‘The Study of Law and Religion in the United States’, John Witte

John Witte is the Director of the Centre for the Study of Law and Religion at Emory University. Emory is known for its robust scholarship in Law and Religion studies, with Witte as a great contributor. Find a select bibliography and more information about Witte at: http://law.emory.edu/faculty-and-scholarship/faculty-profiles/witte-profile.html. 

The following are excerpts from an article that traces Law and Religion scholarship and its development in the United States. It is clear that the American scholarship in this area is quite overwhelming. This made me wonder what the state of Law and Religion Scholarship is in my own country of Australia, and it appears to be quite the opposite. Australia seems to still be questioning the legitimacy of intersecting law and religion, which does make sense when it is considered that we have had a not too dissimilar mindset from American jurisprudence regarding separation of Church and State. Witte follows the degeneration of the wall of separation for his own society, which calls to question whether similar legal traditions, i.e. Australia, may follows suit.

All in all, an article worth reading as it serves as a great introduction for people who are wanting to venture into the nuances of this scholarship, and for those looking for areas that call for further research. It also serves as a dose of perspective, calling us in our different religious traditions, to approach each other with deep reverence instead of with unease and contention, so that we would not miss the opportunity to deepen our understanding, and our relationship with God. 

Witte, John ‘The Study of Law and Religion in the United States: An Interim Report’ (2012) 14 Ecclesiastical Law Journal 327-354

  • This study [of Law and Religion] is predicated on the assumptions that religion gives law its spirit and inspires its adherence to ritual and justice. Law gives religion its structure and encourages its devotion to order and organisation. Law and religion share ideas as fault, obligation and covenant and such methods as ethics, rhetoric and textual interpretation. Law and religion also balance each other by counterpoising justice and mercy, rule and equity, disciple and love.

  • Every major legal tradition has known both theonomism and antinomianism – the excessive legalisation an the excessive spiritualisation of religion. Every major religion has known both theocracy and totalitarianism – the excessive sacralisation and the excessive secularisation of law. But many scholars argue that the dominant reality in most eras and most cultures is that law and religion relate dialectically. Every major religion tradition strives to come to terms with law by striking a balance between the rational and the mystical, the prophetic and the priestly, the structural and the spiritual. Every major legal tradition struggles to link its formal structures and processes with the beliefs and ideals of the people.

  • How do legal and religious ideas and institutions, methods and mechanisms, beliefs and believers influence each other – for better and for worse, in the past present and future? These are the cardinal questions that this burgeoning field of study has set out to answer.

  • In the 1960’s and 1970’s, American universities were still in the thrall of the secularist hypothesis that the spread of Enlightenment reason and science would slowly eclipse the sense of the sacred and restore the responsibilities of the superstitious… In this same period, American law schools sat comfortably in the embrace of a legal positivist philosophy that viewed law as an autonomous science which had no place for religion, morality, or any other non-legal perspective. And the Unites Dates’ Supreme Court was hard at work building up a ‘high and impregnable wall of separation’ between Church and state and striking down laws that did not have a ‘secular purpose’ or primary secular effect.

‘From Legal Positivism to Interdisciplinary Legal Study’

  • Nineteenth century American jurists set out to create a method of law that was every bit as scientific and rigorous as that of the new mathematics and new physics. This scientific movement in law was not merely an exercise in professional rivalry. It was an earnest attempt to show that law had an autonomous place in the cadre of positive sciences, that it could not and should not be subsumed by theology, philosophy or political economy.
  • The international human rights movement of the 1950s and 1960s pressed the law to address more directly the sources and sanctions of civil, political, social, cultural and economic rights… By the early 1970s, the confluence of these and other movements had exposed the limitations of a positivist definition of law standing alone… Of course, they said (in concurrence with legal positivists) that law consists of rules – the black-letter rules of contracts, torts, property, corporations and sundry other familiar subjects… But law is much more than the rules of the state and how we apply and analyse them. Law is also the social activity by which certain firms are formulated by legitimate authorities and actualised by persons subject to those authorities. The process of legal formulation involves legislating, adjudicating, administering snd the conduct by legitimate officials. The process of legal actualisation involves obeying, negotiating, litigating and other conduct by legal subjects. Law is rules, but it is also the social and political processes of formulating, enforcing and responding to those rules.

‘From Strict Separation to Equal Treatment’

  • As legal positivism declined after the 1970’s, the wall of separation gradually crumbled, too.
  • Religion must be ‘a concern purely between our God and our consciences’, he [Thomas Jefferson] wrote in 1802. Politics must be conducted with a ‘wall of separation between church and state’. ‘Public religion’ is a threat to private religion and must thus be discouraged. ‘Political ministry’ is a menace to political integrity and must thus be outlawed. Religious privatisation is the brain we must strike to attain religious freedom for all… Clerics need to stick to their specialty of soul craft rather than interfere in the specialty of statecraft.
  • On the religion side of the wall of separation, the First Amendment provided religion with ample protection. On the political side of the wall, however, religion could not depend upon the state’s patronage.
  • The Court has several times upheld government policies that provide religious parties and nine-religious parties with equal access and equal treatment in public activities, forums, facilities and funds… Collectively, these cases have shifted the centre of gravity of the First Amendment religion clauses from separationism and secularisation to equal treatment of public and private expression.
  • A second common theme to these cases is that the freedom of religion sometimes requires the support of the state. Today’s state is not the distant, quiet sovereign of Jefferson’s day, from whom separation was both natural and easy. The modern welfare state, whether for good or ill, is an intensely active sovereign, from whom complete separation is impossible.

  • The final theme common to thee cases is that the freedom of public religion does not mean the establishment of a common religion… All religious voices, visions and values, in all their denominational particularity, have the right ro be heard and deliberated in the public square.
  • The rise of the so-called Christian right should be met with the equally strong rise of the Christian left, of the Christian middle and of many other Jewish, Muslim and other religious groups who test and contest its premises, prescriptions and policies. That is how a healthy democracy works. The real challenge of the new Christian right is not to the integrity of American politics but to the apathy of American religions. It is a challenge for peoples of all faith and of no faith to take their seat in public debate.
  • Today, easy claims of neutrality and objectivity in public and political argument face very strong epistemological and constitutional headwinds. 

‘The Main Themes of American Law and Religion Scholarship’

With names 10:

  1. by far the largest body of law and religion scholarship is devoted to the American Law of religious freedom… the law of the First Amendment, as interpreted and applied by the federal courts. 
  2. The study of comparative and international laws of religious freedom and of the religious sources and dimensions of human rights... catalysed further by the Supreme Court’s new use of international norms to help make constitutional judgements. 
    • A central question animating this literature is whether human rights are a universal good of human nature or a distinctly Western (Christian) invention that has to easy resonance in other cultures with different founding beliefs and values. If human rights are truly universal, what other formulations besides those routes in Western philosophy, theology and culture need to be incorporated? 
    • If religious freedom is not distinctive, how do core claims of conscience or central commandments of faith get protected when they run contrary to the cultural mainstream or majoritarian rules? 
  3. The growing call by selected Muslims and other religious minorities to opt out of the state’s family law system and into their own religious legal systems.
  4. The place of faith-based family laws in Wester democracies – points to a larger question about the overall place of religious legal systems in Western democracies and the forms and functions of law within organised religious bodies. 
  5. The influence of world religions on the secular legal systems around them, both historically and concurrently.
  6. The historical influence of Christianity on the Western legal tradition
  7. Natural Law theory
  8. …natural law arguments often inform a related area of continued importance… The topic of legal ethics, both by itself and in comparison with theological ethics, business ethics, medical ethics and more.
    • What does it means to be a Christian, Jewish, Muslim, Hindu or Buddhist lawyer at work in a secular legal system? 
  9. The last question about the place of teh religious believer in the legal professions – has raised the broader question of The place of overt religious arguments in legal discourse altogether.
    • This is in part an epestimological question: whether legal and practical argumentation can and should forgo religious and other comprehensive doctrines in the name of rationality and neutrality. 
    • welcoming serious public deliberation by people of all faiths imposes its own strong demands. It demands that these faith communities develop a clear conceptual bilingualism: the development of a public language that casts deeply held convictions into tears that others, with different faith assumptions and experiences, can understand and accept, even for their own reasons. It demands deep and sincere empathy: learning to appreciate the deep convictions and cardinal practices of the other, even if only by distant analogy; that is the Golden rule. It demands long and respectful patience: spending the time to listen and to deliberate every serious position before rushing to cultural, constitutional, or political judgement. And it demands unswerving commitment of all parties to the first premises of American constitutional democracy. 
  10. The overlaps between legal and theological interpretation, translation and hermeneutics.

‘The Distinct Challenges of Christian Jurisprudence’  

  • This comparative and co-operative inter religious inquiry into fundamental issues of law, politics and society needs to continue – especially in our day or increasing inter religious conflict and misunderstanding.
  • A first challenge us for us western catholics and protestants to make room for our brothers and sisters in the eastern Orthodox Christian tradition.

    • At the very least, it would be wise for us Westerners to lay aside our simple caricatures of the Orthodox Church as a politically corrupt body that is too prone to clerical indiscipline, mystical idolatry and nominal piety to have much to offer to a legal regime… It would be wise to hear what an ancient Church, newly charred and chastened by decades of oppression and martyrdom, considered essential to the regimes of religious rights… It would be instructive to listen to how a tradition that still celebrates spiritual silence as its highest virtue might recast the meaning of freedom of speech and expression.
  • make those modern Christian teaching on law, politics and society more concrete. In centuries passed… they produced massive works of political theology and theological jurisprudence, with ample handholds in catechisms, creeds and confessional books to guide the faithful. Some of that sophisticated legal and political work still continues in parts of the Christian Church today.

  • The Church needs to re-engage responsibly with the great legal, social and political issues of our age and to help individual Christians participate in the public square in a manner that is neither dogmatically shall nor naively nostalgic but fully equipped with the revitalised resources of the Bible and the Christian tradition in all their complexity and diversity.
  • for modern catholic, protestant and orthodox Christians to develop a rigorous ecumenical understanding got law, politics and society. This is a daunting task.

  • A final challenge, and perhaps the greatest of all will be to join the principally Western Christian story of law, politics and society known in North America and Western europe with comparable stories that are told in the rest of the Christian world. Over the past two centuries, Christianity has become very much a world religion, claiming some two billion souls… In some of these new zones of Christianity, the Western Christian classics are still being read and studied. But rich new indigenous forms and norms of law, politics and society are also emerging, premised on very different Christian understandings or theology and anthropology.





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