, and most of the other interviewees expressed little awareness that a system of customary law might exist to address their needs, nor were most of them inclined to demand any action or payment from the injurer. Often an older relative—a parent or grandparent—took the initiative to consult a spirit medium or perform a merit-making ceremony on behalf of the injury victim. As a result, some of the interviewees came to realize that spirits, ghosts, or karma had caused their mishaps. Yet such knowledge never led them to invoke customary remediation procedures that would have been required by the household and by the entire village community in earlier times. Instead, most of the interviewees concluded that the ideal response was a generous act of selflessness and forgiveness. Seeking compensation—whether through litigation or the now-defunct system of customary law—appeared to them to be counterproductive, materialistic, and selfish. Injury victims self-consciously adopted the Buddhist discourse of nonattachment, forbearance, kindness, and equanimity as they explained their experiences and their response to harm suffered at the hands of another person. To be sure, Lanna-style Buddhism had always counseled moderation in response to injuries, but in the past the demands of the spirits for proper remediation also had to be considered and the appropriate rituals had to be performed. With the recent breakdown in Lanna religious and customary legal practices, however, a less syncretic form of Buddhism had become apparent in the narratives of the interviewees. To them, a demand for payment by the wrongdoer, even if sanctioned by customary norms, appeared likely to add to their bad karma and produce more suffering in this life and in future lives. Customary remediation procedures, as well as tort litigation, had become part of the problem and were no longer seen as part of the solution. The end of customary law—even in its ghostly form—by the turn of the twenty-first century took place as injuries and injury victims lost their connection to the communities in which traditional injury practices had prevailed. With the gradual disappearance of customary law, its informal relationship to official tort law has also been lost. The two systems of official and unofficial law no longer reinforce and legitimate each other. Instead, injury victims tend to perceive no viable means to seek a remedy of any kind, and they assert that injuries caused by their own karma will eventually be redressed by karma. The most effective response they can imagine is to make merit and not to wage an aggressive battle for compensation with the injurer. Buddhist teachings divorced from village-level spirit practices now appear to guide injury victims away from the quest for a legal remedy.

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Conclusion This essay has suggested that the dramatic disparity between the provisions of official code-based tort law and the actual responses to injuries in contemporary Chiangmai reflects the subordination and eventual decline of northern Thai customary law. Until the early twentieth century, village-based customary practices prevailed in the north and were to some extent recognized by and incorporated into the official written laws of the mangraisat. Customary law drew heavily on norms and procedures associated with guardian spirits, whose authority was apparent at the household, village, and műang levels of northern Thai society. The absorption of Chiangmai and the northern region into the emergent Thai state involved the total rejection by the Bangkok government of both the mangraisat tradition and the village-level customary law of injuries to which it was linked. Instead of integrating preexisting legal norms and practices into the new secular law codes, the Bangkok government enacted a form of tort law that completely supplanted such laws and in effect denied not only their relevance but also their very existence. Nevertheless, long-standing norms and practices for handling injury cases in Lanna persisted throughout much of the twentieth century despite the government’s effort to eliminate them. Although customary beliefs, practices, and remedies could not be mentioned in Lanna court proceedings after promulgation of the new tort law in , it was apparent in the s and s that they still affected the behavior of tort law in several significant ways: by diverting the flow of injury cases to informal dispute resolution procedures, by encouraging litigants to use the Chiangmai Provincial Court as a forum of last resort to achieve customary law remedies, and by causing plaintiffs to withdraw both civil and criminal suits as soon as they had received payments calibrated to customary payments. Furthermore, the influence of customary law resulted in a blurring of civil and criminal legal practices in the Chiangmai Provincial Court. That is, consistent with the absence of a strong civil/criminal distinction in the customary law of remedies, private litigants tended to use the criminal law as well as the civil law to promote settlement activity in injury cases rather than to impose prescribed punishments. When defendants paid for the damage they had inflicted, the plaintiffs withdrew their private criminal prosecutions even though official law deemed such strategic manipulation of the criminal process inappropriate. This distinctive interaction of code and custom in injury cases appears to be coming to an end in contemporary Thailand. Because of socioeconomic and demographic transformations in Chiangmai in recent years, customary



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law based on the authority of locality spirits has declined, and injury victims either do not know about it or find themselves unable to invoke its authority. The seamless connection between spirit worship and Buddhism at the village level has been disrupted, and Buddhism disconnected from spirit worship has emerged as the predominant consideration in the minds of injury victims. This form of Buddhism, new to Lanna but approved by Bangkok, is understood by injury victims to counsel them to absorb their losses rather than seek a remedy. Thus, the centuries-old emphasis on mediation and settlement in response to injury now appears to be giving way to an emphasis on “lumping it”—an ironic triumph of Bangkok-sponsored forms of Buddhism over spirit worship in northern Thailand. In addition, the merger of civil and criminal responses to injury has been replaced by an almost exclusively criminal approach. Injuries are now handled by the police and public prosecutors or not at all. Tort litigation and the use of private criminal actions have sharply declined. If mediation takes place, it is now most often conducted by the police rather than village elders. The civil/ criminal distinction that was so crucial to the modern secular law codes has finally been realized in Chiangmai, but only by virtue of the disappearance of civil injury cases. Perhaps the most striking aspect of tort law in contemporary Lanna is the sharp decline of both customary and official legal activity. Rather than invoking either local customary or secular state law, injury victims maintain that the most appropriate and efficacious response is to forgive the injurer, to refrain from any response to a perceived wrong, and to engage in virtuous or sacred actions to improve their karmic balance. Shifts in religious frameworks, apparently the result of these far-reaching social transformations, have in turn produced shifts in legal behavior. Lanna-style Buddhism, tightly linked to spiritbased practices, has given way to a more generalized, less locality-specific form of religiosity. This form of Buddhism is more acceptable to the authorities in Bangkok, and indeed represents the advancement of a long-standing goal of the Thai state regarding the suppression of regional legal traditions.38 Ironically, success in the expansion of Bangkok-based religiosity has gone hand in hand with the centralized legal system’s goal of imposing a secular law of injuries in place of Lanna customary law. Buddhism’s triumph over spirit worship has also represented a triumph of secular law codes over spirit-based injury practices. The secular law of injuries has ultimately prevailed thanks to a fundamental shift in religious belief and practices that appears to have resulted from dramatic social and demographic transformations in the late twentieth century. Yet, paradoxically, secular tort law’s elimination of its rival, the cus-

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tomary law injury law of Lanna, has not been marked by a popular embrace of the codified law of the state but by its rejection in the vast majority of injury cases. Injured persons in Lanna can no longer perceive any viable remedy for the harm they have suffered. For the victims in injury cases, the triumph of code over custom, Buddhism over the spirits, and Bangkok over Lanna, has left them without any recourse except to await the inevitable justice that karma will dispense at some point in this life or the next.

Notes . Peter Fitzpatrick, “The Triumph of a Departed World: Law, Modernity, and the Sacred,” in Law and the Sacred, ed. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (Stanford: Stanford University Press, ), . . At this time the country was actually known as “Siam”; the name was not changed to “Thailand” until . For convenience and to avoid confusion, I use the terms Thai and Thailand throughout this chapter. . The importance of the concept of siwilai for the Thai elite under Rama V is discussed in Chris Baker and Pasuk Phongpaichit, A History of Thailand, d ed. (Port Melbourne, Australia: Cambridge University Press, ), –. . Tamara Loos, Subject Siam: Family, Law, and Colonial Modernity in Thailand (Ithaca, NY: Cornell University Press, ), . . Kawila was a “king” from the Lanna perspective but was the prince of a tributary state in the eyes of the Siamese. See Sarassawadee Ongsakul, History of Lan Na, trans. Chitraporn Tanratanakul (Chiangmai: Silkworm Press, ), . . Krasri Nimmanhaeminda, “Put Vegetables into Baskets and People into Towns,” in Ethnographic Notes on Northern Thailand, ed. Lucien M. Hanks et al. (Ithaca, NY: Southeast Asia Program, Cornell University, ), ; Ongsakul, History of Lan Na, . . “Lan Na” and “Chiang Mai” are alternative transliterations of “Lanna” and “Chiangmai.” In Thai script, spaces are used to separate phrases but not words. . Mueang is an alternative transliteration of műang. . Ongsakul, History of Lan Na, . . The khwan is a spiritual essence found in humans, animals, and in some natural objects such as rice fields. According to Tambiah, “[T]he khwan takes fright and leaves its owner’s body (chao khong) when he is frightened, sick or in trouble, or caj bau dee (mind not good). The very act of its fleeing the body in turn exposes the owner to suffering, illness and misfortune.” Tambiah also notes that villagers refer to the khwan as a single entity, although they recognize that it consists of thirty-two separate parts located throughout the body. S. J. Tambiah, Buddhism and the Spirit Cults in North-east Thailand (Cambridge, UK: Cambridge University Press, ), . The injurer’s payment to an injury victim is known as kha tham khwan—payment to restore the khwan—a term for compensation that is used in legal as well as nonlegal contexts. . See, for example, the injury narrative of Buajan in David M. Engel and Jaruwan S. Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand (Stanford: Stanford University Press, ), –.



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. Richard Davis, Muang Metaphysics: A Study of Northern Thai Myth and Ritual (Bangkok: Pandora, ), . . Ibid., . . Rosalind C. Morris, In the Place of Origins: Modernity and Its Mediums in Northern Thailand (Durham, NC: Duke University Press, ), . . See Ongsakul, History of Lan Na, . Ongsakul also notes that the mangraisat legal corpus was modified in the last years of its use. . See Gehan Wijeyewardene, “Introduction: History, Anthropology and Ancient Texts,” in The Laws of King Mangrai, trans. and ed. Aroonrut Wichienkeeo and Gehan Wijeyewardene (Canberra, Australia: Department of Anthropology, Research School of Pacific Studies, Australian National University, ). . Excerpts from the mangraisat text of Wat Chiang Man are translated into English by the author, in consultation with Jaruwan S. Engel. Na Nagara et al. have published transcriptions of the texts in the original northern Thai dialect as well as the compilers’ “translation” to central Thai dialect. See Prasert na Nagara, Pitinai Chaisangsukkul, and Aroonrut Wichienkeeo, eds., Basic Research on the Ancient Lanna Law: Analysis of Its Legal Structure and Texts as Inscribed in Palm Leaves from Time Immemorial, vol. , book  (Bangkok: Thai Khadi Research Institute, Thammasat University, ). . Ibid., . . Ibid., . . Ibid., . . Ibid., . . Ibid., . . The mangraisat legal tradition was apparently in effect in the late nineteenth century. See Ongsakul, History of Lan Na, . It is not clear exactly when local tribunals would have ceased reference to the mangraisat as an authoritative text in deciding injury cases, but this should certainly have occurred by the time the new Civil and Commercial Code was promulgated nationwide in . . Compare David M. Engel, Law and Kingship in Thailand during the Reign of King Chulalongkorn (Ann Arbor: University of Michigan Center for South and Southeast Asian Studies, ), . See also Apirat Petchsiri, Eastern Importation of Western Criminal Law: Thailand as a Case Study (Littleton, CO: Fred B. Rothman and Co., ), . . Engel, Law and Kingship in Thailand, –. . See, generally, Engel, Law and Kingship in Thailand; Loos, Subject Siam; Andrew Harding, “The Eclipse of the Astrologers: King Mongkut, His Successors, and the Reformation of Law in Thailand,” in Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia, ed. Penelope (Pip) Nicholson and Sarah Biddulph (Leiden, The Netherlands: Martinus Nijhoff, ). . Compare Petchsiri, Eastern Importation of Western Criminal Law, . . Harding, “The Eclipse of the Astrologers.” . David M. Engel, Code and Custom in a Thai Provincial Court (Tucson: University of Arizona Press, for the Association of Asian Studies, ). . David M. Engel, “Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand,” Law and Social Inquiry  (): . . There were , tort cases filed in New York State in . See Court Statistics

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Project, State Court Caseload Statistics (Williamsburg, VA: National Center for State Courts, ). New York’s population in that year was ,,. For other evidence supporting the assertion that Chiangmai tort litigation rates were indeed quite low in comparison to rates in U.S. states and in selected European countries, see Engel and Engel, Tort, Custom, and Karma, –. . This was true of  out of  cases involving private wrongs from  to . See Engel, Code and Custom in a Thai Provincial Court, . . Ibid., . . Petchsiri, Eastern Importation of Western Criminal Law, –. . This study had two major components: () ethnographic interviews with more than a hundred individuals in Chiangmai, of whom thirty-five had been hospitalized for treatment of serious injuries; and () a survey of every injury case litigated in the Chiangmai Provincial Court from  to , including both civil and private criminal actions. The research design and findings are reported more fully in Engel and Engel, Tort, Custom, and Karma. . See Pasuk Phongpaichit and Chris Baker, Thailand’s Boom and Bust (Chiangmai: Silkworm Press, ); Engel and Engel, Tort, Custom, and Karma. . Traffic accidents appear to be highly correlated to injuries in Chiangmai. Out of the entire panel of ninety-three seriously injured persons admitted for treatment in the hospital I and my coauthor studied (this was the group from which we selected our thirty-five interviewees), seventy were there because of traffic accidents. Similarly, most injury cases litigated in the Chiangmai Provincial Court arose from traffic accidents. . Kamala Tiyavanich, Forest Recollections: Wandering Monks in Twentieth-Century Thailand (Honolulu: University of Hawai‘i Press, ).

chap ter thirte en

Secular Speech and Popular Passions The Antinomies of Indian Secularism thomas blom han s en

The vast majority of writings on the idea and practice of secularism are preoccupied with the conditions under which secular discourse and legal regulation can enable a space of tolerance and nonviolent accommodation of religious minorities. This focus on words and text sits somewhat uncomfortably with the fact that political and cultural attachments are often most powerfully mediated by nondiscursive and sensory means. The flag, the streamer, the badge, the dress, the headscarf, and the use of colors are more powerful, accessible, and unambiguous ways of making visible one’s identity, religious emotions, and cultural predilections than, say, coherent statements of conviction and principled stances derived from them. The emotional force of symbols, artifacts, and icons is fundamental to popular religion—Catholic relics, Muslims shrines, and Hindu deities to mention a few examples. The modern and mass-mediated symbol, mark, or icon, metaphorically condensing divergent interpretations and projections into what appears an unambiguous mark of a community or nation, is a fundamental force in political life across the world, including the so-called modern West. The ability to hold and contain divergent meanings can also make a mark or image a powerful negative force that creates a community by being declared outrageous and blasphemous. That was the case with the Danish cartoons in , or the earlier controversy around Salman Rushdie’s Satanic Verses when the book (which few had read) and images of the author were ritually sacrificed by crowds in many parts of the world. The life of the secular as a meaningful category in public life is inevitably embedded in particular public cultures of debate and confrontation between

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communities, and between communities and states. One hallmark of secular forms of government, the neutrality of the state in religious affairs, grew historically out of attempts to supersede religious divisions in the body-politic (as in France and Britain), to protect religious minorities from persecution (as in The Netherlands), or to protect political life from religious passions (as in the United States). In the United States, and indeed in India, where there is no “thick” notion of the secular, the other of the secular has never been religion per se but always excessively passionate attachments to religious identities that may take violent forms and disturb public order. Here, the management of the forces that may incite such potentially destructive and divisive religious and political passions, and the propagation of a certain public ethos of toleration, are core tasks of secular modalities of government. In India, the long history of deadly clashes between Hindus and Muslims in the colonial period, with its culmination in the carnage following Partition in , was rarely presented as a clash of civilizations or religions by contemporary observers. Colonial officers regarded these deadly communal enmities as intrinsic to the irrational Oriental masses whose religious passions could be triggered by rumors, images, or mystical fervor. This government attitude continued after  when a substantial and often decisive part of India’s democratic polity was nonliterate and political practice remained heavily reliant on visual and symbolic means, especially in the country’s multiple vernacular public spheres.1 To this day, a large number of Indian voters primarily identify political parties, and social movements and their stances, by their symbols, colors, and highly developed visual representations. More formalized aspects of political and public life—public statements, programs, modalities of organization—have, throughout the twentieth century, been generally expected to balance out these labile energies of popular excitability around symbols and images by the restrained and responsible conduct of educated leaders. Living with religious plurality in India has meant that a majority was being asked to accommodate a number of minorities, and that minorities were expected to accept the gift of toleration on the terms defined by the state and the majority population. The debates around India’s constitution abounded with the rhetoric of toleration as a magnanimous gift to the minorities and the expectation that this was reciprocated as loyalty to the new nation.2 The constitution extended many gestures of incorporation into the new nation toward the former Untouchables and other social minorities—such as reserved seats and constituencies and affirmative action. Caste differences were seen as “social ills” intrinsic to Hindu culture, and thus reform was something that the overwhelmingly Hindu-born Constituent Assembly felt entitled to rectify. Religious



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and political freedoms were guaranteed, but special efforts vis-à-vis non-Hindu religious minorities were assiduously avoided.3 It was clear that there was one minority that could not be assimilated, the Muslim minority, a part of which had opted to form its own state of Pakistan. The constitutional process revolved around this traumatic event and attempted to found a new India that in the image of the dominant Congress movement could encompass and accommodate all Indians, including millions of Muslims. The goal was a state that actually practiced what D. E. Smith called nonpreference vis-à-vis religious communities,4 an ideal that the colonial state had professed but never lived up to. This foundational moment also reiterated a colonial style of government where “reasonable” English law and responsible public conduct were supposed to contain the large and always simmering cauldron of popular passion. It also transformed this mentality of government into a reformist, paternalist, and pedagogical project guided by a “secular” norm, embodied by the educated modern citizen, expert, and bureaucrat. However, the problem of Muslims as a minority that cannot be wholly assimilated has remained the unresolved knot in the entire Indian public discourse of secularism since the s.5 In the following, I shall try to show that the public life of the secular in postcolonial India is premised upon a constant, if highly imperfect, balancing between a realm of “culture and religion” that is the site of entirely legitimate passionate attachments, and a realm of “politics” that is to be governed by a measure of rationality and what in Indian political discourse is often called “responsible conduct.” In practice the latter means an unequivocal commitment to national unity. This distinction between national reason and communitarian passion, between disciplined words in service of the nation and passionate attachment to discrete communities and their symbols, is mapped onto a fundamental distinction of colonial origin between those with education and culture capable of proper speech, and the poorer masses entirely governed by their passions. I propose that the secular persists as an effective and widely accepted ideal in India because the realm of the political has been transformed by the enormous emotional investment by poor and marginal groups in winning political representation. This has not removed the balancing act between cultural attachments and political rationality but has redefined this balance. Indian politics is more unruly and violent but also more ubiquitous in social life, capable of processing and encompassing a range of decidedly illiberal political and cultural passions while retaining its overall commitment to “the secular,” understood as tolerance of religious difference, most often in the name of public order.

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State, Community, and the Meanings of the Secular in India Although not used widely in everyday life, and almost invariably in English, the notion of “secular” and “secularism” evokes in India a wealth of largely positive connotations such as fairness, even-handedness, balance between communities, tolerance, and so forth, but rarely science or reason. It is commonly assumed that individuals with higher education, good command of English, and technical professionalism by virtue of their knowledge of the conceptual universe of the Western world have a largely secular orientation in the sense of being able to exercise good and fair judgment. In the more popular and vernacular universes, secularism connotes practices of toleration—to attend festivals of communities other than one’s own, maybe even to share meals with members of other communities, to have friends from other communities, and to generally be known as nonprejudiced whether in terms of caste or religion.6 If representatives of the state are seen as even-handed, upright, and honest they are readily talked about as “secular.” The discourse of secularism in India cannot simply be understood as a modernist attempt at erasing cultural differences to create space for a new homogenous national modern culture, as for instance Kemalism in Turkey. Secularism in India never attempted to challenge religious institutions, only to regulate social behavior, some of which was derived from religious precepts. In official discourse, “the secular” inhabits a location created by the colonial state as “an eye in the sky,” an entity above society, endowed with a broader responsibility for the entire population. This was based on an ideal of universality partially derived from emerging modern ideas of government as performing a measure of “humane responsibility” for citizens, or stern paternalist care for subject colonial populations.7 The other source was obviously Christianity, which most colonial officers saw as infinitely superior in ethical matters to any religion on Indian soil.8 The withdrawal from religious regulation was based on a long experience of consistent resistance to such interventions. The first half of the nineteenth century saw examples of controversial colonial reform: attempts at detailed regulation of Hindu temples in South India as a method of rule by Hindu cosmological categories;9 and reforms of “barbaric customs” inspired by missionary opinion: the banning of sati in 29, and later the banning of child marriage with the Age of Consent bill of . The latter became the center of substantial political mobilization protecting the “Hindu family” against colonial regulation, and the bill was never seriously implemented. Christian missionary



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efforts in parts of the subcontinent were tolerated, and sometimes supported until the rebellion in  that was triggered by hurt religious feelings among the local East India Company troops.10 After this time, the colonial state sought assiduously to avoid deep interventions into what educated local opinion was protective of as a sovereign “inner” realm of Indian culture and society.11 Interestingly, the powerful missionary societies actively supported this policy of noninterference and “religious freedom,” because they wanted once again to have a free hand in converting Indians to Christianity.12 The pragmatic management of religion within the colonial state was governed through a distinction, on the one hand, between the political realm of the state, and, on the other, cultural-religious communities that were responsible for areas such as family law and the administration of religious institutions.13 The latter were given substantial autonomy in order to contain and control the outbursts of seemingly irrational religiosity and passion feared so much by the colonial officers. From the late nineteenth century onward the political realm began to include small numbers of appropriately propertied and educated representatives of the natives who were allowed to enter into what the colonizers saw as a sanitized space of civilized disagreement and negotiation, both in government and in the nascent civil society. Civilized and individuated by property ownership, English law, and the English language, these individuals were supposed to represent and transform their respective cultural worlds of untamed passion and irrationality.14 Nationalists and cultural reformers retained this bifurcation but reversed the valorization of the two realms. To Gandhi and others, the nation resided in India’s cultural communities, while the political world remained a morally empty space that could be given life only by vibrant and ethical communities existing on their own outside of it. This gave birth to radical “antipolitics”—a production of religion, tradition, and ritual practices as elevated, as sublime signs of the nation and communities and also a site of permanent critique of politics and technical rationality of modernity. Today, devout Gandhians, and even radical Hindu nationalists, inhabit this space.15 This conceptual structure that makes the realm of politics and state exterior to that of culture and religion is also fundamental to the “antisecularist” argument associated with Ashis Nandy and T. N. Madan. Madan argues that the notion of the secular is intrinsically tied to Christianity and a Western experience of secularization of the social world. In India, Madan argues, religious ethics and practices dominate the lives of most people, except for a modern and Westernized minority dominating the state and modern institutions. As a result, secularism is an ineffective and culturally incommensurable proposition in India.16 Nandy operates with

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the same stark binary but concedes that a substantial part of the population in India lives in a world dominated by modern institutions, modern politics, and modern modes of thought. The source of violence, Nandy argues, lies in the milieus of those deracinated Hindus and Muslims, alienated from traditional forms of tolerance and under the influence of modern and totalizing ideologies of nationalism and communalism. In that sense, communal ideology and secularism belong to the same conceptually modern world, different from the still “traditional” or authentic Indian living in villages and marginal parts of society whose tolerance draws sustenance from religious convictions and practices.17 In a recent essay, Nandy argues that modern secularism “by itself has proven to be a relatively sterile source of social creativity.” All of the “secular icons” that secular Indians like to cherish for their tolerance—Gandhi, the poet saint Kabir and the Sufi tradition, the Mughal emperor Akbar to mention a few—are all deeply religious people “who never heard of secularism.”18 While the latter argument is thought-provoking, the central weakness of both Madan’s and Nandy’s arguments is that they remain blind to the fact that most aspects of the life of ordinary Indians are already depurified by modernity, state, and politics. They also do not acknowledge that they both operate within a conceptual schema of colonial provenance that does not reflect contemporary social practices. As I will try to demonstrate with a few examples below, politics and ideas of what is secular, and what is not, are integral to the public life of cultural values and religious attachments in India.

A Short History of Communal Balancing With independence and the triumph of the nationalist movement, the cultural construction of the political also began to differentiate. In the s and s, high politics was widely regarded as a “virtuous vocation” where upper-caste notions of proper public conduct merged with the ethos of selflessness that freedom fighters had acquired through the nationalist struggle. Many nationalists were wary of the colonial model of management (and manipulation) of religious difference that had created a contradiction between the particularist political interest of communities and the overall interest of the new nation. The term “communal” now meant “irrational attachment to premodern, sub-national identities of caste and religion.”19 Communities now had to be encompassed by, and indeed submit to, a wider project of nation-building by being transformed into a series of cultural communities—all in principle equally worthy of respect and protection, all equally important as moralsymbolic foundations of the state. Now a Friday namaz (prayer), a mosque,



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or a Hindu procession and a temple were no longer simply manifestations of community and sectarian strength, but became articulated as picturesque and awesome manifestations of the very plurality of culture that defined the Indian nation. Religion became national culture and could in this form remain central to the rituals and procedures of a secular state, and secular democratic politics.20 Politicians could now consolidate their nationalist and secular credentials by visiting temples, mosques, and gurdwaras, and by attending ceremonies and processions of different communities. Religious manifestations were encouraged and revered as repositories of the cultural legitimacy that the state, routinely depicted by its own officials and by political leaders as a purely technocratic machinery, could not generate. Public figures were not supposed to be atheists in order to prove their secular credentials. On the contrary, deep religious convictions of any persuasion were regarded as signs of moral consistency and national devotion, and thus a basis for secular practices of even-handedness. India’s second president, Sarvepalli Radhakrishnan, was not only an acclaimed moral philosopher but, like Gandhi, a devout Hindu. An entire generation of social reformers, national public figures in independent India embodied the noncontradiction between being publicly religious and being equally devoted to even-handed secular practice. Rajeev Bhargava’s argument that Indian secularism is based on “equi-distance” from any religion21 should perhaps be reformulated to be “equi-intimacy” with religious practices, at least at the level of symbolic representation. Nehru was very explicit about the fact that the Indian state should respect religion and faith but avoid “state religion.” What was pursued by the secular state was, in other words, a continued separation of two discursive and strategic realms. One was a political realm wherein the interest of national unity, “nonpreference,” and the rationalities and imperatives of the state compelled political actors to speak and act in certain ways—while at the same time praising the cultural diversity and depth in India. In the other realm of the cultural, any community could celebrate itself and its own myths, and was entitled to exclude others. The political realm was not supposed to be “contaminated” by the unilateral celebration of one community or the (open) representation of particularistic interests of one confessional group. Similarly, the culture of a community—and by implication the entire nation—would be contaminated if political forces openly interfered with it, thus injecting partiality and “communal consciousness,” which in turn would “poison the hearts and minds of the people” as the well-known rhetoric in India still goes. From the s, the popular construction of politics has become that of an immoral vocation, widely regarded as a site of unprincipled pragmatism, cor-

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ruption, nepotism, and greed—the profane antithesis to the sublime qualities attributed to the cultural realm. Moreover, the social backgrounds and cultural habitus of elected representatives and activists of political parties have changed. Previously drawn mainly from educated upper-caste communities, a growing number of individuals from lower-caste and “plebeian” social backgrounds have now been attracted to the political field, bringing with them styles of language and social practices that in the eyes of “respectable” citizens appeared both crude and “uncultured.”22 According to many a columnist in the Indian dailies, the massive political mobilization of previously silent or marginal communities through electoral politics has produced what is often termed “excessive politicization” and runaway amorality and criminalization of public life. Incidents of Hindu-Muslim violence or other kinds of violence in the country are routinely attributed to the instigation of criminal elements, land-grabbers, and others who manipulate an easily excitable general plebeian public. In this influential interpretation, a regeneration of public morality can only come from cultural and religious communities, as if they remain reservoirs of pristine values untouched by the larger transformations of Indian society. Public virtue cannot, it seems, be generated within the realm of politics itself. The growth of the Hindu nationalist Bharatiya Janata Party and affiliated organizations in the s, the seminal conflicts around the Babri Masjid, and the ensuing decade of pogroms and attacks on Muslims in particular changed the political landscape in India and its political common-sense. Open Hindu majoritarianism and public abuse of minorities became more common and acceptable. There was no longer a tacit consensus around what public speech should look like, for instance. Still, however much the BJP attacked official secularism as hypocritical “pseudo-secularism,” the fundamental terms of debate and meanings of the secular changed very little. The force of the BJP’s criticism was not that secularism was worthless as a public virtue but that the Congress and others were not secular enough in the Indian sense, in that they did not practice proper balance between communities and were accused of pandering to the minorities. While this argument obviously covered a blatant majoritarianism, it was striking that the general terms of discourse were so deep that the BJP never launched a frontal attack on secularism as an ethics of accommodation and communal balancing. It is also worth mentioning that the Hindu nationalist movement itself is structured around a structurally homologous divide between those who are wedded to cultural activism as a means to consolidate the Hindu nation, and those in favor of political and electoral mass mobilization to the same end.23



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The distinction between the political and the cultural, however, is anything but self-evident in practice. The viability of the distinction depends on a range of mostly tacit rhetorical and performative codes in public life. Let me mention just three key areas where these are played out: religious processions, elections, and education—all instances of where the great mass of the uneducated meets the world of public representation and formal institutions.

Religion and Cultural Activism Religious processions and festivals have historically occupied an almost paradigmatic place in the governance of space and communities in India. The sponsorship of large religious festivals and temples was pivotal to the legitimacy of the king.24 The recurrent public spectacles of fervor, passion, and intense experiences of community among different groups presented to colonial officers in a condensed form the need to draw a line between supposed sectarianism and irrationality of community life, and a modern, rational, and “neutral” state. After India gained independence in , festivals and processions were largely depoliticized and turned into pure cultural events. If religion now was invoked at a political rally it had to be in the plural, as a praise of India’s diversity, or, more rarely, as a critique of all forms of religious excess. If political themes occasionally were taken up during religious festivals they would be expected to be of a general nature, invoking the larger national interest, unity of the country, and other uncontroversial elements of the dominant political discourse. A good example is the evolution of the Ganpatiutsav in Mumbai, the mass festival celebrating the elephant-headed god Ganesh. Initially a festival confined to small Brahmin communities in western India, the nationalist leader Bal Ganghadar Tilak transformed it in the s to one of the most spectacular Hindu festivals in the country, serving a dual purpose of anticolonial mobilization and consolidation of the Hindu community in the escalating confrontations with Muslims. The central feature of the festival is still the construction of hundreds of small and big tableaux, or mandap, by local community groups. These tableaux display pictorial commentary on current events or mythological themes. Initially, the mandap were often a medium for critique and ridiculing of colonial power, but after independence the themes became more purely cultural or mythological, increasingly sponsored by large private firms, banks, and public institutions. In the last decades, however, mandap have again become more “politicized” or “communal” as Hindu nationalist organizations have used the festival to represent themselves to their audiences.25

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The pertinent issue in these mandap tableaux, as in other public cultural events, remains whether other communities, but not the state, are derided or abused. The thin line between the two realms is crossed if, say, credentials of public figures are cast in doubt on the ground of their religious affiliations, or if customs or practices of an entire community are criticized or abused unilaterally. If one criticizes politicians or religious leaders, one must criticize both sides, both Hindus and Muslims, in order to remain “secular.” These tacit rules of public speech remain crucibles in the official interpretation of secular practices in India in spite of the obvious fact that the invocation of religious community in the realm of politics has become more widely accepted over the past decades with the rise of the BJP. However, even the high-profile campaign conducted by the Hindu nationalist movement in the s and s around reclaiming the supposed birthplace of Lord Ram on the exact site of the Babri mosque in the holy city of Ayodhya in North India, was conducted as a campaign on a cultural issue, the hurt feelings of the Hindu community. The controversial aspect of it was that it was in part conducted and promoted by elected members of parliament representing the BJP—a fact roundly condemned even by many devout Hindus as a form of undue and excessive politicization of a cultural issue. The recent split judgment of the Uttar Pradesh High Court in the matter of the contested site in Ayodhya clearly shows that the “cultural” argument regarding Hindu sentiments and the imperative of communal balancing are assigned more legal weight, and legitimacy, than the actual culpability involved in destroying the mosque, or the blatant political-electoral instrumentalities that drove the campaign. In their ruling that was supposed to conclude a civil suit that began in , the judges of the Allahabad High Court (one Muslim and two Hindus) ruled on September , , that the disputed . acres should be equally divided among the three parties in the suit: the Muslim Waqf Board (which formally owns Muslim religious property); the Nirmohi Akhara, an organization of Hindu ascetics that has been in Ayodhya for three centuries,26 and is rumored to be supported by the Congress Party and the government; and Ram Lalla Virajmaan, the party representing the infant Lord Ram, whom Hindu devotees believe was born on the site, backed by Hindu nationalist organizations.27 The verdict’s formula is to divide the land among Muslims, radical Hindus, and moderate Hindus in order to strike a balance. Many commentators praised the formula, and the general secretary of the Congress Party, Digvijay Singh, stated: “I do not look at it politically. No one should do politics with such a sensitive issue. I do not see it in terms of political gains or losses.”28 The attempted maintenance of the spurious boundary between culture and



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politics has enabled the older genre of cultural “antipolitics” to thrive anew. This genre of speech and practice derives its moral authority from being elevated above the supposed selfishness and immorality of the political world and is claimed by reformers, social workers, NGOs, and others. The authority of antipolitics as a genre depends squarely on the distance to the world of institutionalized party politics. The most important code is the performance of selfless behavior and asceticism. Hindu nationalist volunteers call themselves “self-forgetting volunteers” (swayamsevaks); most Islamic organizations demand that activists lead pious, ascetic, and exemplary lives; and the sincerity of social reformers is judged on the basis of their personal lifestyle and lack of mundane belongings. This code of conduct draws on an older ascetic brahminical ethos which social and cultural nationalists, especially Gandhi and Vivekananda, transformed into a model for nationalist conviction that dominated the anticolonial movement from the s to s.29 The moment this code of asceticism is broken and signs of ostentatious behavior are found, one forfeits one’s right to speak from the vantage point of the purity of culture or community. A well-known Gandhian and Hindu social worker, Anna Hazare, became in the late s a high-profile critic of government policies and corruption in western India. Shifting governments tried either to smear his reputation, spread rumors about his personal life, or to co-opt him into participating on government advisory boards, into an alliance with the Congress Party, and so on. They never succeeded in co-opting Hazare, but the rumors nonetheless left a lasting question mark on his public stature.30 If cultural or religious organizations take a stand on social issues, or on current politics, as Hazare did, they are clearly expected to confine themselves to the enunciation of a generalized moral discourse of the good in society, to criticize selfishness in public life, moral decay, and divisive tendencies and the like. If a cultural organization steps out of this genre and supports a political party or blames a particular community for the ills of the country, it crosses the line between cultural exhortation and communalism. It becomes even more complex in the case of purely performative acts. If a group of Hindu nationalist volunteers march through a city to call for Hindu unity and social discipline, this does, strictly speaking, take place within the cultural realm. However, if they pass through a Muslim neighborhood a bit too conspicuously and loudly, or if an otherwise “traditional” Hindu procession with its music and chants stops a bit too long in front of a mosque, it potentially turns into something else—a political statement. Conversely, if Islamic volunteers preach austerity and obedience to the Qur’an as the path to a better society, this takes place within the cultural realm.

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But if the same activists employ identical arguments in the presence of people from a political party, their gesture immediately becomes open to interpretation as political and thus “communal.” When Hindu nationalists embark on paternalist projects of education of tribal communities in India’s hilly regions and claim to “rescue” these communities by turning them toward the general values of Hinduism, they can be said to conform to Gandhian ideas of inclusivist nation-building. But when the same movement uses anti-Muslim or antiChristian rhetoric to further its cause, or when tribals play key roles in attacks on Muslims (as in Gujarat in  or Orissa in ), the very same educational program appears as a communal gesture. The gesture or performance that signifies communalism in the overtly “political” part of the public realm may well pass for cultural activism in another part of the public realm.

Elections The other great public spectacle in India is the election campaign, with its mass-rallies, marches, ceaseless and loud campaigning, the use of colors and images. According to the long-standing ideals of Indian democracy, political representation should take place through educated leaders who perform the necessary translations of various feelings and embodied passions into a language of proper, responsible demands, recognition, or even legality—an Indian version of the supersensible. This interpretation of a public secular ethics was in  authorized by the judges of the Supreme Court who in the case against Bal Thackeray, the leader of the militant Hindu movement Shiv Sena, found him guilty of spreading “communal enmity” between Hindus and Muslims during election campaigns.31 The judges emphasized the particular responsibility of political leaders: “[L]eaders (must be) more circumspect and careful in the kind of language they use .€.€. for maintaining decency and propriety .€.€. and for the preservation of the proper and time honoured values forming part of our cultural heritage.” The judges had the following to say about religious utterances in the public, particularly during elections: “[M]ention of religion as such in an election speech is not forbidden .€.€. . [W]hen it is said that religion and politics do not mix, it merely means that the religion of a candidate cannot be used for gaining political mileage on the ground of the candidate’s religion or by alienating the electorate against another candidate on the ground of the other candidate’s religion.” Despite such caution during election times, there are few instances of legal intervention to prevent the dissemination of rabid propaganda. No Hindu



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ideologue has been taken to court for defamatory statements about Muslims or others, statements which in the s became completely routinized and widely circulated. Section a of the Indian Penal Code does provide legal grounds for imposing legal strictures on speech and printed material, but the problem lies in its formulation that such material or speech must be produced with “deliberate” and “malicious intent” in order to fall under this section.32 Public conduct and speech during election times are also more strictly regulated because of real concerns with public order. Magistrates care less about whether enmity prevails in everyday life, but they focus on the moments when “the masses” can be aroused into destructive action. Confronted with an ever more “plebeian” and unruly electoral process in India, India’s Electoral Commission has acquired a stronger and more heavy-handed role. High profile election commissioners such as T. N. Seshan in the s, and J. M. Lyngdoh in more recent times, have become heroes to the middle class because they are seen as stern bureaucrats acting as impartial voices of reason and fair play from the commanding heights of the central government. This, argues Nivedita Menon, reflects a “fantasy of clean politics,”33 in which the state imposes order on the unruly “public.” The celebration of the Electoral Commission and its belief that new technology can limit fraud shows an “impatience with the messy realities of politics .€.€. contempt for the ordinary citizen, hatred of their rustic leaders .€.€. . In short an ideological mask of I-love-democracy-but-hatepolitics.”34 This is symptomatic of an emerging split in the realm of politics between, on the one hand, a tumultuous and energetic arena of electoral politics dominated by “plebeian” forces and despised by many middle-class Indians, and, on the other, a new love for the “neutral” machinery of bureaucracy and the state proper by middle-class activists who campaign for selective issues in the name of the aam admi (common man). This figure is today richly invoked in Indian political discourse by middle-class activists hoping for direct, apolitical, and efficient technical solutions to India’s many developmental problems.35 Understood in this context, current apprehensions about the crisis of secularism and the decline of proper secular conduct also reflect powerful class apprehensions projected onto the field of politics in contemporary India.

Education and Politics Higher education and instruction in English have historically been regarded as the means to instill a modern grammar into young minds, enabling them to transcend narrow bonds of community. “We try to teach our students to look at the bigger picture, that is, to look at the country as a whole. Only then will they

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see that there is more that unites us than what divides us.” This is how Sadjid, a high school teacher in Mumbai, described the purpose of teaching history and civics to young people in his school in a working-class district marred by tense relationships between Hindus and Muslims. In this classical Nehruvian vision, higher education was the anvil wherein modern national identities and a scientific worldview were produced. A large number of schools and colleges have remained “community-institutions,” run by churches and religious trusts of all faiths. To be recognized and receive grants, schools have to follow official curricula, and they are expected to honor the founding fathers of the nation, India’s plural culture. Other than that they are allowed to promote and represent their own particular community symbols, festivals, and cultural heroes. Citizenship and the capacity for responsible, balanced, and thus “secular” conduct and decision are widely regarded to be more effectively manufactured at educational institutions than in the political process, or in the public as such. The difference between those who possess this asset and those who do not constitutes a deep cleavage, more enduring and maybe more critical than even the rift between religious communities. Until recently in India, divisions of class and caste tended to converge along a rift between those with a certain “background” and those without. Secular tolerance is intrinsic to the pedagogical mission of the modern state vis-à-vis the masses who are too consumed by religious passion to fully govern themselves. This notion of an innocent people to be protected by enlightened middle-class citizens is still perpetuated by the interpretation of riots and other collapses of civic order as the handiwork of ubiquitous “criminals,” land-grabbers, and goonda (criminals). Shock is still feigned in the public realm when it appears, again and again, that middle-class people were active participants in riots and atrocities.36 The deep gulf between the differential standards and concerns applied to the educated and the noneducated are glaringly obvious in Marc Galanter’s analysis of the criteria for legitimate conversions from one religion to another in a number of Supreme Court cases. Galanter shows that there exists a practice according to which the validity of a conversion among the (uneducated) “lower strata” of society may depend on evidence of actually changed ritual practices because rituals are assumed to “be of utmost importance for people of this class,” as a judgment states. One must add that the judges also assume that the utterances and self-descriptions by “this class” supposedly cannot be trusted. In the case of educated people, the required evidence is merely an unequivocal enunciation of intent: “I am a Muslim and no longer a Hindu.” Only the educated can be entrusted with the right to speak truthfully and authentically. It



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is noteworthy, however, that in both cases it is not enough to say, for instance, “I am not a Hindu,” or to renounce all Hindu practices. One remains a Hindu or Muslim until one has proved in practice, or said unequivocally, that one is something else.37 One of the recent examples of the continued belief in education as the road to tolerance and full citizenship was the scheme proposed by the government of India in April  to include Muslim madrasahs into the existing grant-in-aid structure that funds a large number of educational institutions in India. Inspired by an already existing scheme run by the West Bengal government, the Union Government indicated that it would be willing to pay salaries to the teachers in madrasahs provided they introduced science classes into the curricula. The reasoning behind the scheme was that “modern secular education” would instill different attitudes in the minds of children from the poor Muslim mohallas (neighborhoods), and would help these children to be equipped to cope with the requirements of the modern labor market and thus eventually break out of the narrow-minded attitudes supposedly perpetuated by madrasahs. This scheme, which was never implemented fully because of widespread resistance among imams running the madrasahs, captured central features of the practices of the secular state in India. Anxious to safeguard and consolidate intercommunity peace and curb the reproduction of sectarian identities, the government decided to implement reform of and through the religious institutions. Instead of expanding and enhancing the quality of government schools imparting “modern secular education” in Muslim areas, the government chose to govern through religious institutions, ostensibly to give Muslims the same treatment and possibilities as other communities.38 Every year, millions of young people graduate from educational institutions across India, some of open religious provenance, others supposedly secular by virtue of being run by the state. The latter are often imparting very strongly partisan ideas of the nation and history, as Veronique Benei has shown for western India.39 All school leavers have probably acquired some scientific knowledge, but not all have received the secular, balanced, and nationalist outlook praised by Sadjid, nor the inclination toward reasoned argument that is believed to be intrinsic to such an attitude. Modern technology does not equal modernist teleology. Graduates with technical skills have in fact proved to be some of the most receptive audiences to both Hindu nationalism and modern Islamist ideology. The governmental support for madrasahs in West Bengal was thrown into a prolonged crisis when supposedly Islamist gunmen attacked the American Center in Calcutta. The minister of education in the state was quick to blame

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certain madrasahs as sites of “antinational” ideology and thus, by implication, co-responsible for the bloody attack. In his discussion of this political crisis, Partha Chatterjee argues that it revealed the constitutive weaknesses of Indian secularism: firstly, there are no protocols for identifying proper representatives of religious and cultural minorities with whom the government can interact and negotiate. Secondly, there is no agreement on where and how public debates on change within minority communities can take place. However, Chatterjee concludes that the madrasah itself is a good example of how the “political” and the “cultural” are inextricably linked in what he has famously termed “political society”—the interface between community institutions and governmental agencies.40 A madrasah requires both community support and active intervention from political leaders to sustain itself. “It can potentially democratize the question of who represents the minorities.”41 It is clear, once more, that however spurious and contradictory the boundary between politics and culture, it consistently structures public debates and political interventions across India.

Conclusions All the binaries that define the field of debate around the secular—feeling vs. reason, culture vs. politics, religious passion vs. educated restraint—seem in India to boil down to the same thing. The problem lies squarely on the side of the poor and uneducated, and the irresponsible educated men and women, who supposedly know better, but who instigate violence and produce intolerance, who push a narrow and backward-looking ethos of community into the shared ground of the national public that ideally should be governed by an ethos of “responsibility.” Violence between Hindus and Muslims at this level of discourse is seen as a form of infection and is routinely addressed in official prose in medicalized terms as “malignant,” as “cancer,” and so on.42 Many Indian intellectuals are despondent about the future of secularism as older styles of attachment to the Nehruvian nation-state ideals and its project of modernization have ceded ground to a vitalist politics of the religious right, which has few qualms about using emotions and passions to the full in their often violent political practices. The return of the Congress Party and its allies to power in  on a platform of social justice and redistribution seems to suggest that the inclusive Nehruvian ideals of the nation remain powerful. However, Indian political life has changed with the deepening of democracy in ways that blur the boundary between “culture” and “politics.” The language of “injury,” hurt, and victim-



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ization, and claims to entitlements flowing from past injustices, have become dominant among lower-caste communities and other historically marginal groups. The presence of these claims and the communities they mobilize in the heart of the political process represent major achievements for democracy in India. It has also given a new centrality to passions grounded in embodied experiences of defined social and cultural communities, and a hard-won collective and cultural pride. Many of the political formations based in lower-caste communities have opposed the Hindu nationalist majoritarian agenda, which they regard as brahminism in another guise. As a result, they have attracted substantial electoral support from Muslims and other minorities. This process has also confirmed the logic enshrined in the Indian Constitution. To ameliorate the effects of social and historical injustices, such as caste, which is intrinsic to Hindu culture, remains a legitimate problematic in India, whereas questions of religious minority status are not. In , a comprehensive report on the status and living conditions of India’s Muslims recommended that the community’s marginality and poverty would be best remedied by acknowledging the detrimental effects of caste practices among Muslims.43 By accepting this, it was argued, the majority of India’s Muslims who belong to lower-caste categories could access the various educational and occupational entitlements that are available to those defined as lower-caste in the country. This recommendation indicated that the constitutional framework still structures the political imagination in profound ways: contemporary religious passions and attachments must remain in the “cultural” realm, while those passions and injuries that emerge from historical inequalities can be admitted and discussed in the realm of electoral politics. Another lesson one can draw from India is that secularism is neither a bloodless, legal protocol taming the passions, nor a substantial ideology with its own religiously inflected rituals of worship of the political community, as Bellah argued with respect to “civic religion” in the United States.44 The secular in India has most of the time developed as a constant juggling of the possibilities and spaces opening between more hardened and reified positions of nonnegotiable moral registers, some of them routinely expressing their passions in violent ways. The real secular ethics in contemporary India are probably much less substantially secular than Nehru had hoped. The secular is predominantly an effect of irreducible pluralism and the agile manufacturing of compromises and coalitions in multiple spaces of tactical agreements, most of the time labored over by privately deeply partisan men and women in the name of the nation, or in the name of the imperative of public order. The real stumbling blocks of the secular in India are the elements that limit such agility and plural-

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ity: the deep fear of the popular passion, and the prejudice that popular politics is intrinsically prone to violence, including sectarian violence. Indian democracy is indeed full of hard, enduring, and often violent conflicts, but it is also becoming ever-more socially inclusive, constantly challenging emotions, entrenched privilege, and cultural certitudes in new domains. This amounts to an enormous storehouse of political skill and experience in democratic politics, and the tactical spaces it opens for secularity of many kinds. It certainly makes Indian secularism perpetually imperfect in the eyes of those committed to substantive secular values, but also annoyingly persistent in the eyes of the avowed enemies of the secular.

Notes . See Arvind Rajagopal, Politics after Television: Hindu Nationalism and the Reshaping of the Public in India (Cambridge: Cambridge University Press, ). . See Gyan Prakash, “Secular Nationalism, Hindutva and the Minority,” in The Crisis of Secularism in India, ed. Dingwaney Needham and Rajeshwari Sunder Rajan (Durham, NC: Duke University Press, ). . See, for instance, the very fine-grained and perceptive analysis of the place of different concepts of minority during the Constituent Assembly debates in Rochana Bajpai, Debating Difference: Group Rights and Liberal Democracy in India (Delhi: Oxford University Press, ), esp. ch. . See also Shefali Jha, “Secularism in the Constituent Assembly Debates, –,” Economic and Political Weekly (July , ). . D. E. Smith, India as a Secular State (Princeton: Princeton University Press, ). . Aamir Mufti, Enlightenment in the Colony: The Jewish Question and the Crisis of Postcolonial Culture (Princeton: Princeton University Press, ). . In a new and interesting study, Priya Kumar has suggested that the Hindi translation of secularism, dharamnirapeksata, should be modified to dharamnispakshata to encompass its vernacular meaning. Dharma can be translated as religion, and nirapeksata as being indifferent, whereas nispakshata means not choosing a side, being nonbiased. See Priya Kumar, Limiting Secularism: The Ethics of Co-existence in Indian Literature and Film (Minneapolis: University of Minnesota Press, ), . However, the standard practice is to use the English term “secular” in vernacular speech, or on more festive and formal occasions to invoke Gandhi’s canonical formula of sarva dharma sambhava (equal respect for all religions). . Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ), –. . After the legalization of missionary activity in , and until the rebellion of , the East India Company allowed missionaries to stage large and spectacular public debates in which British missionaries would engage learned Brahmins in debates on the nature of the universe, morality, and many other questions. Unsurprisingly, the very setup of the debates and their presuppositions enabled missionaries to “win” and to demonstrate the superiority of both Christianity and science to Hindu knowledge systems. (On this phenomenon in western India, see, for instance, Rosalind O’Hanlon,



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Caste, Conflict and Ideology: Mahatma Jotirao Phule and Low Caste Protest in Nineteenth Century Western India [Cambridge: Cambridge University Press, ].) Interestingly, in the colonies, science and Christianity, so often opposed at home, merged into one compact known as “Western civilization.” For a general argument on this phenomenon, see Gauri Viswanathan, Masks of Conquest: Literary Study and Colonial Rule in India (New York: Columbia University Press, ). See also De Roover’s essay in this volume. . Arjun Appadurai, Worship and Conflict under Colonial Rule (Cambridge: Cambridge University Press, ). . Both Hindu and Muslim sepoys were outraged by the fact that they had to bite the top of a new type of cartridge which was rumored to be greased with pig and cow fat. . Partha Chatterjee, The Nation and Its Fragments (Princeton: Princeton University Press, ). . Peter van der Veer, Imperial Encounters: Religion and Modernity in India and Britain (Princeton: Princeton University Press, ). . By the early twentieth century questions of marriage, inheritance, and religious property were governed by separate law complexes for each religious community: Hindus, Muslims, Christians, Sikhs, Parsees, and Jews. These were the outcome of a long process of codification of customary practices across the colonial space of British India. See, for instance, Michael Anderson, “Islamic Law and the Colonial Encounter in India,” Occasional Paper no. , School of Oriental and African Studies, London, ; Duncan Derrett, “The Administration of Hindu Law by the British," Comparative Studies in Society and History , no.  (). . See Chatterjee, The Nation and Its Fragments, for a comprehensive and influential analysis of the colonial state and civil society. . Thomas Blom Hansen, The Saffron Wave: Democracy and Hindu Nationalism in Modern India (Princeton: Princeton University Press, ). . T. N. Madan, “Secularism in Its Place,” in Secularism and Its Critics, ed. Rajeev Bhargava (Delhi: Oxford University Press, ). . Ashis Nandy, Science, Violence and Hegemony: A Requiem for Modernity (Delhi: Oxford University Press, ), and Time Warps: Silent and Evasive Pasts in Indian Politics and Religion (Delhi: Oxford University Press, ). . Ashis Nandy, “Closing the Debate on Secularism: A Personal Statement,” in The Crisis of Secularism in India, . . Shabnum Tejani, “Reflections on the Category of Secularism in India: Gandhi, Ambedkar and the Ethics of Representation, c. ,” in The Crisis of Secularism in India, . . In was never clear, though, to which extent “Hindus” constituted a community as such. Colonial law complexes pertaining to Personal Law remained in place, while the many and sprawling elements of Anglo-Hindu Law were subject to a series of sweeping reforms, resulting in the Hindu Code Bill of . It was clear that the equal respect for religious communities pertained less to that of the Hindu majority, which the Parliament and the Congress Party felt entitled to subject to deep reforms of its most intimate practices. See Partha Chatterjee, “Secularism and Toleration,” in A Possible India, ed. Partha Chatterjee (Delhi: Oxford University Press, ) for an insightful discussion of this process. . See Rajeev Bhargava, Secularism and Its Critics (Delhi: Oxford University Press, ).

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. See Christophe Jaffrelot, The Silent Revolution (New York: Columbia University Press, ). . See Christophe Jaffrelot, The Hindu Nationalist Moment and Indian Politics (Delhi: Viking, ); Hansen, The Saffron Wave. . See, for instance, Burton Stein, “Vijayanagara,” in The New Cambridge History of India, vols. – (Cambridge: Cambridge University Press, ); Arjun Appadurai and Carol Breckenridge, “The South Indian Temple: Authority, Honour and Redistribution,” Contributions to Indian Sociology , no.  (): –. . Raminder Kaur, Performative Politics and the Cultures of Hinduism: Public Uses of Religion in Western India (London: Anthem Press, ). . The sect also known as Ramanandis, is a militant, ascetic Hindu order set up in  by Ramanandacharya to defend the followers of Lord Vishnu (vaishnavaites) against the growing influence of devotees of Shiva (saivaites) in the region. The order is recognized by many militant Hindus but not formally part of the larger Hindu nationalist family of organizations. See Peter van der Veer, Gods on Earth: The Management of Religious Experience in a North Indian Pilgrimage Center (London: London School of Economics, ). . One of the intricacies in this suit is that according to Indian law (Anglo-Hindu law) a residing deity in a temple can be regarded as a legal entity, though only as a perpetual minor, which in this case corresponds unusually well with the traditional worship of Lord Ram in Ayodhya as an infant. Ram has since  been represented by various “friends” (sakha) or custodians and backed by organizations like the militant Hindu nationalist Vishwa Hindu Parishad. On the status of deities as legal minors, see, for instance, http://www.hindustantimes.com/This-tower-of-Babel/Article-.aspx. . Times of India, October , . . Shamita Basu, Religious Revivalism as Nationalist Discourse: Swami Vivekananda and New Hinduism in th-century Bengal (Delhi: Oxford University Press, ). . Anna Hazare is a former army man who retired to create a model village, Ralegan Siddhi, in Maharashstra. He was an important player in the campaign to pass the Rights to Information Act () and was awarded the World Bank Award for “outstanding public service” on April , . (See Times of India, April , .) . P. K. Kunte vs. Bal Thackeray. A.I.R., New Delhi, Supreme Court of India, :. . “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” Indian Penal Code, Section 95A. . Nivedita Menon, “Living with Secularism,” in The Crisis of Secularism in India, . . Ibid., . . Amita Baviskar and Raka Ray, Elite and Everyman: The Cultural Politics of the Indian Middle Classes (New Delhi: Routledge, ). . The latest example of this was the aftermath of the riots in Gujarat in , where numerous reports indicated that middle-class people had been generally active



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and complicit in the anti-Muslim pogrom. See documentation in Siddarth Varadarajan, ed., Gujarat: The Making of a Tragedy (Delhi: Oxford University Press, ). . Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, ), –. . See reports and interviews on the scheme in Times of India, April , . In keeping with the underlying rationality of “communal balancing” of resources and entitlements, one of the arguments for the scheme was that since most of the Christian and Hindu educational institutions receive grant-in-aid from the government, this ought to apply to the Muslim community as well. . Veronique Benei, Schooling Passions: Nation, History, and Language in Contemporary Western India (Stanford: Stanford University Press, ). . Partha Chatterjee, “The Contradictions of Secularism,” in The Crisis of Secularism in India, –. . Ibid., . . See Thomas Blom Hansen, Wages of Violence: Naming and Identity in Postcolonial Bombay (Princeton: Princeton University Press, ), –, for an analysis along these lines. . Rajinder Sachar, Social, Economic and Educational Status of the Muslim Community in India. Prime Minister’s High Level Committee, Government of India, November . . Robert Bellah, “Civil Religion in America,” Daedalus , no.  (): –.

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Courting Culture Unexpected Relationships between Religion and Law in Contemporary Hawai‘i g re g johnson By what names should they be called? And so it was with the descendants (pua) of the divine chiefs (ali‘i akua) who beheld the children of commoners and went down with them [that is, mated with them]. There is no country person who did not have a chiefly ancestor. —Samuel Kamakau, Ruling Chiefs of Hawai‘i1

In the fall of , the ancient Hawai‘i Island chief named Mahi emerged from a state land records archive and six months later walked into a federal repatriation meeting in order to make claims upon a number of exceedingly rare Hawaiian objects. Who is this Hawaiian chief, and what did he say at that meeting? Mahi spoke across many generations but, perhaps more dauntingly, across two contemporary divides: that between religious claims and secular law and that between fiercely contending Hawaiian groups. Centered upon Mahi’s claims, this paper considers the cultural status of genealogy in Hawai‘i today in order to address more general questions about contemporary indigenous religious performances of identity in legal contexts.2 This exploration of Mahi’s claims contributes to the growing body of scholarship on indigenous representation in politicized contexts with the goal of demonstrating how such discourses and dramas may be understood as instances of culture in action. My aim is to make clear how avowedly secular law may catalyze religious expression in unexpected ways. Sally Merry has observed that law in Hawai‘i “is a crucial element in the constitution of ethnic identities, creating affinities and oppositions, inclusion and exclusion.”3 Building on Merry’s point, I explore how religious claims emerge and take hold in local legal contexts. In Lawrence Rosen’s provocative formulation, legally motivated processes of ethnic formation and articulation push us to regard law as culture, not only in the sense of being contained by culture, but in the more particular sense of doing the work of culture: mak-



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ing and marking the distinctive boundaries of human sociality, meaning, and power.4 Mahi’s case illustrates four interrelated features that characterize contemporary intersections of indigenous religious traditions and law: () law is often a proximate cause of indigenous cultural claims in the present; () the very laws that promote cultural claims frequently fail to recognize them; () despite this failure, such claims may take on cultural and religious vitality outside the confines of law; and () frequently this vitality is not a function of newly achieved cultural consensus but is instead characterized by considerable friction. In these ways law stimulates the animating principle of culture: the energy created and released—here latent, there explosive—by people attempting to inhabit shared but contested spaces, resources, and identities. Examination of these dynamics begins with a U.S. federal Indian law pertaining to reburial and repatriation, the Native American Graves Protection and Repatriation Act (NAGPRA).5 Passed in , NAGPRA is still fairly untested in important respects, and thus studying claims under it affords a rich opportunity to analyze law and religion in the making. The statute includes Native Hawaiians and Alaskan natives under its definition of Native Americans. Hawaiians in particular are at the forefront of exerting interpretive pressure on both the letter and intent of the NAGPRA,6 primarily through vigorously stretching its evidentiary parameters. In a remarkable spirit of cultural goodwill and impracticality, legislators authorized guidelines for evidence that range from hard science—carbon- dating, for example—to oral tradition, including testimony of “traditional religious leaders.” These diverse and frequently incommensurable forms of evidence are to be weighed equally, with simple preponderance being the standard of proof. In practice, this creates tremendous difficulties at a variety of levels, as it pits competing epistemologies, sensibilities, and narratives against one another. The case I will address is the infamous Kawaihae Caves (aka Forbes Caves) conflict that has involved fourteen different Native Hawaiian groups, the Bishop Museum in Honolulu, as well as rebar, concrete, helicopters, sorcery threats, and, in the case of Mahi, royal genealogies. Before turning to this case, I first want to indicate the broad conceptual outlines of my inquiry.

Law beyond Rules and Rulings I am interested in what takes place at the strained limits of law, the geographies—indeed cosmographies—of law’s edges and what Annelise Riles has termed the “expressive dimensions” of law: its capacity to construct meanings

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and elicit stories.7 While silencing many, law also provides stages for people to find and project their voices in the process of articulating cultural narratives. Perhaps the central aspect of these expressive capacities of law is the role metaphor plays in cultural construction and contestation. 8 Metaphorical imagination and speech are the enabling aspects of all identity claims; they are the connective tissue that sustains linkages between valorized aspects of the past—imagined or real—and the needs and desires of the present. Despite its pretensions of discursive neutrality, law solicits certain metaphors while foreclosing others. Law configures a space characterized by attempts at cultural translation, tensions, and frustration when such attempts fail, and occasional episodes when cultural metaphors are embraced across sociopolitical lines. A cultural study of legal discourse therefore presents tremendous opportunities to fathom cultural claims at the flashpoint moments where expression and assessment are compressed into singular performative moments. One aim of this study is to build upon and respond to analyses of colonial histories in Hawai‘i by insisting that contemporary indigenous activities in the legal sphere are forms of robust cultural expression, circumscribed though they are by realities of power and representation that seldom favor native peoples.9 Thus, while I take seriously Talal Asad’s critique of scholars’ tendency to overestimate cultural agency in such settings, the case of Mahi and other of my studies persuade me that this critique risks obscuring the ways indigenous people continue to exercise considerable agency, even in the most Western of legal domains.10 Claims in the name of Mahi partake of Western forms and predilections to be sure—of property interests, for example—but the cultural voice in which these claims are announced is decidedly nonliberal, focused as it is on tradition, ancestors, and group interests. Even when Mahi speaks in the first person, it is not always the “I” of Western individualism but, as we will discover, a heroically capacious Polynesian “I” that encapsulates generations through mythological imagination and performance. A beginning point for this study is to assume that instances of apparent legal nonsense—namely, native claims that run counter to Western conventions of truth-claiming and truth assessment—might be better viewed as making good cultural sense. Cultural sense is not something coaxed from the ethers of time; it is made in real time—veracity in the moment, as it were. In Hawai‘i, tradition—whether in the form of ocean canoeing,11 subsistence agricultural practices,12 or hula13—is undeniably a function of the present.14 The Hawaiian situation is not exceptional, only exceptionally well documented because of proximity to and engagement with Western media, ranging from the academic to the touristic. Variable though they are, all discourses of tradition share this



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presentist quality, even and especially when devoted to drawing attention to the past and putative connections with it. An appreciation of the living dimension of traditions requires a present-centric theory of cultural articulation that resists equating authenticity with antiquity and apparent cultural continuity.15 From this theoretical perspective, I chart how contemporary cultural aspirations and interests are enunciated in the idiom of law and how the language of law enables new cultural articulation. Another dimension of my inquiry into the generative intersection of law and culture poses questions inflected by critical engagement with the asymmetrical realities of the landscape at hand. How do laws such as NAGPRA structure the conditions of possibility for certain native claims to be acknowledged while simultaneously working to deny the validity of other native claims? Part of the answer concerns the colonial categories at work, categories that misalign with native cultural realities. The more fundamental problem has to do with the gap between the way the category of religion is constructed by legislators and legal audiences and the way it is engaged in practice. In crafting NAGPRA, legislators made room for religious evidence. In practice, however, “religious evidence” has turned out to be playful, dynamic, metaphorical, nonhomogenous, and decidedly contentious, even internally so. Although legislators seem to have thought that the problem would be devising fair ways to weigh religious evidence, a greater problem has emerged: How to weigh religious claims at all insofar as one of their principal characteristics is devoted resistance to any kind of empirical assessment or exogenous standardization. This dynamic is rendered all the more complex when a Western empiricist category such as lineal descent is engaged in practice by forms of speech and reasoning, like the Hawaiian genealogical imagination, that are strikingly and unapologetically religious in character insofar as they rest upon nonfalsifiable claims. With these points in mind, I turn to my case study.

The Kawaihae Dispute Kawaihae, the epicenter of the conflict, is a historically significant harbor town on the leeward side of Hawai‘i Island. This area is heavy with symbolic gravity. With its royal compounds, heiaus (temples), and battle sites, the Kawaihae region is a landscape of tradition and tradition-making. The focal point of the region is Pu‘ukoholā, the imposing temple where Kamehameha is said to have fulfilled prophecies leading to his conquest of the archipelago. Today, many sovereigntyminded Hawaiians regard the site as a historical model for and source of royal Hawaiian identities in action. To control the symbolic capital of Pu‘ukoholā is

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thus to shape the meaning of contemporary Hawaiianness.16 The Kawaihae caves complex stands in a contiguous and metonymic relationship with Pu‘ukoholā— Honokoa gulch, in which it is found, is immediately north and mauka (upland) from the temple. In the contemporary social imaginary, the Kawaihae objects stand as concrete points of connection to Kamehameha’s glory. Some historical context will help us to appreciate the stakes of the struggle over the objects. In  Captain James Cook arrived in the Hawaiian Islands, bringing Western contact and its entailments, ranging from disease to foreign goods. Shortly thereafter, with the aid of foreign guns and advisors, Kamehameha’s local kingdom experienced tremendous growth, culminating in the conquest of the islands. However, in , after Kamehameha’s death, Hawaiian tradition suffered a precipitous decline, most clearly evident in the abandonment of the kapu system and temple religion. In the s missionaries arrived in Hawai‘i—landing first at Kawaihae—and Christianity took hold, especially among the elite. With the missionaries and the Hawaiian elite concentrated at Kawaihae, the region became the frontline in the struggle over Hawaiian culture. Treatment of burials became a particularly contentious issue, with many chiefly remains removed to Christian cemeteries on O‘ahu and objects from them taken by foreigners as curiosities. Some burials were exempted from this fate, the result of secret locations and vigilant protection by Hawaiians who had not converted to Christianity.17 By the mid-nineteenth century Hawaiian land and political control fell increasingly into non-native hands; in the s the Mahele Act resulted in the alienation of many Hawaiians from their homelands and the depopulation of rural areas such as Kawaihae. With few native people on the land to care for them, burial sites were easy targets for treasure seekers. Such was the case with Kawaihae caves, which were “discovered” in  by several non-natives who were treasure hunting. One of the men, David Forbes, described finding hundreds of human remains and numerous objects, including some of the finest examples of Hawaiian sculpture ever located.18 In the middle of it all was a carved canoe covered by a very large surfboard. In this quintessentially Hawaiian coffin was laid to rest a six-foot, seven-inch man. Forbes immediately contacted the Bishop Museum in Honolulu. The museum director wrote back expressing keen interest in purchasing the objects and remains. But he also cautioned Forbes, writing: “[In] the meantime, keep the matter quiet, for there are severe laws here concerning burial caves, and I shall not make the matter public, of course, until you say so.” 19 Over the next ten years arrangements were made to convey the objects to the Bishop Museum and to several private collections. Some of the private collections were eventually relocated to the museum at Volcanoes National Park.



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In  NAGPRA was passed, with much support from Native Hawaiian communities. The law specifies two levels of claimants: () lineal descendants, who have the highest priority claims, and () culturally affiliated, federally recognized tribes. Based as they are in the federal Indian law of the continental U.S., these claimant categories fit poorly with Hawaiian realities. Lineal descent, for example, is undefined in the statute but receives the following elaboration in the law’s official regulations: Criteria for determining lineal descent. A lineal descendant is an individual tracing his or her ancestry directly and without interruption by means of the traditional kinship system of the appropriate Indian tribe or Native Hawaiian organization or by the common law system of descendence to a known Native American individual whose remains, funerary objects, or sacred objects are being requested under these regulations. This standard requires that the earlier person be identified as an individual whose descendants can be traced.20

Worth noting here is the way traditional knowledge is invited but then held to the standards of empirical evidence. Especially instructive is the tension between the immediately conjoined phrases “without interruption” and “by means of the traditional kinship system,” which suggests the ways Western conceptions of strict continuity govern the possibilities for recognizable and defensible invocations of traditional modes of genealogical reckoning. It is also worth noting that precontact Hawai‘i did not have a written language. Therefore, among the tensions—one might say contradictions—in this definition is an implicit valuation of written forms of evidence vis-à-vis traditional oral forms of evidence. That is, many normative forms of evidence in the culture of the law, such as birth certificates, deeds, tax receipts, and so forth, all presuppose literacy and, to some extent, a modern bureaucracy. The fact that Hawaiians are not organized into tribes, nor do they have something tantamount to federally recognized status, also makes the claim of descent by cultural affiliation problematic. To address this, the drafters of NAGPRA created a proxy category: “Native Hawaiian organizations” (NHOs). The relevant portion of the statute reads: “Native Hawaiian organization” means any organization which (A) serves and represents the interest of Native Hawaiians, (B) has as a primary and stated purpose the provision of services to Native Hawaiians, and (C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai‘i Nei.21

Although this looked good on paper, it represented a radical decentralization of authority over Hawaiian traditions, and set the stage for a dramatic competition.

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Hui Ma¯lama I Nā Kūpuna O Hawai‘i Nei (The Group Caring for the Ancestors, hereafter Hui Ma¯lama), named in the above-quoted definition of NHOs, has been active from the start of the repatriation movement. Much of its success and influence has come from the formidable legal and cultural expertise and charisma of its leader, Edward Halealoha Ayau. Ayau worked with the Native American Rights Fund when it was an instrumental voice in getting NAGPRA passed and later worked closely with Senator Inouye’s office, the Hawai‘i State Burial Program, and the Bishop Museum in its implementation. Furthermore, he has long-standing direct connections to leading religious authorities such as Edward and Pualani Kanahele. Drawing on his various sources of knowledge and authority, Ayau, after NAGPRA was passed, immediately put the law into practice in dramatic ways, recovering thousands of human remains and numerous religious objects.22 By the mid-s Hui Ma¯lama had succeeded in repatriating many of the Kawaihae human remains and began strategizing for repatriation of the associated cultural objects. At the same time, other NHOs emerged on the scene to challenge Hui Ma¯lama’s formerly unrivaled position as the caretakers of the dead in Hawai‘i. These groups—like Hui Ma¯lama—frequently articulated their claims in religious terms: as based in direct revelation from ancestors, for example. They also appealed to geography, ritual expertise, language competence, and genealogy. In this tense context, in , Hui Ma¯lama received eighty-three of the Kawaihae objects on loan from the Bishop Museum, evidently indicating to the museum that the other groups had agreed to Hui Ma¯lama’s custodianship. Hui Ma¯lama returned the objects to the cave on Hawai‘i Island from which they had been taken in , sealing the entrance shut with rebar and concrete. Other NHOs soon caught wind of Hui Ma¯lama’s activities, some registering support, others asserting independent claims upon the objects. For three years the issue seesawed as more and more NHOs joined the fray, totaling fourteen by . None, however, had the financial and cultural wherewithal to do much until Abigail Kawananakoa and La‘akea Suganuma entered the conflict. Abigail Kawananakoa is a wealthy heiress who traces her ancestry to a prominent royal lineage; La‘akea Suganuma is the grandson of a well-known cultural authority, Mary Kawena Pukui. Together they argued that the objects are not funerary items and that the ancestors wish for the objects to be on museum display for the current generation to learn from. To that end they waged a sustained attack on Hui Ma¯lama. Meanwhile, rumors began to emerge in the media that Hui Ma¯lama had stolen the objects or otherwise disposed of them for profit.



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Legal Action The NAGPRA Review Committee, constituted under federal law to settle disputes by means of consultation, heard the Kawaihae dispute several times between  and ; the most prominent of its meetings was in  in Washington, DC, which I attended and video recorded. Numerous Hawaiians traveled to that meeting to testify.23 The principal opposing factions, Hui Ma¯lama on the one hand and Kawananakoa and Suganuma on the other, opened by trading sorcery accusations conveyed through starkly chanted prayers. This fiery engagement set the tone for a heated meeting in which both groups brought forward academic, legal, and religious experts to advance their respective positions. Faced with such a display, the Review Committee was unable to reach a finding and held two subsequent meetings devoted to Kawaihae, the latter of which took place in the spring of  in Hawai‘i. Frustrated with the committee’s lack of action, in the summer of  Kawananakoa and Suganuma filed suit against Hui Ma¯lama in order to get the objects back to the museum. In the fall of  legal proceedings began in earnest. Faced with Hui Ma¯lama’s unwillingness to divulge information, Federal District Judge David Ezra demanded that Halealoha Ayau disclose the whereabouts of the objects to the court. It became clear that Judge Ezra wished to see the objects returned to the museum, and the repatriation process restarted with the consultation of all claimants. By late  Ayau was still refusing to give any information to the court, claiming responsibility to “higher authorities.” His patience exhausted, Judge Ezra found Ayau in contempt of court on December , , sentencing him for an indefinite period of time to a detention center in Honolulu. In the press Ayau was likened to Jesus and Martin Luther King by sympathizers and depicted as a bully and a fake by others. Not a day passed for several weeks without mention of the dispute in Hawai‘i’s main papers. Faced with a spiraling situation, Judge Ezra announced a new path forward, directing the disputants to engage in a Hawaiian form of alternative dispute resolution known as ho‘oponopono.24 In order to facilitate Ayau’s participation in this process, Judge Ezra released him from detention and ordered him to be held under house arrest on his home island of Moloka‘i when not involved in meetings. While hopeful signs could be seen initially, word soon emerged that ho‘oponopono was not working, leaving the sides as entrenched as ever. Ayau remained steadfast in not divulging information. So, in the fall of , Ezra ordered the cave opened and the artifacts retrieved, a feat that required substantial engineering.25 Ezra had the objects taken back to the museum and ordered the consultation process restarted with participation from all fourteen NHOs.

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Enter Mahi Less than six months after Hui Ma¯lama suffered defeat through the cave being opened, Ayau appealed to a most venerable source of tradition—namely, genealogy. This has long been one of his strongest ways of reaching audiences, simultaneously grounding his specific family line’s authority and establishing his more general cultural credentials and competence. Like many culturally prominent Hawaiians, Ayau usually opens presentations with his genealogy, often chanting up to thirty-seven generations of relations. He tells audiences that he does so in order to honor his ancestors and to demonstrate the foundation of his knowledge, concluding with forceful words: “I am the sum of my ancestors.”26 Appealing to genealogy was therefore nothing new for Ayau. Yet this time he was also directly engaging the law. Recall that the highest claim under NAGPRA is that of lineal descent, a claim that would trump all NHO claims and resolve the dispute in favor of Hui Ma¯lama. Up to this point, however, the bones had been anonymous. How would they be named? Fairly early in the Kawaihae dispute several large na ‘ohana (families) had weighed in to support one position or another, usually on geographical grounds.27 The Mahi ‘ohana of Kawaihae had been one of these; they had made no independent lineal claims. After Ayau was released from detention, he was contacted by a Mahi family member who expressed gratitude to him for “caring for our kupuna (ancestor).” Ayau replied, “Your kupuna?” She responded that her family believed the chief buried in the Honokoa gulch was their ancestor and that her cousin had found some general reference to this.28 Stunned and a bit miffed, Ayau met with the family to gather what details he could. His inquiries led him to the state archives and to documents from the land partition era of the mid-nineteenth century resulting from the Mahele Act.29 There he found a land survey document from a woman who claimed to be the wife of a man named Mahi, who had died around  and had been buried in the pali (cliff).30 But Kawaihae has many burials in its pali. What could link this Mahi to the Forbes collection? The same document described Mahi as a konohiki of Kawaihae who served under Kamehameha the Great. He was a subchief of a strategic region at a politically pivotal time. This information, of course, suggests Mahi’s importance, but not his identity as the human remains. To address this issue, Ayau has asserted that the human remains in the canoe are those of a konohiki. Only high-ranking ali‘i (royalty), he says, would be buried with an array of grave goods. Adding to this, Ayau points to the size of the person. In his words, “At ’” you are dealing with a chief—they ate better and practiced genetic engineering,” a nod to ali‘i patterns of intermarriage and incest. Further, he says the Mahis of today are “pure Hawaiian, really giant.”31



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I opened this essay by saying that Mahi walked into a federal meeting six months after coming to life in the archive. How so? It was not one of the Mahis mentioned so far. The only Hawaiian to testify at the meeting—held April  and , , in Washington, DC—was Halealoha Ayau, who said he was there to introduce someone who would change this dispute by making a lineal descent claim. He explained the story of the Mahi ‘ohana and the state archive. Describing the document, Ayau stated, “This document is very significant because it sheds light on this case and in our view it is the kupuna’s way of revealing himself.”32 Subsequent to analyzing the contents of the document and addressing other aspects of the Mahi family claim, Ayau turned his account to himself. The minutes of the meeting record the following: “Mr. Ayau stated he now knows why he felt so compelled to be very clear and very stringent on this case, because he is Mahi.”33 As is often the case with minutes, several lines of thought and argumentation are here compressed in a fairly blunt fashion. But it is important to emphasize that the minutes capture Ayau’s fundamental assertion. Ayau’s presentation took a few turns before arriving at the moment where his identity was made congruent with Mahi’s. In fact, his most stark claim was announced by way of a third party. The full transcript of the meeting conveys the details of his presentation. Ayau describes how he had consulted an expert in Hawaiian chiefly genealogies—Dr. Kehau Abad—in order to chart the Mahi line.34 She returned to Ayau with stunning news. It is here worth quoting at length from Ayau’s testimony: While we were on the phone she [Abad] tells me, Halealoha, I’m talking to Mahi. And I said, what does that mean? You’re talking to me. And she says, I’m talking to Mahi. And I said, well, you have to explain. She goes, all right, it’s real simple. My family [Ayau’s] is the direct descendant of Kamehameha. And she says who is Kamehameha’s mother? I say Kekuiapoiwa. She says right. Do you know who Kekuiapoiwa’s father is? And I said no, when I do my genealogy I go through her mother, Kekelaokalani. And she says her father’s name is Haae-a, and his father’s name is Alapainui, and his father’s name is Kauaua-a, and Kauaua-a’s father is Mahi. So see you’re a Mahi descendant, your family are Mahi descendants .€.€. . And so now the entire case takes a different turn, you know.35

The Bishop Museum and the Review Committee were less than welcoming of Mahi claims made in this fashion. Responses have ranged from silence to explicit rejection. The museum, for example, rejects Ayau’s Mahi claim on the basis that the remains are not “known,” which makes tracing unbroken descent impossible.36 Lineal descent, in this view, presupposes a known entity from the past that is then linked by empirical means to direct living descendants in the present. DNA samples, birth certificates, and other such evidence are

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the grounds from which such claims are meant to emerge. Working from the branches back to the roots by means of oral tradition is foreign to this way of thinking. Negative reactions to Mahi’s claim make clear that putatively equal forms of evidence are, in practice, weighed quite differently. In this case, scientific standards concerning lineal descent triumphed over traditional means of reckoning familial relationships over time. While this may have settled the legal question, it leaves open the cultural one, to which we now turn. How Hawaiian is Mahi? Further, what does Mahi’s Hawaiianness reveal about law’s blind spots and, more generally, about the limits of secularism in the context of cultural disputes?

The Genealogical Imagination Mahi presents us with a compelling example of what anthropologist Katherine Verdery calls the political lives of the dead.37 From an analytical perspective, such contests are not solely over objects but also over the representation and symbolic value of such objects. This turns our attention to the ways in which such representations circulate as discourse. As Verdery argues, the very ambiguity of the dead is an enabler of their discursive potency: “Words can be put into their mouths—often quite ambiguous words—or their own actual words can be ambiguated by quoting them out of context. It is thus easier to rewrite history with dead people than with other kinds of symbols that are speechless.”38 Verdery’s insights are broadly and comparatively applicable, but they take on a particular relevance in the context of Hawaiian genealogy. It would be hard to overstate the significance of genealogy in Hawaiian history. 39 According to prominent Native Hawaiian scholar Lilikalā Kame‘eleihiwa, The ancestors’ deeds of courage inspire our own; their thoughts and desires become the parameters of our ambitions. They are the models after which we Hawaiians have patterned our behavior. Genealogies are perceived by Hawaiians as an unbroken chain that links those alive today to the primeval life forces—to the mana (spiritual power) that first emerged with the beginning of the world. Genealogies anchor Hawaiians to our place in the universe and give us the comforting illusion of continued existence.40

As anthropologist Kēhaulani Kauanui explains, the invocation of genealogies was never strictly for biological, but also for political and strategic reasons.41 Strategy and desire are regarded as positive values, not liabilities that denote insincerity and the specter of inauthenticity. Genealogy is assumed to be both political and religious: political for its tactical edge and its ability to locate people



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in social worlds; religious for its charting of linkages back to the primal sources, including ancestors and the natural world.42 Importantly, both Kame‘eleihiwa and Kauanui call contemporary Hawaiians back to a genealogical sensibility. These recent perspectives on the political dimensions of genealogical imagination correspond with historical and anthropological accounts of Hawaiian tradition. John Charlot, for example, has argued that genealogy has long been the paramount expression of politics and religion in Hawaiian culture.43 This centrality derives in part from a structural tension in historical Hawaiian society: marriage, reproductive patterns, and other forms of constituting kin were various and variable prior to missionary disciplining, yet the principal avenue and expression of authority was by means of asserting familial relationships to those in power.44 Because kinship was not construed along strictly biological lines—it embraced adoption, usurpation, and mythological reinterpretation, among other modalities—its strategic and aspirational component was amplified. Because of their ultimately pliable and contestable character, genealogical assertions required vigilant maintenance through speech acts and other performances. Well into the nineteenth century recitation of genealogies fell to courtly authorities who were revered for their knowledge and skill.45 Genealogical maneuvering was expected; the deeds of a person were looked to as a means to justify kinship claims. As Marshall Sahlins notes, kinship in nineteenth-century Hawaiian society was “performative: rather literally a ‘state of affairs,’ created by the very acts that signified it.”46 Building upon Sahlins’s account, Jocelyn Linnekin writes, “[In] the Hawaiian scheme .€.€. the line between fictive and putative kinship is indistinct.”47 “Kinship,” she argues, “is readily attributed to those who behave like relatives.”48 In a multigenerational sense, “behaving like a relative” entails asserting kuleana (responsibility) and assuming ma¯lama (care) with regard to the remains of the dead. According to Linnekin, “[T]he people’s link with their ancestors, and hence their birthright in their ancestral lands, is proven by knowledge of a family’s burial places.”49 This connection indicates the significant linkage of land and genealogical claims. Indeed, Linnekin describes how the burial rights of families survived on their lands and, inversely, rights to land were symbolized by the right to bury upon it.50 Genealogical knowledge and practice were imperiled in the nineteenth century due to the aforementioned abandonment of traditional religion and its mechanisms for channeling authority, as well as by depopulation and a demographic shift from rural lands to urban centers.51 In particular, from the s onward there was marked depopulation of Kohala on Hawai‘i Island, the region of Kawaihae caves.52 This created a genealogical vacuum that resurgent Hawaiian voices would subsequently fill. “The limits of genealogical knowl-

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edge,” writes Linnekin, “thus make possible the potentially unlimited scope of relatedness.”53 While much genealogical knowledge has been reconstructed or otherwise reconstituted over the past  years, it can be fairly said that Hawaiian patterns of culture and colonial patterns of history have combined to encourage the fluid horizon of genealogical claims in the present. This is not to say that Ayau announced his Mahi claims outside of any constraints. He put in hard work—cultural learning; conversations with family, friends, and experts; time in the archives—in an effort to ground his claims. Furthermore, as described below, Ayau has vetted his claims in front of the toughest Hawaiian audiences. Nonetheless, when Ayau’s claims are advanced in legal contexts, they clash with the evidentiary demands of law and the secular assumptions that stand behind them. It is one thing, of course, for Ayau to search land records for information about Mahi, but what are legal and scholarly audiences to make of him identifying with Mahi? As potentially jarring as they are to Western sensibilities, claims made in Mahi’s name may well be the most traditional component (that is, consonant with culturally sedimented practices and normative assumptions) of Ayau’s genealogical performance.54 Many Hawaiians continue to partake of a larger Polynesian pattern whereby members of the present generation occasionally speak as the ancestors, recapitulating their lives and visions amid changed and changing circumstances. In this way, time and identity are rhetorically collapsed in the forceful reassertion of both. Sahlins calls this Polynesian rhetorical capacity the “heroic I.” “By the heroic I—and various complements such as perpetual kinship—the main relationships of society are at once projected historically and embodied currently in persons of authority.”55 Genealogically speaking, concludes Sahlins, “the final form of cosmic myth is current event.”56 Having situated himself in this heroic sense, it may strike some readers that Ayau took advantage of Hawaiian culture to meet his own ends. Responding to this idea, it should be noted that Ayau’s actions, even if wholly successful, would have yielded him little or no direct personal benefit. More important for our analytical purposes, any attempt to rigidly distinguish self-interest from culture presupposes that self-interest and innovation are tantamount to inauthenticity or are otherwise operative beyond and against “culture.” However, as no cultural order is devoid of self-interests and their expression, a distinction between genuine culture and its spurious promotions is an analytical deadend. This is not to say that culture can’t be taken advantage of; only that it doesn’t stop being cultural—symbolically ordered, indexed, and contested social life—no matter who profits and how. If we attend to the gendered component of “taking advantage,” we see a revealing dynamic at play in this instance.



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Ayau had initially followed a matrilineal reckoning in tracing his genealogy. It was only when tipped off to the nuances of his agnatic potential that he could assert his Mahi claims. While it is classically Hawaiian to trace genealogy bilaterally, emphasizing one’s paternal line, especially in property disputes, is quintessentially Western. Ayau, then, acted upon a fortunate conjuncture between his aims and his audience’s predilections, both of which evince deep cultural roots. If anything was taken advantage of, it was the Western imaginary and its gendered assumptions about how to track property inheritance.57

Genealogy and the Limits of Articulation Thus spoke Mahi. Even if one regards Halealoha Ayau’s claims and strategies as misguided or unbelievable, they cannot be simply dismissed from either a Hawaiian or a theoretical perspective. If Hawaiian genealogy is defined by form and style—and if culture is theorized in terms of real-time articulations of identity—then, on this particular legal stage, Ayau should be regarded as a method actor of a most traditional sort. He played the role of Mahi as though it was in his blood. Ayau’s identity claims depended on metaphorical enunciation even if they have a verifiable empirical component. He had to perform his relationship as a means to link himself to the ancestors and objects—cultural claims of this sort are not self-performing, especially in such fraught and historically asymmetrical contexts of dispute. Rhetorical performance should not be understood as something apart from “culture,” but as one dialectical mechanism by which culture is animated and sustained. As we have seen, however, legal and museum audiences have found this kind of performance somewhat short of “evidence.” Some Hawaiians have likewise expressed dismay, on the grounds, not that Mahi’s claims are too poor, but that they are too rich. They tap into too much mana—an overflowing well of authority and power configured along the intertwined lines of lineage and place. So these Hawaiians have rejected Mahi not as preposterous, but as presumptuous. Today Ayau continues to advance Mahi claims, and the museum continues to reject the same. However, the Mahi movement is certainly taking hold in Hawai‘i, though not evenly so. At Kawaihae, the ground zero of this particular dispute, Mahi lives. During a Hawai‘i Island Burial Council meeting in the summer of  I met many Mahis, heard their stories, and saw their commitment to their kupuna’s return. I also witnessed another interesting development, hearing on more than one occasion the expression “We are all Mahi.” I take this to be a rallying cry of sorts, a kind of sentimental segmental affilia-

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tion. But it is also one that can be announced to dramatic counterpurposes. As Sahlins quips about Hawaiian genealogy, “where everyone has such claims of legitimacy, no one can guarantee the legitimacy of his claims.”58 Namely, if we are all Mahi, then who are you to speak for him? Other Mahi claims have emerged that challenge those of Ayau and Hui Mālama. For example, in a letter to the editor of the Office of Hawaiian Affairs newsletter, Melvin Kalihiki, a major force in the Kawaihae dispute, writes, “Hui Malama has indeed become a fundamentalist organization that forces or coerces others to conform to their beliefs .€.€. . My concern,” he continues, “stems not only from the need to have an accurate history, but also because of my descent from the Mahi family through my Kawaihae grandmother.”59 In another example, the Honolulu Star Bulletin reports, “Cy Harris, with the Keawe-mahi Ohana, is trying to prove lineal descent and disagrees that the items are funerary.”60 Such conflicting claims return us to the complexities of the previous situation wherein multiple NHOs contested each other’s authority regarding the remains and objects based on cultural affiliation. Whereas some see decay in this muck, I see the protean vibrancy of culture in action: people vigorously contesting shared terms and values and, in the process, giving them new life and refocused meaning. Ayau’s lineal descent claims—and many other less jarring ones too—have been rejected by interpreters of the law in practice even while having been solicited by them in principle. Nonfalsifiable cultural and religious claims may be ignored by the law’s interpreters unless supported by empirical evidence of the sort favored by the putatively secular West. In the case of NAGPRA, cultural and religious claims have been asked to play an evidentiary role only to find that they are cast as the invisible man. Unless, of course, they come dressed in a stage costume stitched together from the shreds and patches of the Western imaginary. Despite this apparent impasse—that law sets up the conditions of religion’s impossibility61—all is not lost. Many repatriation disputes have been resolved by way of religious claims. That the law should embrace the idea of religion, even while being utterly clumsy in its handling of it, has emboldened various parties to think beyond the rules of evidence, and what is narrowly secular. That said, I do fear that some native claimants will push the law too hard before legal audiences have developed an ear for the contemporary tones of their claims. Ayau as Mahi may prove too much for some to bear. However much Mahi may strain the credulity or patience of some audiences, I want to reiterate that Mahi is one instance of a broader phenomenon whereby contemporary laws fuel indigenous cultural generativity. Beyond



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codes and courtrooms, Mahi illustrates that the law has given rise to considerably rich and lively articulations of tradition—occasionally in archive-specific genealogical detail. This creativity then inspires further cultural engagement within and beyond the direct impact zone of law. For example, Ayau’s claims have motivated other Hawaiians to research their genealogies as a means to protect burial sites from development. Genealogy thus takes on new life as a means to protect the dead; reciprocally, fighting for the dead returns history to the living. This dynamic has stimulated intracultural tension as well; engaging the genealogical imagination is by definition a contrastive and occasionally combative exercise. I would insist, however, that even the fights this context precipitates are “really” Hawaiian. Nothing could be more Hawaiian than to argue over bones.62 In these various respects, Mahi is a contemporary metaphor for the Hawaiian genealogical tradition. Metaphor, as I invoke it here, is meant to denote change that nonetheless permits and encourages recognition—change as a mechanism of continuity.63 This I would juxtapose to the frequently narrow vision of legal literalism, which often fails to recognize the offspring it has engendered. With the rebirth of Mahi, however, law’s paternalism is manifestly offset by law’s paternity. Mahi and similar cases should lead us to reject any simple equation of modern legal apparatuses with secularizing processes. I have no doubt that many laws in modern contexts are designed to constrain religious claims and actions. However, at the same time, secular law sets up conditions for cultural and religious possibilities that it cannot begin to anticipate or contain. The causal force of law often takes hold beyond the strictly legal sphere of rule and rulings. Legal processes catalyze cultural energies in ways that erupt, move, and shapeshift outside of modern, secular constraints against just such behavior. Even the most staid of secular institutions are capable of starting all kinds of fires. Although, in repatriation contexts, secular law works to channel religious and identity claims through the cognizable and actionable domains of property law, one side effect of this channeling is a tremendous amplification of the semantic and emotive load placed upon cultural objects. The resulting fights over property in turn provoke a stunning range of identity claims and commitments. Far from being contained, indigenous actors’ claims become simultaneously more focused (that is, nuanced and detail specific) and more ambitious (emboldened to think and act expansively). Thus, when indigenous religious claims and secular law collide, the displacement and amplification of such religious claims is often the result. This displacement of religion, which is hardly a decline, is surely part of what we mean when we speak of living in a postsecular world.

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Notes . Samuel Kamakau, Ruling Chiefs of Hawaii (Honolulu: Kamehameha Schools Press, ). . A number of people have responded to drafts of this paper in ways I have found tremendously helpful. In this capacity, I would especially like to thank Halealoha Ayau, Kehau Abad, Hoku Aikau, Winni Sullivan, Robert Yelle, Bruce Lincoln, Misty Bastian, Glenn Penny, and Laurie Graham. In addition to the conferences at the University at Buffalo, versions of this paper were presented to the Department of Religious Studies at Franklin and Marshall College and the Department of Anthropology at Fort Lewis College, and at a conference entitled “Performing Indigeneity” at the University of Iowa. . Sally Merry, “Law and Identity in an American Colony,” in Law and Empire in the Pacific: Fiji and Hawai‘i, ed. Sally Merry and Donald Brennis (Santa Fe, NM: School of American Research, ), . . Lawrence Rosen, Law as Culture (Princeton and Oxford: Princeton University Press, ). .  U.S.C. , . On NAGPRA generally, see, for example, Kathleen FineDare, Grave Injustice: The American Indian Repatriation Movement (Lincoln: University of Nebraska Press, ). . See Greg Johnson, Sacred Claims: Repatriation and Living Tradition (Charlottesville and London: University of Virginia Press, ). For Native Hawaiian perspectives on NAGPRA, see Edward Halealoha Ayau and Ty Kāwika Tengan, “Ka Huaka‘i O Na ‘Oiwi: The Journey Home,” in The Dead and Their Possessions, ed. C. Fforde, J. Hubert, and P. Turnbull (New York and London: Routledge, ). . Annelise Riles, “Law as Object,” in Law and Empire in the Pacific, . . Rosen, Law as Culture, . . For studies of colonization in Hawai‘i, see, for example, Sally Merry, Colonizing Hawai‘i: The Cultural Power of Law (Princeton: Princeton University Press, ); and Noenoe Silva, Aloha Betrayed: Native Hawaiian Resistance to American Colonialism (Durham, NC, and London: Duke University Press, ). . Talal Asad, Genealogies of Religion: Discipline and Reasons of Power in Christianity and Islam (Baltimore: Johns Hopkins University Press, ). For further articulations of this critique, see also Asad, Formations of the Secular: Christianity, Islam, and Modernity (Stanford: Stanford University Press, ); and Saba Mahmood, The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton and Oxford: Princeton University Press, ). . Ben Finney, Sailing in the Wake of the Ancestors: Reviving Polynesian Voyaging (Honolulu: Bishop Museum Press, ). . Jocelyn Linnekin, Children of the Land: Exchange and Status in a Hawaiian Community (New Brunswick, NJ: Rutgers University Press, ). . Elizabeth Buck, Paradise Remade: The Politics of Culture and History in Hawai‘i (Philadelphia: Temple University Press, ). . Hawai‘i was one locus of the “invention of tradition” debates in the s and s. On this topic generally, see Eric Hobsbawm and Terrence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, ). For an extended discussion of “invention” theories and their relevance to contemporary Hawai‘i, see Greg Johnson, “Authenticity, Invention, Articulation: Theorizing Contemporary Hawaiian



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Traditions from the Outside,” Method and Theory in the Study of Religion  (): –. . On articulation theory, see, for example, Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (London and New York: Verso, ); Stuart Hall, “Gramsci’s Relevance for the Study of Race and Ethnicity,” Journal of Communication Inquiry  (): –; Tania Murray Li, “Articulating Indigenous Identity in Indonesia,” Comparative Studies in Society and History  (): –; and James Clifford, “Varieties of Indigenous Experience: Diasporas, Homelands, Sovereignties,” in Indigenous Experience Today, ed. Marisol de la Cadena and Orin Starn (Oxford and New York: Berg, ). . See, for example, Ty Kāwika Tengan, Native Men Remade: Gender and Nation in Contemporary Hawai‘i (Durham, NC, and London: Duke University Press, ). . Roger Rose, Reconciling the Past: Two Basketry Kā‘ai and the Legendary Lïloa and Lonoikamakahiki (Honolulu: Bishop Museum Press, ). . David Forbes, “Letter to William T. Brigham,” in Protect Kawaihae Iwi Kūpuna and Moepu Information Packet (Hui Ma¯lama I Na Kūpuna O‘Hawai‘i Nei, Fall ). . William T. Brigham, quoted in Protect Kawaihae Iwi Kūpuna and Moepu Information Packet. .  C.F.R. . (b). .  U.S.C. , Section II, . . See http://huimalama.tripod.com/. . This section is based on Johnson, Sacred Claims, ch. . . Deborah Barayuga, “Ayau Out of Prison as Groups Agree to Start Mediation,” Honolulu Star-Bulletin, January , , http://starbulletin.com////news/ story.html. . Gary Kubota, “Reburied Cave Items Finally Back at Museum,” Honolulu StarBulletin, September , , http://starbulletin.com////news/story.html. . Edward Halealoha Ayau, “Ma¯lama: Caring for the Hawaiian Kūpuna,” lecture at Franklin and Marshall College (video recording in possession of author, ); Edward Halealoha Ayau, “Huliau: Overcoming Our Fear of the Ancestral Hawaiian Past,” lecture at the University of Colorado, Boulder (video recording in possession of author, ); Review Committee, “Minutes of the Twenty-seventh Meeting of the Native American Graves Protection and Repatriation Act Review Committee,” Washington, DC, September –, , http://www.cr.nps.gov/nagpra/REVIEW/meetings/RMS.PDF. . Hawai‘i Island Burial Council Meeting Minutes, State Historic Preservation Division, State of Hawaii, September , , , http://hawaii.gov//dlnr/hpd/bcd/minutes/him.htm. . Personal communication with Ayau; compare Review Committee, Transcript of the Thirty-fourth Meeting of the Native American Graves Protection and Repatriation Act Review Committee, Washington, DC, April –, , . . Review Committee, Transcript of the Thirty-fourth Meeting, . . Brooks Baehr, “New Claims Made on Hawaiian Artifacts,” KGMB , April , , http://kgmb/print.cfm?sid=&storyID=; Christopher Pala, “Nurturing the Natives: Bill Brown’s Adventure in Hawaii,” Philadelphia City Paper, April , , http://archives.citypaper.net/articles/2007/04/12/nurturing-the-natives, ; Hawai‘i Island Burial Council Minutes, , . . Ayau, “Huliau.”

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. Review Committee, “Transcript of the Thirty-fourth Meeting,” . . Review Committee, “Minutes of the Thirty-fourth Meeting of the Native American Graves Repatriation and Protection Act Review Committee,” Washington, DC, April –, , , http://www.cr.nps.gov/nagpra/REVIEW/meetings/RMS.PDF. . Review Committee, “Transcript of the Thirty-fourth Meeting,” . . Ibid. It is important to note that in other contexts Abad has described the Mahi family as being on the order of a regional clan coextensive with the entire Kohala area. In this sense, to assert affiliation with the Mahi family is not tantamount to asserting a claim of direct lineal descent from a Mahi ancestor. That said, Abad insists that Ayau’s particular relationship to the Mahi lineage is firmly lineal (personal communication, August , ). . Bishop Museum, Letter to Halealoha Ayau, April ,  (copy in possession of author). . Katherine Verdery, The Political Lives of Dead Bodies: Reburial and Post-Socialist Change (New York: Columbia University Press, ). . Ibid., . . See Carolyn Kehaunani Cachola Abad, The Evolution of Hawaiian Socio-Political Complexity: An Analysis of Hawaiian Oral Traditions, Ph.D. thesis, Department of Anthropology, University of Hawai‘i at Manoa, , . . Lilikalā Kame‘eleihiwa, Native Land and Foreign Desires: Pehea Lā E Pono Ai? (Honolulu: Bishop Museum Press, ), –. . Kēhaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Durham, NC, and London: Duke University Press, ), . . Kame‘eleihiwa, Native Land and Foreign Desires, –; Kauanui, Hawaiian Blood, . . John Charlot, The Hawaiian Poetry of Religion and Politics (Honolulu: Institute for Polynesian Studies, ); see also Valerio Valeri, Kingship and Sacrifice: Ritual and Society in Ancient Hawaii, trans. Paula Wissig (Chicago and London: University of Chicago Press, ). . Merry, Colonizing Hawai‘i; Jocelyn Linnekin, Sacred Queens and Women of Consequence: Rank, Gender, and Colonialism in the Hawaiian Islands (Ann Arbor: University of Michigan Press, ); Edith Kawelohea McKinzie, Hawaiian Genealogies, ed. Ishmael Stagner (Laie, Hawai‘i: Institute for Polynesian Studies, ), x. . Abad, The Evolution of Hawaiian Socio-Political Complexity, . . Marshall Sahlins, Islands of History (Chicago and London: University of Chicago Press, ), . For a critique of this position, see Abad, The Evolution of Hawaiian Socio-Political Complexity, . . Linnekin, Children of the Land, . . Linnekin, Sacred Queens and Women of Consequence, . Compare John L. Comaroff and Simon Roberts, Rules and Processes: The Cultural Logic of Dispute in an African Context (Chicago and London: University of Chicago Press, ), . . Linnekin, Children of the Land, . . Linnekin, Sacred Queens and Women of Consequence, . . Linnekin, Children of the Land, . . Linnekin, Sacred Queens and Women of Consequence, . . Linnekin, Children of the Land, .



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. Furthermore, speaking as and for the ancestors is a mode of discourse Ayau has engaged in contexts independent of his Mahi claims. At a public event in Honolulu on July , , for example, Ayau asserted that he is his ancestors, named several, and asserted that when he speaks and acts in certain capacities, he speaks and acts as them (video recording of Ayau speaking at Ka La Ho‘i Ho‘i Ea celebration, Thomas Square, Honolulu. Tape in possession of author). . Sahlins, Islands of History, . . Ibid., . Compare Kame‘eleihiwa, Native Land and Foreign Desires, . . I thank Misty Bastian for helping me to draw out this point. . Sahlins, Islands of History, . . Office of Hawaiian Affairs, Newsletter Vl , no.  (September, ): . . Sally Apgar, “Artifacts Dispute Hits a Second Front,” Honolulu Star-Bulletin, May , , http://starbulletin.com/////news/story.html. . See Winnifred Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, ). . See David Malo, Hawaiian Antiquities, trans. Nathaniel B. Emerson (Honolulu: Bernice P. Bishop Museum Special Publication no. ,  []); Greg Johnson, “Social Lives of the Dead: Contestations and Continuities in the Native Hawaiian Repatriation Context,” in Culture and Belonging: Symbolic Landscapes and Contesting Identity in Divided Societies, ed. Marc Ross (Philadelphia: University of Pennsylvania Press, ). . See Marshall Sahlins, Historical Metaphors and Mythical Realities: Structure and History in the Early History of the Sandwich Islands Kingdom (Ann Arbor: University of Michigan Press, ).

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The Peculiar Stake U.S. Protestants Have in the Question of State Recognition of Same-Sex Marriages mary anne case

Of all the objections raised to state recognition of same-sex marriage in the United States, the one that, judging from the public debate, seems to make the least sense to those commentators who do not share it, the one that seems to attract the most ridicule in cartoons, blog posts, and editorial columns, is the objection, often raised by evangelical Protestants, that their own marriages would be threatened by state recognition of same-sex marriage. Cartoonists are confident of provoking a laugh when they depict, for example, a small frame in which “two women are wed in Massachusetts” in the upper left-hand corner of a much larger one in which “meanwhile, somewhere in Kansas,” a trembling, overweight, middle-aged man is shown saying to a wife weighed down by housework, “You feel that? The foundation of our marriage is shaking.”1 In this chapter, I will explain how, when voiced by American Protestants, the objection that their own marriages will be affected by state laws concerning same-sex marriage can be understood as the result of Protestants in the United States having essentially abdicated the definition of marriage, its formation, and above all its dissolution to the state. There is simply very little air between marriage as the state defines it and marriage as Protestants can define it to their flock. State-sponsored marriage is thus for Protestants in this country today much like state-sponsored public schools were for Protestants in the twentieth century; having previously been accustomed to co-opt the institution for sectarian ends, they felt an understandable although not justifiable sense of loss and grievance when their control was challenged and taken away and they had little by way of ready-made institutional structures of their own to fall



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back upon as they lost the fight to control the state institution. Explaining, as a descriptive and historical matter, how this came to be and what it means for a variety of ongoing debates concerning the regulation of marriage under U.S. law will take up the bulk of this chapter, but at the end I will add my own normative punch lines. One way of seeing more clearly how dependent American Protestants are on state laws concerning marriage is to observe that this is not as true of other major religious groups in this country, notably Catholics and Jews. Catholics famously do not recognize divorce, and this helps them to understand full well that marriage in their faith tradition and marriage as the state defines it are not the same, so that one can be married in the eyes of the faith and not of the state, and vice versa. A divorced Catholic who remarries is married in the eyes of the state and not of the Catholic Church to his or her new spouse. That person is, in the eyes of the Catholic Church and not of the state, still married to his or her first spouse, from whom the state, but not the Church, legally divorced him or her. Canon law does provide Catholics married in the faith a legal procedure for seeking dissolution of their marriages, the petition for annulment. Through the presentation of a case to a tribunal of judges trained in canon law, the annulment process can result in a declaration of nullity for the marriage—in effect, a dissolution on the grounds that the marriage never really existed, that the parties were in some way cognizable under canon law disqualified from entering into marriage with one another in the first place.2 Just as Catholics have their annulment procedures, so observant Jews have their religious divorce procedures. The Jewish divorce, called a get, is given by the husband to the wife through the intermediary of a tribunal known as a beth din. Should the husband of an observant Jewish family obtain a civil divorce but decline to give his wife a religious divorce, she would be divorced in the eyes of the state but still married in the eyes of the religious community, so as to preclude, for example, her remarriage within the faith or the religious legitimacy of any children she might have with her next husband. This problem of the agunah, or “bound woman,” when it came to the attention of courts in New York State, led those courts to make it a condition of obtaining a civil divorce that a Jewish husband grant his wife a get.3 The holding of such cases was eventually codified in a state statute that in general terms made it a requirement as a precondition for a civil divorce for a party to a divorce action to certify that he or she had taken “all steps solely within his or her power to remove all barriers to the other party’s remarriage following the .€.€. divorce,” with such barriers defined by the statute to include “any religious or conscientious restraint or inhibition, of which the [certifying spouse] is aware, that is imposed on a

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party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party’s commission or withholding of any voluntary act.”4 This statute, of course, raises interesting and difficult constitutional questions. For the present, I want only to suggest that, even though Reform, Reconstructionist, and Conservative Jews tend to rely on civil divorce procedures alone and not on the religious get or the beth din to exit their marriages, all branches of Judaism can be reminded of the gap between civil marriage and marriage in their faith tradition by the fact that the repertoire of marriage ceremonies for a typical civil official performing marriages, such as a justice of the peace, does contain language taken directly from the Book of Common Prayer, but does not usually contain a ketubah, or Jewish marriage contract. Thus, Catholics and Jews in the United States have reason to understand the difference between civil and religious marriage, but Protestants have reason not to. Before I discuss some of the legal historical basis for this, I first want to present what for me was the “Aha!” moment for my theory, the moment when I became convinced I was on to something. It came when I observed that polls taken over the course of the last decade, when same-sex marriage was a hot topic nationally, consistently showed a large gap of around twenty percentage points or more in support for same-sex marriage as between Protestants and otherwise similarly situated religious groups. Let me give statistics from a few representative national polls by way of example: according to a CBS poll taken in July , before same-sex marriage was yet available under the laws of any U.S. state, while  percent of Protestants opposed “gay marriage,” “Catholics also oppose[d] it, but by a smaller margin than the entire population,”  percent of Catholics as compared to  percent of the population as a whole.5 National poll results released by the Pew Forum in October , months after same-sex marriage first became available under the laws of Massachusetts, indicated that  percent of Jews supported same-sex marriage. This may not be that surprising, because Jews on average tend to be more liberal than the population as a whole. But, among white Roman Catholics, Pew’s October  poll showed that opposition was  percent, again lower than among the population as a whole;  percent of Latino Catholics were opposed,  percent of Latino Protestants,  percent of black Protestants, and  percent of white evangelical Protestants.6 The most recent available update of the Pew Poll, released in October ,7 shows opposition to same-sex marriage at  percent for Protestants as a whole, with breakdowns showing the level of opposition ranging from a low of  percent among white mainline Protestants who do not attend church weekly to a high of  percent among white evangelical Protestants who



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    1 5 .  Support for Same-Sex Marriage and Civil Unions by Religion Gay marriage % favor

Civil unions

% oppose

% favor

% oppose

Total









Protestant White evangelical Attend weekly Attend less often White mainline Attend weekly Attend less often Black Protestant Catholic White non-Hispanic Attend weekly Attend less often Unaffiliated

            

            

            

            

Note: Portions of this table were adapted, with permission, from this source: Pew Research Center for the People and the Press, and Pew Forum on Religion and Public Life, .

do; Catholics as a whole were  percent opposed,  percent in favor, with opposition ranging from  percent of non-Hispanic white Catholics who attended church weekly to  percent of those who didn’t. Among no group of Protestants listed in the Pew October  results did support for same-sex marriage exceed opposition, as it did among Catholics as a whole; let alone exceed the  percent mark as it did among white non-Hispanic Catholics who did not attend church weekly,  percent of whom were indicated as supporting same-sex marriage. Before talking about what Protestant dependence on the state law of marriage in the U.S. means and what the law ought to do about it, let me give you my account of how it came to be, which begins with a very abbreviated legal history of marriage in the Anglo-American legal tradition. The state was a latecomer to the regulation of marriage in medieval England, and even the Church exercised control only gradually and imperfectly. Initially, marriage in England was “a private contract for the purchase of a wife, a purely private transaction with no trace of anything such as a public license or registration, no authoritative intervention either by a priest or civil functionary, purely a private business transaction.”8 Such control as was exercised

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was in the hands of the Church and canon law, not the state. When the Church sought in the high Middle Ages to increase its control over marriage, canon law resoundingly endorsed marriage’s fundamentally private and contractual character, with Pope Alexander III in the twelfth century declaring it to be the law of the Church that “a contract by words of present consent” sufficed to form a valid marriage. Nothing further, in particular no public ceremony of any kind, was necessary for the marriage’s validity, although formalities such as the publication of banns—the announcement of the impending marriage that gave notice to potential objectors—and the blessing of a priest were required to make a marriage fully licit, and a couple could be punished for failure to observe these formalities. Under the canon law of Alexander III, two otherwise single people past the age of puberty, eligible to marry, not closely related to one another, and of opposite sexes would be indissolubly married to each other if they simply said to one another, “I marry you.” Saying “I will marry you” would not be quite enough, because that was the future tense and a promise; however, a future commitment followed by sexual intercourse also made a valid marriage. This fine distinction between tenses caused no end of uncertainty about which were and were not valid marriages, even in the absence of fraud, because, as legal historian F. W. Maitland observed, “[Of] all people .€.€. lovers are the least likely to distinguish precisely between the present and future tenses.”9 In most of Western Christendom, Alexander III’s canon law of marriage, which created a host of practical difficulties, was greatly altered or abolished during the Reformation—in Catholic countries through the reforms of the Council of Trent, in Protestant ones, through new civil and religious marriage legislation which generally permitted some divorce. England, however, was caught in something of a time warp, with its marriage law unreformed: it broke from the Roman Catholic Church before the Council of Trent, but its Protestant rulers long failed to take decisive action, despite a multiplicity of proposals for reform. Although despite his own troubles with the Catholic canon law annulment procedure Henry VIII did not carry through a systematic reform of the law of marriage when he broke with Rome, it is worthy of note that “the first English statute criminalizing sodomy was passed [under his reign] .€.€. when powers of the ecclesiastical courts were transferred to the King’s Courts.”10 (Indeed, it was noted in the words I have just quoted by Chief Justice Warren Burger in his concurring opinion in Bowers v. Hardwick, the  U.S. Supreme Court case upholding the criminalization of private adult consensual homosexual sodomy overruled in  by Lawrence v. Texas.11 The purpose of Burger’s concurrence was to establish that state proscription of homosexual



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conduct has “very ‘ancient roots,’” inter alia in “Judaeo-Christian moral and ethical standards” and in the common law.)12 When the English state finally and definitively asserted control over marriage, it did so through its Established Church. The first systematic reform of English marriage laws, the  Act for the Better Preventing of Clandestine Marriages, popularly known as Lord Hardwicke’s Act13 after the lord chancellor who shepherded it through Parliament, represented the English state’s assertion of monopoly control over the formation of marriage. The act declared null and void all marriages not preceded by the issue of an official ecclesiastical license or by the calling of banns in the Anglican church of the parish where one of the marriage partners had resided for a specified period. It required that marriages be witnessed and set forth detailed requirements for their entry in specially prepared marriage registers. Most violations of the act’s provisions by a clergyman were made felonies subject to fourteen years’ deportation to the colonies, but falsification of a marriage register subjected offenders to the death penalty. Each one of these provisions was designed to remedy perceived abuses in the application of the law of marriage over the preceding centuries. The act provided exceptions to its provisions for the marriage of Jews, but none for those of other non-Christians, Catholics, or Dissenters.14 Hardwicke’s Act came after the tradition of marriage and its legal regulation had already developed in the American colonies. Even before its passage, however, in the Southern colonies settled by members of the Church of England, marriages were performed, as they are today, by members of the clergy, and those marriages were civilly recognized. In Puritan New England, by contrast, marriage was at the outset a civil institution, entry into which was presided over by civil magistrates; clergy were not only not authorized to perform marriages, they were initially disinvited from even attending the ceremony because it was thought that this would create too much confusion between marriage, which the Puritans saw as a civil contract, and religion. Let me pause for a moment on that fact, tracing it back into history and forward into the present. How did the Puritans come to see marriage as a civil contract to be officiated over by a magistrate? Not only had this been done for a brief time in Cromwell’s England, but the New England Puritans were apparently directly influenced by what Governor Bradford called “ye laudable custome of ye Low-Cuntries,”15 having spent time in the Netherlands before sailing for Plymouth Rock. The Netherlands for centuries has seen marriage as a civil contract. This may have some bearing on the fact that, at the turn of this millennium, the Netherlands was among the first countries to recognize any legal relationship between members of a same-sex couple with rights and

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obligations even remotely parallel to marriage: it began by gradually granting certain rights to cohabiting same-sex as well as opposite-sex couples, it allowed cohabiting same-sex as well as opposite-sex couples to register their partnership in , and then, as of , it was the first to allow same-sex couples to marry. In the United States itself, it is worthy of note that New England has been in the forefront of legal recognition for same-sex couples: Vermont was the first state, more than a decade ago, through state constitutional litigation,16 and subsequent legislation demanded by the Vermont Supreme Court, to grant samesex couples civil union status—that is to say, full legal recognition without the name of marriage; Massachusetts was the first state to grant same-sex couples full civil marriage rights; and Connecticut the first state whose legislature did either without prodding from a court. When the Connecticut legislature passed a civil union statute very much like Vermont’s, no court had yet demanded on constitutional grounds that it do so.17 Today all three of these states, together with their neighbor New Hampshire, are among the very few in the United States to give full marriage rights to same-sex couples. Why were these three states in the forefront? The most frequently given explanation, which clearly does play an important role, is that in the conventional red-blue map of the United States drawn in the last several presidential elections these are blue states, and states that are relatively liberal will be more receptive to same-sex couples.18 But, several other things should perhaps be taken into account, two of which I believe have been underestimated as causal factors.19 First, they have historical roots, not in Anglicanism, but in Puritanism,20 and therefore some legal historical basis for thinking of marriage as a civil contract. The second is something a more casual observer might initially be tempted to think would work against the political will to recognize same-sex couples—to wit, each of these states has a comparatively high percentage of Catholics in the population. This turns out to work in favor of same-sex couples, because Catholics are not as invested in marriage as the state defines it and marriage in the faith tradition being one and the same. That all three of these influences were playing a role in same-sex marriage recognition in New England can not only be inferred from historical and demographic data but also documented to be consciously at work in the minds of some state actors. Consider, for example, Massachusetts state senator Marian Walsh, who was assistant majority leader for the Democratic Party in  when opponents of same-sex marriage called for a constitutional amendment to overturn the same-sex marriage legislation the legislature had passed in response to the Massachusetts Supreme Judicial Court’s demand in the Goodridge case.21 Lobbied by constituents to support repeal of



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same-sex marriage, Walsh, herself a practicing Catholic, suggested that instead of taking rights from same-sex couples perhaps Massachusetts should instead take away from clergy “the authority to perform civil marriage ceremonies that th[e] legislature gave them in .”22 Until that time you had a member of the clergy marry you only after you had gone to the town hall or wherever. It was two separate locations. And the clergy of Massachusetts approached the legislature and asked for civil authority to marry. .€.€. [Perhaps] we should repeal that statute. .€.€. Now I say that somewhat tongue in cheek, but it did occur to me. And if I wasn’t in such hot water I think I would have gone ahead and filed the bill. But my point is that is a privilege that they enjoy as a matter of statute. And the public thinks, by and large, just the opposite.23

The contrast between Protestant and Catholic views of the distinction between civil and religious marriage also was manifest in the facts surrounding the first federal constitutional case by same-sex couples asserting a constitutional right to marry to make its way to the U.S. Supreme Court, the  case of Baker v. Nelson.24 Jack Baker, a devout Catholic, went to Mass regularly and talked to his priest about how the Church and how Christ Jesus would view his relationship with his male partner. Father William Hunt, chaplain of the Catholic Newman Center at the University of Minnesota where Baker was a law student, told Baker and others in a public dialogue that, in his “opinion, the state could well recognize homosexual marriages without leading to the destruction of marriage, but I am not so sure the Church should do the same.”25 When Baker and his partner obtained a civil license to marry, the couple chose Methodist ministers to perform the ceremony and sign the legal certificate.26 I will readily concede that the gap in tolerance for state recognition of samesex marriage between Catholics and Protestants, which I have argued stems in large part from the gap that Catholics can see between marriage in their faith tradition and marriage as state law defines it, may not continue indefinitely into the future, despite having persisted so long. The hierarchy of the Catholic Church is every bit as opposed to state recognition of same-sex marriage as a matter of official policy as any of the evangelical Protestant churches, and the hierarchy may eventually work up their faithful to join them. In a particularly well publicized and expensive effort to influence his flock along these lines just before the  November elections, Minneapolis archbishop John Nienstedt mailed to the homes of more than , Minnesota Catholics a DVD with a message stressing the need for a constitutional amendment to ban same-sex marriage in Minnesota. Not only Pope Benedict XVI and the U.S. Catholic Bishops Conference, but also individual Catholics and organizations of the laity such as the Knights of Columbus, who funded the mailing of Archbishop

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Nienstedt’s DVDs, have been active in opposing state recognition of same-sex marriage. The head of the National Organization for Marriage, Maggie Gallagher, is a Catholic, as is Princeton professor Robert George, a principal author of the  Manhattan Declaration: A Call of Christian Conscience, which, in addition to opposing, inter alia, abortion, divorce, and sexual immorality, insisted that same-sex couples did not have “a civil right to have [their] relationship treated as a marriage.” It is important, however, to note that when Catholics such as Gallagher and George inveigh against same-sex marriage, they tend to stress, not the threat to their own marriages or those of their fellow believers, but the threat to society at large from the further erosion of what they call a marriage culture.27 Of course, Protestant opponents of same-sex marriage also express concerns about threats to society at large and warn of the general erosion of a marriage culture. I by no means intend to suggest that concern for the threat to their own marriages is at the root of all Protestant opposition to same-sex marriage in the United States, or that if this concern could be cleared up Protestant opposition would be significantly diminished. I only want to draw attention to the added peculiar stake American Protestants have in shaping state institutions as a result of their comparative dependence on the state in hopes of making sense of some of their rhetoric and illuminating what may underlie it. The analogy to Protestant investment in the curriculum of public schools to be discussed below is doubly relevant here. The successful campaign in support of California’s Proposition ,28 for example, stressed that among the most significant harms from state-recognition of same-sex marriage would be that children of samesex marriage opponents could come home from public schools indoctrinated with the notion that when they grew up, they, too, could marry a person of the same sex.29 For Protestants, more than for other religious groups in these debates, the vulnerability is perceived as personal—they see a threat to their own marriages and focus on the threat to their own children when the values endorsed by state institutions differ from their own. Like Protestant opponents, Protestant supporters of same-sex marriage also tend to stress the peculiarly personal stakes for them and members of their faith tradition in state recognition of same-sex marriage. One way of illustrating this point is by examining statements in an amicus brief in support of state recognition of same-sex marriage filed in the pre–Proposition  California Supreme Court Marriage Cases by the Unitarian Universalist Association of Congregations, the General Synod of the United Church of Christ (UCC), and a congeries of more than  other local, regional, and national religious organizations and clergy representing “a wide spectrum of faith traditions, including



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Native American, Jewish, Muslim, Christian, Buddhist and Unitarian Universalist.”30 While the lawyerly portions of the brief set out the “general interest” of the amici in the recognition of same-sex marriage under California law, a sample of the religious organizations and individual clergy who joined the amicus brief were also given an opportunity in the brief to make a statement in their own words concerning their “specific interests” in the issue. Although it is often the practice of lawyers drafting an amicus brief to prepare all portions of it themselves, so as to ensure stylistic uniformity and a consistent message, the diversity of voices and writing styles in the section of the brief devoted to the statements of specific interest by individual organizations and clergy strongly suggests that, in this case, the lawyers assembled for inclusion in the brief statements their clients themselves had prepared. Strikingly, organizations and individual clergy from Protestant traditions stressed the imposition on the free exercise of their religion that resulted from the state’s allowing them to perform civilly efficacious marriages only for their heterosexual congregants while denying them the possibility of performing civilly efficacious marriages for gay and lesbian couples. As Amicus William McKinney put it, “As an ordained minister in the United Church of Christ, whose General Synod has taken a position in support of marriage equality, my freedom to exercise my religious vows is compromised by current California law.”31 Similarly, the Unitarian Universalist Legislative Ministry argued: For over three decades, Unitarian Universalist clergy have been officiating at the weddings of same-sex couples. The state’s refusal to grant same sex couples access to civil marriage places our clergy in a moral dilemma, requiring them to treat the gay and lesbian members of their congregation differently than those who seek to marry someone of the opposite sex. This is against the principles of our faith.32

By contrast, Rabbi Arthur Waskow articulated as one of his specific interests in state recognition of same-sex marriage the additional juridical burden on him and on his faith community in regulating a form of marriage not in conformity with state law: Large parts of the Jewish community have begun honoring and hallowing same-sex marriages without regard to legal, civic, and political decisions. But as one clergyperson who has been an officiant for same-sex as well as different-sex marriages, I can testify that the refusal of the state to set legal frameworks for same-sex marriage puts a great burden on the religious communities that celebrate them. Why is this? Because state laws can set the frameworks (especially for divorce) that otherwise the religious communities must take into their own hands. Thus I have found it necessary to insist that same-sex couples work out with me the kind of elaborate interpersonal contracts for possible divorce, child custody, roles in case of sickness, etc., that pub-

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lic family law for different-sex marriage makes available to all. This takes days and weeks of my time and that of the couple that are not required when I am officiating for a different-sex marriage.33

Among the many things this contrast in approaches reveals is, once again, the comparative juridification of Jewish in contrast to Protestant approaches to marriage, perhaps reflective of a more juridical approach to religion overall. It also reveals the habits of mind formed by religious traditions that have not been able historically to count on civil law to govern community members in a way consistent with their religious requirements. Conservative Rabbi Elliot Dorff highlights Jewish recognition of the distinction between civil and religious marriage regulation by noting in his statement of specific interest that “[e]ven those adherents to Conservative Judaism who have difficulty reconciling the performance of a religious marriage ceremony for gays or lesbians with Leviticus : are strongly in favor of legalizing civil marriage for same-sex couples as a matter of individual American rights.”34 By contrast Pastor Scott Landis of the United Church of Christ, a denomination whose thickest roots are the Puritan Congregational Churches of Plymouth Plantation and Massachusetts Bay, articulates a different perspective on “why matters of Church and State ought to remain separate.”35 In his statement of specific interest, Pastor Landis reiterates the Puritan view of marriage as a civil contract, with the potential to be blessed but not created by religious bodies: “Marriage is a State function and should remain that way. If churches want to endorse (bless) the civil marriage between same- or different-sex couples, that is the individual denomination’s prerogative.”36 At this point readers may be wondering, given the diversity of individual and denominational approaches within American Protestantism to questions of same-sex marriage, with some in vehement opposition, others in equally vehement support, some arguing for a greater separation of church and state when it comes to marriage, others for closer alignment between them, what sense it makes for me to speak of U.S. Protestants generally as having a peculiar stake in the question of state regulation of same-sex marriage. Shouldn’t I always be separating out supporters from opponents, Puritans from Anglicans from evangelicals, liberal denominations from conservative ones? Let me reiterate that what all major Protestant groups in the United States have in common is their comparative dependence on the state for the definition of marriage, its formation, and above all its dissolution. This is true for Protestant denominations such as those descended from the Puritans, who started out clearly aware of and fully embracing the state’s role in their marriages because they saw marriage as a civil contract. It is equally true in a different way of denominations



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whose heritage is more closely aligned with the Church of England or with the Southern states originally settled by Anglicans who brought with them to the New World their approach to marriage, all of whom tend to be less aware of and less embracing of their dependence because they have no religious tradition of seeing marriage as a civil contract. How this manifests itself for different Protestant denominations with different attitudes toward marriage in general and same-sex marriage in particular is a function of how a given denomination’s attitudes intersect with the existing state law and the nature of proposed changes to it. That conservative evangelicals are dependent on the state for the regulation of marriage becomes salient only when the state law of marriage proposes to change in a way strongly inconsistent with conservative evangelical beliefs, as it does at present in states moving toward same-sex marriage. Dependence on the state matters less and therefore there is less reason to notice it when state law and denominational commitments are in accord. The tendency of Protestants to conflate civil and religious marriage doesn’t just help explain some of the concerns voiced by evangelical Protestants over state recognition of same-sex marriage, it also helps explain another interesting recent development in American family law, covenant marriage, an alternative form of civil marriage available in a few Southern states. While in most U.S. states today civil marriage can be entered into on something close to the spur of the moment and is close to terminable at will, covenant marriage is somewhat harder to get into and out of. The Louisiana covenant marriage law, for example, in addition to tightening divorce requirements for couples who choose it as an option, requires of such couples premarital counseling from a priest, minister, rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which counseling shall include a discussion of the seriousness of covenant marriage, communication of the fact that a covenant marriage is a commitment for life, [and] a discussion of the obligation to seek marital counseling in times of marital difficulties.37

This statutory precondition mobilizes the mechanisms of state law to achieve some of what the Catholic Church in the United States has long done without governmental reinforcement, through the pre-Cana counseling it requires of couples who seek to marry in the Church. Political scientists have detailed the leading role in passing Louisiana’s covenant marriage law played by conservative evangelical Protestant activists such as Tony Perkins, then a member of the state legislature and now head of the Family Research Council. For Protestant activists like Perkins, the covenant marriage legislation offered a “politically more palatable” alternative to their

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preferred option of generally reinstituting state laws “limiting access to divorce and restoring the requirement that someone must be to blame” 38 for the failure of a marriage. The fact that there is so little air between civil and religious marriage for Protestants and so few juridical mechanisms apart from state law for them to invoke to enforce their vision of marriage helps account for the comparative prominence of Protestant activists in covenant marriage legislation. Catholic priests can wag a finger at their faithful and say, “Thou shalt not divorce,” and make that admonition stick legally through canon law. Protestant pastors may also wag their fingers and preach against divorce, but in the vast majority of cases in the United States, there is nothing legally either in church law or in civil law to give them enforcement power. Indeed, then governor Mike Huckabee of Arkansas, another of the very few states with a covenant marriage option, reported as he converted his own long-standing marriage into a covenant marriage on Valentine’s Day  that the pastor of the church he attends had announced that he would perform only covenant marriages.39 Notwithstanding the efforts of such pastors, however, the number of covenant marriages has to date remained minuscule: as a percentage of new marriages in the states in which it is an option covenant marriage has remained in the single digits. There are significant parallels between my historical and analytical account of Protestant intervention into marriage regulation and another major contemporary issue about which evangelical Protestants are exercised, the longstanding and ongoing debates over the curriculum in public schools. For evangelical Protestants today, state-licensed marriage may function in somewhat the same way as state-sponsored public schools did for Protestants in the past. Both marriage law and public school curricula could be put in service of sectarian ends by groups that substituted capture of the state institution for development of their own clearly religious alternatives. While Catholics and Jews, shut out of state education funding, founded private sectarian schools, the curriculum in the ostensibly secular public schools often tended to be infused with Protestant principles. Accustomed to and dependent on this, some Protestants, beginning in the nineteenth century and continuing to this day in a host of Establishment Clause cases concerning the public schools, resisted mightily but with increasingly less success any perceived attempt to make the institution of public education more neutral and secular and less clearly an embodiment of their values. Beginning with the nineteenth-century Bible wars, in which there was dispute about whether the King James version or some other version of the Bible should be taught,40 the struggle for control of the public school curriculum famously continued through twentieth-century disputes about



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prayer in the schools to twenty-first-century disputes about whether creationism or intelligent design can be taught therein. As with marriage, so with the schools, because Protestants in the United States could for many years control the state institution, they saw little need to develop their own sectarian alternatives. Catholics, by contrast, initially competed unsuccessfully for control of the state institution, going into the Bible wars and political disputes over funding demanding the Douay version of the Bible and that sectarian schools in which their doctrine would be taught also be publicly funded, state-sponsored and -denominated public schools. Catholics long ago realized that battle was a losing one and went on to establish their own private parochial schools, as did Jews. Therefore neither Catholics nor Jews felt quite the same need to regroup later when the courts forced a disaggregation of religious and public education. Not until comparatively recently did evangelical Protestants have to cope by setting up their own private sectarian schools. In the South, this was partly as a result of the ban on segregation in the public schools, but also as a result of new Supreme Court mandated restrictions on prayer and the Bible in public schools and later refusals by lower courts to mandate that public schools offer religious accommodation to parents who wanted to shield their offspring from being taught about matters that conflicted with religious teaching, such as women’s liberation or evolution. Having set forth my descriptive understanding of the way in which civil and religious marriage came to be particularly conflated for Protestants, and why therefore Protestant opponents of same-sex marriage may understandably but not justifiably feel threatened, let me now discuss what the law should do about it. I come at this normative question, not just as a feminist theorist who studies family law and the regulation of sexuality, a supporter of same-sex marriage, and a scholar of Equal Protection and Due Process, the constitutional guarantees most closely associated with claims by gay couples that they have a constitutional right to marry, but also as a scholar of the First Amendment and of comparative law. Anyone who has even a colloquial understanding of the First Amendment’s Establishment Clause and the sort of separation of church and state it has been thought to mandate should be quite surprised by the way state laws in the United States regulate marriage. The idea that a minister of the gospel or other member of the clergy can simultaneously and seamlessly perform both a civil and a religious marriage should be antithetical to our view of the separation of church and state. It certainly is not the way many other countries, including some, like Germany, which constitutionally enshrine, not separation of, but cooperation between, church and state, go about regulating marriage. In Germany only civil marriage has the force of law, and it may be performed

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only by a civil registrar. German couples are free to have an entirely separate religious ceremony performed by clergy, but that ceremony “has no legal effect under German law.”41 The United States might consider following the German example, either by disaggregating civil and religious marriage while continuing to call them both marriage or by adopting the innovative term civil union for anything the state does and leaving the term marriage to religious communities. This would incidentally solve some problems other than the ones around which I am centering this chapter, such as the following: although a marriage license is often thought to license the members of a couple themselves to enter into marriage, as a technical matter of law it instead licenses the celebrant of their wedding. Black’s Law Dictionary defines a marriage license as “permission granted by public authority to persons who intend to intermarry, usually addressed to the minister or magistrate who is to perform the ceremony [and] .€.€. in most jurisdictions .€.€. made an essential prerequisite to the lawful solemnization of marriage.” 42 In many states it still is some sort of crime—not generally a felony, as under Hardwicke’s Act, let alone a capital offense, but a misdemeanor—for a member of the clergy authorized to perform marriages to do so in the absence of a civil license and in a way designed not to have binding effect under state law. Although prosecutions under such statutes are rare, shouldn’t their mere presence on the books raise a red flag under the Establishment and Free Exercise Clauses? The state has made it a criminal offense for a member of the clergy to perform a religious ceremony without obtaining a state license beforehand and without registering it with the state afterward. A man and woman who wish to be married in the eyes of their faith, but not of the state, risk making criminals of clergy who accommodate their wish. Consider, for example, a couple of senior citizens, widow and widower, who wish to avoid living in sin in the eyes of their faith or to be married to each other under a chuppah, but not to enter into a new civil marriage, so as not to lose Social Security, pension, and other benefits accrued through their deceased spouses or to complicate estate planning on behalf of their children from the earlier marriage. It can be difficult for their minister or rabbi legally to accommodate them because, unlike same-sex couples, these two senior citizens can clearly enter into a legal marriage. I personally have been asked for legal advice by clergy on whom such prohibitions have had a chilling effect. What the practical effects might be of the U.S.’s following the German example and further disaggregating civil and religious marriage, and whether getting the state out of the business of recognizing marriages would be a good idea from the standpoint of nonconstitutional law or policy, are subjects well be-



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yond the scope of this chapter. For reasons I have set out at length elsewhere,43 having largely to do with that quintessential University of Chicago value, efficiency, I am convinced that from a practical lawyering perspective ending state-sponsored marriage would be neither desirable nor feasible. To call the unions something other than marriage would also be inefficient, given how widespread and ingrained a term “marriage” has become, not only in public law but also in private agreements dealing with a range of issues from property and employment to insurance. If the analysis extends beyond efficiency to the symbolic and expressive dimensions of ending state-sponsored marriage, the considerations and constituencies multiply exponentially. Here let me only very briefly suggest what the reaction of some of the Protestant opponents of same-sex marriage in the United States might be to such a suggestion. Just as there were some Protestants who in the end welcomed the opportunity to home school their children or to send them to sectarian schools, there are some Protestants, as there are some members of other faith traditions in the U.S. and elsewhere, for whom getting the state out of the marriage business or more clearly disaggregating civil and religious marriage might be attractive because they could then more directly influence their own congregations and more freely develop their own regulation of marriage. On the other hand, just as there are some Protestants who are still fighting to conform the public school curriculum fully to their religious values, by federal constitutional amendment if necessary, there are some who wish to keep or reassert control over civil marriage, because instead of focusing on speaking only to their own faithful, they want to impose on all of the rest of us the rules they think are right from the perspective of their faith tradition. I would urge on this latter group the following, however: when they talk, as in the same-sex marriage debates they so often do, about “preserving traditional marriage,” they ought to realize two things: first, how little of traditional marriage on anyone’s definition there is left to preserve in the American civil law of marriage; and second, that to restore many traditional aspects of the law of marriage would require not just massive legislative change but also federal constitutional amendment, since many traditional aspects of the state regulation of marriage have been held unconstitutional by the U.S. Supreme Court. Marriage was once the exclusive means of licensing sex and all that went with it—procreation, cohabitation, and the control of children. While it once bound couples together indissolubly for life in a heavily regulated status relationship, virtually all terms of which were mandatory and imposed by the state, civil marriage now licenses in a new way—a married couple is by and large free to have or not have sex, vaginal or not, procreative, contracepted, or otherwise, to

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be faithful or not, to divorce and remarry, to commingle their finances or keep them separate, to live together or separately, to differentiate roles or share all tasks, to publicize their relationship or be discreet about it, while still having their commitment to one another legally recognized by third parties including the state. The aspect of traditional marriage most clearly banished as a constitutional matter from the current law of marriage in the United States, which most definitely is not there in the law to be preserved and which cannot be brought back without major federal constitutional change, is legally enforced female subordination and sex role differentiation.44 All legally enforced sex role differentiation, let alone subordination, between husbands and wives has been ruled constitutionally out of bounds by the U.S. Supreme Court, which held in a consistent line of cases that “fixed notions concerning the roles and abilities of males and females”45 were unconstitutional when embodied in law, including the fixed notion that men must be breadwinners and women homemakers, let alone the fixed notion that husbands were masters of the marital community. Nevertheless, many evangelical Protestants have a very strong stake in reinforcing sex role differentiation and male headship in marriage. It was perhaps not coincidentally for the first time in , shortly after U.S. constitutional law had definitively abolished legally enforced sex role differentiation, that the Southern Baptists first officially promulgated their directive that it was a wife’s duty graciously to submit to her husband’s servant leadership.46 The submission of wives to husbands was not a new concept to Southern Baptists in , but it appears that they were forced to juridify this aspect of their view of marriage for themselves when they could no longer count on the state to do it for them. It is no accident, I think, that the cartoon couple with whom I began this essay were depicted as traditionally role differentiated, with a husband in the foreground fulminating about the “foundation of [his] marriage” and the wife in the background doing housework. The last remaining “foundation” in the civil law for sex role differentiation in marriage is the exclusion of couples from marriage on the basis of their sex, as I have long argued and as Vaughn Walker, the federal judge who held Proposition  unconstitutional, clearly held after lengthy and extensive fact-finding.47 This, I am convinced, helps explain a lot of the vehemence with which religious groups committed to sex role differentiation oppose state recognition of same-sex marriage. While I would personally prefer that the foundations of sex role differentiation in marriage not be replaced at all, it is clearly more consistent with the American constitutional vision not only of sex equality but also of separation of church and state that



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Protestant denominations like the Southern Baptists who wish to do so replace these foundations by juridifying their religious approach to marriage than that they turn to the civil law to shore up their religious foundations.

Notes This chapter is an extended form of arguments I made earlier in “Marriage Licenses,” Minnesota Law Review  (): –, and an abbreviated form of the arguments I will make in my forthcoming work, “Why Evangelical Protestants Are Right When They Say That State Recognition of Same-Sex Marriages Threatens Their Marriages and What the Law Should Do about It.” See also Mary Anne Case, “What Feminists Have to Lose in Same-Sex Marriage Litigation,” UCLA Law Review  (): –; Mary Anne Case, “A Lot to Ask: Review Essay of Martha Nussbaum’s From Disgust to Humanity,” Columbia Journal of Gender and Law  (): –; Mary Anne Case, “From before Hardwicke’s Act to after the Defense of Marriage Act” (unpublished manuscript, on file with author and delivered at the  annual meeting of the American Historical Association). . Mike Keefe, Marriage Foundation, Political Cartoon, Denver Post, July , . From PoliticalCartoons.com., http://www.politicalcartoons.com/cartoon/dac-c-f-fb.html (accessed October , ). . For a very personal account of the annulment process through the eyes of the divorced spouse of a politician from the Kennedy family, see Sheila Rauch Kennedy, Shattered Faith: A Woman’s Struggle to Stop the Catholic Church from Annulling Her Marriage (New York: Pantheon, ). . See, for example, Avitzur v. Avitzur,  N.E. d  (N.Y. App. Ct. ), cert. denied,  U.S.  (). . N.Y. Dom. Rel. Law §  (McKinney Supp. ). . “Poll: Legalize Same-Sex Marriage?" CBSNews.com, July , , accessed April , , http://www.cbsnews.com/stories////opinion/polls/main.shtml. . “Poll: Strong Religious Opposition to Same-Sex Marriage, Advocate.com,” Advocate.com, accessed March , , http://www.advocate.com/print_article. asp?ID=&sd=//-//. . “Pew Research Center for the People and the Press, Most Still Oppose Same Sex Marriage, Majority Continues to Support Civil Unions, Results from the  Annual Religion and Public Life Survey,” October , , accessed October , , , http:// people-press.org/reports/pdf/.pdf. This particular report does not list results on the question from religious groups other than Catholics and Protestants, including Jews. . George Elliott Howard, A History Of Matrimonial Institutions (Chicago: University of Chicago Press, ), . . Sir Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, vol. II (Cambridge: Cambridge University Press, ), . . Bowers v. Hardwick,  U.S. ,  () (Burger, CJ. concurring). . Lawrence v. Texas,  U.S. ,  (). . Hardwick,  U.S. at  (Burger, CJ. concurring). . Act for the Better Preventing of Clandestine Marriages, ,  Geo. , c.  (Eng.).

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. See ibid., . . William Bradford, History of Plymouth Plantation (Boston: Little, Brown and Co., ), , quoted in Howard, A History of Matrimonial Institutions, . . Baker v. Vermont,  A.d  (Vt. ). . In subsequent litigation, the Connecticut Supreme Court held that granting civil union status only and not marriage to same-sex couples was impermissible discrimination against them under the Connecticut Constitution and required the legislature to remedy this. . For further discussion, see June Carbone and Naomi Cahn, Red Families v. Blue Families: Legal Polarization and the Creation of Culture (New York: Oxford University Press, ). . Additionally, each of these states ranks low in overall religiosity and also low in percentage of evangelical inhabitants. See Figure . on page  and Figure . on page  in Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (New York: Simon and Schuster, ). . The first European settlers in Vermont, on the border with French Canada, were French Catholics, followed by Protestant Dutch from New York and English from Connecticut and Massachusetts. . Goodridge v. Dept. of Public Health,  Mass.  (). . Marian Walsh, “Remarks at Massachusetts Constitutional Convention,” lecture, Massachusetts National Convention, March , . . Marian Walsh, “Remarks at Kennedy Library Forum,” lecture, Kennedy Library Forum, November , . . I have written at length about the Baker case in Mary Anne Case, “Marriage Licenses,  Lockhart Lecture,” Minnesota Law Review  (): . . “Priest Says State, Not Church, Might Sanction Gay Marriages,” Minneapolis Star, September , , A. . Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic Books, ), . . See, for example, Maggie Gallagher, “The Stakes: Why We Need Marriage,” National Review Online, July , , accessed October , , http://www.nationalreview. com/articles//stakes/maggie-gallagher. . The passage of Proposition  by the voters of California added to the California Constitution the provision that “only marriage between a man and a woman shall be valid or recognized in California,” overturning the California Supreme Court’s prior decision that to deprive same-sex couples of the right to marry violated the California Constitution. In Perry v. Schwarzenegger, now on appeal, a federal judge held that, because Proposition  violated federal constitutional guarantees of due process and equal protection, its enforcement must be enjoined. See Perry v. Schwarzenegger,  F.d  (th Cir ). . See, for example, “Yes on  TV Ad: It’s Already Happened,” video clip [n.d.], www.youtube.com, http://www.youtube.com/watch?v=PgjcgqFYP (accessed October , ), showing a young girl coming home from school telling her mother that what she learned in school today was “how a prince married a prince, and I can marry a princess,” followed by a talking head law professor telling parents that in Massachusetts after the state recognized same-sex marriage, courts ruled that parents had no right to object



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when the message that “boys can marry boys” was taught to second graders in public schools. . Brief of amici curiae, Unitarian Universalist Assoc. et al., filed in In Re Marriage Cases, California Supreme Court Case no. S, at . . Ibid., xxxv. . Ibid., xvi. . Brief of amici curiae, Unitarian Universalist Assoc. et al., at xxiv–v. . Ibid., xxvii–xxviii. . Ibid., xxx. . Ibid., xxix–xxx. . La. Rev. Stat. Ann. § : A()(a) (West ). . Scott L. Feld et al., “Christian Right as Civil Right: Covenant Marriage and a Kinder, Gentler, Moral Conservatism,” Review of Religious Research.  (): . . Rick Lyman, “Trying to Strengthen an ‘I Do’ with a More Binding Legal Tie,” New York Times, February , , A. . For further discussion, see, for example, Linda Przybyszewski, “Competing Theories of Church and State: The Cincinnati Bible War of –,” unpublished manuscript on file with author and delivered at the  Annual Meeting of the American Historical Association. . See, for example, Carolyn Hammond and Alison Perry, eds., Family Law in Europe, d ed. (London: Butterworths, ), . . “Marriage,” in Black’s Law Dictionary, th ed. (St. Paul: West Publishing, ). . See Mary Anne Case, “Marriage Licenses,”  Lockhart lecture, Minnesota Law Review , no.  (), for further discussion. . See Mary Anne Case, “What Feminists Have to Lose in Same-Sex Marriage Litigation,” UCLA Law Review ,  (), for further discussion. . Miss. Univ. for Women v. Hogan,  U.S. ,  (). . See Baptist Faith and Message Study Comm., Report to the Southern Baptist Convention, http://www.utm.edu/martinarea/fbc/bfm/-/report.html. . See Perry v. Schwarzenegger,  F. Supp. d  (ND CAL ).

chap ter sixte en

Sacred Property Searching for Value in the Rubble of 9/11 mate o taussig-rubb o

While the divisions between those broad organizing categories that structure much of everyday experience and action—such as public and private, sacred and secular, economic and political—are always subject to a degree of contestation, some events seem to confound these divisions in a more profound way. The attacks of September , , generated numerous efforts to reconceptualize some of the organizing categories of U.S. policy and law, such as foreign and domestic, or national security and criminal law. This chapter explores one part of that story: the way in which property was overwhelmed by what many individuals called the “sacred.” This new designation was applied both to real property (land) and souvenirs of the attacks. Many of the objects in question were unremarkable, sometimes actual rubble, but for those who possessed them they seemed to have taken on some additional significance. Rather than focusing on the destruction of property and human life itself, my concern is with the form of value created through destruction. I ask who lays claim to that value, to what purposes it is directed, and how it attaches to material objects and land. I am interested in how this value interacts with property law, whether it overwhelms the usual property allocations, or whether it can be subordinated to them. I begin by describing how what had been ordinary objects and real property, once destroyed and damaged, came to be perceived as “sacred.” What had been commercial real estate owned by the Port Authority of New York and New Jersey and leased by Larry Silverstein was, in the disturbing phrase of some New York City officials, “vaporized.”1 But the space where the buildings stood was



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claimed by numerous actors, including the mayor of New York and the family members of victims. Analogies to conscription or eminent domain are suggestive if we focus on the deprivatization of an interest—my property or body, for example, being “taken” (in the language of the Constitution) for a public purpose. But the analogy breaks down in that the taking is not by the state and the new value is not exclusively for the state, as family members and others also lay claim to it. Indeed, just who would take possession of the interest, and what possession might entail, seemed profoundly open-ended. The sacred in these examples often refers to an interest (life, property) that cannot be transferred and that is irretrievably lost. It emerges under conditions where the usual allocations of the property regime are inadequate, where there is nothing—and yet something. To explore these themes, I then take up three more focused stories. First, I discuss the Federal Bureau of Investigation agents caught taking souvenirs from the attacks, as documented by the Office of the Inspector General (OIG) in the Department of Justice. Many such items had already been launched on far-flung journeys:  pounds of Ground Zero rubble was sent to U.S. soldiers in Afghanistan, and high-ranking FBI officials had asked local agents to secure debris for dignitaries. For some field agents, the souvenirs marked both the sacredness of the site and their privileged relationship with it. The OIG uncovered an informal policy allowing agents to take pieces of building façade and “tourist trash” such as refrigerator magnets from the Fresh Kills landfill in Staten Island, where much of the / debris was deposited. A scandalized public, made aware of this souvenir-taking, regarded it as closer to theft or even grave desecration, since the remains of many / victims were assumed to be intermingled with the debris. This public response, not to mention the deployment of Ground Zero to mythically authorize the war on terror, suggests that what had been a normal piece of commercial real estate was becoming what we might think of as sacred national property. Second, I describe the efforts of the relatives of some of the / victims to assert an interest in the rubble at the Fresh Kills landfill and to remove it from the garbage dump—“unconsecrated ground,” as some called it. In court, the relatives asserted a federal and state law property interest and a First Amendment free exercise interest in the disposition of the remains of their relatives. Here a common law quasi-property interest in the dead body, rather than the “sacred” as such, is asserted. While sacralization seemed to mean for the FBI that they could take objects, here a property argument is employed to try to take them back. While there are many examples of a desire to possess objects from /, there is one significant exception: remains of thirteen of the hijackers

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have been identified, but these are unclaimed at an FBI-evidence repository.2 How are we to think of these, as abandoned property, as mere evidence, as the real site of the sacred since they are one category of objects that no one knows how to treat? Third, I leave this jurisprudence of the dump to look at the rural site in Pennsylvania where United Airlines Flight  crashed on / and where the government and others wish to create a memorial. Here there is another claim of “sacred ground.” The owner of the land, in some accounts, has relied on the assistance of a property “stigma” appraiser and has determined that the land is now worth about one hundred times its pre-/ value. This example addresses the effect of the “sacred” upon the market value of real property. Having sketched the emergence and distribution of what many people call the sacred, in conclusion I ask if there is anything to be said about how it is generated, beyond the obvious role of violent destruction. I ask whether one wellknown term that purports to be about the making of the sacred—sacrifice—is illuminating and applicable. It is useful to distinguish two alignments between the sacred and property. In one, which I do not focus on, sacred property is a form of property. This is the case with church property, or the sacred property of indigenous groups now recognized by the governments that rule them.3 In this alignment, property (and the legal order more generally) contains the sacred, typically having stripped the relevant community of sovereign powers. In a second alignment, the sacred encompasses and overwhelms the property designation, as I think we see happening in some of my examples. In this version, the sacred seems aligned with sovereignty, and it transcends and grounds property. This second alignment contradicts some basic understandings of what defines political modernity, such as the banishment of the sacred from the political sphere. In that modernist narrative, the political sphere is no longer permeated by the divine. Instead a different category, religion, is generated to contain transcendence and the sacred. The political world is part of the secular, profane, Fallen world; it is, in Max Weber’s phrase, “disenchanted.”4 Once understood in this way, the protection of property can itself be seen as the highest, even sacred, obligation of the political order. From this understanding of political modernity, the first sense of the alignment between property and the sacred, one in which property contains the sacred (rather than being transcended by it) gets the relationship right. I suggest that we confront both of the alignments of property and the sacred I outlined—sometimes it is contained, sometimes it exceeds property and the legal order more generally. What the examples I discuss point to is that the



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containment operation does not always work, that the sacred can exceed its designated space. In other words, the “religious” is not the only place we find the sacred. We might ask then, whether, within our current constellation, we should invariably think of the sacred as a religious category.

Sacralization Before the / attacks, the World Trade Center and the Pentagon were not just everyday examples of real property. They participated in what Terry Smith calls the “iconomy,”5 as instantiations of U.S. postwar importance and dominance. As such, their destruction could be seen as part of an old technique of destroying the icons of one’s adversary. Although billed as a center for world trade, the WTC was the outcome of a decidedly statist form of capitalism and was heavily reliant on its public sector tenants and public subsidies. Before the Port Authority took the WTC site through eminent domain, the area had been a bustling retail area with many shopkeepers of mostly Middle Eastern descent selling electronics.6 While the WTC was probably not, for most Americans or New Yorkers, a national or sacred site in the American pantheon, its destruction and collapse elevated it. It became not only a site where terrible things had happened, but a place where some weighty and usually ethereal categories—America, the United States—became visible, a place where individuals had died for or been killed in the name of the United States. At the WTC site, the rubble from / existed between numerous regimes of property and valuation. Was it still the property of the Port Authority, which authorized a group of architects and curators to organize what would be an “invaluable” collection of prime “artifacts”?7 Or was it a gravesite or “sacred burial ground” holding their entombed “brothers,” as firefighters said when they clashed with police restricting their access to the site? Was it (which must have come as a shock to leaseholder Larry Silverstein) the familial property of those who had died in the attacks? Through the fusing of different forms of material—the human tissue of office workers and firemen, steel I-beams, office supplies and equipment—and the fusing of different regimes of disposal that governed each—dignified burial, recycling, and search for propriety information—the collapse of the towers also brought the different property regimes into collision. There was also a political or sovereign element introduced, as these ordinary objects and bodies had absorbed a blow addressed to the United States. However naive it may seem, we should not fail to ask just why it was that the attack was not understood as addressed to the Port Authority, or to Larry Sil-

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verstein, or to the top-floor restaurant, Windows on the World. An account is needed of how the destruction of commercial property and the killing of civilians becomes an act addressed to the United States. One answer lies in the announced intentions of the attackers. Another can be found in the way that the sovereign, the U.S., is positioned in relation to the property regime. In  in Johnson v. M’Intosh,8 Chief Justice Marshall provided an early lesson in the way in which title flows from the sovereign, and how it could not be generated from the transactions between individuals and Indian nations. Another factor was that President Bush asserted and accepted that the attack was directed at the United States. In the days after the attack, he made his way to Ground Zero, descended into the debris and wrapped his arm around a worker. “I can hear you,” he declared to the national media through a megaphone. “[T]he rest of the world can hear you, and the people who knocked down these buildings will hear from all of us soon.”9 If the regime of private property causes the sovereign to recede into the background behind a world of law, the / attacks, violating the sovereign’s control over space and violence, reconjured it. At this level, like John Locke’s God, who retains an interest in his creations,10 the U.S. retains an interest in private property.11 In some legal guises this is well known: property can be taken (with just compensation) under eminent domain, as was the case with the WTC in the s. Likewise the U.S. can take the citizen’s body through conscription without compensation. These have some resonance with what happened on /, as there is a nationalization of property and bodies. And yet it is not a nationalization stemming from action by the government, and is, thus, a complex transactional form, involving action by a self-professed enemy who “gives” these objects and persons back to the United States through an action that “takes” them. It is also important to mention several reorganizations of spatial and temporal relations in the days and weeks after /. There was a militarization of space as the country’s air space was closed down—almost all civilian aircraft were grounded. The National Guard moved into Manhattan and set up perimeters blocking off much of downtown. There was also, in contrast, what we might call a “civilianization” of spaces in New York City: a rush from the private sphere of homes and offices to public spaces as large groups congregated in parks to mourn and debate, while traffic noise seemed to disappear. Blood donations soared. Those associated with the rescue effort—male firefighters in particular—became especially erotic and heroic characters, fêted in bars and clubs throughout the city. Lamp-posts, building walls, and park fences were covered with photos of the missing and candles left in their memory. Ordinary spatial



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relations seemed transformed: the usages were neither public nor private, but something else. In a combination of militarization and civilianization, some civilians, now self-declared patriots, took it upon themselves to attack (and kill) those they associated with the terrorist attackers. On the other hand, Rebecca Solnit quotes one New Yorker: “Nobody went to work and everybody talked to strangers.” Solnit describes this as “the most succinct description of an anarchic paradise I’ve ever heard.”12 Overall, many of these responses underscore that not only had the state failed to prevent the attacks, but that citizens turned to (and to a relatively small extent, on) one another, not the state, in the aftermath. It is within this setting that ideas of the sacred circulated so vibrantly. In these multiple recalibrations of space and land use, calling the WTC site “sacred” could mean that it had been nationalized and should not be used for commercial use. One year after /, Rudolph Giuliani, then mayor of New York, linked the sacred to land use questions: “I am convinced that Ground Zero must first and foremost be a memorial. .€.€. People a hundred years from now should be able to grasp the enormity of this attack by visiting this sacred ground.”13 What made the ground “sacred”? Was it simply death? Or a special form of death? The question of just who had access to this sacredness seemed, like the suddenly changed usage of urban space, quite fluid. Victims’ family members effectively positioned themselves as authorized speakers empowered to challenge officials,14 while emergency workers established their own vocabulary, emphasizing heroism and sacrifice in contrast to victimhood. The changed conditions also suggested ways to reframe acts of theft, as with the case of the now canonical Iwo Jima–like photo of firefighters raising a U.S. flag amid the WTC rubble. The firefighters had “liberated” the flag from an intact -foot private yacht moored nearby, and yet were never prosecuted. For many people, including apparently the New York County prosecutors, the attacks displaced the flag’s status as private property and rendered it—symbol of the nation, after all—a fully public object for which the firefighters made perfectly appropriate use. It would be inaccurate to see the post-/ sacralization as a moment of license, just because the firemen’s theft was not seen as such. For example, the iconic photo has its own website, but the image is apparently not for sale. Rather, it was to be given without charge to “family members and surviving victims of /.” The flag owner, despite the high monetary value of the flag—she had it appraised at half a million dollars, a thousandfold increase from its $ cost—intended to give it to the Smithsonian Institution. These distinctions—between sale and gift, between the general public and the community of sufferers and victims, between individual profit and communal property—permeate many of the stories of / objects.

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As an example of improper use, an individual who posed as a Red Cross worker and took garments from the Century  department store adjacent to the WTC site was charged and convicted of burglary.15 This was despite his protest that the objects taken had no value after the attacks. In this instance the court simply pointed to the price tags on the items and concluded that they “had the same or approximately the same market value on September  that they had before the events of September .”16 The burglar was right that something had happened that transformed the value of many ordinary objects on /, and there was a lifting of the normal property rules in some respects. But he missed obvious implicit requirements: that the object had to show the marks of the attack, it had to be damaged or participate in some way like the flag, which got smoke on it and had its picture taken amid the debris. Its previous value had to have been overwhelmed by this new value emerging from destruction—like the destroyed doors of police cruisers that collectors sought. We might have recourse to Georges Bataille, and say that the object must be removed through destruction from the everyday world of useful things,17 leaving two options: there is no value, or there is some non-everyday value. Second, the object must be put to certain kinds of uses: typically, it seems, usage must emphasize and acknowledge this new non-everyday status. Applied to the burglar, we would say that he did not have sacred objects, since the clothes he took lacked any stigmata, and since he made improper use of them. As the reactions of the public and prosecutors suggest, these / objects are often thought to belong to the public in some vague way—this is what permits stealing them, or rather, what makes their liberation not stealing—and thus individuals act properly when they transfer them from private possession (the flag on the yacht) to the public (the raising of the flag amid the rubble). This recalibration of otherwise inconsequential objects has been a global phenomenon. Those closest to the attacks often object to such collecting as disgusting and ghoulish while pointing to their personal connection to the event; it is those at some remove but seeking greater proximity who seem drawn to the relics. Many actors, from President Bush to visiting dignitaries, wanted some memento.18 The president recounted during his September , , address to a joint session of Congress: Some will carry memories of a face and a voice gone forever. And I will carry this. It is the police shield of a man named George Howard who died at the World Trade Center trying to save others. It was given to me by his mom, Arlene, as a proud memorial to her son. It is my reminder of lives that ended and a task that does not end.19



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There is an inherent tension surrounding which mode of evaluation is brought to bear on the rubble and other objects that were recovered from /. That they are valueless seems to be a possibility always lurking in the background and is, if we follow Bataille, a precondition of their new status. Scores of communities around the United States have made memorials out of the WTC I-beams (often about six feet tall and crucifix-shaped). It seems as wrong (or right) to call the I-beams “junk” as it is to think of the remains of Christ’s cross as old wood. While perhaps the sacred is in the eye of the beholder, do these still seem sacralized to those who pass them by? What, we might ask, is the half-life of the sacred? When and how does it return to its “objective” status?

Possessing the Sacred If things that are sacred are oftentimes those that belong to the gods,20 in the post-/ setting there seems to be significant uncertainty about who owns this latest iteration of the “sacred.” This was visible in the story of a metal shard from the plane flown into the Pentagon resting upon Secretary of Defense Donald Rumsfeld’s office coffee table.21 When the story emerged in March , the propriety of Rumsfeld’s possession and display of the object was challenged. Rumsfeld, trying to defuse the scandal, did not claim personal ownership, but rather, as an aide explained, displayed it “for the Pentagon.”22 The story emerged in the course of an investigation by the Department of Justice’s Office of the Inspector General (OIG) into the removal of items from the sites of the / attacks. Since the sites were crime scenes, was it not illegal to remove anything? As a window into the economy of memento collection and circulation among FBI agents, the (redacted) OIG report, Investigation Regarding Removal of a Tiffany Globe from the Fresh Kills Recovery Site () makes gripping reading.23 It describes the FBI tradition of taking souvenirs from crime scenes— rubble and a flag from the U.S. embassy bombings in Nairobi in ; the elk antlers and roof shingles from the Unabomber’s cabin in ; and pieces of the Murrah federal building in Oklahoma in . With respect to /, highranking officials asked for debris for dignitaries; and a U.S. military entity took  pounds of debris “so that every soldier going to Afghanistan could have a piece of the WTC in their pocket.” Many of the FBI agents said the New York Police Department and the Port Authority gave them “crosses cut from marble pieces and items made from the I-beams” .€.€. “to commemorate their hard work,” even though “[m]any of these items made out of the debris were initially intended for relatives of the victims.”24

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The OIG report focused on the Fresh Kills landfill in Staten Island, to which city officials sent most of the rubble. The Federal Emergency Management Agency described it as a task of “moving sacred ground,” and about . million tons of debris went to the site.25 It was sorted into evidence, personal effects, and human remains. The remainder, which included tourist trinkets, rubble, and so forth—was buried in the landfill. It was from this remainder, simultaneously garbage and yet something else, that FBI agents took items. The OIG concluded that the FBI had no policy with regard to the remainder. The release of the report caused a furor, as victims’ families thought of the debris as including human remains. In March , the FBI announced a new policy that banned, as a press release said, the removal of “any items.”26 Although the text of the new policy was not available (despite several calls to the FBI), judging from the press release, the previously ignored category—mementos, relics, amulets, or national treasure—was not named in it. The OIG report provides a number of details about how agents thought about the debris. It was the New York–based FBI agents who described the debris as “sacred” and who “were disgusted by the fact that anyone would want to take items, including pieces from the building, which were contaminated with blood and human body parts.”27 In one instance, one agent had a “piece of marble on his desk, which he was going to take home as a paperweight.” A New York agent “told him it was disgusting and that he could not take it.”28 Another time, an agent from the Detroit office was handing out WTC key chains inscribed with people’s names. A New York agent got angry, saying, “If you take those home, you are taking pieces of our agent who died with you.”29 This agent sabotaged other efforts to take mementos, “throwing the rocks [they had collected in duffle bags] out into a garbage bag or into a debris pile.”30 The agents who called the debris sacred seemed to mean that it should not—as Émile Durkheim would have said of the sacred—be touched and was forbidden.31 Durkheim thought of the sacred as attractive as well as repulsive— the famous “ambivalence of the sacred,” both holy and accursed. The New York agents were not drawn to the sacred objects, but principally wanted to obstruct the access of others who did not seem to display a sufficient degree of reverence. They had had contact with / in a way that the other agents had not: their colleague had died, thus they were themselves witnesses and victims. The out-of-town agents construed the objects as abandoned in order to account for why they could take them, a notion that was challenged by the agency’s in-house lawyers. An FBI lawyer told the OIG that the “debris items belonged to the building owners and the insurance companies” and that if the FBI wanted these, it should have gone through court forfeiture proceedings.



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Another person (possibly an attorney but it is not clear because of redactions) also rejected the agents’ idea that when something was put in the landfill it could be taken: “The burying of the debris was its final resting point; it was not abandonment.”32 The agents seemingly suffered from a naive “jurisprudence of garbage,”33 and saw the landfill as abandoned property from which they could simply appropriate objects. The objects had not, however, returned to an original Lockean commons where they had no value or owner. The OIG focused on one case where an agent took an expensive Tiffany and Company glass globe. When confronted by the OIG, the agent said that he didn’t think the globe “had any value” and that since it didn’t fit the three categories he was told to look for, it was going into the landfill. In a sentence that perfectly captures not only the confusion about different registers of value the OIG report notes: “[H]ad he thought the item was of value, he would not have taken it.”34 When the agent returned to Minneapolis, he gave the Tiffany globe to the FBI office secretary and various rocks he had collected to other government employees. The agent gave the globe in “order to share the experience” the secretary thought, and she described it “not as a souvenir, but a relic” and remembered that the agent joked with her, “Don’t ever sell this on eBay.” Indeed, she “never intended to sell the globe and felt,” as we saw with Rumsfeld, that “it belonged to the office.” The OIG excused the agents who took rubble but criticized the globe-taker, for he had taken an object of “value.” It was not that the OIG did not see the flaw in this distinction: the report noted that the debris “could be considered historic memorabilia or artifacts, making them items of value.” It simply stuck to a narrower conception of value that excluded the value created by /. We might gloss this as one form of Weberian authority: the OIG as the legal-bureaucratic, coming upon the domain of another; the religious-charismatic, recognizing its existence, and going no further.35 The OIG did not attempt to determine the dollar value of the other items taken or the globe’s post-/ dollar value. The report noted in parentheses: “(We did not determine the value of the globe as an artifact from the World Trade Center, but it certainly was much higher than $).”36 Even though the out-of-town agents are in an inferior position vis-à-vis their New York colleagues, within the broader population they can claim an intimate link to /. Indeed, we should see their collection efforts as an attempt to solidify that position. Within the larger category of / related objects, those that I have been discussing are rare, purporting to be directly and intrinsically related to the event. Since Marcel Mauss’s classic The Gift, anthropologists have examined the

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ways in which gifts contain something of the person who gives them.37 With the FBI agents, we see the process working in reverse; by giving the objects to another (colleagues, secretary) one becomes embedded in the history of the object and hence the event itself. Interestingly, these exchanges seem highly gendered, and the only people who interfered in the distribution are female, the New York agent and Jane Turner, the “whistleblower” who called in the OIG (although the male in-house counsel might have complained had he known about the practice).38 But since the entire enterprise of taking and giving had an air of scandal, Annette Weiner’s work on the importance of inalienable possessions, those objects that must be kept out of circulation, may be even more relevant than the gift.39 As objects in which the significance of / inhered, they belonged to the United States or to the families of the victims.

Unconsecrated Ground At Gettysburg, Abraham Lincoln reimagined a field of corpses as a site of national rebirth.40 Admittedly, the city dump at Fresh Kills seems a harder starting point. In this section, I describe how some of the family members of the / victims, like the FBI agents, saw the landfill as a place of abandonment. But for the families, this was scandalous, not an opportunity for a taking. A group of the victims’ families, the WTC Families for Proper Burial, Inc., recount that of the , victims of /, only  “full bodies” were recovered after the attacks. There was no trace of about , victims, and in the years following /, there have been regular discoveries of hundreds of additional body fragments. The family group initially sought to have the remains at Fresh Kills returned to Ground Zero. But they concede that “after four and a half years, that site has been designated for many other purposes and will not accommodate the remains of the dead.”41 We might think of this as a dissipation of the sacralization created by the attacks, as commercial and other uses gain in importance. Unlike Giuliani, the new businessman mayor, Michael Bloomberg, says that downtown residents do not want to live next to a “cemetery.”42 But the family group is not content to have their relatives remain in what they call, inverting Lincoln, “unconsecrated ground.”43 On a website associated with the group, images from war memorials are juxtaposed with an image of Fresh Kills, and the / deaths are described as “The First Casualties of the War on Terrorism.”44 A city medical examiner has said it is a virtual certainty that some human remains are still in the landfill,45 and outrageous claims continue to emerge, such as the story that remains are filling city potholes.46 The FBI agent who



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oversaw the site—who also was identified by the OIG as having amassed the largest collection of / objects47—assured the family members that the remains would be kept separate and that they could have them at the conclusion of the search.48 Instead, the families allege, the remains were plowed back into the landfill and covered with household garbage, shoes, tires, and other debris. The city has announced a plan to turn the dump into a park, while the family group insists that the remains should not become a “permanent fixture” amid household waste.49 The family group’s lawsuit asserted various interests in the remains including a property right grounded in state common law; and a constitutional due process and free exercise claim.50 The group did not seek to compel the city to make a positive individual identification of the human remains, nor did they seek money damages.51 They asked that the city re-sort the material and provide a “common burial in an appropriate site .€.€. without being surrounded by garbage.”52 Many jurisdictions do recognize a “quasi-property” right in a dead body, usually enjoyed by the next of kin, to ensure a proper burial,53 and this right has been found to apply to the partial remains of the / victims54 and to the cremated remains of the deceased.55 Judge Hellerstein, the federal judge who had the case along with much of the / litigation, was, according to accounts of the oral argument in February , engaged by the symbolism of the case, comparing it to that of the “unknown soldier”—absent the dignified final resting place. He also suggested a compromise: that the parties take a small amount of the debris back to Ground Zero.56 In his opinion dismissing the suit, WTC Families for a Proper Burial, Inc. v. City of New York57—which has been affirmed by the Second Circuit and which the Supreme Court refused to review—the judge “doubted” that the family group had standing, since, as the city urged, “[T]here are no identifiable remains to which a property right could attach, only an undifferentiated mass of dirt.”58 Ordinarily, that would end the judge’s inquiry; but, the judge wrote, “this is no ordinary case,” and he proceeded to the merits of the suit.59 He declined to extend the quasi-property right in the dead body to soil “that may or may not contain undetectable traces of human remains not identifiable to any particular human being.”60 The judge also rejected the families’ claims that their right to the free exercise of religion had been violated since the city did not “target” any particular religion.61 Instead of a claim about recovering property, the judge construed the family group as attempting to compel the city to appropriate property: “[P]laintiffs seek to prevail upon the City to undertake the expense of moving many tons of debris and dirt and burying it in some other location.” But, the judge concluded, the “City is under no obligation to provide property [a site for a cem-

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etery] to certain of its citizens for burial of their loved one’s remains, however worthy the citizen.”62 Not only did the family group not have a property right in the debris, the judge characterized their demands as an effort to obtain property, what we might characterize as a kind of illegitimate taking. Sacralization connects the claims of many victims’ families and others (such as Mayor Giuliani) to Ground Zero. It explains why private property should be taken over for the purposes of a familial or national memorial (as we see in the next section). At Fresh Kills, however, a different pattern emerges. The victims’ families evoke sacralization in order to show how it is being violated: that the ground, for instance, is “unconsecrated.” They then assert a property interest in order to protest the violation of proper treatment, the commingling of the remains amid garbage. The city is violating both the rules of the sacred (putting it with garbage) and those of property (taking the body). But the judge refused to see these as legal claims, and in an overtly sympathetic opinion construed the family group as trying to oblige the city to give property. Is there a latent tension in combining sacralization with property claims? If the first constitutes an understanding of the dead as belonging to the public in some respect (the death is special and sacred because it was for the United States), does the latter draw the remains back into the private sphere? The families seem aware of the tension, since they present their property claim as directed toward a goal of “common” burial and a proper public memorial. And yet the demand for a common burial and the forgoing of individual identification undercuts the requirement that the property interest be individual.



Appraising the Sacred

On /, United Airlines Flight  crashed into a -acre parcel owned by Svonavec, Inc., a quarry company that had mined the land for coal. Once again, the land was transformed for many people into “sacred ground.”63 As with the remains at the WTC and Fresh Kills, family members felt a claim to the land—the victims had become embedded in soil and debris and were, except for tiny fragments, unrecoverable. Patrick White, vice president of The Families of Flight , said, “It now serves as a cemetery,” and that, to him, “the property where the crash took place is priceless.” In some accounts, Svonavec insisted that the property had increased in value a hundredfold, from about a half-million to  million dollars. The crash was a windfall, a huge explosion of value on otherwise unremarkable land. To whom should this new value—as dollar value or as sacred value—accrue? In September  the Flight  National Memorial Act authorized the cre-



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ation of a memorial as part of the National Park Service, but it did not provide for the use of eminent domain.64 The Park Service began by acquiring about , acres of surrounding land, but was unable to broker a deal with Svonavec. From the perspective of Families of Flight , it seemed clearly improper that Svonavec should seek to enjoy the windfall of the new “sacred” value. White, of the family group, said, “Everybody’s private property has a value. I understand that .€.€. but that property to me is priceless to [sic] the reason that it has blood, bones, and the souls of my cousin .€.€. and in a sense a tremendous price has already been paid for that land.”65 This idea, that the deaths on the land had already paid for it, while not presented as a legal claim, asserts an important truth about the situation: that while Svonavec may have formal title, possession and real ownership had in some sense already shifted to the state or the public. Svonavec insisted that it would donate for free the several acre “sacred ground” crash site itself—while holding out for a high price for the surrounding land. It too supposedly recognized that the “sacred ground” should not be sold. In some accounts, Svonavec has engaged the assistance of a real estate damages appraiser who claims an expertise in “stigmatized” property. While stigma typically denotes a negative feature—a violent death, a haunted house, or a remediated environmental site66—on Svonavec’s property it apparently has a positive effect on price. The Takings Clause of the U.S. Constitution provides that “[N]or shall private property be taken for public use, without just compensation.”67 Much current discussion focuses on what a taking is (for example, the distinction between mere regulation and partial takings), and what public use is.68 Neither of these gets to the question of whether the private landowner can benefit from the value of their property as a site of national tragedy. Tantalizingly, two of the great national war memorial sites—at Gettysburg and Arlington National Cemetery—led to Supreme Court opinions on takings issues, although neither illuminates the issue of how the “stigma” impacts appraisal.69 One approach defines the “just compensation” requirement of the takings clause to mean “the full monetary equivalent of the property taken. The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken .€.€. what a willing buyer would pay in cash to a willing seller.”70 But in applying this measure, should the land’s value post-/ be taken into account? Under the “scope of the project” rule, the market is defined to exclude the effects of the taking itself on market value.71 Since the / attack was not (conspiracy theorists notwithstanding) a government project to create sacred ground on Svonavec’s land, this rule does not exclude Svonavec from enjoying the post-/ price. Indeed, it was a government failure to prevent the attack that is a condition of the value. We might resist this reading since the new value

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nonetheless seems parasitic and dependent on the United States. Elaine Scarry offers a related framing: “United Airlines Flight  was a small piece of American territory .€.€. lost to the country for approximately forty minutes when terrorists seized control. It was restored to the country when civilian passengers .€.€. regained control .€.€. in the process losing their own lives.”72 We might say, then, that in taking the parcel the United States is simply recovering its own property, which happens however to be inextricably embedded in the private owner’s soil. Nonetheless, it seems likely that the owner of the Flight  site may succeed in obtaining compensation for the increase in value due to the attacks, but not for the value of a government-recognized memorial. Initially, Svonavec allowed public access to the site and the creation of a temporary memorial. In  it stated that it wanted to collect donations, a request denied by the Park Service. The company then allowed for two more years of use, but rescinded access in September .73 Facing mounting pressure, and a Parks Service empowered (in late ) to use the power of eminent domain,74 in January  a deal was announced in which Svonavec agreed to a (still ongoing) appraisal process to be conducted by a federal court.

Sacrifice In my examples, the sovereign and the sacred were removed from obvious public view until acts of creative destruction summoned them forth again. In conclusion, I wish to ask how this “sacred” value is created. Sacrifice seems to offer a ready-made answer. Its etymology suggests that it concerns a “making” of the “sacred.” This making is often said to be achieved through the destruction of an offering. In Marcell Mauss’s and Henri Hubert’s sociological gloss from the s, sacrificial procedure “consists in establishing a means of communication between the sacred and the profane worlds through the mediation of a victim, that is, of a thing that in the course of the ceremony is destroyed.”75 Claude Lévi-Strauss wrote that “[s]acrifice seeks to establish a desired connection between two initially separate domains.”76 By asserting a connection between distinct objects (he was describing sacrifices of substitution where x is given instead of y), it blurred distinctions, and hence meaning itself. Lévi-Strauss thus derided sacrifice as a “private discourse wanting in good sense.”77 It is nonsense, from the perspective of everyday “sense,” to see the sacred or the United States as somehow visible in a field or a brick. It is the action of destroying a part x (the plane, the individual person, the building) as a site of the larger whole y (the United States) that collapses one into the other. Finding the whole in the part, and destroying the part in order to reach



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the whole does seem related to what we imagine happens in sacrifice. And yet we—those who identify as the recipients of the attacks—seem confused about sacrifice in relation to /. Should we distinguish the dead emergency workers from the civilians? Was one group heroic and self-sacrificing (Flight ), the other victimized and sacrificed? Or are they all heroic, having absorbed an attack on the United States as the families protesting the internment at Fresh Kills assert? Even if we do call the event a sacrifice, are we then recognizing the attackers as having “sacrificed”? It seems that we cannot accept that the terrorists are in the position of the sacrifier, the one giving the offering. We have a result of sacrifice, the sacred, the instantiation of the United States, but the cause, the action of the attackers, is too awkward to accept. Moreover, the dichotomy between a transcendent “sacred” and the “profane” everyday, entailed in formulations such as that of Hubert and Mauss, seems insufficient if human life or even property is held to be sacred. The process we confront is not the creation of the sacred but its redistribution and confounding with other kinds of value. The destruction moved the sacred from an inert, stable status to a diffuse and uncontained one, a transition visually expressed in the fine film floating away from the WTC, composed of what had been bodies, bricks, and mortar.

Notes I am grateful to Jeremy Biles, Kathryn Lofton, Winnifred Fallers Sullivan, and Kristen Tobey for their responses to a longer version of this piece that appeared in April  on the Religion and Culture Web Forum website of the Martin Marty Center for the Advanced Study of Religion, University of Chicago. . Richard Pyle, “Some World Trade Center Victims were ‘Vaporized,’” Associated Press, December , . 2. Sean Hamill, “ Years Later, / Hijackers’ Remains Are in Limbo,” New York Times, September , . 3. See, for example, Native American Graves Protection and Repatriation Act, Pub. Law - (). 4. Max Weber, The Protestant Ethic and the Spirit of Capitalism, with Other Writings on the Rise of the West, trans. Stephen Kalberg, th ed. (Oxford: Oxford University Press, ). 5. Terry Smith, The Architecture of Aftermath (Chicago: University of Chicago Press, ), ; see also Marita Struken, Tourists of History: Memory, Kitsch, and Consumerism from Oklahoma City to Ground Zero (Durham, NC: Duke University Press, ). 6. Smith, The Architecture of Aftermath, . 7. Eric Lipton and James Glanz, “Relics: From the Rubble, Artifacts of Anguish,” New York Times, January , . 8.  U.S. ( Wheat.) ,  ().

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9. Office of the Press Secretary, “President Bush’s Remarks to Police, Firemen and Rescue Workers,” September , . . John Locke, Two Treatises of Government, ed. Peter Laslett (New York: Cambridge University Press, ), ch. .. Locke writes: “[F]or men being all the workmanship of one omnipotent, and infinitely wise maker .€.€. they are his property.” . Paul Kahn, Out of Eden: Adam and Eve and the Problem of Evil (Princeton: Princeton University Press, ), . 11. Paul Kahn, Out of Eden: Adam and Eve and the Problem of Evil (Princeton: Princeton University Press, ), . 12. Rebecca Solnit, “The Uses of Disaster: Notes on Bad Weather and Good Government,” Harper’s Magazine, October , . 13. Rudolph Giuliani, “Getting It Right at Ground Zero,” Time Magazine, September , . 14. Jonathan Simon, “Parrhesiastic Accountability: Investigatory Commissions and Executive Power in an Age of Terror,” Yale Law Journal  (): . 15. People v. Abbarrategui, NY Slip Op  (App. Div. st Dept. ). 16. Ibid. 17. Georges Bataille, The Accursed Share: An Essay on General Economy, vol. , trans. Robert Hurley (New York: Zone Books, ). 18. “Text: President Bush Addresses the Nation,” Washington Post, September , , www.washingtonpost.com/wp-srv/nation/specials/attacked/transcripts/bushaddress_.html. 19. Ibid. 20. Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, ), –. 21. Office of the Inspector General [hereinafter “OIG”], “Investigation Regarding Removal of a Tiffany Globe from the Fresh Kills Recovery Site,” December , , , www.usdoj.gov/oig/special/a/index.htm. 22. David Hancock, “DOJ: Rummy Took / Rubble,” Associated Press, March  . 23. OIG, “Investigation Regarding Removal,” . 24. Ibid., . 25. FEMA, “Moving Sacred Ground: U.S. Army Corps of Engineers Oversee Sensitive Mission,” http://www.fema.gov/remember/_sacred.shtm. 26. Lloyd de Vries, “F.B.I. Agents Told No More Souvenirs,” Associated Press, February , . FBI press release, March , , http://www.fbi.gov/news/pressrel/ press-releases/updated-fbi-response-to-the-department-of-justice-office-of-inspectorgenerals-findings-in-the-matter-of-the-tiffany-globe-and-other-items-taken-fromworld-trade-center-recovery-sites. 27. OIG, “Investigation Regarding Removal,” . 28. Ibid., . 29. Ibid. 30. Ibid. 31. Emile Durkheim, The Elementary Forms of the Religious Life, trans. and intro. by Karen E. Fields (New York: Free Press,  []), . 32. OIG, “Investigation Regarding Removal,” .



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33. For this phrase, see Milton Hirsch, “The Jurisprudence of Garbage,” Champion Magazine  (): . 34. OIG, “Investigation Regarding Removal,” . 35. Max Weber, Economy and Society: An Outline of Interpretative Sociology, ed. G. Roth and C. Wittich, trans. Ephraim Fischoff et al., vol. (Berkeley: University of California Press, ), , . 36. OIG, “Investigation Regarding Removal,” . 37. Marcel Mauss, The Gift: The Form and Reason for Exchange in Archaic Societies, trans. W. D. Hall and foreword by M. Douglas (New York: Routledge, ). 38. See Marilyn Strathern, The Gender of the Gift (Berkeley: University of California Press, ). 39. Annette Weiner, Inalienable Possessions: The Paradox of Keeping-while-Giving (Berkeley: University of California Press, ). 40. Abraham Lincoln, “Gettysburg Address,” November , , in Abraham Lincoln, Speeches and Writings, –, ed. Don Fehrenbacher (New York: Library of America, ), . 41. See WTC Families for Proper Burial, www.wtcfamiliesforproperburial.com (text quoted subsequently removed from site). 42. “Mayor Bloomberg Takes over WTC Memorial Project Despite His Earlier Criticisms,” Associated Press, October , . 43. “Unconsecrated Ground–Fresh Kills,” www.wtcfamiliesforproperburial.com (text subsequently removed from site). 44. Voices of September , www.voicesofsept.org/dev/content.php?idtocitems=th elegacyof shame (text subsequently removed from site). 45. Anemona Hartocollis, “Landfill Has / Remains, Medical Examiner Wrote,” New York Times, March , . 46. Thomas Zambito, “/ Remains Fill Potholes, Worker Claims,” Daily News, March , . 47. OIG, “Investigation Regarding Removal,” . 48. Plaintiff ’s Memorandum in Opposition to Defendant’s Motion to Dismiss, WTC Families for Proper Burial et al. v. City of New York, Michael R. Bloomberg,  CV . 49. WTC Families for Proper Burial et al. v. City of New York, Amended Complaint, June , ,  CV . 50. Ibid. 51. Ibid., para. . 52. Memorandum in Opposition to Defendant’s Motion to Dismiss, . 53. Bortherton v. Cleveland  F. d  (th Cir. ); Colavito v. N.Y. Organ Donor Network, Inc.,  F. Supp. d  (E.D.N.Y. ). 54. Caseres v. Ferrer,  A.D.d , , (d Dep’t ). 55. Schmidt v. Schmidt,  N.Y.S.d,  (Sup. Ct. N.Y. Co. N.Y. ). 56. Alan Feuer, “Judge Hints He May Reject / Families’ Plea to Sift Fresh Kills for Remains,” New York Times, February , . 57. WTC Families for a Proper Burial, Inc. v. City of New York,  F.Supp.d  (S.D.N.Y. ). 58. Ibid., . 59. Ibid.

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60. Ibid., –. 61. Ibid., . Judge Hellerstein relied on the “rational basis” test of Employment Div. Dept. of Human Resources of Ore. v. Smith,  U.S. ,  (). 62. Ibid., . 63. “Agreement Paves Way to Acquire Flight  Crash Site,” Flight  National Memorial. www.honorflight.org. 64. Flight  National Memorial Act, P.L. -, § () (September , ). 65. Jennifer Reeger, “Donation Box at Heart of Flight  Memorial Tiff in Somerset Co.” Pittsburgh Tribune Review, June , . 66. “Uniform Standards of Professional Appraisal Practice,” Advisory Op. , – (Appraisal Standards Bd., ). 67. U.S. Constitution, Amendment V. 68. Kelo v. City of New London  U.S.  (). 69. United States v. Gettysburg Electric Railway Co.  U.S.  (); United States v. Lee,  U.S.  (). 70. Altamont Farmers Elevator & Warehouse Co. v. United States,  U.S. , – () (internal citations and quotation marks omitted). 71. Powell, J. concurring, in Altamont at  (citing United States v. Reynolds,  U.S. ,  (); for scope of project rule, see also Uniform Appraisal Standards for Federal Land Acquisitions (Washington, D.C.: Appraisal Institute in cooperation with Department of Justice, ), –. 72. Elaine Scarry, “Citizenship in Emergency: Can Democracy Protect Us against Terrorism?” Boston Review, October/November . 73. “Unreleased Appraisal at Heart of / Land Dispute,” Appraisal Institute, www. appraisalinstitute.org/ano/current.aspx?volume=&numbr=/. 74. Consolidated Appropriations Act (Sec. ) Amends Public Law -. 75. Henri Hubert and Marcel Mauss, Sacrifice: Its Nature and Function, trans. W. D. Halls (Chicago: University of Chicago Press, ), . 76. Claude Lévi-Strauss, The Savage Mind (Chicago: University of Chicago Press, ), . 77. Ibid., .

chap ter sevente en

When Is Religion, Religion, and a Knife, a Knife—and Who Decides? The Case of Denmark t im jensen

King Harald Bluetooth (d. ) proudly proclaimed on a runic stone that he made the Danes Christian. Though more assertive than descriptive, the inscription marks the conversion to Christianity in the Kingdom of Denmark in the tenth century. As a sign of the times and of the times to come, it was a political and public manifestation of royal and religious power. In , some thousand years later, Danish passports were changed in order to comply with newly enacted EU-standards. Into these new passports, Danish authorities inserted an image of the crucified divine man, Jesus Christ. The image is from King Harald’s stone, known as Denmark’s “birth certificate” or, more accurately, “baptismal record” (dåbsattest) of the Christening of Denmark. Following introductions to official (constitutional, judicial, and administrative) and less official ways of defining, seeing, having, policing, and accommodating religion in Denmark, I present three recent Danish judicial cases related to religion. The first concerns a challenge before the Supreme Court to the requirement that all births be registered with the established church and to the provision of state financial support to the established church. The second is the decision of the director of public prosecution not to prosecute in the case of the Muhammad cartoon affair. The third is a City and High Court case dealing with the carrying/wearing of a Sikh kirpan in public areas. All three cases display aspects of what de Roover in his contribution to this volume calls the “quandary of legal religion.” They can be seen as provisional results or manifestations of an increase in religious pluralism, as well as an increase in new and different ways of having and seeing religion. Things religious now appear

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Figure .. Image of Jesus Christ, from Danish passport. Photo by author.

where they were not expected to appear, and they appear in unexpected ways. Emerging in ways out of the normal order, they threaten Danish cosmology, including normative definitions and delimitations of religion. Though still homogeneous by international standards, religious pluralism has increased markedly in Denmark over the past few decades. That this development has been the subject of much public and political debate in influential news media is itself part of a new situation. Religion or religion-related issues are entering into places (the mediated public sphere) where they did not previously appear to the same degree, or in the same form. This, as I see it, constitutes a kind of repoliticization or desecularization. The ever so moderate increase in religious pluralism and the at times immoderate debate about aspects thereof must, in its turn, be seen against the backdrop of the thousand years of Christian hegemony and a society, culture, and mentality still most correctly characterized as predominantly monoreligious and deeply influenced by five hundred years of a Lutheran-Protestant state church and ethos.

Recognizing Religion(s)1 The freedom of religion guaranteed in the  Danish Constitution is not a guarantee of equality of religion. The Constitution (Articles  and  in the 



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revised edition) recognizes an established church, one that is to have the king as a “member” and is to be “supported by the state.” Citizens who are not members of the Evangelical-Lutheran Church are “at liberty to form congregations for worship of God in a manner consistent with their convictions, provided that nothing in variance with good morals or public order shall be taught or practiced.” Church members pay for most of the expenses of the established church through a “church tax” paid along with their normal income tax. Yet nonmembers are also obliged to support the church, since about  percent of the church’s expenses, including the salaries of bishops, is taken from the general tax revenues. It is argued in defense of this arrangement that the established church administers certain affairs (especially the registration of births) that taxpayers would have to finance anyway, and that some of the “general” tax money going to the established church is used for maintenance of church buildings—that is, for the maintenance of a common cultural heritage. In response to the charge of discrimination, it has also been argued that the other formally acknowledged or recognized religious communities are also financed by the state, since they enjoy various tax exemptions. With the Reformation in  the old kind of Christianity, now the Roman Catholic Church, was forbidden. However, during the seventeenth and eighteenth centuries, the Roman Catholic Church, the Reformed Church, and a Jewish community were given, by Royal Decree, certain rights equal to the Evangelical-Lutheran Church, including the right to perform marriages with civil validity. Following the  Constitution, the parliament continued the preconstitutional practice of granting rights to “dissenting” religious communities by way of a Royal Decree, and in  and , five more Christian denominations were given such rights. Following a new Marriage Act, this practice stopped as of . The only kind of recognition or acknowledgment to be obtained now was the one that came with a delegation to ministers within the religious communities of the right to perform marriages with civil validity. Religions in Denmark today may be classified into five categories: () the established church, () the ten acknowledged (anerkendt) by Royal Decree, all of which are Christian, () those that have been recognized (godkendt) by way of the Ministry of Ecclesiastical Affairs, () religious organizations recognized (or registered) by the tax authorities, and () religions that “exist” but are not formally “recognized.” Recognition is not a prerequisite for having the legal right to exist and function, but something “extra” that a religious community may apply for. From  to , the recognition procedure was handled by the Ministry of Ecclesiastical Affairs, and since then, by the Ministry of Justice.

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Up to , the bishop of Copenhagen functioned as advisor to the ministry in regard to applications for the right to marry. The Ministry of Ecclesiastical Affairs had no published criteria for recognition.2 Following criticism of the use of the bishop as advisor and of the Christocentric definition of religion that seemed to guide the ministry, the bishop was replaced in  by an Advisory Committee headed by a professor in comparative religions, with a theologian, a sociologist of religion, and a law scholar as the other members. This committee quickly made things more formal, transparent, and contemporary. It introduced a broader working definition of religion, explicitly said to respect contemporary religious pluralism, substituting, for example, “belief in God” with belief in a “transhuman power.”3 The new committee did not consider freedom of religion to be their “business” nor to be what recognition is about. To apply for the right to perform marriages (and thus recognition) is to apply for a delegation of executive power and the bestowal of certain privileges.4 The Minister of Ecclesiastical Affairs, when she assumed office in , transferred the business of recognizing religion(s) to the Ministry of Justice, insisting that recognizing religions is a purely administrative act, a delegation of the right to marry people with legal and civil validity. The Ministry of Ecclesiastical Affairs should, she added, not be a Ministry of Religions.5

Irreligious Lutherans? Many publications characterize Danes as irreligious. As an example, the July  issue of National Geographic depicted Denmark as a land of fairytales, and Danes as secular or as “irreligious Lutherans.” More recently, American sociologist Phil Zuckerman, following an extended stay in Denmark, concluded that the Danes must be the least religious people in the world, living a life “without God.”6 I think the Danes could equally well be characterized as just Lutherans, maybe even religious Lutherans. The Danish Constitution, by recognizing a state religion, excludes the Kingdom of Denmark from the class of secular states.7 Furthermore, nothing else in the constitution supports an understanding of the Danish state as a multicultural (including multireligious) state. To what degree, and on the basis of which criteria and definitions of “religion” and “secular,” Danish society may correctly be characterized and termed secular is much too complicated to be dealt with in this paper. Here I will sketch only some of the key indicators of the religion(s) and religiousness of the Danish population.



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In  about  percent of the total population of about . million were paying members of the established church. Though the figures show a decrease (about  percent) over the last twenty years, the vast majority of the Danes are thus Lutherans—and therefore also religious. It is, of course, often argued that the Danes, though members, are poor church-goers. True enough. According to a recent poll, no more than – percent of the members go to church on a weekly basis, and only – percent do so on a monthly basis. It is equally true, though, and equally significant, that the vast majority of Danes actually do go to church quite regularly during the year and during their lifetime. Danes are extremely keen on using their religious institution and its rituals and paraphernalia when celebrating so-called transitional passages in the life of the indiÂ� vidual and the family: birth, puberty, marriage, and death. The Danes, therefore, do go to church, and while some observers (theologians and ministers mostly) see that kind of church-going as evidence of irreligious Danes using the church as a “service-church,” it may equally well be seen as evidence that the Danes are religious in a very normal and almost universal way. Besides, not going to church on a weekly basis may actually indicate a high degree of religiousness rather than the opposite. From an emic as well as an etic point of view, it may be explained with reference to a (religious/Christian theological) notion that this is the “right” and “mature” way of practicing religion. In other words, Christianity “rightly” understood and practiced is either not a religion (like the rest), or if a religion, then a more “developed” and superior one. Lutheran Christians not going to church (correctly) no longer (falsely) think, as do, for instance, Catholics and Muslims, that rituals matter, and they no longer think (even more wrongly), as do, for example, some “childish” and “backward” Muslims, that religion has something to do with food, clothes, purity/impurity, and the like. Quite a few Danes do not see the established church as a religion but as a cultural institution, part of the “Christian cultural heritage.”8 As for the beliefs of these so-called irreligious Lutherans, surveys from the last fifty years reveal that a large percentage of Danes, when asked, answer that they believe in God. More and more say they believe “in their own way,” and more and more are selective in their adherence to traditional dogmas. Yet they say they do believe, insisting at the same time, “I’m a believer—but I’ll be damned if I’m religious,”9 a practice that has forced the European Values Survey to substitute “believing” for “religious” in questionnaires to Danes. Luther, according to Marx, removed the servitude of devotion by replacing it with the servitude of conviction. He destroyed faith in authority by restoring the authority of faith. He turned priests into laymen by turning laymen into priests. He liberated man from exterior religi-

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osity by making man’s inner conscience religious. He emancipated the body from chains by enchaining the heart.10

Luther, as I see it, paved the way for a characteristic feature of the ways Danes have and see religion: they fail to see the forest for the trees. Since the Danish established church may further be interpreted as a central part of a kind of Danish “civil religion,”11 a marker of nationality and national identity, describing most Danes as irreligious Lutherans may be nothing but a strategic and integral aspect of a hegemonic discourse on the true and superior way of having religion.

The Increase in Religious Pluralism In light of the thousand years of almost total Christian dominance in Denmark, the Ministry of Ecclesiastical Affairs has had a busy time recognizing religions or so-called faith communities since the Marriage Act of . To the then ten “dissenting” faith communities, nine Christian ones and one Jewish, more than one hundred now have been added—and there are many more that are not formally recognized; Islam is now the second largest religion in Denmark. Nevertheless, the majority of Lutheran Christians are still far from becoming a minority. Though nobody knows the exact number of individuals belonging to the “new” religions in Denmark, a qualified guess is that there are some , (. percent of the total population) Muslims; , Buddhists; , Hindus; , Jews; and  Sikhs. Regarding the Christian newcomers, exact figures are harder to get, but all in all, individuals adhering to “dissenting” Christian and non-Christian religious communities do not exceed  percent of the total population. Returning to the recent insertion of the image of the crucified Christ into the Danish EU-passports, the insertion reveals dominant official and unofficial ways of seeing and dealing with religion and not-religion in Denmark. To judge from voices representing the authorities, the reasoning and intention at the time were straightforward: Denmark has been and still is predominantly Christian, and what other image can better serve as a marker of national identity in times of globalization and Europeanization? Only a few public opinion makers protested against what they saw as a neonationalist and demonstrative credo: a demonstrative and defiant showing off, defining and identifying Danishness and citizenship with reference to the traditional and dominant religion, exactly at a time when Denmark was on its way to becoming a little less monoreligious. The very fact, moreover, that the authorities got away with inserting the im-



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age into the passports without serious political, public, or legal discussions and opposition is equally telling of dominant ways of seeing (or not seeing) and dealing (or not dealing) with religion in Denmark. Considering also that Denmark has an established state church, that the opening of Parliament is celebrated with a service in the church, and that Christian holidays inform and dominate the official calendar, some observers may find it strange that a vast majority of Danes have for years been in the habit of priding themselves on belonging to a nation, state, and church that, not least in contrast to Islam and Muslim states, have erected a firm “wall of separation” between religion and politics. But this is, nonetheless, what has been the norm. Religion, real religion, true religion, mature religion, is, in this Lutheran-Protestant country (naturally) a matter of faith, belonging to the private sphere, invisible, in the heart, or between humans as an unwritten code of ethics. When the Danish prime minister, following the Muhammad cartoon crisis expressed his wish that religion be kept securely within the private sphere where it truly belongs, he was expressing a deep-seated Danish idea and belief.

Interpreting the Constitution In a recent case,12 a Roman Catholic plaintiff (referred to as “F” in the court documents)13 sued the Ministry of Ecclesiastical Affairs, challenging the requirement that all births be registered with the established church. F also challenged tax support of the church’s missionary preaching. These practices, F argued, violate the Danish Constitution and the European Convention on Human Rights (the Convention). The Supreme Court decision was unanimous: registration of births by the established church is but an administrative task performed on behalf of the state. It has no religious meaning or content. It has nothing to do with freedom of religion, the right to privacy and family life or discrimination. Besides, the ruling says, the form can be filled out with no mention of the established church, and it is possible to file the notification electronically without physically entering an office of the established church. As for the contribution through tax payments, this did not establish a direct connection between the plaintiff ’s payment of ordinary taxes and the state subsidy. This case is a transparent, almost funny, demonstration of the difficulties that a state with a state religion encounters in defining religion and nonreligion, and doing so in a neutral manner, without explicitly identifying with the religion in power. It is also a good example of how the “technology of law” may exercise a fair amount of power in regard to the definition of religion. The ability to file the form electronically and on a document without the name of the

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established church indicates that the Ministry has tried to meet criticism raised by citizens adhering to another religion or no religion. Yet, the Supreme Court’s decision also demonstrates that the judiciary is not inclined to support a more accommodating change, not to speak of steps that would entirely untie the constitutional ties between state and church. The reference to the possibility of electronic filing may indicate that the court and the Ministry of Ecclesiastical Affairs consider a building belonging to the church somehow more religious than the virtual counterpart.

The Muhammad Cartoons: Saving the Secular from the Religious? In September , a major Danish daily, Jyllands-Posten (JP), published twelve cartoons together with an article, “The Face of Muhammad,” written by culture editor Flemming Rose.14 Identifying what he considered examples of self-censorship by Danish authors and illustrators, Rose concluded: The public space is being intimidated. Artists, authors, illustrators, translators and people in the theatre are therefore steering a wide berth around the most important meeting of cultures in our time—the meeting between Islam and the secular society of the West, which is rooted in Christianity. .€.€. Some Muslims reject modern, secular society. They demand a special position, insisting on special consideration for their own religious feelings. It is incompatible with secular democracy and freedom of expression, where one has to be ready to put up with scorn, mockery and ridicule.

The caricatures, rumors about them, and a large number of other motivating factors led to violent protests, the burning of embassies and even killings outside Denmark.15 The affair also led to heated debates on freedom of expression vis-à-vis (or versus) religion and religious sensibilities, religious versus secular worldviews, democracy versus theocracy, the Muslim world (or Islam) versus the West, a “clash of civilizations” versus an “alliance of civilizations.” Here I concentrate on the decision in  by the Director of Public ProseÂ� cutions (DPP) not to institute criminal proceedings against JP for violation of blasphemy and hate speech legislation.16 Denmark has ratified (almost)17 all major human rights conventions and treaties, including those on freedom of religion and of speech.18 Article  of the Constitution secures the citizen’s freedom of expression, with the not unimportant addition that it is “subject to his being held responsible in a court of law.” (But, since the decision was not appealable, the legality of the DPP’s decision was never decided by a court.)19 The DPP’s formal explanation of its decision noted first that the Constitution does not protect substantive freedom of expression—that is, the contents



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of the expressions. The Convention does protect formal as well as substantive freedom of expression, expressions that may “shock, offend and disturb,” but also provides that freedom of expression may, nevertheless, be subject to restrictions. The DPP explained that while the European Court of Human Rights (ECHR) considers freedom of expression the foundation of a democratic society, the ECHR has clearly stated that it must also be considered a duty to try not to offend without a good reason. This, the DPP remarks, means that freedom of the press carries great weight if it concerns a subject of general interest. The DPP also noted that in regard to striking a balance between protection of freedom of expression and religious feelings, the ECHR leaves a wider margin of appreciation to the individual state, “because in this area the national authorities also act to safeguard freedom of religion, another fundamental principle of the Convention, cf. Article .” However, the DPP added that “the Court has also stated that persons who exercise the freedom to manifest their religion, irrespective of whether they do so as members of a religious majority or minority, cannot reasonably expect to be exempt from all criticism.” The DPP then turned to §ïœ± of the Danish Criminal Code providing that “[a]ny person who, in public, mocks or scorns the religious doctrines or acts of worship of any lawfully existing religious community may be fined or imprisoned for  months.” The DPP interpreted “scorn” and “mockery” as entailing “an element of abuse”—that is, serious and gross offense, “doctrines” as “a creed, if any, and the central texts of a religion,” and “acts of worship” as comprising “institutions, practices, persons and things by which the worship takes place.” According to the legislative history, it adds, §ïœ± does not protect religious feelings not tied to doctrines or worship. Applied to the case at hand, the DPP concluded that publication of the drawings did not violate §ïœ±, since the religious writings of Islam do not contain a general prohibition of such drawings. Since the case concerns not just drawings but caricatures of a central figure in Islam, these caricatures might in principle imply ridicule and contempt for doctrines and acts of worship, but the DPP concluded that “the basic assumption must be that Jyllands-Posten commissioned the drawings for the purpose of provoking a debate whether, in a secular society, special regard should be paid to the religious feelings of some Muslims.” The DPP identified one drawing that could violate §ïœ±—namely, the image of a man with a bomb in his turban. If Muhammad “is taken as a symbol of Islam,” then this drawing can be read to be implying that “violence and bomb explosions have been committed in the name of Islam,” and must be seen as a commentary on a current debate on terror and religious fanaticism. If taken as a depiction of Muhammad as a violent person, this can, notwithstanding

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certain historical evidence to the effect that Muhammad was involved in violent acts, be seen as an incorrect depiction and “as an affront and insult to the Prophet who is an ideal for believing Muslims.” However, the DPP writes, “such a depiction is not an expression of mockery or ridicule, and hardly scorn, within the meaning of §ïœ±.” Considering that any criminal statute is to be “interpreted narrowly,” the affront and insult to Muhammad was not enough to warrant a prosecution under §ïœ±. The DPP then considered whether the images constituted hate speech as defined by §b of the Criminal Code and concluded that the article in JP did not refer to Muslims in general but only to “some” Muslims. Even though this subset may be seen as “a group of people” within the meaning of the statute, the text “cannot be considered scornful or degrading towards this group.” The DPP finally concluded that the cartoons depict “a religious figure, and that none of them can be considered to refer to Muslims in general.” There is “no basis for assuming that the intention of drawing  [a grim-looking man with a turban shaped like an ignited bomb] was to depict Muslims in general as perpetrators of violence or even as terrorists.” Accordingly, there was no violation of the hate speech provision. As noted by Danish Human Rights scholar S. Lagoutte,20 the decision of the DPP is in line with a “basic tenet of interpretation in criminal law that it should be interpreted narrowly,” as well as with the Danish legislative material and precedents rendered in the documentation accompanying the decision. In regard to §ïœ±, only three cases have come before Danish courts in modern practice. In  Nazis were convicted of attacking Jews and their faith in newspapers. Neither of the other cases, from  and , resulted in a conviction, and since then no charges have been brought. In regard to the hate-speech provision,21 the focus has been on the degree to which the statements in question meet the required “minimum of gravity.” Nevertheless, in my opinion several aspects and arguments in the decision must be problematized. First, the DPP, when mentioning the relevant European case law, underestimates, I think, the importance that should be attached to (respect for) religious feelings and sensibilities.22 In the cases the DPP cited, the ECHR did attach importance to the freedom of expression, yet it decided that the challenged restrictions were “necessary in a democratic society.” The state intervened to avoid insults and humiliation directed at religious feelings or sensibilities, at something Christians and Muslims hold sacred. Second, §ïœ± is located within the chapter on Public Order and Peace in the Criminal Code. As Danish law scholar H. Koch makes clear, it is not there to protect God but because “violation of the internal and external life of religious



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communities may lead to serious disturbances of the public peace.”23 Though Koch does not say so, I do: since the DPP made its decision in the wake of threats to public order and peace, the DPP ought to have discussed this aspect of the blasphemy provision. Third, the DPP consulted experts and expert literature on the role of Muhammad in Islamic history, religious thought, and practice. It is not clear why the DPP did not pay heed to the fact that Muhammad is seen as playing a key role in Islamic ritual practice (worship). Though most doctrine emphasizes the human nature of Muhammad over the divine nature of Allah, he is “sacred” to many Muslims.24 Since the DPP saw §ïœ± as a provision against offending religious feelings related to doctrine and acts of worship, it ought have attached more importance to the fact that Muslim religious feelings and sensibilities are deeply and strongly attached to the person of Muhammad. If estimating the degree to which the drawings were offensive in a sufficiently gross, serious, and grave way, the DPP furthermore should have paid more attention to scholarship on what might be said to constitute the sacred, a taboo, and thus a “grave offense” to those Muslims who were the stipulated targets of the drawings in question.25 Fourth, the DPP at no point mentions that the Islamic creed is inscribed on the bomb-shaped turban on top of the grim-looking bearded face. This might have undercut the finding that there “is no basis for assuming that the intention of [this drawing]€was to depict Muslims in general as perpetrators of violence or even as terrorists.” The creed on the turban, on top of what has been stated above about Muhammad’s exalted status, may be seen as an indication that the grim-faced terrorist, Muhammad and Islam is (meant to be seen as) one and the same.26 Finally, there is the silence about the broader Danish political-cultural context, also noted by S. Lagoutte. According to JP and its supporters, it was a Muslim threat to democracy and freedom of expression and a marked tendency to self-censorship out of fear from Muslim reprisals that constituted the primary context and motivation for the publication of the caricatures.27 However, not denying that there had been intimidating incidents (though not in Denmark) and that some artists and politicians might have felt intimidated by certain Islamist and Muslim activities and reactions, I, with quite a few other Danish observers,28 contend that it is rather the Islamophobic climate and explicitly anti-Muslim political strategies and discourses in Denmark that one must focus on to locate and understand the publication of the caricatures—as well as the reactions by Muslims (and non-Muslims) in Denmark. Though Islamophobia29 is not a Danish specialty,30 it is noteworthy that

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since  the government has managed to stay in power mainly because of its cooperation with the Danish People’s Party, a party that deploys Islamophobia in combination with neonationalist and cultural-exclusivist discourses on Danishness and the clash of civilizations. Anti-Muslim discourse in Denmark is intimately connected to increasingly strict immigration and refugee policies for those with a non-Western background. These policies have often been criticized for being out of line with international efforts to fight discrimination and racism, and, in some instances, for being directly discriminatory.31 Leaving aside the long European and Christian tradition of seeing Islam and Muslims as the significant other and focusing only on the Danish political context, one must realize that the Danish People’s Party and its forerunners have managed to influence public discourse and realpolitik on these matters ever since Mogens Glistrup, MP, in the s declared that immigrant Muslims were the greatest danger to Danish welfare and culture. The idea that Islam and Muslim immigrants constitute a fifth column as part of an Islamist/Islamic master plan to take over the world and the Kingdom of Denmark thus goes back long before Samuel Huntington and /. The decision of the DPP ought to have taken notice of these striking features of the Danish political-cultural context since they constitute a significant framework for any discussion on religious rights of minorities, and for the ability of the state to actively protect these rights and promote tolerance.32 The decision may ultimately be seen as an effort to save the secular from the religious, to insist that the religious must (stay) subordinate to secular law and secular values. But another reading is possible: in Denmark one gets away with saying whatever one likes about Muslims, and saving the secular from the religious is primarily equal to saving dominant notions of the secular and the religious from alternative notions.

Sikh Kirpan: Sacred Religious Symbol and Secular Deadly Weapon On May , , a Sikh initiated33 into the khalsa and consequently carrying/wearing34 a kirpan/knife, visited the U.S. embassy in Copenhagen to apply for a visa. At the entrance, he handed over his kirpan to security. As he left, a Danish police officer, called by embassy security, charged him with violating the Danish law on weapons (§ïœ±ïœ°. , §. ), according to which it is prohibited to carry a knife or dagger “in public places, educational institutions, after-schoolcenters, youth clubs and the like, unless related to the execution of a specific profession, for hunting purposes, for angling or practicing a sport or for some



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Figure .. A Sikh kirpan. Hari Singh, , http://en.wikipedia.org/wiki/File:Kirpan_ small.JPG#filehistory.

other similar creditable (anerkendelsesværdigt) purpose.” The kirpan was confiscated. At the City Court hearing, the defendant explained that the knife was not carried as a weapon but as a religious symbol. Since his baptism in , he had worn the kirpan under his clothes. Whenever visiting public offices, like the U.S. embassy, he handed the kirpan over to the guards. Visiting a museum in the U.S. the previous summer, he had also done so and received it back again when leaving. According to the police, the kirpan/knife measured ., the blade . inches. Although the blade was not sharp, the tip of the knife was pointed. The court found that the kirpan was a knife covered by the law on weapons. It also noted that there had been no changes to the current range of what is considered “creditable purposes.” Using a knife for legal leisure activities, such as open air activities by scouts, may necessitate the carrying of a knife through public areas. The decisive criterion was whether the knife is meant to serve a specific practical and thus creditable purpose or not. Wearing a knife for adornment or the like thus is not legal. The opinion explicitly mentioned the defendant’s status as a practicing

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Sikh, quoting a Sikh brochure on the religious obligations of the khalsa. The court, however, saw no reason to exempt knives carried for religious reasons or purposes from the prohibition. It added that this decision was not in conflict with §ïœ¹ (on Freedom of Religion) of the Convention. The accused was found guilty as charged, fined . DKK (USD$), and the knife/kirpan confiscated. An appeal was made to the High Court in which the defendant told the court that it had been painful to him, as a believing Sikh, to be without the kirpan during the two years following his visit to the U.S. embassy. The High Court agreed with the City Court. With respect to §ïœ¹ of the convention, it added that interfering with the carrying/wearing of a knife conforms to the requirements of §ïœ¹. : it is a necessity in a democratic society out of respect for public safety and in order to protect the public order. However, in consideration of what it called the defendant’s moral character and other mitigating circumstances, such as his reasons for carrying the weapon, the High Court suspended the fine. In  the Ministry of Justice exempted turban-wearing Sikh motorcyclists from wearing a crash helmet, but there have been no turban law cases and no other law cases related to the religious practice of Sikhs in Denmark. This, I think, should have prompted the courts to consider the case more carefully and to deal in more detail with the conflicts of interest implied. If they had looked for it, the Danish City Court as well as the High Court would have had fairly easy access to comparable laws and law cases in other places that illustrate ways of negotiating and balancing secular and religious boundaries and interests, respect for religion and freedom of religion against respect for public safety, security, and order. The British Criminal Justice Act, for example, as of , also prohibits the carrying of a knife in public places (§ïœ±ïœ³ïœ¹). Yet, unlike the Danish provision, it provides that it is a defense when done for “religious reasons” or “as part of any national costume.”35 A  case from New York State36 provides an example of a court trying to balance and negotiate the different interests at stake. A Sikh, spotted on a subway platform in Queens in possession of a knife, was accused of violating §ïœ±ïœ°–(c) of the Administrative Code, a section almost identical to the Danish counterpart. The judge stressed that the Sikh did not possess the knife in order to violate any law but to adhere to his religion, and made it clear that he considered his key task to be “weigh[ing] the defendant’s constitutional First Amendment right to practice his religion as he so chooses, with the police power of New York State to regulate the possession of lethal weapons and dangerous instruments.” Stressing the right of the state to restrict



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acts and conduct if the intrusion is justified by a compelling state interest, the court nevertheless dismissed the case as a matter of “judicial discretion” and in the “interests of justice.”37 Furthermore, the court came up with a proposal that might help prevent the problem: it proposed that a “symbolic kirpan” be manufactured and carried in a solid protective element such as plastic or Lucite that would remove it from the category of knife or weapon, thereby relieving the wearer from compliance with §ïœ±ïœ°– while at the same time permitting the observance of the five Ks. A famous Canadian case, equally available to the Danish courts, also highlights possible ways of balancing and negotiating interests, religious and nonreligious. In , a Sikh boy wearing a kirpan in a public school in Quebec happened to drop the kirpan on the ground, an incident that caused anxiety among parents and prompted the governing school board to prohibit the wearing of the kirpan in school. The case was settled in March  when the Canadian Supreme Court ordered a “reasonable accommodation” of the religious rights and interests with some restrictions: the kirpan may be worn, yet it must be kept tightly sheathed or sealed and hidden under clothes.38 In Canada, as in the United States, the negotiations between involved interests and interest groups struggle to find a solution to the problem. Though Sikhs involved in the negotiations in Canada did not welcome a suggestion by the governing school board to wear a “symbolic kirpan as a pendant or one made of plastic or any other harmless material,” they did, nevertheless, accept the restrictions set up by the Canadian Supreme Court. Sikhs, defending themselves against real or possible accusations of carrying a weapon, seem inclined to argue that “[t]he kirpan is no less symbolic [of] a weapon than the Christian cross is symbolic of a torture instrument,” or that “[to] suggest it is a ‘dagger’ or a ‘weapon’ or merely a cultural symbol is both misleading and an offense to Sikhs.”39 Yet these very arguments invite solutions like those proposed by the U.S. court and the Canadian school board, both stressing the “purely” symbolic character and function of the kirpan. Quite a few Sikhs will not be happy with a plastic pendant, not to mention a tiny miniature kirpan carried (like a crucifix in a necklace) almost as a piece of adornment, or a memory stick with a “jpg” or “pdf ” picture of a real kirpan. The limits on how purely symbolic a religious symbol may be is an interesting question for a scholar of religion. It is also a question that secular authorities very well may have to ask Sikhs in future negotiations on religious rights, respect for sacred and religious symbols and feelings versus respect for secular law, public order, and safety.

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Conclusion Each of the cases presented displays a Danish legal system keen on sticking to the letter of the law. The religious (or new or other forms of it) is acknowledged, but in none of the cases do the judges and rulings allow (new) religious points of view or give religion (religious feelings and opinions) more room than what the law has already allowed for it and what is normally (and normatively) allowed for it within the perspective of the irreligious Lutherans and the state-church framework. Freedom of religion is mentioned and said to be respected, but religion as well as freedom of religion has to recede in relation to secular law. Not much effort is put into discussions of how to accommodate new ways of “having” and manifesting religion. There is, to frame it slightly differently, not much trace of desecularization in these cases, except for the fact, of course, that these very cases may themselves be seen as signs of desecularization, equal in certain ways to an increase in religious pluralism. And, as mentioned above, this may be the most noteworthy aspect of these cases: they are all, one way or the other, the “result” of an increase in religious pluralism, yet an increase to be understood on the background of a thousand years of Christian hegemony and a present situation that can still best be characterized as predominantly monoreligious. There is, thus, not much negotiation, nor are there many efforts to accommodate other ways of having religion than the traditional one. The judiciary with these rulings, however, does not only cement and defend the secular and secular law, it defends a law, the secular or a nonreligious sphere, which is defined with no regard to the changes that are taking place and have taken place. But this also means that the judiciary ends up not being totally nonreligious or secular because the very notions of religion and the secular have been defined by the (hegemony of) the Evangelical-Lutheran Church. Finally, a few words about the illustration (Fig. .) accompanying these final remarks. The illustration reproduces one of many similar advertisements posted by the Danish People’s Party in Danish dailies in autumn  in order to promote a draft law prohibiting the wearing of visible religious (and political) symbols by judges in Danish courtrooms and making it compulsory for the judge to wear a robe during major courtroom events. The title of this ad reads, “It is adjudged,” and the headline in the text beneath the picture says, “Submission.” This ad, just like the others in the same campaign, leaves no doubt: the proposal is intimately connected to the heated political and public debates on Islam, debates heavily influenced by anti-Islamism and Islamophobia. The proposal, of course, had to be all-inclusive, but the law beyond a doubt



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Figure .. Advertisement posted by the Danish People’s Party, autumn , http://www.danskfolkeparti.dk/Annoncer.asp.

was directed against Muslims wearing (Muslim) headscarves or like clothing. A comfortable majority in the Danish Parliament passed the law in .40 The illustration and the law, thus, indicate the degree to which discourses on Islam, including anti-Islamic discourses, drive discussions about the manifestation and accommodation of religious symbols in the public sphere, about the proper place (if any) for religion, religious beliefs, practices, and symbols in

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politics and what is considered the secular society, including courts and courtrooms. Considering “the Danish case” in general, including the legal cases discussed here, the ad, and the law as passed, prompts me to ask a few final questions: would a turban- and kirpan-wearing Sikh judge, or a headscarf-wearing Muslim judge, have discussed and argued differently from the non-kirpan, nonturban, non-kippah-wearing judges in the three cases presented? And, when it comes to nonreligious-symbol-wearing judges, most of whom, no doubt, are paying members of the established church, how can we make sure that the nonwearing of a religious symbol is not the most visible symbol of their religion and their deep understanding of and devotion to that religion? Or, do we just have to trust that these judges do not manifest their religion in that way? Just as we have to trust that their religious or religiously inspired opinions do not show in their judicial opinions and sentences simply because they, like all other normal Danes and Danish state authorities, know how to separate religion and the secular, religion and law, religion and politics, and religion and the state.

Notes . For more detailed introductions (in English) to these matters, see, among others, J. Bæk Simonsen, “Constitutional Rights and Religious Freedom in Practice: The Case of Islam in Denmark,” in Religious Freedom and the Neutrality of the State: The Position of Islam in the European Union, ed. W. A. R. Shahid and P. S. van Koningsveld (Leuven: Peeters, ), –; H. Fledelius and B. Juul, Freedom of Religion in Denmark (Copenhagen: Danish Center for Human Rights, ); A. W. Geertz, “Recognition of Minority Denominations in the Kingdom of Denmark,” Res Cogitans—Journal of Philosophy () (http://www.rescogitans.sdu.dk/); A. W. Geertz and M. Rothstein, “Religious Minorities and New Religious Movements in Denmark,” Nova Religio , no.  (): –; T. Jensen, “Religious Pluralism in Denmark,” Res Cogitans—Journal of Philosophy , no.  (): – (http://www.rescogitans.sdu.dk/); L. Kühle, Out of Many, One, unpublished Ph.D. diss., Aarhus: University of Aarhus, . . A “definition” given by a former minister of Ecclesiastical Affairs seems to have been the basis of the decisions made: “[In order to achieve recognition/be given the right to perform marriages .€.€.] the faith-community in question must be a faith-community in the usual sense of this word, i.e. not just a religious ‘movement’ or a religious or philosophical association but a (religious) community or congregation with the primary aim of worship of God (ritual) in accordance with a specific and formulated teaching and rite.” . Compare the guidelines (Vejledende Retningslinjer) issued by the Advisory Committee, , rev. ed., , , at http://www.familiestyrelsen.dk//raadgivende-udvalgvedr-trossamfund/ (accessed August , ). . The committee also introduced criteria for what can be recognized as a religious “community” or organization. The community must have statutes, a body of legal rep-



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resentatives, and a structure allowing for formal adoption of members as well as a procedure for members to exit the community. . Compare B. Rønn Hornbech, “Religion, demokrati og integration,” JyllandsPosten , no.  (); H. Hoffmann-Hansen, “Kirkeminister vil være djævelens advokat,” Kristeligt Dagblad , no.  (): ; J. Duus Hornemann, “Kirkeminister vil være tjener for folkekirken,” Kristeligt Dagblad , no.  (): . . P. Zuckerman, Society without God: What the Least Religious Nations Can Tell Us about Contentment (New York: New York University Press, ). . See the definition by D. E. Smith in his India as a Secular State (Princeton: Princeton University Press, ): “The secular state is a state which guarantees individual and corporative freedom of religion, deals with the individual as a citizen irrespective of his religion, is not constitutionally connected to a particular religion nor does it seek either to promote or interfere with religion.” For a survey of state religion(s), compare T. J. Barro and R. M. McCleary, “Which Countries Have State Religions,” National Bureau of Economic Research, Working Paper no. , April , JEL No. O, Z, P. . Compare my findings on journalists’ notions of religion and religious adherence: T. Jensen, “Religion in the Danish Newsrooms,” in Implications of the Sacred in (Post-) Modern Media, ed. R. Salakangas and J. Sumiala-Seppānen (Göteborg: Nordicom, ), –. . Compare also I. Rosen, I’m a Believer—But I’ll Be Damned If I’m Religious, Lund Studies in Sociology of Religion, vol.  (Lund: Lunds Universitet, ). Allow me to add, though, that I do not find it useful to describe, as does Rosen, the typical Danish way of having and doing religion as “religion-as-heritage.” Her term, however, is to be preferred to terms indicating that, for example, baptism has nothing to do with religion. . K. Marx, “Towards a Critique of Hegel’s Philosophy of Right: Introduction,” in Karl Marx: Selected Writings, ed. D. McLellan (New York: Oxford University Press,  []), . Thanks to Russell T. McCutcheon for directing me to this piece of the writings of Marx. . Compare, for example, P. Gundelach, H. Raun Iversen, and M. Warburg, I hjertet af Danmark. Institutioner og mentaliteter (København: Hans Reitzels Forlag, ); G. Gustafsson and T. Pettersson, eds., Folkkyrka och religiös pluralism—den nordiska religiösa modellen (Stockholm: Verbum, ). . UfR Online: U..H TFA./. . Here I deal only with the case related to plaintiff F, not the case of plaintiff G, mentioned in the opinion in regard to the High Court case and ruling. . The article with the cartoons has been reproduced or reprinted in several media all around the world, along with the cartoons (or caricatures). In the documentary by A. Jerichow and M. Rode, eds., Profet-affæren. Et PEN-dossier om  Muhammedtegninger—og hvad siden hændte. Dokumenter & argumenter (København: Dansk PEN, ), readers may find it reproduced at pp. –. The publisher and the editors have decided not to reproduce the article and the cartoons in this article, agreeing with the author that such a reproduction is not necessary either for reasons of documentation or for the understanding of the author’s description and analysis of the case and the decision by the Danish Director of Public Prosecutions. . For documentation with respect to the chronology of events, see Jerichow and

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Rode, Profet-affæren, for a brief summary of the events in Denmark; compare S. Lagoutte, “The Cartoon Controversy in Context: Analyzing the Decision Not to Prosecute under Danish Law,” Brooklyn Journal of International Law , no.  (): –. For documentation and discussion of the Danish context, compare R. Engelbreth Larsen and T. Seidenfaden, Karikaturkrisen. En undersøgelse af baggrund og ansvar (København: Gyldendal, ). . Director of Public Prosecutions, Decision on Possible Criminal Proceedings in the Case of Jyllands-Posten’s Article “The Face of Muhammed,” no. RA---, March , , accessible at http:/www.rigsadvokaten.dk/media/bilag/afgorelse_engelsk.pdf. . Lagoutte in “The Cartoon Controversy in Context,” –, thinks that the decision not to ratify the Revised European Social Charter of  and Protocol  to the European Convention on Human Rights is symptomatic of the current government’s skepticism regarding human rights instruments. . In “Freedom of Speech and Faith” (an unpublished English version of “Ytringsfrihed og Tro,” in Gudebilleder: Ytringsfrihed og religion i en globaliseret verden, ed. L. Christoffersen et al. [København: Tiderne Skifter, ]), Danish legal scholar H. Koch briefly discusses the degree to which this aspect of European law differs from the state of affairs in the United States. Thanks to Koch for sending me his manuscript. . Lagoutte, “The Cartoon Controversy in Context,” –, discusses the (limited) possibilities of the minister of justice to overrule a decision by the DPP, as well the possibility for judicial review of decisions. . Ibid., ff. . § b was first introduced in  with direct reference to the then current discrimination and “persecution of races, faith-communities etc.” It was later amended due to the Danish ratification of the  UN International Convention on the Elimination of all Forms of Racial Discrimination (ICERD). . Otto-Preminger Institute v. Germany, Judgment September ,  (),  EHRR ; Wingrove v. United Kingdom, Judgement of November ,  (),  EHRRR ; I.A. v. Turkey (no. /, December , ). In “Freedom of Speech and Faith,” written with specific regard to the cartoon affair, Koch does not directly address the decision of the DPP. Koch’s conclusion, however, corroborates my criticism: having considered the same cases that the DPP mentions, Koch () writes: “Freedom of speech undoubtedly enjoys a preferential position in European constitutional law—and exceptions should be interpreted restrictively. But they are there.” Compare also M. D. Evans, Manual on the Wearing of Religious Symbols in Public Areas (Strasbourg: Council of Europe Publishing, ), –, on the importance of the principle of “respect” in European case law. . Koch, “Freedom of Speech and Faith,” . . Compare K. Rothstein and M. Rothstein, Bomben i turbanen (København: Tiderne Skifter, ), –, for a study of the question of iconography and Muhammad as an “icon”; see also M. Rothstein, “Weapons of Mass Defamation: Aspects of the  ‘Cartoon Crisis,’” Temenos , no.  (): –, for a more thorough discussion of Muslim notions of Muhammad in regard to the cartoon affair. . The DPP had at his disposal an article by R. Natvig, “Blasfemi i islam,” CHAOS  (), an article arguing that mocking, ridiculing, and scorning Muhammad, according to Islamic traditions, has been considered the most serious kind of what may be said



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to, in Islam, correspond to blasphemy. It has been seen as a heinous crime and sin, with a death penalty most often being the only possible penalty as far as Islamic tradition and law goes. . Compare Engelbreth Larsen and Seidenfaden, Karikaturkrisen, . . In what follows on the Danish (Islamophobic) context, I draw extensively on previous articles. See T. Jensen, “The Muhammad Cartoon Crisis: The Tip of an Iceberg,” Japanese Religions , no.  (): –; T. Jensen, “The Cartoon Crisis Revisited: A Danish Perspective,” ARI /—Análisis, // (http://www.realinstitutoelcano.org/analisis/.asp); T. Jensen, “In the Wake of the Cartoon Crisis: Freedom of Expression of Academics in Denmark,” in The Study of Religion and the Training of Muslim Clergy in Europe Academic and Religious Freedom in the st Century, ed. W. B. Drees and P. S. van Koningsveld (Leiden: Leiden University Press, ), –. . Compare, among others, R. Andreassen, “The Mass Media’s Construction of Gender, Race, Sexuality and Nationality: An Analysis of the Danish News Media’s Communication about Visible Minorities from –,” Ph.D. diss., Department of History, University of Toronto, ; P. Hervik, “The Misrecognition of Muslims in Danish Television News” (version prepared for Internet, Lyngby, Denmark, February ); P. Hervik, “Original Spin and Its Side Effects: Freedom of Speech as Danish News Management,” in Transnational Media Events: The Mohammed Cartoons and the Imagined Clash of Civilisations, ed. E. Eide, R. Kunelius, and A. Phillips (Gothenburg: Nordicom, ), –; C. Boe and P. Hervik, “Integration through Insult,” in Transnational Media Events, –; U. Hedetoft, “Denmark’s Cartoon Blowback,” Open Democracy, March ,  (http://www.opendemocracy.net/faith-terrorism/blowback_.jsp). Compare also the above-mentioned books and articles by Engelbreth Larsen and Seidenfaden, and Lagoutte. . For discussions on definitions of Islamophobia as well as references, compare J. Otterbeck and P. Bevelander, Islamophobi. En studie av begreppet, ungdomars attityder och unga muslimers utsatthet (Stockholm: Forum för levande historia, , http:// levandehistoria.se). I use the term to refer to hostile and fearful (at times also discriminatory and neoracist) attitudes, actions, and discourses on Islam and Muslims based primarily on prejudice, generalizations, and stereotypes. . Compare, for example, reports on the websites of the European Monitoring Centre on Racism and Xenophobia (EUMC), and the European Network Against Racism (ENAR). See also the report of February , , by the UN Special Rapporteur: Report E/CN.// at http://ap.ohchr.org/documents/dpage_e.aspx?m= (accessed August , ). . See Engelbreth Larsen and Seidenfaden, Karikaturkrisen, –, for examples and references. Compare also Lagoutte, “The Cartoon Controversy in Context,” . . Lagoutte, “The Cartoon Controversy in Context,” , n. , writes that a contextualization would have been, as pointed out by the Danish member of the UN Committee on the Elimination of Racial Discrimination, in accordance with the practice of the Committee on the Elimination of Racial Discrimination and of the European Court of Human Rights. . I use the term “initiate.” In what follows, however, “baptize” or “baptism” appears because this is the word used in the files. . In Danish you use the same verb (bære) for what in English can be rendered by,

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respectively, “carry” and “wear.” Evans, in his discussion on the terminology and definition of the wearing of religious symbols in public areas (Evans, Manual on the Wearing of Religious Symbols in Public Areas, ), notes that it is (in comparison to, for example, a Muslim woman wearing a scarf) “less obvious that a male Sikh carrying a kirpan in his belt is ‘wearing’ as opposed to ‘carrying’ a symbol of his religiosity.” He thus seems to agree that rendering the matter in an impartial way (or from the point of view of an in- as well as an outsider) necessitates the dash in my “carrying/wearing” rendering of the Danish bære. Compare also ibid., . Thus, I also write “kirpan/knife.” . See http://www.opsi.gov.uk/acts/acts/Ukpga__en_.htm (accessed August , ). . The People of the State of New York, Plaintiff, v. Partap Singh, Defendant. Criminal Court of the City of New York, Queens County.  Misc. d ;  N.Y.S.d . May ,  (accessed March , , from the Sikh Coalition website at http://www. sikhcoalition.org/LegalUS.asp). . I find the reference to “justice” as something over and above “law” fascinating, but I desist from commenting on it further. . Multani v. Commission Scolaire at http://scc.lexum.umontreal.ca/en// scc/scc.html. Wikipedia has a resume (accessed April , ) at http:// en.wikipedia.org/wiki/Multani_v._Commission_scolaire_Marguerite%E%% Bourgeoys. Mention may be made of the fact that the Sikh Coalition, March , listed twenty-one cases in which it had assisted Sikhs in defending their right to carry/wear a kirpan. See http://www.sikhcoalition.org/advisories/KirpanManinderSinghVictory.htm (accessed March , ). For more on the kirpan and kirpan cases, compare http:// www.sikhcoalition.org/InfoKirpan.asp. . Quotations from the Sikhism Home Page, http://www.sikhs.org/art.htm (accessed March , ). . LBKG -- nr.  Retsplejeloven.

Index

Index

Abad, Kehau, , n Abu Zayd, Nasr, case of, –,  accommodation of religion, , , , , , , ,  Act for the Better Preventing of Clandestine Marriages (), ,  Adam of St. Victor, ,  Adams, Charles Kendall, ,  Afghanistan, ,  Agamben, Giorgio, , , n Agrama, Hussein (contributor), , ,  agunah,  Akbar,  Alaskan natives,  Alevis. See under Islam; Turkey Allah,  Allahabad High Court,  Altenstein, Karl Sigmund Franz von, , ,  Ancient Law (Henry Maine),  Anglicans: attitudes toward same-sex marriage in U.S., , , , ; in th-century England, , , – ansar al-sunna al-muhammadiyya, , ,  anti-Catholicism, , , , , , , , 

Antichrist, – apartheid, – Aquinas, Thomas, ,  Arendt, Hannah, –, ,  Arian heresy, – Aristides, – Arlington National Cemetery,  Asad, Talal, , , , , , n,  Assmann, Jan,  Athanasius,  Augustine, ,  Augustus, Caesar,  Austin, Sarah,  Ayau, Edward Halealoha, – Ayodhya, , , n Babri Masjid. See Ayodhya Baker, Jack,  Baker v. Fales (the Dedham Case), , –,  Baker v. Nelson,  Bakunin, Mikhail, –, n Balagangadhara, S. N., –, , n, n Baptists, , – Barbeyrac, Jean, n Bardakoğlu, Ali, 

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index

Bargu, Banu (contributor), , , n Bashir, ‘Umar Hassan al-, , , , ,  Bataille, Georges, – Bauer, F. C., nb belief/practice split, , , , , , , ,  Bellah, Robert,  Benei, Veronique,  Benedict XVI,  Benjamin, Walter, ,  Bentham, Jeremy,  Bercovitch, Sacvan, n Berger, Maurits, – Berlin, University of, , –, ,  Berman, Harold,  beth din, ,  Bey, Talaat,  Bhargava, Rajeev,  Bharatiya Janata Party (BJP), ,  Bible, the: and the Christian doctrine of supersession, , , , –, –; controversy over teaching of, in U.S. schools, –; and German uniÂ� versities, ; notion of justice in, , ; typological interpretation of, –, –, n Bishop Museum (Honolulu), , , ,  blasphemy laws, , , , ,  Bloch, Ernst, , , – Bloomberg, Michael,  Blumenberg, Hans,  Bodin, Jean, ,  Book of Common Prayer,  Bowers v. Hardwick,  Brague, Rémi,  Brattle Street Church, – Briggs, Charles A., n Britain. See Great Britain Brown, Wendy, – Buc, Philippe, 

Buddhists: in Denmark, ; in Thailand, , , , –, , , , –; and tort law, –, –, –; in U.S.,  Burial: in Hawai‘i, , , , , , , ; of / victims, , , ,  Burger, Chief Justice Warren,  Burma, ,  Burnet, Gilbert,  Bush, George W., ,  Caesar, Julius,  Calcutta, ,  Çalışlar, Oral,  Calvinists: controversy with Unitarians in Massachusetts, –, n, n; and German universities, , , ; Hobbes and, ; against idolatry, , . See also Puritans Canada, Supreme Court of,  canon law, , , , ,  capitalism: and democracy, ; and /, ; and Weber, n Carnegie Endowment,  Carothers, Thomas, – Casanova, José, , n,  Case, Mary Anne (contributor), – caste, in India, , , , , , ,  Catholic Church: Carl Schmitt’s views on, n; and law, , ; and the state, , ,  Catholicism: and the “authority principle,” n; as political, , , , , , n; as a religion, , . See also anti-Catholicism Catholics: attitudes toward divorce in U.S., –, , ; attitudes toward marriage in U.S., , –, –, , –; attitudes toward samesex marriage in U.S., –, –;



index 367

in Denmark, , ; and divorce in Egypt, –; in England, ; and idolatry, , , ; and rituals, ; and schools in U.S., ,  Catholics in th-century England: and James II of England, ; legal discrimination against, , –, –, , ; loyalty of to state questioned, , , , –, , –; toleration of, , , –, ,  Central African Republic,  ceremonial law. See Mosaic law Channing, William Ellery, , –, n, n, n Charles II, of England, , –, –, n, n, n Charlot, John,  Chatterjee, Partha,  Chiangmai, , , , –, , –,  Chicago, University of, ,  Christianity: and Constantine, , ; in Denmark, , , , ; in Egypt, ; and the feminizing of the oriental, ; in Hawai‘i, ; and idolatry, , ; in India, , n; imagination of, ; and intolerance, , ; and Judaism, , , , , ; and monogamy, ; as a religion, , –, , ; and sacrifice, , , ; and science, n; and secularism, , , , , , –, –, , n, , ; and separation from politics, , , , ; and universalism, , ; in U.S.,  Church of England. See Anglicans Çınar, Alev,  citizenship, , , , , , , , , n, , , ,  civilization, , , ,  civil law, , , , , , , , , , – civil religion, , , 

Clark, J. C. D.,  class, social, n, ,  Claydon, Tony,  Cocceius, Johannes, n codification of law, , , , , , n; Christian dimensions of, , ; in India, –; in Thailand, –, , – Comaroff, John, ,  Comprehensive Peace Agreement (CPA). See under Sudan Congo, the,  Connecticut, n, , n, n Conseil d’État,  Constantine the Great, – conversion, ; and Christianity, , , , ; of Denmark, , ; in India, , –; in Massachusetts, , , , , ,  Corinthians, First Letter to the,  Corinthians, Second Letter to the, – Cornell University,  Cotton, John, n Council of Trent,  Cousin, Victor, – covenant marriage, – Cover, Robert,  creationism,  crimes against humanity. See humanity, crimes against Croatia,  Cromwell, Oliver, ,  culture, , , , , , ; and education, ; and law, , , ; law as, , ; and nature, –; and religion, , , , , , ; and politics, ,  customary law, , , –, , , –,  Dante Alighieri,  Däubler, Theodor, 

368

index

Davis, Richard,  de Roover, Jakob (contributor), , , , ,  Declaration against Transubstantiation, , , –, – deism, n, ,  democracy, , , , , n, , , , –, ,  Denmark, ; Buddhists in, ; as Christian, , , , , , ; church tax, ; civil religion, ; Constitution, , , , ; Criminal Code, –; Danish Peoples Party, , ; Director of Public Prosecutions (DPP), –, ; established church, ; Evangelical-Lutheran Church, , ; freedom of speech in, –; Hindus in, ; and human rights law, ; “irreligious Lutherans,” , , ; Islam in, –, , , –; Jews in, ; legal recognition of religion in, , , –; Marriage Act, ; Ministry of Ecclesiastical Affairs, , , , ; Ministry of Justice, , ; Muhammad cartoon affair, , , , –; passports, , , ; registration of births, , , ; religions in, , , ; religious pluralism in, –, –; secularism in, , , –, , –, ; Sikhs in, , ; Supreme Court of, ,  Deuteronomy,  Devji, Faisal,  dharma, , , , , , n dhimmi,  Dirks, Nicholas, , n disenchantment, , , , n. See also Weber, Max divorce: Catholic attitudes toward, in U.S., –, , ; among

Catholics in Egypt, –, ; civil, –; history of, ; Jewish attitudes toward, in U.S., –, ; in Louisiana, ; Protestant attitudes toward, in U.S., ; religious,  Dorff, Elliot,  Dressler, Markus (contributor), , , n Dryden, John,  Durkheim, Émile, ,  Dutch Reformed Church,  Dworkin, Ronald,  East India Company, , n education, –, n, n, , –, n, – Edwards, John, n Egypt: Christianity in, –, ; codification of law in, , ; Constitution of, , , n; entanglement of religion and politics in, , –; family/personal law in, –, –, –; High Court of, , n; influence of France on legal system of, , ; Islamists in, ; law reform in, –; Muslim Brotherhood in, ; polygamy in, –, ; “public order” concept used to regulate religion in, –, –; public/private distinction in, , –; question of secularity of, , , , –, , , –; religious freedom in, , , , –, ; shari‘a in, –, –, –, n. See also Abu Zayd, case of; hisba Eichmann in Jerusalem (Hannah Arendt),  Eichmann trial, ,  Eikon basilike, , – Eikonoklastes (John Milton), – elections, n, , , , 



index 369

elective affinity, n Elizabeth I, Queen of England, ,  Elphinstone, Governor Mountstuart,  eminent domain, , , , ,  enemy, the, , , , , , , . See also Schmitt, Carl: friend-enemy distinction Engel, David M. (contributor), ,  England, , , , –, , , ; blasphemy laws in, ; Catholics in, ; regulation of marriage in, –; religion and law in, , , ; toleration in, ; universities in, ,  English language, , , , n English Revolution of  (the “Glorious Revolution”), –, , – Enlightenment, , , , , , , – , , ; Kant’s definition of,  Episcopal Church U.S.A., , n, n, n. See also Anglicans equality before the law, –, –, , , , n,  Erastianism, , n, , ,  Ergenekon, , n European Convention on Human Rights, , , , n European Court of Human Rights (ECHR), , –, n, –, n European Values Survey,  Eusebius of Caesarea, –,  evidence (in law), , , , , , , , , , –, , , ,  exception, state of. See Schmitt, Carl: and the exception Exodus, the,  Exodus (Book of), ,  Ezekiel,  Ezra, David,  family law, , , , n, , , . See also divorce; Egypt: family/

personal law; marriage; same-sex marriage Families of Flight ,  Family Research Council,  fatwa, , ,  Fethullah Gülen,  fiqh, –,  Fitzpatrick, Peter, ,  Forbes, David,  forgiveness,  Formations of the Secular (Talal Asad),  Foucault, Michel, , , n Fox, George, – France, n, , , , , , , , , n, ,  freedom of expression, – Freemasonry,  Fresh Kills, NY, , –, , ,  Friedrich Wilhelm III of Prussia,  Galanter, Marc,  Galatians,  Gallagher, Maggie,  Gandhi, Mahatma, –, , n Gandhians, , – Ganesh,  Ganpatiutsav,  Garang, John, , ,  Gentili, Alberico, , n George, Robert,  Germany, , , ; regulation of marriage in, –; universities in, –,  get, –; under New York state law,  Gettysburg Battlefield, ,  ghayr al-muslimin, –, , – Gibbon, Edward, , – Gilman, Daniel C.,  Girard, René, –,  Giuliani, Rudolph, , ,  Glistrup, Mogens, M.P., 

370

index

Glynn, Chief Justice,  Goldsmith, Oliver,  Göle, Nilüfer,  Goodrich, Peter,  Göttingen, University of, , –,  Great Britain, n, , ,  “Great Separation,” the, –,  Greek Orthodox Church,  Greeks, ancient,  Greenawalt, Kent, n Gregory, Brad,  Gregory of Nazianzus, – Grotius, Hugo, , , n, n Gujarat, , n Gul, Abdullah,  Gunpowder Plot, the,  gurdwara,  Hague, the, ,  Halle, University of, , – Hallo, Ernest, n Hamilton, Sir William,  Hansen, Thomas Blom (contributor), ,  Harald Bluetooth, King of Denmark,  Harding, Andrew,  hate speech legislation, ,  Hawai‘i: burial in, , , , , , , ; chiefs in, ; expressive dimensions of law in, –; genealogy in, , –, ; Honolulu Star Bulletin, ; indigenous religious traditions and law in, –, ; Kawaihae dispute, –, –, ; the Mahele Act, , ; native Hawaiians, ; Native Hawaiian Organizations (NHOs), –, , , ; religion and law in, ; Volcanoes National Park,  Hazare, Anna, , n “Hebrew Republic,” the, –

Hegel, George Wilhelm Friedrich, , – Hegelian, – heiau,  Hellerstein, Judge, , n Henry VIII, King of England,  Herbert of Cherbury, , n hijab,  Hinduism, ; colonial regulation of, , , –, ; and Judaism, , , ; and politics,  Hindu nationalism, , , , ,  Hindus, , , , ; as a community, n; in Denmark, ; and Muslims in India, , , , , , ; and Ramanandis, n Hiroshima,  hisba, –, – Hitler, Adolf,  Hobbes, Thomas, n, n; and absolutism, , , , –; and secularization, , , –, ; on democracy, ; on law, ; on liberty, –, ; on sacrifice, , , , – ; on sovereignty, , –,  Holocaust, the. See Eichmann trial; Nuremberg war crimes tribunal homo sacer, , n ho‘oponopono,  Howard, Thomas Albert, ,  Hubert, Henri, ,  Huckabee, Mike,  Hui Malama I Na Kupuna O Hawai‘i Nei, –,  humanity, , , , , , , , , ; in Christianity, , , , ; crimes against, –, –, , –, n, ; in Qur’an, ,  human rights discourse, , , , , , , , , –, . See also humanity: crimes against; International Criminal Court



index 371

Humboldt, Wilhelm von, ,  Hunt, William,  Huntington, Samuel,  ICC. See International Criminal Court icon, , , , n idolatry, , , n; attitude of Protestants toward, , –, n, –, ; Christian fundamentalism regarded as, , n; distinguished from true religion, , , –, n, n; Hinduism regarded as, –; influence on concept of secularism, , , , –, n; the Trinity regarded as, , n imam, n,  immigration,  Impossibility of Religious Freedom, The (Winnifred Fallers Sullivan), n, ,  Indochina,  “In the Penal Colony” (Franz Kafka),  India: and aam admi, ; and antiÂ� secularism, –, –; and asceticism, ; “barbaric customs” in, , , ; Bharatiya Janata Party (BJP), , ; Christianity in, , ; colonial period, , ; Congress Party, , , , ; constitution, –, ; and democracy, , ; education in, –; Electoral Commission, ; electoral politics in, , , –, ; Hindus and Muslims in, , , , , , , , , ; Indian Penal Code, ; as irrational, ; missionaries in, , n; Muslims in, , ; nationalist movement in, –, –, n; Partition of , , ; pluralism in, ; politics in, ; regulation of temples, ; religious festivals in, ; as secular, ,

–, , ; secularization of, in colonial period, , , –; Supreme Court of,  indigenous religions, , , , , ,  Inouye, Daniel,  International Criminal Court (ICC), –, –, –,  Invention of Tradition, The (Eric Hobsbawm and Terrence Ranger), n Islam, ; and Alevism, – (see also Turkey: Alevis in); and Christianity, ; in Denmark, , , , ; in Egypt, ; in India, ; orthodoxy in, ; as “other,” , , , ; as political, , –; Salafi, , , n; and secularism, , , ; Sufi, , , n, ; Sunni, , , , , ; tolerance in, , , ; in Turkey, , , n; as universal, n; veil in, , , n. See also Muslims Islamic law, , , , , , n “Islamic terrorism,”  Islamism/Islamist, , , , , , , , , , , ,  Islamization, , , n, , , – Islamophobia, , –, –, n Israel, , , ,  Istanbul,  fig. .,  fig. . ius publicum Europaeum, , – James I of England, –,  James II of England, , –, , – Jastrow, Morris,  Jefferson, Thomas, ,  Jensen, Tim (contributor),  Jephthah the Gileadite, –, ,  Jesus Christ, , n, , , , n,

372

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, n, ; and marriage, ; as model, , , , , –, , , ; in Milton, ; representation of, in Danish passport, , ,  fig.., . See also sacrifice Jews, ; attitudes toward marriage in U.S., –, –; attitudes toward divorce in U.S., –, ; attitudes toward same-sex marriage in U.S., , –; conversion of, ; critique of Christianity, n; culpability of, ; in Denmark, , , ; in England, ; feminization of, ; and idolatry, n; in India, n; under Islamic law, , , ; in U.S., , –. See also Bible, the; Judaism; Mosaic law jihad,  Johns Hopkins University, – Johnson, Greg (contributor), ,  Johnson, Samuel,  Johnson v. M’Intosh,  Jones, Sir William, – Judaism: and marriage courts, ; Christian attitudes toward, , –, , ; compared to Hinduism by English Protestants, –,  judges, –, n, , , , –, n, , , , , , , , , – justice: , , , , , , , ; apocalyptic, , , –, , , , ; concept of, in Bible, , ; Bloch’s concept of, ; in early modern England, –, –; Hegel’s concept of, –; in India, ; Locke’s concept of, , –; rectificatory, –, , , ; restorative, ; social, ; in Sudan, , ; vigilante, –. See also Locke, John: and the appeal to Heaven just war, 

Justinian, ,  Jyllands-Posten (JP), , , ,  Kabir,  Kafka, Franz, – Kalihiki, Melvin,  Kame‘eleihiwa, Lilikalā, ,  Kamehameha, –,  Kanahele, Edward and Pualani,  Kant, Immanuel, ,  karma, , , , ,  katechon. See under Schmitt, Carl Kauanui, Kēhaulani, – Kawaihae Caves (Forbes Caves), , , ; dispute concerning, ,  Kellogg-Briand Pact of ,  Kelsen, Hans,  Kemalism, –, n, n, . See also Turkey Kennedy, David, , , – Kennedy, John F.,  Kenya,  ketubah,  khalsa, ,  Khartoum,  fig. .,  fig. .,  fig. ., , ,  khwan, , , , , , n King Philip’s War,  Kirkland, John Thornton,  kirpan, , –,  fig..,  Knights of Columbus,  Knox, John,  Koch, H., , , n, n Koran. See Qur’an Kauanui, Kehaulani,  Kultusministerium, , ,  Kumar, Priya, n kupuna, , ,  Kwananakoa, Abigail, ,  Lagoutte, S., , , n, n, n, n



index 373

laïcité,  laiklik, , – Lamson, Alvan, ,  Landis, Scott,  Lanna. See Thailand Last Judgment, the, , –, , , , , n. See also Antichrist; justice, apocalyptic; Schmitt, Carl: and the katechon Latour, Bruno, , ,  Law and Revolution I and II (Harold Berman),  Lawrence v. Texas,  Laws of Manu,  League of Nations,  legal pluralism. See pluralism, legal Letter Concerning Toleration (John Locke), , , n Leviathan (Thomas Hobbes), ,  Lévi-Strauss, Claude,  Leviticus, n,  liberalism: in Egypt, , ; in German universities, , ; as illiberal/ intolerant, –, , , , –; as nihilistic, , ; in Sudan, –, . See also Schmitt, Carl: critique of liberalism; secularism Libri Poenitentiales,  Lilla, Mark, –, n, n, ,  Lincoln, Abraham,  Linnekin, Jocelyn, – Locke, John, , , n, , , n, –, , , n, , ; and the appeal to Heaven, , , –; and private property, , ; on the right of rebellion, –. See also Letter Concerning Toleration Lord Hardwicke’s Act (Act for the Better Preventing of Clandestine Marriages) (), ,  Louisiana, marriage and divorce in,  Lubanga, Thomas, 

Luther, Martin, , , , – Lutherans, , , , ; in Denmark, , –,  MacInnes, Allan I.,  Macnaghten, Sir Francis W.,  Madan, T. N., – madrasah, ,  Mahi, , , , –, –, – Mahi movement,  Maimonides,  Maine, Henry Sumner, , n Maistre, Joseph de, n Maitland, Frederic William,  Making of Law, The (Bruno Latour),  Malaya,  mana, ,  mandap, – marriage: Catholic attitudes toward, in U.S., , –, –, , –; as a civil institution, , –, –; as a contract, –; definition of, , –; in Denmark, –; in Egypt, , –, ; in thcentury England, ; history of, –; Jewish attitudes toward, in U.S., –, –; licenses, ; Protestant attitudes toward, in U.S., –, , –; and role of clergy, , , ; sexual equality in, ; subordination of women in, . See also divorce; Massachusetts: same-sex marriage in; same-sex marriage Marshall, John,  Marx, Karl, ,  Massachusetts: Article II of the Declaration of Rights of, ; Article III of the Declaration of Rights of, , –, n; Bay Colony, religious toleration in, –; Constitution of , , , ; controversy between

374

index

Unitarians and Calvinists in thcentury, , –; criteria for church membership in th-century, ; disestablishment of religion in, ; educational reforms in, , n; establishment of religion in early, ; same-sex marriage in, , , –, ; and Supreme Judicial Court of, ,  Masuzawa, Tomoko (contributor), ,  Mather, Increase, – Mauss, Marcel, , – McClain, Lisa, n McClelland, Charles E.,  McKinney, William,  Mecca,  Meier, Heinrich, , , n, n Melville, Herman, ,  Menon, Nivedita,  Merry, Sally,  Methodist Church,  Michigan, University of, – Milton, John, , –, ,  Minnesota,  minorities, protection for, , –, , , , , n, , , , , , ,  Molen, Gesina H. J. van der,  Molendijk, Arie,  Mosaic law: Christian polemics against, , , –, n; divisions of, , –, n Moses, , ; veil of, –, – Mosheim, Johann Lorenz von, –,  mosque, , , , , ,  Mount Sumeru,  Muhammad (the Prophet), , –, , , –, , n, n multiculturalism, , , , , , n Mumbai, ,  Murphey, Archibald D., 

Muslims: analogy to Catholics in Reformation England, , , ; and Christians, n, , , ; in Denmark, , , , –, n; in Egypt, , ; headscarf debate, , , , , , , –, , , ; in India, , , , , , , –, , n; and Jews, ; relations with non-Muslims, , , –, n; and Sabeans, ; in Sudan, , , , , , ; suspected of disloyalty, , ; in Turkey, –, . See also Islam Muslim Waqf Board,  Mythology of Modern Law, The (Peter Fitzpatrick),  Nagasaki,  Nairobi, U.S. embassy bombings in,  namaz,  Nandy, Ashis, – Nasser, Gamal Abd el-,  nation, the, , , , n, n, , , , , , ; in Sudan, , , , , , , n, , , , , , , ,  National Geographic,  National Islamic Front (NIF) (Sudan),  nationalism: English, ; Indian, , , ; Turkish, , , n National Organization for Marriage,  Native American Graves Protection and Repatriation Act (NAGPRA), , , , –, , ; lineal descent in, , , ; Review Committee, ,  Native American Rights Fund,  Native Americans,  Native Hawaiian Organizations (NHOs), , 



index 375

natural law, , , , , n, n, , , , ,  Natural Law and Human Dignity (Ernst Bloch),  Nazis, ,  Nehru, ,  Nehruvian, ,  Nelson, Eric, –, n Netherlands, The, ; marriage in,  New England, , n, n, n, ,  New Hampshire,  New York City, –; Ground Zero, , , , , ; Port Authority of, and New Jersey, , ; regulation of Sikh kirpan in, ; World Trade Center, , ,  NGOs,  Nicea, Council of,  Ninestedt, John, – Nirmohi Akhara,  Noahide laws,  Nuba Mountains,  Numbers,  Nuremberg war crimes tribunal, ,  Nussbaum, Martha, n Oath of Allegiance (), –,  Oath of Allegiance (), – Obama, Barack, , n, n Oedipus Lex (Peter Goodrich),  Office of the Inspector General (OIG) (U.S. Department of Justice), – Oklahoma City bombing,  Ongsakul, Sarassawadee, ,  Orientalism,  Orissa,  Ottomans,  Öztürk, Yaşar Nuri, – paganism, , , –, , , n Pakistan, 

Papist Toleration Bill, ,  Parker, Chief Justice Isaac, , –, n Parker v. May, n, n Passions, , , , , , ,  Paul of Tarsus, , , , –, ,  Peace of Westphalia (), , – Pennsylvania,  Pentagon, ,  Peoples of the Book (Ahl al-Kitab),  performance, , , , , , n, , , , , , , , ,  Perkins, Tony,  Perry, Michael,  Petchsiri, Apirat,  Peterson, Erik, – Petlyura, Simon,  Pew Forum on Religion and Public Life, – Phillips, Stephanie L. (contributor), ,  Philosophy of Right (Hegel),  pilgrimage, , ,  Pincus, Steven C. A., – pirate,  pluralism, legal, , , , n, n pluralism, religious, , , , n, , , , , , ,  Plutarch,  political theology, , , n, n; Carl Schmitt’s concept of, , , , , , –; of the International Criminal Court, , , , ; secularism as, , –, , ,  Political Theology (Carl Schmitt),  Political Theology II (Carl Schmitt), ,  polygamy, – Polynesia,  Porter, Noah,  Potemkin, Chancellor,  Price, Richard,  property, , , –, –;

376

index

church, ; dead body as, ; of indigenous groups, ; law of, ; nationalization of, ; personal, ; private, ; real, ; and the sacred, ; taking of, , , –; theft of, –; valuation of, , ,  Proposition  (California), , ,  proselytization, , , , n Protestants: attitudes toward Catholics in th-century England, –; attitudes toward divorce in U.S., ; attitudes toward Jews, –, –, ; attitudes toward marriage in U.S., –, , –; attitudes toward same-sex marriage in U.S., , –, , , , ; dependence on state, , –; influence on secularization, –, –, , , –, –, –; and schools in U.S., –. See also Anglicans; Bible, the; Calvinists; deism; idolatry; Puritans; Weber, Max: on disenchantment Prussia, , –, – public life, , n, , , , –, , –,  public order, , , –, , , – public schools, U.S., ; and Bible reading, ; and prayer,  public space, , , , ,  public sphere, , , , n, , , , , , , , ,  public use,  Public Religions in the Modern World (José Casanova),  Pukui, Mary Kawena,  Puritans: attitudes toward marriage, , , ; and the Two Tables of the Ten Commandments, . See also Calvinists Quakers, , n, , n Qur’an, , , , , , , 

Radhakrishnan, Sarvepalli,  Rainolds, John, n Ram, Lord, , n Ramanandis, n recusants, , , , , , , n Reformation, the: and conÂ� fessionalization, , , ; in Denmark, ; influence on educational reform in Scotland, ; influence on marriage law, –; and new legal order, , , , ; and the repudiation of ritual, , , –, –; and secularization, , . See also Bible, the; Calvinists; deism; idolatry; Protestants; Puritans; Weber, Max: on disenchantment Regnans in Excelsis ( Papal Bull),  religion: as a category, ; established, , , ; false, –, –, n, n; legal definitions of, –, , n, , , , , , ; natural, ; and politics, , , –, , , , , , n, , , –, , –, , , , ; privatization of, , , , ; rationalist, ; study of, n, , n; in the university, , , – religio-secular continuum, –, , , ,  religious feelings, protection of, ,  religious festivals, , , , , ,  religious freedom: in Danish courts, , , –, , ; in early Massachusetts, , n, ; genealogy of, , –, , n; impossibility of, , , ; in India, , , ; and rule of law, , , ; among theology faculty at the University of Göttingen, ; in Turkey, ; at the University of Michigan in the th-century, – repatriation claims, , , 



index 377

Reventlow, Henning Graf, n Riles, Annelise,  Romans, ,  Rome Statute, –, , , –, . See also International Criminal Court Rose, Flemming,  Rosen, Lawrence,  Rosenstock, Bruce (contributor), , , n, n, n Royal Institute for Religious Studies of Jordan,  Rubin, Alfred P., , , n “rule of law,” , , , , , ; in Egypt, –, –; in Sudan, –, , , , , , n, n Rumsfeld, Donald, ,  Rushdie, Salman,  Rwanda,  sacralization, , , , , ,  sacred, the, , , –, , , , ; and Durkheim, ; and politics, ; and the profane, , , , , , , ; and property,  sacred property, , – sacrifice: as assent to political order, –; and Hobbes, , , , –; and Jesus Christ, , , , , , ; for law (capital punishment), –; political, , , –; and sacred, , , ; self-sacrifice, –, , –, –, ; and sovereignty in Carl Schmitt, , , –, ; terrorism as, – Sadjid,  Sahlins, Marshall, –,  Salafi, , , , , , n, n Salomon, Noah (contributor), ,  salvation, , , –, , , , , , ,  same-sex marriage: ; Anglican

attitudes toward, in U.S., –, – ; in California law (Proposition ), –, , n; Catholic attitudes toward, in U.S., –, –; and education, , , , ; in Germany, –; Jewish attitudes toward, in U.S., , –; New England and legal recognition of, – ; Protestant attitudes toward, in U.S., , –, , , , ; Protestant support of, ; state recognition of, , , ,  Sancroft, William,  Sarkozy, Nicolas,  Satanic Verses, The (Salman Rushdie),  Scarry, Elaine,  Schaff, Philip,  Schleiermacher, Friedrich, ,  Schmitt, Carl, , , , n, –; and Catholicism, n, n; critique of liberalism, , , , –, n; and de Maistre, n; and Däubler, n; and the exception, , , –, ; friendenemy distinction, , –, –, , n, n, n, ; and the katechon, , , , n; and liberalism, , , , –; and nomos, , ; and political theology , , –, , , –, n, n; and sacrifice, , –, , n; and sovereignty, , , –, ; and technology, n; and war,  Schwartzbard, Shlomo, , – Scott, David, ,  Second Treatise of Government (John Locke),  secular, the, , –, , , , , , , n, , –, , , , , , ,  Secular Age, A (Charles Taylor),  secularism, –; as Christian, , –,

378

index

–, –, –; and codification of law, ; contemporary crisis of, –; and democracy, ; as the distinction between public and private, , –; in Egypt, –; eurocentrism of, , , , n; failures of, , ; and freedom of religion, ; genealogy of, , n; in India, , –, n; legal, , , –, ; as neutrality, –, , n; and political theology, n; as privatization of religion, , ; as a “problem-space,” –, , ; as rationality, ; as the repudiation of ritual, , –, –, ; as the separation of religion and law, , , , –, , , , , –; as the separation of religion and politics, , –, , –, , , , , –, , –, n, , ; and toleration, , ; in Turkey, , , , , n; as universal, ; as worldview, . See also Egypt: question of secularity of; religiosecular continuum secularization, –, –; and Christianity, , , , ; as differentiation, , , , –, , –, n; and empiricities, ; and political theology, , , , ; and Schmitt, , , ; as the separation of religion and politics, –, –; and the university, –,  Selden, John, , n separation of church and state, , –, n, , , –. See also “wall of separation” September , , , , , , ; debris, , , –, ; Fresh Kills landfill, , ; litigation, ; nationalization of property and bodies, ; sacred ground, ; sacred

property at Ground Zero, –; as sacrifice, –; United Airlines Flight , –; value of objects of, – Serbia,  Shakespeare, William, , , n shari‘a, , –, –, –, n, –, ,  shari‘a courts,  Sheehan, Jonathan (contributor), ,  Shi‘ism, ,  Shiv Sena,  “shock the conscience,” –, , , –, n Sikhs, , – Silverstein, Larry,  Singh, Digvijay,  slavery, ,  Smith, Adam,  Smith, D. E.,  Smith, Terry,  Smith, W. Cantwell,  Smith, W. Robertson, n Smithsonian Institution,  sodomy,  Solnit, Rebecca,  Sorel, Georges,  souvenirs,  sovereignty , ; and assent, , –, –; and biblical law, , –, n; divine, , ; and impunity, , , , , , –; as monstrous, –; as power over life and death, –, ; and public order in the secular state, , , –; and sacrifice , –, , n, – ; and state control of property in the U.S., ; theological dimensions of, –. See also Hobbes, Thomas; homo sacer; justice: apocalyptic; Locke, John; Schmitt, Carl stasiology, , , –



index 379

state, modern, ; neutrality of, . See also sovereignty Stowe, Calvin E.,  Sudan: Comprehensive Peace Agreement (CPA), –, , , n; Council for Religious Coexistence, ; Criminal Code of , ; Government of National Unity, ; Interim Constitution of , –, , ; legal equality in, , , – , , ; Khartoum, –, , , ; Ministry of Religious Guidance and Endowments, ; National Congress Party (NCP), –, , , n, n; non-Muslims in, –, , –, n; rule of law discourse in, –, , , , , , n; Sudan Peoples’ Liberation Movement (SPLM), , , , ; Taqali al-‘Abasiyya, ; unity, , , , –, , n, n Sufis/Sufism, , , , , n, , , , n,  Suganuma, La’akea, ,  Sullivan, Winnifred Fallers (contributor), n, , n, , n, n, n Sunni Muslims, , , –,  supersessionism, , , , –, –. See also Bible, the: typological interpretation of superstition, . See also idolatry Svonavec, Inc., , ,  swayamsevaks,  symbol, ,  Taqali al-‘Abasiyya,  Tambiah, S. J., n Tappan, Henry P., – Taussig-Rubbo, Mateo (contributor),  Taylor, Charles, , n, 

Teufelbuch,  Tehlirian, Soghomon, , ,  temple, Hindu,  Ten Commandments, , –. See also Two Tables of the Ten Commandments Tertullian, , ,  Thackeray, Bal,  Thailand, ; Bangkok, , , , , ; Buddhism in, , , , , , , , , –; Civil and Commercial Code, –, –; criminal law, , ; customary law of injuries, –; the end of customary law, –; and guardian spirits, –, –, , ; King Mangrai, ; King Rama V, , , ; Lanna, , –, –, –; and law of injuries, –, –, –; mangrai thammasat or mangraisat, , , –, n. See also khwan theocracy,  Tilak, Bal Ganghadar,  Things Hidden since the Foundation of the World (René Girard),  Tillich, Paul,  Toland, John, n tolerance/toleration, , , , , , , –, ; in Sudan, –, –, , –, , ,  Toleration Act of ,  Tories, , –, – tort law (law of injuries), –, –, –,  Treaty of Westphalia. See Peace of Westphalia Trial, The (Franz Kafka),  Trinity, Holy, ; political dimensions of, –, –. See also Arian heresy Turkey: Alevis in, –, –, n, n, n; and Atatürk, ; and

380

index

ECHR, n; CHP (Republican People’s Party), ; Constitution of , ; Constitutional Court, , ; Directorate for Religious Affairs (DRA), , –, , –, ; elections in, ; headscarf debate, , , –, n, n; Justice and Development Party (AKP), , , , n; Kemalism in, , , –, n, n, n, n, ; and laicism, –, n; Ministry of National Education, ; Republican People’s Party (CHP), ; secularizing reforms in, ; Sunni-Muslim majority, , , –,  Turner, Jane,  Two Tables of the Ten Commandments, –. See also Ten Commandments, the Tyrrell, James, n Uganda,  Unitarians, –, – Unitarian Controversy, , – United Church of Christ (UCC), – United Nations,  United Nations Commission on Human Rights,  United Nations Development Program,  United Nations Security Council, – United States Conference of Catholic Bishops,  United States Constitution: First Amendment to, Establishment Clause of, –, ; First Amendment to, Free Exercise Clause of, –, , , , , –; Takings Clause,  United States of America, , ; electoral politics in, ; Federal Bureau of Investigation, , , ,

–, ; federal Indian law in, ; NationalÂ� Guard, ; National Park Service, , ; / attack, ; Office of the Inspector General, Department of Justice (OIG), , , –, ; postwar dominance, ; Supreme Court, , , –,  universal jurisdiction, , –, , , n university: decline of, in pre-th-century Europe, –; the distinction of the scientific from the theological study of religion in the, ; the Prussian model for, –, –, , , –; reform of, in Germany, –; reform of, in the Netherlands, –; reform of, in the U.S., –; role of, in modern world, –; secularism and, –; and theological innovation in Germany,  Uriah, – Uttar Pradesh,  value, , ,  Verdery, Katherine,  Vermont,  Veysey, Laurence R.,  violence, , , , , n, , ,  Viswanathan, Gauri, n Vivekenanda,  de Vries, Hent, n Walker, Vaughn,  “wall of separation,” , , , ,  Walsh, Marian, – Walt, Johan van der, , ,  war: just, ; state of nature as, –; war on terror, , ,  Ware, Henry,  Waskow, Arthur,  Wealth of Nations (Adam Smith), 



index 381

Weber, Max, –, , , n, , ; on bureaucratic versus charismatic authority, , ; on disenchantment, –, , –, n,  Weemes, John, , – Weil, Rachel (contributor), ,  Weiner, Annette,  West Bengal,  Whigs, , –, – William and Mary of Orange, , –, , – Williams, Roger, , –, n; controversy with John Cotton, n World Bank, 

World Trade Center. See under New York City World War I,  World War II, ,  “Wrongful Acts” law, –,  WTC Families for Proper Burial, Inc., , ,  Yale University,  Yelle, Robert A. (contributor), , , n,  Zuckerman, Phil, 

THE CULTURAL LIVES OF LAW Austin Sarat, Editor The Cultural Lives of Law series brings insights and approaches from cultural studies to law and tries to secure for law a place in cultural analysis. Books in the series focus on the production, interpretation, consumption, and circulation of legal meanings. They take up the challenges posed as boundaries collapse between as well as within cultures, and as the circulation of legal meanings becomes more fluid. They also attend to the ways law’s power in cultural production is renewed and resisted.

All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law Keith J. Bybee  Riding the Black Ram: Law, Literature, and Gender Susan Sage Heinzelman  Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand David M. Engel and Jaruwan S. Engel  Law in Crisis: The Ecstatic Subject of Natural Disaster Ruth A. Miller  The Affective Life of Law: Legal Modernism and the Literary Imagination Ravit Reichman  Fault Lines: Tort Law as Cultural Practice Edited by David M. Engel and Michael McCann 

Lex Populi: The Jurisprudence of Popular Culture William P. MacNeil  The Cultural Lives of Capital Punishment: Comparative Perspectives Edited by Austin Sarat and Christian Boulanger 