Today concluded a conference at Seton Hall Law School entitled Religious Legal Theory: State of the Field, defly organized by Professors David Opderbeck, Angela Carmella, and John Coverdale. It was a wonderful chance for a whelp like me to see what wise souls coming from traditions ranging from Christianity to Judaism, to Hinduism, to Buddhism, to Islam, all thought was the locus of ‘the action’ in this budding area. Co-guest blogger Rob Vischer’s talk was especially thought provoking (see his Mirror of Justice post for a recap) as was John Nagle’s discussion of “spiritual harms.” And (if I may be humored a little institutional plug) my colleague Mark Movsesian’s exposition of the differences with which Muslims and Christians view the role of religious law within their respective faith traditions was ineffably lucid and insightful. Mark has an uncanny gift for making inordinately complex things crystal clear and deeply interesting.
There was some discussion at the conference about “Christian Legal Theory” — whether it is a “movement” or a “school” and whether it ought to be those things (cf. Law and Economics and Critical Legal Studies). David Skeel described the scholar who is engaged in this sort of work as one whose normative project is influenced by Christian thought or traditions and who also engaged with secular scholarship. So I suppose a “religious legal scholar” would be one whose normative scholarship is similarly influenced by religious thought or traditions. This got me thinking in my own presentation: What is the nature of a religious legal theory anyway? What makes it a religious theory?
My own view is that to ask whether a theory is religious is tantamount to asking whether a theory is political, or philosophical, or historical. There are undoubtedly the influences of religious legal thinkers in my writing (as well as many others). And it is certainly true that my writing engages with secular thought; indeed, were I forced to describe it, I would characterize it as belonging to that genre, though I would never choose to describe it in those terms. So I suppose I write religious legal theory. But what of it? Does thinking about one’s work within the category “religious legal theory” change it in any way? Perhaps it functions as a kind of signaling device?
I wonder if Professor Winni Sullivan is not onto something, when she writes in terms of the “impossibility of religious freedom,” or that the Establishment Clause is in need of a “requiem,” or that “we are all religious now.” Is it time, at least for legal scholars, to throw off the albatross of self-consciousness, to acknowledge their influences without worrying too much whether those influences are properly characterized as religious or non-religious, or something in between?
I am of two minds on this question. There is something important about this particular albatross, something that perhaps needs special and self-conscious acknowledgement and recognition. But I also wonder whether the naturalization of religion in legal scholarship would not be a positive development. So that if one is influenced by Pascal, or Maimonides, or Averroes, or Kuyper (Horwitz!), or whoever, that influence can simply appear as a seamless part of one’s work. Even if one were not prepared (as I am not) to agree with Professor Sullivan that religion ought to be completely “naturalized” for constitutional purposes, should we not agree with her on the academic front?
Posted by Marc DeGirolami on November 13, 2009 at 10:42 PM