Within historical approaches to questions of natural right, one can approximately distinguish three main tendencies. The first is a whiggish or progressivist tendency to see a gradual development of notions of subjective rights all the way from Ancient Rome until the present day. One main problem with this approach is that it confuses the many examples of subjective natural ius (“right”) to claim or to exercise with a grounding of these same rights in pure individual identity or self-assertion. Equally, it often ignores the correlation of subjective right with conceptions of the enforceability of such right through sovereign political exercise, by projecting backwards a very recent notion of pure “human rights” that are somehow no longer suspended within the aporetic space between the naturally given and the legally enactable.
Posts Tagged ‘law’
I knew that my new book, Political Theology, would be controversial. It covers a lot of ground; it produces odd conjunctions; and its rhetoric can sound extreme. It pays little attention to academic conventions and often cuts against popular, political expectations. Some might think presumptuous its design and method of “rewriting” Schmitt’s classic. Many readers are startled to find that out of an engagement with Schmitt can come an exploration of freedom in its political, legal, and discursive dimensions. Others are surprised to find that a book about sovereignty and law—let alone a theological inquiry—puts the imagination at its center.
I find Kahn’s book as a whole less coherent than some others have. One issue I want to raise is the specter of American exceptionalism that haunts the book. Haunts, actually, may be too mild a word, since Kahn enthusiastically embraces the exceptional nature of American politics and law, and does so in absolutist terms (perhaps this is just the unfortunate sign of the legal mind at work, as is also the case in Schmitt).
At a moment when some of the theoretical gestures being inspired by old, new, or futuristic political theologies have become ineffective, Paul Kahn’s Political Theology: Four New Chapters on the Concept of Sovereignty is a book of extraordinary significance. Or, perhaps I should say that I think it might be a book of extraordinary significance, inasmuch as it bears a potential to do something which has remained impossible, not only for Carl Schmitt, but also for some important contemporary critics of neo-liberal political economy. I want to reflect specifically about the way this impossibility might become possible, strangely, by way of a new migration of Abraham into the territory of philosophies of freedom and difference.
My colleagues at The Talmud Blog asked me to provide a guest post about my research interests.
I agree with Kahn (and with Schmitt) about the fact that political theory should leave room for decision and exception. But to me, the main question is: to what extent? Are there no principles that admit no exception? When I read Kahn, as when I read Schmitt, I don’t seem to encounter any such principles—anything like what Habermas thematized in Law and Morality as “indisponibility,” that is, rights that are not at the disposal of the sovereign. Can the sovereign decide that torture is a legitimate practice? The answer, to me, should be no without exception.
“At stake in our political life,” Paul Kahn observes, “has been not our capacity to be reasonable, but our capacity to realize in and through our own lives an ultimate meaning.” While it would require little effort for me to catalogue the many insights that seized my attention while reading Kahn’s thoughtful and highly provocative new book, it is this basic insight that chiefly arouses my interest, insofar as it serves as the organizing premise for the argument as a whole. It is therefore this claim most of all that deserves close scrutiny.
The latest issue of Dissent features an argument (sub. req.) by Austin Dacey and Colin Koproske against the prevailing understanding of religious freedom in recent U.S. jurisprudence and, more generally, against the accommodation of claims on the grounds that they derive from a specifically religious belief and not otherwise.
Kahn has identified an ideal—the sacrificial ideal of freedom—that exists both as an ideal and at times in practice. And while the U.S. is certainly his main subject, he describes an ideal of freedom that has purchase well beyond American borders. Perhaps this freedom is what we’ve seen evoked by some of the protesters in the Middle East and North Africa in recent months. And Kahn is right to draw our attention to the claim that there is something miraculous in the plausible appearance of “the people.” Conjuring the people by giving up one’s self seems to represent just the kind of freedom and popular sovereignty that Kahn has in mind. The challenge for those who accept Kahn’s ideal is how to bring the individual and the conjured popular sovereign into a sufficient degree of unity with the apparatus of government, for such is the condition of more lasting freedom. These are the directions in which Kahn pushes us, and we need not think that he is correct on a factual or phenomenological level all of the time in order to examine this ideal, to ask when and how it emerges, and to see it as something astounding and “theological.”
Since the process of understanding divine law is not a uniform or singular one, there are multiple interpretations of what divine law is, and, consequently, there are many schools of Islamic legal thought. The sharīʿah-fiqh distinction is one that is clearly recognized in Islamic jurisprudential texts and beyond. While I am still in the process of undertaking a thorough historical study, I suspect that the conflation of the terms sharīʿah and fiqh became normative among Muslims in the modern era—particularly in the context of Islamist-based resistance to imperialism. Regardless of the precise genealogy, the use of the term sharīʿah rather than fiqh in contemporary Muslim discourses has political motivations and ramifications; in other words, it is essentially about power.
When modern revolutionaries took up the task of translating the felt meaning of political revolution into a constitutional order of law, they thought of themselves as men of the Enlightenment using the language of reason to push religion out of the public sphere. This hardly means that they neither experienced nor relied upon the sacred. In Arendt’s classic analysis, they began by demanding legal rights but ended with an experience of the absolute character of public action. Rights as a means to private ends became a lesser theme to the experience of a kind of transcendent meaning in and through political engagement. In a crisis, it remains true today that the secular state does not hesitate to speak of sacrifice, patriotism, nationalism, and homeland in the language of the sacred. The state’s territory becomes consecrated ground, its history a sacred duty to maintain, its flag something to die for. None of this has much to do with the secular; these are matters of faith, not reason.
A federal court threw out two court cases brought forward by an ex-Scientologist couple, the Headleys, against the Church of Scientology, accusing the organization of labor violations, forced abortions, and human trafficking. Dale S. Fischer, a judge on the U. S. District Court, Central District of California, argued that Scientology is protected by the First Amendment’s free exercise clause, putting the practices the organization is alleged to engage in beyond the scrutiny of the court, reports The St. Petersburg Times.
Citing her belief that the debate over civil unions should settled by referendum and not through the state legislature, Hawaii governor Linda Lingle vetoed a bill Tuesday that would have granted same-sex and unwed heterosexual couples the same legal rights as married couples. Lingle, a 57-year old Republican — and the first female governor in the Aloha state’s history — explained that her decision was based purely on the merits of the legislation, not on her own moral beliefs.
The right to bear arms and to pray are, as of last night, legally intertwined in Louisiana, as Gov. Bobby Jindal has “signed a bill into law that will allow people to bring concealed weapons into houses of worship.”
Kevin Drum is duly indignant about the case of Yahya Wehelie, a U.S. citizen placed on the no-fly list and effectively banned from returning to his home in Virginia.
In her essay on Salazar v. Buono, Winni Sullivan ponders why crosses present such a difficulty for the modern, secular nation-state, and she questions the degree to which religious myths and symbols have been supplanted by those of nationalism. “Has secularization failed?” she asks. Sullivan posits that religious symbols’ ability to connect the universal and the particular is at the root of their success. Yet the ambiguity of both the Mojave cross and the commentaries made by various judges in evaluating the case point to the layered religious and secular meanings of the symbol at that particular site and in U.S. society more generally. Perhaps a more expansive definition of civil religion can trace how the same symbol moves across “religious” and “secular” contexts, depending on the site, event, or time in which it is deployed. In Poland, for example, the cross is and is not religious, although it is always sacred. Indeed, this ambiguity, the ability to pivot in different directions, may help account for the cross’s social force.
On Wednesday, April 28, 2010, the U.S. Supreme Court handed down its decision in Salazar v. Buono, its latest effort to specify what the establishment clause of the First Amendment to the U.S. Constitution requires of the government with respect to religious objects on public lands.
The object of its concern on this occasion is an eight foot white cross standing on a rock outcropping on a federal preserve in the Mojave Desert, first placed there in 1934 by the Death Valley post of the VFW, and denominated a national WWI memorial by Congress in 2002. The legal issue before the Court was whether the Ninth Circuit Court of Appeals had properly affirmed a District Court ruling that the 2004 congressional act transferring the acre of land containing the cross to the VFW was illegal. . . .
The six opinions presented in Salazar v. Buono display various views on how the law of injunctions should be applied to the facts. All agree, however, that the District Court’s original decision—finding display of the cross on federal land to be an unconstitutional establishment of religion—is res judicata (that is, “the thing is decided,” and is no longer reviewable). Along the way, however—partly perhaps because, as some of them said, the law of injunctions is not very interesting to them—many of the justices, both at oral argument and in their written opinions, couldn’t resist offering opinions on the public meaning of the cross.
The distinguishing feature of proselytizing is an aim that typically supervenes upon “ordinary” religious expression. It is an accompanying mental state, or maybe just the unintended effect of bearing witness to the truth of one’s faith. Proselytizing is not an observable form of distinct behavior, and so anti-proselytizing laws are quixotic and notional, or they are certain to sweep up more elemental religious expressions—teaching, preaching, worship—which are eminently deserving of protection. This is enough to establish that these laws are unjust, and no additional evaluative premises would be needed to establish that they would be deemed unconstitutional in any American court.
No doubt, some missionaries are so aggressive that they need to be restrained by just laws against forcing conversion. But, more often, the problem (where there is one) is that they are annoyingly persistent and self-righteous. These folks should be corrected and ignored; they should not be arrested. Almost all missionaries are guilty of a peculiar Original Sin, namely, they present their own cultural instantiation of the faith—Irish Catholicism, say, or Midwestern evangelicalism—as part and parcel of the gospel. This Original Sin naturally leads to unjustified criticism of local customs and folk traditions which are not incompatible with the faith.
I view my task not as that of winning points in a debate on the grounds of logical or rhetorical argumentation. I concede defeat already. No layperson could ever win a debate with an American law professor, much less with Gerry Bradley.
My task is to complicate the framework and the context of our arguments. In fact, I would like to argue for and against proselytism simultaneously, not because of indecisive avoidance, wanting to both have my cake and eat it too, but because of a recognition of the tension between two goods.
I would like to divide the rationales for and against proselytism into three groups—theological, legal-juridical, and socio-cultural—and to argue both for and against proselytism on each of these grounds.
Recent events in Europe, from the cartoon crisis in Denmark to the controversy over the construction of minarets in Switzerland, have brought the status of Islam in the secular public sphere to the forefront of European political debates. The consequences of these debates can be seen in a hardening of the boundary between what is public and what is private, as many assume that religion generally belongs to the private sphere. Collective views in Europe have come to dictate that any claim or expression in public space deriving from religious beliefs be seen as illegitimate. As Jürgen Habermas has noted, the liberal vision of a secular public sphere imposes a special burden on the shoulders of religious citizens. Many believers, however, would not be able to undertake such an artificial division in their own minds between their religious beliefs and their civic commitments without destabilizing their existence as pious persons.
In my opening post, I suggested that a second assumption underpinning the Chicago Report is that American foreign policy should more effectively engage with and support the “good Muslims.” In this post, I seek once again to consider the coherence and plausibility of this prescription. Is it really true that you can read people’s political behavior from their religion or culture? Again, as Mamdani asks, “Could it be that a person who takes his or her religion literally is a potential terrorist? And only someone who thinks of the text as not literal, but as metaphorical or figurative, is better suited to civic life and the tolerance it calls for? How, one may ask, does the literal reading of religious texts translate into hijacking, murder, and terrorism?”
This raises the complex question of what, in the words of Saba Mahmood, “constitutes religion and a proper religious subjectivity in the modern world,” and how such a conception relates to the language and normative structure of religious freedom in international law and politics. It is not possible here to address the details of such a complex set of issues, but let me offer just a couple of observations and lines of inquiry for future thought and discussion.
In my previous post, I suggested that one of the latent assumptions underpinning the Chicago Report is that terrorism is “religion-based,” i.e., that there is a necessary (although unexplained) causal link between Islam and Islamic extremism. In this post, I seek to consider the coherence and plausibility of this assumption.
Consider again story of the bombing of the Golden Mosque in Samarra. In using this example to illustrate American ignorance of the role of religion in acts of terrorism, the Chicago Report is curiously silent about one salient fact: that the U.S. is militarily occupying a Muslim country, which, following its earlier intervention and continuing presence in Afghanistan, it has unilaterally invaded in violation of both the UN Charter and international law. The report is similarly silent on the fact that the U.S. project of “occupation as liberation” violates the occupatio bellica (the international law of occupation), which restrains the occupant’s authority to unilaterally transform Iraq’s political order.
In light of the recent news that Justice Stevens will be retiring, the New York Times Week in Review notes that he is the sole Protestant on the Supreme Court.
I read the Chicago Council Task Force Report, “Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy,” as a student of the history and politics of international law. From this perspective, the report evokes Immanuel Kant’s famous denunciation of Grotius, Pufendorf, and Vattel in his 1795 essay Toward Perpetual Peace as the “sorry comforters” of the law of nations. For Kant, the principles and doctrines of the early modern natural lawyers not only lacked all “legal force” in restraining the belligerence of nation states, but, by appropriating the voice of international legality to the interests of power rather than right, they were ultimately apologists for such belligerence. Kant accordingly denounced these juristic advisers to historical states as “political moralists,” who, by basing their conceptions of justice on the political governance of conflicting interests in an attempt to humanize relations between warring nation-states, subordinated principles to ends and became thereby accomplices to war, imperialism, and colonialism.
The San Francisco Chronicle reports that the Ninth U.S. Circuit Court of Appeals in San Francisco has ruled that the words “under God” in the Pledge of Allegiance are not an unconstitutional endorsement of religion. If this doesn’t constitute religion, then what does?
I applaud the Chicago Council on Global Affairs’ call for the U.S. government to recognize the pivotal role of religion in societies around the world and to engage religious communities in pursuit of American foreign policy objectives. The Council’s Task Force on Religion and the Making of U.S. Foreign Policy wisely recommends mandating diplomatic training in religious literacy to address the striking ignorance that often leads to foreign policy blunders and missed opportunities. The tensions within the Task Force, which Scott Appleby recounts, actually illustrate the misconceptions that bedevil what, by law and interest, should be a central thrust of engagement: the promotion of religious freedom as a universal human right. As one who closely observed the process that produced the International Religious Freedom Act of 1998, I can counter a number of such misconceptions.
Since the release last week of the Chicago Council on Global Affairs’ detailed and lengthy report (pdf) on the state of US engagement with religious communities at large, and its religious freedom agenda more broadly, there has been a sharp increase in attention to the role of religion in US foreign policy. The report itself argues that, because of the officially secular nature of US foreign relations, the government has failed to make connections with many countries in which the boundary between religion and affairs of state does not exist as such.
In his most recent Opinionator article at NYTimes.com, Stanley Fish comments on the epistemological and ontological assumptions made in discussions of secular law and action.
Very different from the mode of civil religion that I discussed in my previous post are the experiences of religious communities in South Africa. Anticipating the emergence of a constitutional state, religious communities, under the auspices of the South African chapter of the inter-religious group called the World Conference on Religion and Peace (WCRP), began to position themselves for the emerging new political order. Careful observation of the way the religious sector itself defined religion, and of how that notion was grafted onto the 1996 Constitution, will help to illuminate the discussion. “Religion” was defined in the Declaration as “belief, morality and worship” in the recognition of a divine being, and/or in pursuit of spiritual development, and/or as a sense of expressing one’s belonging. In the pursuit of all of these rights and responsibilities, the religious communities bound themselves to an “expression of religion [that] shall not violate the legal rights of others.” In so doing religious communities thus affirmed a form of religious freedom that was subject to the surveillance of the law. Religious rights were to be circumscribed by an authority outside of religion.
At the OUPblog, Martha Nussbaum suggests a Constitutional parallel between religion and sexual orientation.
In The Times, Douglas Murray opines on the foothold Islamic law has gained in British public life and explores how the emergence of Muslim Arbitration Tribunals and the growth of Shari’a-compliant finance may affect British national identity and the rule of law in the UK.
It is hard to disagree with the main arguments of Abdullahi an-Na’im’s impeccable book: a healthy religious life requires a secular state, even as political life may remain infused with the religious values of the population. And the historical examples provide added credence to the point. An Islamic state as such never existed historically, even though pre-modern states cannot be regarded as secular in the contemporary sense of the word. But there has never been a state in Islamic history that fused entirely religious and political authority after Muhammad, and it is far from obvious that Muhammad’s own Medina community constituted a state or was meant as a model for any state. […]