Reflections on the Rise of Legal Theology

John L. Comaroff  

The natural law is promulgated by the very fact that God instilled  it into man’s mind to as to be known by him naturally. 
— Saint Thomas Aquinas, Treatise on Law 

I. 

Looking ahead toward the third millennium, Jubilaeum A.D. 2000, an or­gan of  the Va­ti­can, carried an essay by Giuseppe Dal­la Torre (1998), a leading Catholic  intellectual. Entitled “A Strong Moral Con­s­ci­en­­ce for a Cul­ture of Lega­li­ty,”¹ it was  an ex­ten­d­ed reflection, from a theological perspective, on the law—specifically,  on its gro­w­ing he­ge­mony. Dalla Torre’s argu­ment need not detain us here: he makes a rather conventional case for jus­ti­ce over the jural, for collective duty  over in­di­vi­dual rights, for the recog­ni­tion of social responsibility. Noteworthy,  how­ever, was what he had to say ab­out the views of the pa­pacy on jurispru dence, tout cou­rt­­­­, at the dawn of the new cen­tu­ry. John Paul II, by his ac­count,  was deeply concer­n­ed to “underline the ur­gen­cy of a culture of legality,” high lighting how “neces­sa­ry [it is] abo­ve all to develop a sensi­ti­vi­ty and a prac ticality” toward the law. Why? Be­cause a new “chap­ter of ju­dicial ex­pe­ri­ence  has been open­ed”—the translation from Italian, alas, is clumsy—a chapter in  which hu­m­an beings “cla­mor” for “emancipation [through] rights,” notably  the “rights of desire.” Ours is an age, intima­t­ed Dalla Tor­re, in which hu­ma­nity  knows itself increasingly by virtue of those rights.  

Take note that Dalla Tor­re is not referring to ‘rites’, as we might expect from  the heart of global Catho­li­cism, but ‘rights’. In fact, this age appears to be one in  which the two, rites and right, conjoin in parallel significance as never before.  Faith and the law, ar­gu­ably, are the twin fi­x­a­­tions of this-world­ly being all  over the place­­­ nowa­days, some­times unex­pec­­­t­edly so. For In­di­ans in Trinidad,  according to Aisha Khan (2007: 142f.), the con­s­truc­tion of a South Asian “diasporic sensibility”—more ge­nerally, of a viable social iden­tity—has de­p­ended  on es­­tablishing “the propriety and authenticity of religious prac­­tice” by means  of a poli­tics of recognition “that translate[s] into rights.” In other words, here,  as in many other con­texts, “the discourse of rites is elemental to the dis­course  of rights” (ibid.: 144), and vice versa. Ours may not yet be an epoch of fully  realized theoc­ra­cy, al­though there are plen­ty who would pre­fer that it were,  plenty who seek to make it so, plenty of theocratic enclaves emerging across the  global map. But it is one of theo-legality.² Pace Carl Schmitt, it is not just ab­out  po­lit­ical theo­lo­gy that we ought to be ve­x­ing ourselves­­. It is also about le­gal theo­lo­gy. No wonder, then, that the ‘historic’ process by means of which South  Afri­ca marked its pas­­­s­a­ge from the apartheid past to the post-­co­lonial present,  by which it en­ac­ted its re-Ge­nesis­­, was a Truth and Reconci­lia­tion Commission  that fused the ri­tual prac­ti­ces of reli­gion and law, the confession and the confessional (cf. Bozzoli 1998; Wilson 2000: 80)—or, more accu­ra­te­ly, their si­mu­­la­cra.  By those means, the pro­fa­ni­ties­ per­pe­­trated by the ancien ré­gi­me were re­com missioned to sacra­lize a new national ima­g­i­ning, a new de­mos, a new so­ver­eign future—a new moment of Constitution, in all senses of the term. Dalla Torre’s (1998) faith-based reflection on the “culture of legality” gestures  toward a very general phenomenon: the rising salience of the law—at once  as ideology, as spe­­cies of practice, as utopic cure-all, as landscape of political  struggle, as instru­m­ent of governmentality—with chan­­­ges in the global order of  things that are oft­en loosely glos­sed under the label ‘neo-liberalism’. Elsewhere,  Jean Comaroff and I (2006, 2009a), like oth­ers, have sought to make sense of its  symptoms, which include the following: (1) the tidal wave of na­tional constitu tions (re)writ­ten since 1989, with their stress on the rule of law and on poli­ti­cal,  eco­no­mic, social, even cultural rights; (2) the emergence of new, ex­pan­sive  forms of “trans­­na­tional le­gality” and of legally oriented NGOs (Schneider­man  2006: 387f.; cf. De­zalay and Garth 1996, 2006­­­­); (3) the rapid growth of a global  intellectual property regime that greatly extends re­ceived forms of copyright and re­­cognizes the en­titlement of indi­genous peo­ples to pro­­fit from their ver­nacular  know­led­ge (Coom­be 1998, 1999); (4) the ju­dicia­liza­tion of poli­tics (cf. Cha­n­ock  2000: 34), its rendering into ‘law­fare’; (5) the rising, wor­ldwide “hege­mony of  hu­m­an rights” (Klug 2005: 85) and every­day “legal cons­cious­ness” (Ewick and  Silbey 1998), not least among recent social movements (McCann 2006); and,  most of all, (6) the re­sort to liti­ga­tion to deal with an ever broader spec­t­rum of  everyday mat­­­ters, such as the vio­lation of bodies and inti­ma­cies, the dispo­sition  of commo­di­­ties and imple­mentation of public po­licy, and the determination of  life and dea­­th. In­deed, in many pla­c­es, including those where it is brok­en with  impu­ni­ty, its spi­rit bru­ta­li­zed­, its means and ends misap­p­ro­­pria­t­ed, the law app ears more and more as a fet­ish—an abstraction made real, ascri­b­­ed a life force of  its own, and attri­bu­t­ed the my­th­ic, nu­­minous capaci­ty to con­­fi­gure re­la­­tions and  tran­s­­actions in its own im­a­ge. In 2000, for ex­ample, soon after the Pu­tin ad­mi­ nis­t­ra­­tion rose to power in Rus­sia, it de­c­lar­ed it­self a ‘dicta­tor­ship of law’, os­ten si­b­ly to counter the chaos­­ of the Yelt­sin years. The na­­­ture of that dic­­ta­tor­ship is  the subject of contro­ver­sy, lar­gely be­cause, like other re­gimes from A to Z (Am­e rica to Zim­bab­we), it is erect­ed on a sys­tematic ord­er of ‘lega­li­z­ed illegali­ties’.³ But the use of the phrase itself be­s­peaks a po­li­ti­cal semiosis, not to men­­tion an extrac­tive eco­nomy, founded on the fe­tishism of the jural (cf. Rigi n.d.).  It goes without saying that modern secular law, born of the separation of  lex na­tu­­rae from lex dei, has always had the quality of a fetish and, as Saint  Thomas Aqui­n­as (n.d.) noted of all ‘natural law’,⁴ sacral underpinnings: vide Benja­min’s (1978) critique of the divine violence at its originary core, or Derri da’s (2002) ana­ly­sis of the mys­­tical foundation of its authority in his Acts of Reli gion, or Ag­amben’s (1998) con­cern to find the key to power in the trian­gulation  of sovereignty, the sacrifi­cial, and the juridi­cal—although all three of them  apprehend ‘the law’ in narrow terms, eli­ding it with go­ver­nance in general and  enforcement in particular. Its enchantment in the here and now also takes less  dramatic, more ca­­pillary forms. When, for instance, Bruce Ackerman (1997: 2,  5) speaks of “faith” in constitutions “sweeping the wor­ld” (cf. Klug 2000), his  choice of term is apt. Patent in many places is an al­most mil­len­nial be­lief, a  be­lief of theological proportions, in their capacity to con­jure up equitable poli ties, to make habitable societies, to secure the foundations of mor­al, material,  mortal being; a “belief in the im­pos­­si­ble,” as Danilyn Rutherford (n.d.) puts  it, speaking of secular en­chantments elsewhere. During the 1990s, in the rural  North West Province of South Africa, poc­ket ver­sions of the Bill of Rights— print­ed, Mao-like, as a lit­tle red book—were to be found in many homes, often  shel­v­ed along­side the Bible. Although lar­ge­ly ba­bel, its Setswana trans­la­tion  poor to the point of impenetrabili­ty, it had ta­ken on a sal­vi­fic quality, a Book  of Re­ve­lations for after-the-re­vo­­lu­­tion. Across the glo­­bal South, in fact, consti tutions and con­s­titution­a­lism sa­tu­rate many domains of daily life. Numerous  chur­­ches and NGOs have their own ver­­sions,⁵ as do tribes and chief­doms,  ethnic cor­po­rations, voluntary asso­cia­tions, even vi­gilante organi­za­­tions, taxi  drivers, and street gangs (J. L. Comaroff and J. Co­ma­roff 2006: 22–34).  Just as constitutionalism has taken on numinous proportions in many  places, so, reciprocally, do twenty-first-century national constitutions tend, if by implication, to recognize the growing salience of faith­. In contrast to the  past practice of erecting a Jef­fersonian ‘wall of separation’ between chur­ch  and state, barring any ma­ni­festation of religion in the real­ms of govern­ment,  many now offer equal protection to all creeds, allowing them full access to the  public do­main—provided that they are not coercive or openly exclusion­a­ry.⁶ 

All this un­der­scores yet more deeply the counterpoint of rites and rights and its  in­s­cription at the very core of national imaginaries. Even in America, the home  of constitutional fundamental­ism, there have been populist efforts to under mine the Jeffersonian wall. The administration of George W. Bush deliberately  did so, a point to which we shall re­turn. And when he ran as a De­m­o­cratic  vice-presidential can­di­date in 2000, Joseph Lieberman, a Jew, argued that the  US Bill of Rights can and shou­ld be read to gua­­ran­tee­ freedom of religion, not  free­d­om from reli­gion, and that therefore all bar­riers between faith and the  functions of go­ver­n­ance ought to be torn down forthwith.⁷ Lieberman’s argu ment re­­sonated widely with public opinion. That the judiciary is best staffed by  citi­zens of de­­mon­s­trated con­­­viction— spiritual conviction, that is, not criminal  convictions, ones born of penitence not borne in a penitentiary—has become  common cause ac­ross much of America.⁸ 

Re­call the notoriously­ troubling case of Ter­ri Schiavo, a car­di­ac-arrest pa­tient  who fell into a per­sis­t­ent vegetative state in 1990 and was kept alive by fee­d­ing  tube until March 2005 (see J. Comaroff, this issue). In 1998, eight years after  the onset of her condi­tion, Schiavo’s husband Michael peti­tio­ned successfully  to have her life sup­port ter­minat­ed, an ac­­tion bit­terly con­tes­ted by her Catholic  parents. The dispute, itself compli­ca­ted by financial interests on all sides, went  through repeated law suits and app­eals, all the way up to the US Supreme  Court. The Repub­lican-domi­na­ted State of Florida and the US Con­gress passed  legislation in ef­f­orts to pre­vent the re­m­o­val of the tube, but to no eff­ect. More  than 20 hearings found in favor of Mich­ael Schi­­a­vo, des­pi­te the shrill, mus­­­­cular demands of pro-life activists and politicians. Even the pope got in­­vol­v­ed.  When, in the end, Schiavo­­ died, evan­ge­li­cal Christians spoke darkly of im­ pea­ch­­­ing the jud­ges who had sanctioned­ her ‘kill­ing’. Tom De­Lay, the senior  Re­pub­li­can in the House of Represen­ta­tives, threatened them in terms dis­tinctly  theo-legal: “The time will come for the men re­spon­sible for this to an­s­wer for  their beha­vior.” It was broadly intimat­ed that the jud­ges would be replaced by  men of true faith. Not long be­fore, DeLay had told a group of con­servatives that  “God had giv­en Schi­­­avo to America to highlight the need to fight for a ‘cul­ture  of life.’”⁹ The ‘spirit of the law’, os­ten­sibly the ultimate ex­pres­sion of secu­lar  mo­dernist reason, has been subjec­t­ed to sus­­­tai­n­ed ef­f­orts to infuse it with a  spi­rit of an al­to­gether different, less secular, less ration­a­list sort. 

II. 

But I am getting ahead of myself. Among the many manifestations of the grow ing feti­shism of the law, one is par­ti­cu­larly sig­ni­ficant for present purposes:  the ten­dency of populations de­fi­n­ed by, among other things, faith, culture, gender, se­xu­al pre­­fe­r­en­ce, race, residen­ce, and hab­its of con­sump­tion to turn  to jural ways and means in order to construct and represent themselves as  ‘communities’. In doing so, they strive to protect their physical, intellec­tual,  and other property; to regu­late their in­ter­nal af­f­airs; to police their boun­­daries; to claim recognition and redress; and to mana­ge their re­­la­tions with the  wor­ld out­side. In sum, they seek to constitute their being-in-the-world—in the  hyphenated socio-legal sense of the term ‘constitution’—under the vernacular  sign of ‘identity’. This, Jean Comaroff and I have ar­gued (e.g., see J. Comaroff  and J. L. Comaroff 2003), is in large­ part a corollary­ of the­ un­folding history of  the na­tion-state, more precisely, of two of its con­tem­po­r­a­ry features, working  in tandem with each other.  

The first is a palpable shift in populist conceptions of nationhood from one  founded on cultural homogeneity and “horizontal fraternity” (Anderson 1983),  itself always more an imaginative fiction than a palpable fact, to one that recog nizes its own heterogeneity, if often for pragmatic rather than ethical reasons.  If often, also, reluctantly. That hete­rogeneity has been exacerbated greatly by  the global circulation of labor, the con­t­ra-­flow of post-colonial populations to  the metropole, the transnationali­za­tion of cultural commodities and practices,  and other cognate processes. And it has inserted itself into the implosive poli tics of difference that has gained momentum stea­dily since the late twentieth  century—a po­litics that fre­quently leads to more or less ag­g­res­sive, more or  less comprehensive claims to sover­eign­ty in the name of identities of various  sorts; by ‘sovereignty’, I refer to the assertion of con­t­rol over the con­di­tions of  ex­is­­­­­tence, even the lives and deaths, of those who fall wi­th­in its pur­­view and  the ex­ten­sion over them of the juris­dic­tion of a nor­ma­tive order of one kind or  another (cf. Han­­sen and Steppu­tat 2005; J. L. Co­ma­roff and J. Comaroff 2006).  Ideology (the -ology of the idea) has given way as a basis of mobilization to  ‘ID-ology’ (the -ology of iden­tity) as the primary ba­s­is of poli­tical subjectiv ity—and, with it, to a species of ‘fractal’ citizenship in which na­tion­hood is not  so much repudiated as relativized (J. Comaroff and J. L. Comaroff 2003).  

The second contemporary feature of the nation-state is closely related. It  derives from the out­sourcing of many of the ope­rations of go­vernance with  the rise of the neo-liberal state. Most of those ope­ra­tions have been fran­chised  to firms in the private sector­, but many have also been de­re­gulated and displaced into that amorphous socio-scape, ‘the community’, including those  very ‘communities’—the scare quo­­tes are meant to convey the fact that this  ab­­­stract noun covers a distinctly polymorphous so­ciolo­gy—that seek to pro vide their subjects with an alter­native citizenship, a parallel rule of law, and  a secure, orderly so­cial eco­lo­gy. With neo-­liber­al nation­hood having to admit  ever increas­ing hetero­do­­xy, ontological other­ness­ is widely in­voked these days  to make claims to sovereign self-regulation, all the more so where post-1989  constitutions give explicit recognition to di­versity. For their part, states tend  to re­gard such so­ver­eign­ties with ambivalence. Those that contend in the  economy of vio­l­en­­ce or spill over in­to polite, proper­tied society are likely to  be cri­mi­­na­liz­ed—or re­com­­mis­sio­n­ed—by go­vernment, if it has the capa­city  to do so. Others may be tolera­ted, particularly if they limit themsel­ves to the ‘private’ sphere, which, ac­cor­ding to libe­ral modernist po­li­tical theory­, is the  domain in which dif­feren­ce ought to express itself. For exam­p­le, according to  Fernanda Pi­rie (2006: 78–79, 93), Ti­be­­tan pasto­ra­lists are fiercely pro­­tec­tive of  the divinity of their ances­tors and the au­tonomy of their cul­­tu­ral patch when  it comes to mana­g­ing in­ter­nal affairs, but they defer volun­ta­rily to the Chi­nese  au­th­o­rities in matters of criminal violence. It is an arrange­ment with which  both sides appear to live comfort­a­b­ly. But the appeal to the autarky­­­­ of faith or  cul­ture against govern­ment does not always stop at this felicitous border, at the  border of disorder. 

III. 

In re­cent times, the kinds of ‘community’ that have become most assertive  of sovereignty are arguably those ba­s­­ed on religious and/or cul­tu­ral dif ference: the kinds that refuse altoge­ther the an­ti­nomy bet­ween the pri­­vate  and the public; that in­voke in­t­ran­sitive, often intransi­g­ent, ontologies of  being-in-the-world; that are based, existen­ti­al­ly, on transcendent truths and  sacredly sanctioned life-ways of their own; that demand some measure of  self-governance­­­—the kinds, therefore, that have tend­ed to show the greatest  alacrity in looking to legal theology and theo-legality on which to found them sel­ves and their futures. This, perhaps, is why Pope John Paul II was so keen  to embrace a ‘culture’ of rights jurisprudence—and why faith seems to be tak ing more and more to the law. Keebet and Franz von Benda-Beckmann (2008:  86) refer to this pro­cess as the “juridification” of religion, by which faith aims  to remake the world in its own image. Not eve­ry­­where, nor always in the same  way, but palpably.¹⁰ Those creeds that bear the capitalized adjec­ti­ves ‘Great’  or ‘Wor­ld’ have deep juridical roots­­: the founding tes­ta­ments and texts, theo­­­ logies and iconographies, prophets and patriarchs of Ju­daism, Christianity,  and Is­lam are all heav­i­ly inscribed in legalities.­ ¹¹ For organiz­ed reli­gion, in  fact, con­vic­tion has long been measur­ed by compliance with proscription and  pres­c­rip­­tion; sig­ni­fi­cantly, among the first acts of establishment on the part of  many ear­ly Afri­can Inde­pen­­­dent Chur­ches was to write a ‘Constitu­tion’, capi talized, since this is how mission Pro­­tes­t­an­t­ism presented itself to co­lonized  peoples (J. Co­ma­roff 1986).¹² This had local resonances: ver­na­cular faiths in  Africa were also groun­d­ed in le­ga­li­ty, albeit in an­ces­trally sourced cus­to­mary  law; customary law, that is, in the techno-jural, not the colo­nially bastardized,  sense of the term. What app­ears dif­ferent nowa­days is the degree to which  all faiths are resorting to lawfare to pro­tect their sove­r­eignty, to ex­tend their  imperium, and, not infrequently, to challenge liber­al reason—albeit often by  libe­ral means (cf. J. Comaroff, this issue). Potentially, as we shall see, with  world-historical conse­quen­ces. 

Take orthodox Islam. In the predominantly Muslim nation-states of the  world, re­cent political battles over their ideological character have been con ducted largely in terms of competing species of Islamic constitutionalism,  which has a long and excep­tio­n­al­ly complex history dating back to the second half of the nineteenth century. In the twenty-first century, Arjomand (2007:  136–137, passim) explains, a constitutionalism bas­ed on Sharia, in which  go­vern­ment exists primarily to implement divine law (typically asso­ci­a­ted with  nation-states such as Iran, Pa­kistan, and the Sudan), faces a “post-ideological” con­sti­tu­tionalism (typified by Egypt) in which Sharia is just one source  of a jurispru­den­ce that “ac­cepts demo­c­racy and … legal modernization­­” as  well as “other consti­tutio­n­al prin­­ciples” (cf. also Agrama 2005, n.d.).¹³ The  struggle for the fu­ture of the nations of the Islam­ic world, a struggle hardened  in recent times by “Islamic resurgence … and the per­sis­ten­ce of authoritarian  regimes,” Arjomand (ibid.) suggests, depen­ds on this legally mandat­ed dif­ference; in short, on different and opposed cultures of legality. Even in Egypt,  where Sharia is subordinated to a secular jurisprudence, “the law has become  a fundamental site of Islamic argumentation and practice,” to the ex­tent that  “contem­po­ra­ry attempts by Egyptians to reassess the role of Islam in their  lives, both personal and political, cannot avoid taking legal conditions into  account” (Ag­rama 2005: 51). According to a recent mass-me­diated account  (Feldman 2008b),¹⁴ a great number of Egyptians—66 percent, like 60 percent of  Pa­kis­tanis and 54 percent of Jor­danians—“say that Sha­ri­a ought to be the only  source of legis­la­­tion in their [country],” a country in which the Mus­lim Brotherhood, whose credo opens “Allah is our objective, the Qur’an is our constitu tion,” is the largest opposition bloc in Parliament. “For many Muslims today,”  Feld­man (ibid.) notes, “the call for Sharia is [a call] for an Islamic version of  what the West consi­d­ers its most prized principle of political jus­ti­ce: the rule of  law.” Even in Turkey, with its long history of Kemalist secularism, “new Islamic  move­ments”—themselves increasing­ly popular, increasingly pious—have been  said for a while to harbor “a secret agen­da to take over the state and enforce  Shariah” (Walton n.d.: chap. 1; cf. Esposito 1996; Ya­v­uz 2003).¹⁵ There are  signs pointing in this direction: in July 2008, the ruling Islamist AK Party, along  with the prime minister, the president, and 69 other leading figures, stood accu s­ed before the country’s Constitutional Court on charges of having subverted  the law of the land by fostering anti-secularist activities.¹⁶ This occurred after  the Court had enacted legislation to lift a ban against wearing headscarves on  university campuses. 

It is no wonder, then, that efforts to ex­tend the dominion of both the faith  and the faithful in nations currently not governed primarily by Sharia law— like those of the Sa­lafiy­ya move­­­ment in rural Morocco—­would pro­pa­gate a  “return to the roots of leg­al Islam and de­mand the re­organization of social  life according to [its] core prin­cip­les” (Tur­ner 2006: 115–116; see also Turner  n.d.). This is tendered as an alternative not merely to the more secu­lar vision  of the Moroccan government, but also to the “pagan neoliberal develop­ment  agenda” on offer from the West.¹⁷ “Islamist concerns” here “are expressed in  legal discourse,” their “ultim­ate aim [being] the establishment of the rule of  Islamic law” (Turner n.d.: 3) in a chal­len­ge to the secular state. Even battles  over women’s rights are being conducted in these terms, pitting the female  branch of the Justice Spirituality Movement, an Islamist group, against secular  feminists (see, e.g., Williams 2008). It is no wonder, either, that the capture of regions within non-Mus­lim countries by or­thodox Islam—northern Nigeria and  Aceh being ce­le­brated cases—has ex­pressed itself in the enthusiastic applica tion of Sharia law to the re­gu­lation of all real­ms of existence.¹⁸ 

The centrality of Sharia in the lives of Muslim populations out­side of Is­la­m­­ic  na­tion-states was drama­ti­cal­ly affirmed in ear­ly 2008 when, of all peo­­ple, the  arch­­bi­shop of Canter­bu­ry, Dr. Row­an Williams, sug­ges­t­ed that some mea­sure  of of­fi­cial re­cognition be given to it by the Bri­tish state for pur­pos­es of everyday  go­vernan­ce in pre­dominantly Muslim communities. This may be the first time  that a reli­gi­ous leader of Williams’s stature has called for the ac­ceptance of ev­en  partial sovereignty for an­other fai­th. Pre­­dictably, the statement sparked a bit­ter  con­t­ro­ver­sy. Said his pre­­de­ces­sor, Lord Ca­rey, “There can be no exceptions to  the laws of our land.”¹⁹ Williams appears to have anticipated such a response.  “[A]s a mat­ter of fact,” he noted, “certain pro­­visions of Sharia are already recognised in our so­ci­e­ty and under our law”—as they are in India and Egypt—to the  extent that their adop­tion had become “un­avoidable.”²⁰ He is probab­ly correct:  a Muslim culture of legality, itself a fusion of religion and juris­prudence with  deep roots, is asserting itself ever more vigo­r­ous­ly wherever Islamists live— often abetted by NGOs, such as Islamic Relief Worldwide, that ex­tend Islam’s  humanitarian reach.²¹ Perhaps this is why, as Susan Hirsch (2006: 165–166)  has ob­served, socio-le­gal scholarship on the topic has seen a noticeable rise in  re­ce­nt times, albeit one whose di­rec­tion was chan­g­ed by 9/11. A conse­quen­ce  of that mo­mentous moment, she adds, was to ensure that “the future of Islamic  law”—itself a “mo­­d­ern construction,” always “locally specific, in­tensely political, and richly varied” (Hus­­sin 2008)²²—“would be more highly politicized than  previous­ly” (Hirsch 2006: 166), not least because of its deep interpellation in  Islamic faith and its pro­pagation. Rites and rights, again. 

But it is not only the governance of everyday life that has caused Muslim  theo-legality to be evoked in assertions of sovereignty. The reli­gion itself is  being refram­ed in these terms. A dramatic instance is to be found in Pakistan.  It began in the mid-1970s, when the ulema, or­thodox religious authorities,  sought and won an injunction against the Ah­ma­dis, a move­ment they declared  to be heretical, to prevent this “sect” from using any of the Sha’ir (signs) of  Islam. These signs, they said, belonged solely to “pro­per” Muslims (Ah­med  2006: 19–24, 40–45). When the Ahma­dis appealed to the La­hore High Court in  1978,²³ coun­sel for the ulema again ar­gued “that Mus­lim-ness [is] the exclu­si­ve  pro­per­ty of Mus­­lims alone, that cer­­t­ain Muslim ter­minology [is] analogous to  co­py­­right and trade­­­marks,” and that their im­pro­p­er use is, therefore, “an infr in­ge­ment of the rights” of the faith­ful (ibid.: 21). On this occasion, the jud­ge  found ag­ainst the religious authorities on the tech­­ni­ca­l ground that they could  not show that a ma­te­rial loss had been in­cur­red (ibid.: 41). But 15 years later,  in 1993, in a Pakistan Su­p­reme Court case²⁴ that address­ed the con­sti­tu­­tio­nal  bases of Muslim identity, the same argument was accepted by a ma­jo­ri­ty of the  jus­tices.­ They argued that certain signs were not just distinc­tive cha­rac­teristics  and prac­ti­ces but “the exclusive proper­ty of Is­lam” (ibid.: 41–42). Thus was the  faith transformed “in­to property, something that could be own­ed, possess­ed  and bounded off from others” (ibid.), something whose true nature was vested in the law. In some contexts, as has been ob­served elsewhere (J. L. Comaroff  and J. Comaroff 2009a, 2009b), divinities may them­­sel­ves have a jural iden­tity.  In 1986, when the Indian govern­ment sued for the re­turn of a twelfth-century  bron­ze Shiva that had been looted from a village in Pathur, “it did so on behalf  of the offended god him­self,” who was the “named … plain­tiff in the case”  (Keefe 2007: 60–61; emphasis ad­d­ed). Thus does a deity, and the faith for  which it stands, be­come a legal per­son. The juridification of religion, to return  to the von Benda-Beckmanns’ felicitous phrase, has many faces. 

Contemporary Christianity is also interpellating itself into the law—and,  in doing so, into governance—in an effort to extend the reach of faith-based  sovereignty. This, too, has precedents: Protestant and Catholic missions have,  through­out their history, sought to create more or less closed, more or less  sovereign commu­ni­ties, thereby to exercise over their citizens an authori­ty at  once institutional and capillary. And the chur­ch, in its va­ri­ous de­no­minational  guises, has always taken pains to exert in­f­lu­en­ce on political so­ci­e­ty and the  state. But we appear to be seeing an acce­le­ra­tion, and an ac­cretion, of this  tendency—a tendency against which Nietzsche ([1973] 1990: 87) warned: “[I]t  costs dear and terribly,” he said, “when religions hold sway … in their own  right and as sove­r­eign, when they thems­elves want to be final ends and not  means” (original em­phasis). That desire is making itself manifest both in small  Christian move­ments and in large ev­an­ge­lical awa­k­e­n­ings across the planet.²⁵ Henning Mankell, the noted crime novelist and or­ga­nic anthro­po­­lo­gist of Sweden, writes of such movements in One Step Be­hind (2003), a fiction foun­d­ed  on an acute sociological reading of contempo­ra­ry Eu­rope. “No longer [are they]  simply cha­ris­matic,” he observes. “They are cor­po­r­ate fran­chises run by law yers and accoun­t­ants” (ibid.: 351), legal persons that strive to change the world  by means of le­gal ploys. The ex­tent to which this is true has been brought to  light in the US on an unpre­ce­den­ted scale since the turn of the new century.  Re­miniscent of the rise of Chris­tian Po­li­ti­cal Economy (CPE) (see J. Comaroff,  this issue) at the dawn of the modern age of capital (Wa­ter­­man 1991), con­ser va­tive Pro­tes­tantism would render social, mor­al, and material life ac­cording to  the dicta­tes of faith—al­though, in its second com­ing, CPE seems much more anxious to in­si­nuate itself directly into the workings of the state. Witness, in this respect, the spread of so-called dominionism, whose “global  ‘king­dom’ agenda” is founded on the belief that Jesus will not return “until the  Church has tak­en … con­­trol of the earth’s governmental and social institutions”  (Leslie 2008: 2, 3), includ­ing the market and the courts. Its “3-legged stool”  subsumes the state, busi­ness, and civil socie­ty (ibid.: 6). Even among Ameri can Christians who do not ex­plicitly see them­selves as part of the movement,  there is support for the effort to entrench “godly dominion over our neighbor hoods, our schools, our go­vern­ment, our literature and arts, our sports are­nas,  our … me­dia, our scientific endeavors—in short, over every aspect and institu tion of hum­an socie­ty.”²⁶ For some, the longer-term ob­jectives are to make the  country over into a theocracy, thereby reversing the course of history, and to  put an end to the hegemony of secular reas­on. The ideology of the religious  right results in stands that are now very fa­mi­liar: its assaying of ‘family values’ and laissez-faire; its antipa­thy to ab­or­tion, homosex­uality, welfare, and stem cell research; its hard-nosed positions on po­ver­ty, the en­vi­ron­ment, theological  and cul­­­tural relativism, immigration, ‘just’ wars, and the like. In pursuing its  imperial ends, con­­ser­va­tive Christianity has been quick to resort to the means  of lawfare.²⁷ Recall the disturbing and controversial do­cu­men­­tary Jesus Camp (2006; directed by Ra­ch­el Grady and Hei­­di Ew­ing) about the in­doc­trination of  very young peo­p­le, who spend their sum­mers learning to “seize back” the US  for Christ. The film may seem extreme in its choice of subject matter and in the  matter of its subjects’ choices, but it captures a rising tide in modern America.  Oth­er than footage of a Christian leader claiming to have open access to the  White House and its decision-making processes, the film’s most potent­ mo­­­t­if  is a life-size cardboard effigy of George W. Bush, the ultimate ‘Ameri­can Idol’:  pra­y­ers are said for him, urg­ing that he install “righteous judges”—the youths  chant the mantra “right­eous judges” over and over—who would conjure into  being a truly Chris­­tian common­weal­th­. The fight for domi­nion, in short, gives  yet further impetus to the fe­tishism of the law and, with it, the ju­dicialization  of politics. Legality is the se­cular in­stru­ment by which civil society is to be  re­made in the image of the sac­red.  

Also uncivil society. Over the past decade or so, penitentiaries have become  a ma­jor target of Christian movements in many countries (Burnside et al. 2005)­­.  In the US, this ini­ti­a­tive is associated primarily with the conservative Prison Fel­ low­ship Minis­tries (PFM), which was foun­d­ed in 1976 by Char­les W. Col­son, an  ex-Watergate con­spirator and an alumnus of an Ala­­ba­ma correctional facility.  Neither Durkheim nor Fouc­ault would have been surprised, of course, given  their grasp of the constitutive relationship between the pri­s­on and the wor­ld,  the disgraced and the disc­i­p­­lined. The PFM’s “cultur­al com­mis­sion” is to assist  the church in evangelizing inmates, to pro­mote “bib­li­cal stand­ards of jus­tice in  the cri­mi­nal justice sys­­tem,” and, more broad­ly, “to cultivate righteous­ness in  soci­e­ty, streng­­the­n­ing the work of God’s king­dom.”²⁸ In its Utopia, the Lord’s  Levia­than—about which Hob­­­­­bes (1986: pt. 3) himself wou­ld have felt distinctly  qu­ea­sy, given his belief that reli­gi­ous power ought al­ways to be sub­ordinate to  civil au­th­o­rity—would be ruled by a seam­less fusion of the laws of Levi­ti­cus  and the laws of the land. Again, the Protes­t­ant pre­­sence in prisons has a deep  his­tory. In his monumental novel Sac­red Hunger, Bar­ry Un­sworth (1992: 158)  reminds us that in the late eigh­teenth cen­tury, the bi­sh­op of Nor­wi­ch owned one  of Eng­land’s more no­to­rious hou­s­es of detention. In the US, the Pennsylvania  penitentia­ry model of similar vintage occupied prisoners “with labor and Bible  study” (Mauer 1999: 3). But there was less con­cern then for the promiscuous  embroilment of the chur­­ch into what were to become the functions of the state.  

Ironi­cal­ly, when he was gover­nor of Tex­as, Geor­ge W. Bush was sued by a  con­vict for vio­la­ting the US Cons­ti­tu­tion by franchising out the pastoral care of  the pe­­ni­tentiary to PF­­­­M, thus giving an ad­van­t­age to ev­an­­ge­lical Christianity  over other faiths or no faith at all.²⁹ PFM has had to answer to the law on its  own account as well. Its InnerChange Freedom Initia­tive (IFI), par­tly fun­ded by  the executive under Presi­dent Bush’s Faith-Based Community Ini­tia­ti­ves Pro­g 

ram, was the ob­ject of an action filed in Iowa in 2003 by Americans United for the Separa­tion of Church and State. It “is uncons­cion­a­ble” said the plaintiffs,  “­­to give pre­ferential treat­ment to prisoners bas­ed solely on their willingness to  under­go re­li­gious conversion and indoc­tri­nation.” The real controversy here,  argued Minis­try­Watch, a Chris­­tian orga­ni­zation sym­pa­the­tic to PFM and IFI,  is about whether “our na­tion’s ba­sic app­roach to sol­­ving social prob­lems [is]  secular humanism powered by big go­vern­ment and void of trans­cendent values  [or] real and lasting social change … effected by ‘armies of com­pas­sion’ … work­ing for true jus­­tice based upon unchanging principles.”³⁰ 

Critics of PFM, by contrast, ac­cuse it of religious coercion—indeed, of theo logico-lawfare. They point out that the evangelical Christian Ministry, which is  deeply committed to do­minion­ism, has persua­d­ed several states to make its prog rams, paid for by tax dollars, a requirement of parole and to give better carceral  treat­ment to those who sign on.³¹ As it turned out, the Iowa suit was successful.  Both the low­er courts and a federal ap­p­eals court, the second in late 2007, found  that IFI did violate the constitutional sepa­ra­­tion of church and state. Al­thou­gh  the plaintiffs took the ruling to be “a major setback for the White House’s ‘faith based initiative,’” IFI was banned only if it conti­nued to ope­r­ate with govern ment funds.³² In other words, as long as it is privately fi­nanced, it may have  access to prisons and be free to press its convictions on con­victs. At the time of  writing, PFM was consider­ing an approach to the ideologically stacked Supreme  Court—in res­pect of whose com­po­sition George Bush did answer the prayers of  the Jesus Cam­pers—to per­su­ade the highest levels of the judiciary that govern ment should pay for its work. And that the con­stitutional wall between church  and state, the sacred and the se­cular, ought to be realigned.  

A luta con­tinua, the struggle continues. There are a number of organizations  in the US devoted specifically to protecting the separation of church and state.  Liberal opponents of creeping religiosity con­tinue to engage in insurgent law fare and to run up against evangeli­cal counter-in­sur­­gency.³³ In February 2007,  for example, the Freedom From Religion Foundation (FFRF) ap­peared before  the US Su­­­preme Court to defend a claim in support of the right of tax­pay­ers to  challen­ge Presi­dent Bush’s crea­tion, by executive order, of the Office of Faith Based Initiatives—the same office that funded IFI and was thereby implicated  in the Iowa litigation—and other cognate offices.³⁴ Both the FFRF and the White  House had their protagonists, many of whom filed amici briefs. The FFRF was  backed by the Am­e­­rican Civil Liberties Union, Americans United for Separation  of Church and State, the Baptist Joint Com­mit­tee for Religious Freedom, People  for the American Way Foun­­dation, the Anti-Defamation League, the Center for  Free Inquiry, the American Jewish Congress, American Atheists, and a number  of legal histo­ri­ans and law scho­lars. The administration was supported by the  Foundation for Moral Law, the American Center for Law and Justice—note the  legal framing of these conservative Christian as­socia­tions—and eleven states of  the Uni­on. Earlier, before the Seventh Circuit Court of App­eals, the FFRF had  argued that be­cau­se those faith-based offices were created spe­cifically to help  Christian organi­za­­tions win go­vernment funding, they violated the es­tab­lish ment clause. Accepting the broad va­li­di­ty of this argument, the appellate ben­ch  had found in the FFRF’s favor, which in turn led the di­rector of the Office of Faith-Bas­ed Ini­tiatives, on behalf of the Bush admi­ni­s­tration, to take the case to  the Supreme Court. Its jurists, those ‘righteous judges’ ag­ain, decided ag­ainst  the FFRF case and overturned the decision of the Appellate Court on a nar­row  tech­nical ground—that be­cause the fun­­ding for the faith-based initiatives had  come from the executive branch and not from a budget passed by Congress,  which represents taxpayers, a challenge by the FFRF in the name of those  taxpayers had no legal stand­ing. The small matter of principle—the principled  separation of church and state at the core of American liberal democracy—was  submerged in judicial niceties.  

It is not only the executive that has been implicated in the battle over re­li gion. So has the US military. This emerged with particular clarity in March  2008, when a sol­dier, Jere­my Hall, filed a federal lawsuit against the Depart ment of Defense and its se­c­re­ta­ry. Hall al­leged that his constitutional right to  free­­d­om of faith had been violated, that he had been overlooked for pro­mo­tion  on acc­ount of being an atheist, and that his life had been put at risk. Not sur pri­s­ing­ly, his claim met with stri­dent official de­nials. But as a CNN report by  Randi Kaye (2008) revealed, the mat­ter is not so straight­forward. The dispute  brought to light the fact that there does ap­pear to have been a perva­si­ve Chris tianization within the military. Michael Weinstein, a retired senior air force  offi­cer who establish­ed the Military Religious Freedom Founda­tion and joined  Hall’s legal ac­tion, speaks in that CNN report of a pro­mo­tional video featur­ing  uniformed generals that was made inside the Pentagon (Wein­stein insists on  calling it “the Pentacostalgon”) by Chris­tian Embassy, an evangelical organiza tion affiliated with Campus Crusade for Christ. Ano­ther religious as­sociation,  the Of­fi­cers’ Chris­tian Fellowship, al­so according to CNN, “has re­p­resenta­ti­ves  on near­ly all army ba­s­es worldwide. Its vi­sion … [is] ‘a spiritually trans­for med milita­ry, with am­bas­­sa­dors for Christ in uniform em­power­ed by the Holy  Spirit.’” Adds Weinstein, “their pur­po­se is to have Christian officers exer­cise  biblical lea­dership to raise up a Godly ar­my” (see Kaye 2008).  

Mean­while, the US govern­ment has tried to have the suit dismissed, again  on procedu­r­al grounds. Jeremy Hall and the Military Re­ligious Freedom Founda tion, it says­, shou­ld have complained not through the civil courts but through  “the chain of com­mand.” Add­ed the brief filed for the state: “Ju­di­cial review  would significantly inter­fere with Army op­e­rations and intrude on discip­li­na­ry  and personnel decisions entrusted to military judg­­ment.” In asking the civi­lian  judicia­ry to pass the case back to the military, the army petitioned to be allowed  to act as jud­ge and jury in a suit in which it is the defendant before a tribunal  from which there is no external appeal.³⁵ And it had every reason to be­lieve  that it would succeed, having bested Michael Weinstein in the courts before: in  2006, a jud­ge in New Mexico threw out as “baseless” a complaint against the  Air Force Academy—to the “app­lause” of conser­va­tive Pro­tes­tants and mili­ta­ry  person­nel—in which it was ac­cu­­sed by Wein­stein and other cadets of fostering  religious discri­mi­na­tion and favoring ev­an­gelical Chris­­tianity, even of abetting  dominionism. Said an attor­ney for the defen­se: “[S]ince the former ca­dets who  filed the suit were no longer at the aca­de­my, the legal action served no pur­pose”  (Winn 2006)—as if only a personal aff­ront, now out of date, was at issue.³⁶

The infusion of the sacred into governance is not confined to the United States,  of course. In Rus­sia, where there is a similar constitutional separation between  church and state, the two “reinforce each other intimately” (Benovska-Sabkova  et al. 2008: 51–52). Not on­ly does Rus­sian Orthodoxy receive “significant finan 

cial support” from the nation­al trea­sury­­­, but it has also “become a central actor  in Russian politics and society” (ibid.). During To­ny Blair’s premiership in the  United Kingdom, the invocation of faith as justification for political decisions  became part of the ordinary discourse of public life. The same applies in other  parts of Europe, Asia, and the Americas, even when, as in Fran­ce, it hides itself  in laïcité, a sacralized secularism that is more often invoked to police difference  than it is to contain the Christian orthodoxy that silently suf­fuses the regulation of every­day being. In South Africa, where the consti­tu­­­tional pro­­­tection for  reli­gi­on is much great­er than it is in the US, and where the sub­stance of liberal  democracy is a deeply debated question, there is on­going argu­ment ab­­out the  place of reli­gi­on in civil so­ciety, pub­lic institutions, pedagogy, policing, and  go­ver­­nment­­. Here, too, efforts have been made by organiza­tions founded on  faith to de­ploy the courts­ to extend their sove­reignty.³⁷ 

Nor, I stress, are such eff­orts restricted to Islam and Christianity. Similar  things might be written about other faiths in other places, be it the Mansions of  Rastafari in Ja­mai­ca or Hinduism in In­do­nesia (K. von Benda-Beckmann and F.  von Benda-Beckmann 2008) or fundamentalist Judaism, the popularity of which  has spread stri­k­ing­ly over the past few decades. In Is­rael, the role in go­v­ern­ment  of the religious parties—in par­ti­cular, their con­trol over fa­mi­ly law—has long  po­sed a problem for the full accom­plish­ment of a se­cu­­lar libe­r­al de­mo­c­ra­cy.  With the oc­­cupation of Palestine and the expan­sion of settle­ments domi­n­a­ted  by or­tho­­dox Jews, the West Bank has become an archi­pelago of faith-based sover­eign com­mu­­ni­ties no­to­r­ious for their aggressive self-asser­tion. Outside Israel,  throughout the Jew­ish diaspora, ultra-con­servative congregations have also ten ded to be highly protective of their integrity, clo­­s­ing themselves off to the world  and its in­­terventions, settling dis­pu­tes, enact­ing so­ci­ality, ma­naging their public  finances, and negotiating their own moral eco­no­mies, with rab­bi­ni­cal courts as  the arbiters of order and propriety. Some time back, Cha­n­nel 4 in the UK pre sented a television pro­g­ram en­titled “Jewish Law” in its se­ries Faith and Be­­lief.³⁸ Focusing on just such a “self-contain­ed” com­munity in Man­ches­ter, it show­ed  sce­nes of religious authorities “enforc­ing an ar­ray of intricate regulations ‘gover n­ed by bibli­cal texts,’” rules that embrace “every ele­ment” of people’s lives and  deaths. The deg­ree to which ultra-conservative Jews seek sovereign autono­my  is of course variable. So, too, is the degree to which they are likely to suc­ceed in  attaining it. But that is a matter for the history of the future to determine. 

IV. 

I suggested earlier that the kinds of community most assertive of sovereignty  nowadays, and most given to theo-legality, are those founded on religious  and/or cul­tu­ral difference. Thus far, I have focus­ed entirely on the former, on communi­ties of faith as­­sociated with the ‘Great’ religions—religions, so to  speak, in the upper case. Those rooted in cultural difference, especially culture  ins­cri­b­ed in indigeneity, autochtho­ny, and common biogenetic substance, may  also lay claim to distinctive on­tologies, dis­tinc­­tive deities, distinctive ID-ologies—in other words, to religion in the lower case, at least in the sense that it  cannot be neatly ex­cised from the total cultural context in which it is historically  embedded or from the way of life that it indexes. Jean Coma­roff and I (2003)  have argued that ID-ology under the sign of culture and shared es­s­en­ce (“life  itself”), when transla­t­ed in­to a will to sove­reignty, yields poli-cultu­ra­lism. The  prefix ‘poli-’ denotes both plu­ra­lity and a po­litical claim to the ex­er­cise of go­vernan­ce over, well, ev­e­ry­thing, via the in­stru­men­­tation of a law under­written by  sac­red au­th­o­­ri­­ty. In South Africa, for example, it as­­serts it­self most ar­ti­culately  in the right of Zu­­lu, Xho­sa, Tswa­na, and others to rule and be ruled accor­d­ing to  their own ways and means under the tutelage of their own deities­. 

Here, the politics of policulturalism has been most feverishly fought out— unsurprisingly, gi­v­­­en the fetishism of legalities—on the terrain of the South  Af­ri­can Con­­­s­titu­tion. The pri­ma­ry protagonist is the Con­g­ress of Traditional  Lead­ers of South Africa (Con­tra­le­sa). For more than a de­­cade, Contralesa has  sought to change the founding law of the land to give greater recognition to  vernacular life-ways, including those taken to fall with­in the purview of African  religion. Indigenous beliefs are in fact protected by the Constitution, but they  are sub­ject to the limitations of the Bill of Rights and the dictates of uni­versal  citizenship—to which, save in exceptional circumstances, all cultural difference  is subor­dinated.³⁹ Con­tra­­lesa rails against these limitations and has pushed for  a constitutional amend­ment to remove them. Thus far it has not succeeded,  although the government re­pea­t­ed­ly makes conciliatory gestures in respon­se to  its demands and has passed laws that au­tho­rize ver­­na­cular prac­tices, in­c­lu­d­ing  some that had pre­­viously been dee­­­m­­ed repugnant.­­­­­­ ⁴⁰ The state has al­so shown  tolerance toward ‘tradi­tio­nal’ religious rituals, such as initiation and ani­mal  sacri­fice, that tack close to, and often trans­gress, the boundaries of the licit;  this in a cli­mate of cultural populism that, at present, encourages asser­tions of  Africanity ag­ainst the per­­­­ceived Eurocen­tricities of liberal de­mocracy. As has  been widely reported, South Africa’s re­­cent­ly elected presi­dent, Ja­c­ob Zu­­ma, is  a po­ly­gam­ist with a professed be­lief in the power of the Zulu ancestors. 

In fact, the struggle over sovereign indigeneity seems to be spreading ac­ross  the legal landscape of South Africa, as it is in some other nation-states. Usu ally fought out in terms of a right to difference based on the sacred­ essence of  so­cial being, it is phra­­sed either in the narrow lexicon of religion or in the more  encompassing lang­u­age of culture—or both. A few dramatic instan­ces have  become ico­­nic of this strug­gle. Some have pitt­ed indigenous peoples directly  against the government, while others manifest them­selves in bat­tles of belief  within Afri­can polities, although, even then, their ultimate res­pon­­­dent is the  state itself. One instance of the latter, a cause célèbre in the 1990s,⁴¹ cast Kedi bo­ne Tu­­ma­ne, a member of Je­hovah’s Wit­nesses, against Chief Nyalala Pilane  of the Kgat­la, un­der whose ju­ris­diction in the North West Province she then  lived. For rea­s­ons of faith, Tu­ma­ne had violated a rule that confines recently widowed women to their homes and re­quires­ that, when going ab­road, they  sprinkle a herb (moga­ga) on their paths. Not doing so is to risk spreading pollu tion with poten­ti­al­ly le­th­al conse­quen­ces. When Tu­ma­ne left her residence and  refused to broad­cast mo­ga­ga, she was arrested by the tri­bal au­tho­ri­ty. Reacting with a mix­ of fear and fury, many Kgatla call­ed for her ba­nish­­ment. With the support of the South African Hu­man Rights Com­mis­­sion (SAHRC),  Tumane took Chief Pilane to the High Court of South Africa.⁴² Her con­sti­­tu tio­n­al rights had been violated, she argued. Having been put under “house  ar­rest,” she had been forced to “live … [as] an out­cast.”⁴³ In an affidavit sworn  prior to the case, Tumane claimed that in June 1998, Pilane had agreed to call a  mass gathering and had promised to ann­oun­ce the end of her confinement. But  he had not done so. Pilane replied that he could not “release” her at the meet ing in question, since his people had taken a unani­mous deci­sion there to the  contrary. He added that Tumane was “confin­ed” not by the tribal au­th­o­rity, but  “by her own custom,” which could not be altered save by the “con­­­sent of the  Kgatla na­tion,” of which she herself was a member. Her rights had been res­pec t­ed, he said, ex­cept where they were in tension with Section 36 of the Consti tu­tion, which ack­now­­led­g­es that some limita­tions on individual freedoms  are justifiable. For Kgatla, preventing the violation of a ritual taboo—one that  endangered lives in their community—was just such a jus­tifi­cation. What is  more, this had been determined at an open, de­mocrati­cal­ly constituted public  forum.⁴⁴ The com­plai­n­ant, in turn, an­s­wer­e­d that while an indigenous people  is entitled to pro­m­ote its culture and reli­gion, it has to do so within the com pass of the Bill of Rights, which pla­c­es indivi­dual free­d­oms above all things.  Her argument won, at least in the short run: in July 1998, the cou­rt announced  that compulsory confinement and the performance of mo­gaga breached the  Consti­tu­tion. An in­ter­im order in­structed the chief to free Tu­ma­­ne forthwith. Nothing happened. Political pressure from the state mounted. Coun­­­ter pressure came from the House of Traditional Leaders, which challenged the  government to explain why the Constitution places individual legal rights  above collective cultural rights—es­pecially, it might have added, when both  pertain to religion, albeit one in the upper case, the other in the lower. For its  part, Pilane’s defense fused a truism of British functionalist anthropology with  a concept of sovereignty that might have come from Agamben: “Tradition is  the glue that holds the tribe to­ge­ther, gives it pur­pose, sus­tains its iden­ti­ty.”⁴⁵ Virtually all Kgatla ob­ser­­ve mogaga, it went on. The trans­gression of mourning  rituals puts social life at risk, which is why “the nation” (mo­ra­fe), following  de­­mo­cratic pro­cedure, had de­ci­ded to sacrifice Tuma­ne’s “freedom” and con demn her to social dea­th­. This was their sovereign will. As the dispute came  to a climax, Pilane deployed a stra­ta­gem that seem­ed to re­ver­se his ear­lier  line of argu­ment. Mo­gaga, he stated, is a ritual that is voluntarily fol­lo­w­­ed  by Kgatla; there­fore, hav­ing elec­ted to live among them by her own choice,  Tumane had not suf­fer­ed any compulsion. Repeating the ruler’s statement that  the burial taboos were a mat­ter of volition, and ig­no­ring earlier evidence to the  contrary, the ben­ch, at its final hea­r­ing, dismissed the suit. It clearly did not  want to en­ter deep con­s­­ti­­tu­tio­n­al wat­ers by out­lawing an indigenous religious prac­ti­ce.⁴⁶ In any case, Tuma­ne’s mour­n­ing pe­ri­od had ended. Chief Pilane’s  tactic had worked. In their own eyes, Kgatla had safeguar­d­ed­­ the sovereignty  of their ancestral rites—and, more generally, of their life-ways—by means of  effective lawfare. They had done so, significantly, not merely by re­writing their  own cultural jurisprudence into the thoroughly contemporary language of  con­stitutional­ism. They had also conjured with the foun­dational logic of liberalism, drawing up­on and rup­turing received distinc­tions be­tween the public  and the private, individual and collective entitlement, freedom and constraint,  sovereignty and democ­ra­cy, the sa­c­ral and the se­cu­lar. Rites and rights.  

Similar things are occurring in other contexts as well. Courts ac­ross the  country are having to deal with out­lawed or unrecognized ritual prac­tices that  are integ­ral to the lives of much of the population. Nor only in the courts. The  sovereignty of African re­li­gious belief—and of the cultural worlds of which  they are an elemental part—is being proclaimed­­­ in everyday situations as  well, sometimes quietly, sometimes provo­ca­tively. What is more, this is being  exacerbated by the growing commodification of faith, cul­ture, and identity,  the sort of thing ex­em­­plified by initiation rites among the Pedi in Lim­po­po,  now a high-priced item in a regional ritual economy in which youths from all  over cla­mor to participate. It is also to be seen in the rendering of Islam into  in­tellec­tu­al property, of Native American sacred sym­­bols in­to co­py­righted  ob­jects, of Balinese temple dances into shows for fee-paying tourists. It is the  sort of thing, too, that has in­ter­­pel­lated neo-Pentecosta­l Christianity so dee­ply  into neo-libe­ral capita­lism (J. Coma­roff, this issue)—the sort of thing, more  generally, that may be des­cri­bed as Religiosity, Inc., Eth­nicity, Inc., and the  like (J. L. Co­maroff and J. Coma­roff 2009b). But it is not the mate­rial dimen sion of these things with which I am concerned here, except as a contributory  element to a more en­com­passing process. Assertions of so­v­er­eign­ty under the  sign of R/reli­gion, upper or low­er case—and especially the resort to theo-le­gality in its name—could well have world-altering repercus­sions for the future  of the liberal nation-state. This applies not only in South Af­ri­ca, to which I  have turn­ed for illus­tra­tion be­cau­se I know it best, but al­most everywhere, if  in different mea­­sure.  

V. 

Why? Why world-altering? What are the repercussions for the modernist  nation-state?  

The broad outlines of an answer should be clear by now.⁴⁷ Faith-based  com­munities that strive either to claim sovereign autonomy for them­selves or  to extend the dominion of R/re­­­ligion seek to overturn three root principles of  li­be­ral orthodoxy, each of them fundamental to its socio-juridical scaffolding.  Moreover—and this is critical here—they do so by recourse to a theo-legality  that rede­p­loys­­ liberal jurisprudence against itself in order to transform it. The  first of the three prin­ciples is the antinomy between the public and the private,  whose erasure wou­ld put paid to the exis­tence of constitutionally inviolable spaces of personal belief and practice, spaces beyond re­gu­la­tory oversight.  The se­cond is the separation of the sacred from the temporal. With its dis­ so­lu­tion—or ra­ther, with the collapse of the latter into the former—goes the  de­mise of uni­ver­­sal citi­zen­ship, of any form of political or legal sub­jec­ti­vity  out­side the reach of godly go­ver­n­an­ce, of the right to dissent or difference, of  the distinc­tion bet­ween church and state, of civil de­m­o­c­ra­cy, of politics sui  generis—each, self-evi­den­tly, an inexorable step toward theo­cra­cy. The third  is the te­los of mo­dernity it­­self, bas­ed on the per­fec­t­ibi­lity of life by the ap­pli ca­tion of secular rationality to the pro­duc­tion of new know­­l­edge, new truths,  new technologies of being, which is to be re­p­la­ced by a relian­ce on di­­vine  inspi­ration, divine veracities, di­vine eth­ics. In the pro­cess, the En­ligh­t­en­­ment  ep­is­teme of em­pirical reas­on gives way to an epis­teme of convic­tion, one that  sup­p­lants the search for forensic explanation with the di­vi­­na­tion of good and  evil; that sub­stitutes the logic of the law with the Schmit­­tian cal­cu­­­lus of friend  and foe; that de­nies any re­cog­nition to relativism; that calls for unmitigated  puni­ti­ve­ness as the pro­per treat­ment for trans­gres­sion; that sa­crifi­ces social  accoun­ta­bi­li­ty­ to the axi­om that indivi­duals before God are the au­th­ors of their  own predica­ments. Some of these things seem omi­n­ou­sly reminis­cent of Isaiah  Berlin’s (1980) counter-Enligh­t­enment. Whether or not this is so, one thing is  clear. God is not dead. Pace Nietzsche, God has se­cu­r­ed a new, en­larged niche,  one in which the spirit of the law bows to the hege­mo­ny of the holy. Un­der the  administration of Geor­­ge W. Bush, the United States gave forewarning to the  world of what a turn to this epis­teme could mean for humanity at large.  

All this, I have argued, grows out of the simultaneous fetishism of the law  and the assertive rise of religiosity in the age of neo-liberalism. Why that dou ble, interlocking pro­­cess­ has occur­r­ed at all is a much more general problem,  one at which I have on­ly been able to gesture. In theory, it may be approached  from a number of per­s­­­pec­tives. One, for example, might attribute it to the  post-Durkheimean character of the contemporary mo­m­ent. For Durkheim,  God was society worshiping itself, and so­ciety was a mo­r­al order supported  by a sys­tem of legal sanc­tions. With the alleged death of the so­cial, the polity  be­comes a le­g­­al order governed by moral sanc­­tion, bac­k­ed by a pu­tatively aso cial God. Another might ascribe it­ to the ma­tu­­ration of neo-li­b­e­ral ca­pi­t­a­l­ism,  its triumphal conquest of the globe, arguing that this has brought in its wake  Ad­am Smith’s nightmare, a ‘society of strangers’, to which the only anti­do­te  is a universe rul­ed by the absolutist certainties of faith and law. Yet an­o­th­er  might suggest that the emergence of the ‘risk so­ci­e­ty’, of a world­ of fear and  inse­cu­rity—itself occasioned by a me­ta­morphosis in the na­ture of go­v­ernance  and its re­la­tionship to the market—has conduced to make conviction and le­gal  sanction, two ax­es of se­cu­rity, the answer to the me­ta­physic of dis­or­der with  which we live. Still another would have it that the corol­lary of the death of  politics and the end of ideo­lo­gy, often seen as twin signs of the time, has been  the displacement of the first by ju­ris­­pru­­dence and the se­cond by be­lief, thus  yiel­­­d­ing the dia­lectic of religiosity and lega­li­ty with which I have been con cerned here. Bear in mind, in this respect, Marx’s observa­tion that religion is  not just an opi­ate but also the spirit of a spiritless age. Perhaps it is in the spirit of the law—in theo-legality—that the bat­tle to redeem that spiritlessness is  ta­k­ing place. But these are theoretical speculations bet­ter addressed else­where.  For now, my objective is more modest. It is simply to open up to scru­tiny the  unfolding coun­ter­point of law and religion in the history of the present—in  particular, the sacrali­za­tion of the former, the juridifi­ca­tion of the latter, and the  connection between the two.  

Patently, the struggle over the place of faith in society is far from played  out. In some nation-states, as we have seen­, efforts to oppose assertions of  R/religi­ous sovereignty have been quite de­ter­mined and have been backed  by counter-law­fare. Hence, for example, the legal action ag­ain­st the Islamist  ruling party in Turkey on behalf of its secular state; the exertions of more or  less liberal regimes elsewhere in the Muslim world to constrain the reach of  Sharia; the suit joined by the South Afri­can Hu­­man Rights Com­mission against  Chief Pilane’s ca­mpaign to establish the sover­eign autono­my of Kgatla belief  and practice in the face of the national constitu­tion. Conversely, in the United  States, from 2000 to 2008, it was the execu­tive branch of the federal government that sought to use lawfare to erode the Jef­fer­sonian wall between church  and state, thus to further faith-based agendas and the cause of religion—only  to run up ag­ainst re­p­re­sen­tatives of civil society who have taken to insurgent  legalities to protect Ame­rica from dominionism. 

As I have said, a luta continua. The point, though, is that wherever it is  being engag­ed, the battle itself is changing both faith and the law: faith, by  infusing its imaginations and identities and exertions with a contemporary  culture of legality; the law, by com­pel­ling it to come to terms with sovereign diffe­rence as never before and to adapt itself accordingly. To wit, as a result of the  lawfare conducted in the name of R/religion—as a result, more ge­nerally, of  the rise of policulturalism—cour­ts everywhere are having to deal with the con crete fact of theo-legality. This, after all, is what the arch­bi­sh­op of Canter­bu­ry  meant when he observed that Sharia had beco­me a living reality in the UK,  that some of its pro­­­visions “are already recognised in our so­ci­e­ty and under  our law.” It is what the Pa­kistani judiciary authorized when it recog­ni­zed Islam  as intel­lec­tual property. It is what the South African state has legitimized in  en­­ac­ting into law pre­viously repug­nant cul­tu­r­al ‘traditions’ and what some of  its judges have accepted, citing constitutio­n­al exception, in giving priority to  ‘customary practi­ces’ over those sanctioned by the Bill of Rights. The examples  are endless. They merely reiterate what was noted earlier about the insinuation  of difference into the twenty-first-century nation-state and its judicial scaffolding, what we have seen to occur with the fetishism of the law and the rising  tide of heterodoxy under the sign of R/religion in the post-millennial world,  what we shall continue to see as the unruly dialectic of faith and legality works  itself out. The process is less likely to yield winners or losers or clear outcomes  than a myriad of uneasy, unstable compromises, the stuff of a politics of the  long run. An eternity, maybe.

John L. Comaroff is the Harold H. Swift Distinguished Service Professor of Anthro pology at the University of Chicago, Research Professor at the American Bar Founda tion, and Honorary Professor of Anthropology at the University of Cape Town. He  is also a former president of the Association for Political and Legal Anthropology in  the United States. His current research in post-apartheid South Africa is on crime,  policing, and the workings of the state; on democracy and difference; and on the  nature of post-colonial politics and law. Recent books include, with Jean Comaroff,  Millennial Capitalism and the Culture of Neoliberalism (2000), Law and Disorder in  the Postcolony (2007), and Ethnicity, Inc. (2009). Another volume, Theory from the  South: Or, How Euro-America Is Evolving toward Africa, is in advanced preparation. 

Notes 

1. In accessing the online version of Dalla Torre’s essay, note that it is to be found under the  title “The Holy Spirit Is the Breath of Life,” not under its own. The URL in the reference  list is correct, how­ever . Jean Comaroff and I have cited this essay before (J. L. Comaroff  and J. Comaroff 2006: 25). 

2. There are, of course, parts of the contemporary world ruled by theocracies. I shall return  later to this topic and to ongoing efforts to extend theocratic governance into the heart  of the global North. 

3. I owe the phrase ‘legalized illegalities’ to Henry Giroux (2008), who uses it—to powerful  effect—in describing neo-li­be­r­al gover­n­ance in the con­tem­porary United States. 4. Aqui­n­as said this in the thirteenth century, long before the separation of lex naturae from  lex dei, yet the statement has directly modernist foreshadowings. 

5. In point of fact, as I note in the text below, African Independent Churches in South Africa  have written constitutions for them­selves since the early twentieth century, a process  encouraged by their desire for govern­ment recognition and its be­nefits—which few ever  actually achieved (Sundkler 1961). Twenty-first-century constitutionalism, patently, is  grounded in very different historical circumstances.  

6. On the example of the post-apartheid South African Constitution and its dif­fe­r­ences in  this respect from that of the US Constitution, see Davis and Le Roux (2008). Davis is a  High Court judge in South Africa, and Le Roux is a member of the Johannesburg Bar. 7. For just one very acute account, see Grey (2000). 

8. In the course of his election campaign in 2008, John McCain, the Republican pre­sidential  candidate, “promised to appoint only conservative judges to the Supreme Court,” the  clear implication being that they would be practicing Christians. See Pilkington (2008). 

9. Thousands of accounts of the case were published in the US media, especially in 2004– 2005. Tom DeLay’s threat to the judiciary is quoted from Harper (2005).  10. A briefer, amended version of this section and the next is published in J. L. Comaroff and  J. Coma­roff (2009a). 

11. Interestingly, the root of the word medina, which names the most sacred city in Islam,  is din, whose con­no­tations in Qur’anic Arabic include several that implicate the jural:  sovereignty, domi­nion, law, con­s­titution, govern­ment. In modern Hebrew, din is usually  rendered as ‘judgment’, legal or rab­bi­ni­cal; it is the root, also, of medina, which denotes  ‘state’ but had a wider fan of referents in biblical vernacu­lar.  

12. Note, in this respect, Keebet and Franz von Benda-Beckmann’s (2008: 86) observation  that “[in] Christian charismatic communities in Africa remarkable processes of juridifica tion seem to be taking place.” 

212 | John L. Comaroff 

13. Although Arjomand (2007) does not say as much, these are ideal-types. If we take, for  instance, Turner’s (2006: 110, passim) description of Morocco, it fits with the second model— but not entirely. There are other nation-states that also resist easy classification; however, this  is not to say that Islamic constitutionalism does not figure centrally in their politics of state.  

14. Feldman, a professor at Har­vard Univer­sity who specializes in constitutional law, law  and religion, and Islamic studies, has recently published The Fall and Rise of the Islamic  State (2008a).  

15. There is no pagination for this quote as it is taken, with permission, from a draft of  Walton’s doctoral disserta­tion. Walton (n.d.) goes on to note that in the case of the Nur  Cemaati religious community, formed around the teachings of Said Nursi, adherents  “adamantly deny any involvement in politics.” 

16. I learned of the case from a Reuters report syndicated in South Africa (De Bendern 2008). 17. Turner (n.d.: 2) notes that the movement, which arose in the Souss in 1999, “did not derive  from Moroccan Islam itself … [I]ts ideology was propagated by non-Moroccan teachers.” 18. The co-existence of Islamic law with other legal regimes is a parallel topic beyond my  present scope. It has its own fairly large literature: on Indonesia, for example, see John  Bowen (2003), and Franz and Keebet von Benda-Beckmann (2006).  

19. See “Carey Weighs into Sharia Law Row,” BBC News, 10 February 2008, http://news.bbc. co.uk/2/hi/uk_news/7236849.stm (accessed 14 March 2008). 

20. See “Archbishop Defends Sharia Remarks,” BBC News, 9 February 2008, http://news. bbc.co.uk/2/hi/uk_news/7236174.stm (accessed 13 March 2008) and “Sharia Law in  the UK Is ‘Unavoidable,’” BBC News, 7 Febru­a­ry 2008, http://news.bbc.co.uk/2/hi/ uk_news/7232661.stm (accessed 14 March 2008). 

21. I was made aware of this by the activities of Islamic Relief Worldwide in South Africa.  The or­ga­nization provided food to homeless families that, after a bitter legal battle, had  been evicted from a hou­s­ing project in Cape Town in which they had squatted. See  Chance (2008).  

22. There is no pagination for this quoted text. It is taken from the abstract of Hussin’s  (2008) doctoral disser­ta­tion. 

23. Abdur Rehman Mubashir v. Syed Amir Ali Shah, PLD 1978 Lahore 113. 24. Zaheeruddin v. The State (1993; Supreme Court Monthly Review: 1718); again, see Ahmed  (2006: 40–41). 

25. A few years back, Fogel (2000) argued that a “Fourth Great Awakening” had occurred in  the United States dur­ing the 1960s and 1970s. Skeptics argue that this fourth awakening  was not as ‘great’ as the previous three; in­deed, they claim that it was not sub­s­tantial  enough to warrant the adjective ‘great’ at all. Such things, of course, are hard to read  from close up in history. 

26. This statement by the late Pastor D. James Kennedy of Coral Ridge Ministries is quoted  from “The Rise of the Religious Right in the Republican Party,” Theocracy Watch, http:// www.theocracywatch.org (accessed 14 March 2008).  

27. So, of course, have liberal Christians in their struggles against injustice and inequality,  not least during the civil rights movement. They, too, have become ever more adept at  deploying the law. But that is beyond my pre­sent scope. 

28. See “Prison Fellowship Ministries/PFM/Chuck Colson,” MinistryWatch, 22 Febru ary 2008, http://www.ministrywatch.com/mw2.1/F_SumRpt.asp?EIN=620988294  (accessed 18 March 2008). 

29. “Lawsuits against Prisons: Texas Prisoners’ Religious Rights Violated,” North Coast Xpress,  http://www.sonic.net/~doretk/Issues/01-03-SPR/lawsuits.html (accessed 9 August 2005). 30. See “Prison Fellowship Ministries/PFM/Chuck Colson,” MinistryWatch, 22 February 2008,  http://www.ministrywatch.com/mw2.1/F_SumRpt.asp?EIN=620988294 (accessed 18  March 2008). All quoted words and phrases in this passage are drawn from this source. 31. For an acute, detailed critique of PFM in the public domain, see “Court Rules against  ‘Faith Based Coercion’ Programs” by Dogemperor, Talk To Action, 5 June 2006, http:// www.talk2action.org/story/2006/6/5/0566/59215 (accessed 10 March 2008).

Reflections on the Rise of Legal Theology | 213 

32. The quote is from Blum (2008). This is one of a very large number of me­dia analyses of  the case pub­lished soon after the appellate decision. 

33. In the wake of the 2006 elections in the United States, several commentators on religion  in politics shared the view of the editor of Religionlink.com, who stated that the “Demo cratic takeover of Congress heralds a new dynamic in the long-stan­ding tug-of-war” bet ween them and Republicans who “have projected their agenda … which tend­ed to mir­ror  the stands of Christian con­ser­vatives.” See “Elections 2006: The Out­look for Religion in  Politics,” Religionlink.com, 8 November 2006, http://www. religionlink.com/tip_061108. php (accessed 14 March 2008). While it is true that evangelical Christians may find it  more difficult in the short run to give political expression to that agenda, the role of faith  in American public life is not determined primarily by shifts in partisan politics.  

34. See Hein, Director, White House Office of Faith-Based and Community Initiatives, et al.  v. Free­dom From Religion Foundation, Inc., Supreme Court of the United States, No. 06- 157. The FFRF was represented by the Yale Law School Supreme Court Advocacy Clinic.  For its own account, see http://www.ffrf.org/legal/hein_supremecourt07/ (accessed 7  May 2008). The case was argued on 28 February 2007 and decided on 25 June 2007. My  summary is drawn primarily from the Syllabus of the Supreme Court record. See http:// www.supremecourtus.gov/opinions/06pdf/06-157.pdf (accessed 11 July 2008). 

35. For an account of the effort of the US military to have the case dismissed, see “US Gov ernment Wants Atheist Soldier’s Lawsuit Dismissed,” Associated Press, International  Herald Tribune, 11 July 2008, http://www.iht.com/articles/ap/2008/07/10/america/ NA-US-Military-Religion-Lawsuit.php (accessed 11 July 2008). It is from this report that  the quotes in the previous two sentences are drawn. 

36. Michael Weinstein was also heavily involved in this widely reported case. For a relatively  detailed account, see Winn (2006).  

37. See the Mail & Guardian’s special edition on religion, 20–27 March 2008, in parti­cular,  the article by Davis and Le Roux (2008: 12–13). 

38. See http://www.channel4.com/culture/microsites/C/can_you_believe_it/debates/ jewishlaw.html and http://www.channel4.com/culture/microsites/C/can_you_believe_ it/debates/jewishlaw3.html (both accessed 24 March 2008). 

39. Section 36 of the Constitution allows­­­­ that some constraints on the universal rights of  citizens are “jus­ti­fia­ble in an open and demo­c­ratic society.” But it adds that any such  constraint­ is to re­main bound by the Bill of Rights. As we shall see, pro­tagonists of  the sover­eign­ty of tradition have invoked this “justifi­a­b­le” li­mitation in their struggles  against the state. 

40. The Cus­­tomary Marria­ges Act (No. 120 of 1998), for example, allows polygamy, this not withstanding the fact that it had long been treat­ed by South African law, and by ‘native  administration’, as ‘repug­nant’ to civilization. The Act also raises ques­tions of gender  equality, to which the Constitution and statutory law give a great deal of at­tention. 

41. See “Clash of Custom, Constitution,” The Mail (Mafikeng), 31 July 1998, 17. Jean Comaroff  and I have also analyzed the case in extenso (J. Comaroff and J. L. Comaroff 2003). 42. High Court of South Afri­ca (Bophuthatswana Provincial Division), Case No. 618/98. 43. Ibid., Foun­ding Affidavit, 3. 

44. Ibid., Answering Affidavit, 13 November 1998, 7–10. 

45. Ibid. All the quoted phrases in this paragraph are from the same passage in the Answer ing Affidavit. 

46. The SAHRC regretted Pilane’s pronouncement that mo­gaga was a voluntary practice, an  ambiguity that left un­clear whether he meant it as a statement of existing practice or a  change of rules. It sought to contest chief­ly authority, not by criminalizing tradition, but,  more subtly, by pre­venting indigenous rulers from interfering with the free­dom of movement  and other fundamental rights of their sub­jects (J. Comaroff and J. L. Comaroff 2003). 

47. Note that I am spe­cifi­cally concerned here with the juridical as­pects of these questions.  Elsewhere in this issue, Jean Comaroff addresses them in more wide-ranging terms.

214 | John L. Comaroff 

References 

Ackerman, Bruce. 1997. “The Rise of World Constitutionalism.” Yale Law School Occasional  Papers, 2nd Series, No. 3.  

Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller Roazen. Stanford, CA: Stanford University Press. 

Agrama, Hussein. 2005. “Law Courts and Fatwa Councils in Modern Egypt: An Ethnography  of Islamic Legal Practice.” PhD diss., Johns Hopkins University. 

______. n.d. “Justice between Islamic Sharia and Western Legal Traditions: Remarks on the  Egyptian Context. Unpublished manuscript. 

Ahmed, Asad. 2006. “Adjudicating Muslims: Law, Religion, and the State in Colonial India  and Post-Colonial Pakistan.” PhD diss., University of Chicago. 

Aquinas, Thomas. n.d. Treatise on Law (Summa Theologica, Questions 90–97). Chicago, IL:  Henry Regnery Company. 

Anderson, Benedict. 1983. Imagined Communities: Reflections on the Origin and Spread of  National­ism. London: Verso. 

Arjomand, Saïd Amir. 2007. “Islamic Constitutionalism.” Annual Review of Law and Social  Science 3: 115–140. 

Benda-Beckmann, Franz von, and Keebet von Benda-Beckmann. 2006. “Changing One is  Changing All: Dynamics in the Adat-Islam-State Triangle.” Journal of Legal Pluralism 53/54: 239–270. 

Benda-Beckmann, Keebet von, and Franz von Benda-Beckmann. 2008. “Religion in Dis putes: Religious Belief, Law, and Authority in Dispute Management.” Pp. 84–89 in Report  2006–7, Halle/Saale. Halle/Saale: Max Planck Institute for Social Anthropology. 

Benjamin, Walter. 1978. “Critique of Violence.” Pp. 277–300 in Reflections: Essays, Apho risms, Autobiogra­phi­cal Writings. Trans. Edmund Jephcott; ed. Peter Demetz. New York:  Schocken Books. 

Benovska-Sabkova, Milena, Tobias Köllner, Tünde Komáromi, Agata Ładykowska, Detelina  Tocheva, and Jarrett Zigon. 2008. “Religion and Morality in European Russia.” Pp. 51–54  in Report 2006–7, Halle/Saale. Halle/Saale: Max Planck Institute for Social Anthropology. 

Berlin, Sir Isaiah. 1980. Against the Current: Essays in the History of Ideas. Ed. Henry Hardy.  New York: Viking Press. 

Blum, Debra E. 2008. “Appeals Court Rules in Religious-Charity Prison Case.” The Chronicle  of Philanthropy, 4 December. http://www.philanthropy.com/news/updates/3564/ appeals-court-rules-in-religious-charity-prison-case (accessed 14 March 2008). 

Bozzoli, Belinda. 1998. “Public Ritual and Private Transition: The Truth Commission in  Alexandra Township, South Africa, 1996.” African Studies 57, no. 2: 167–195. Burnside, Jonathan, with Joanna Adler, Nancy Loukes, and Gerry Rose. 2005. My Brother’s  Keeper: Faith-Based Units in Prisons. Cullompton, UK: Willan Publishing. Chance, Kerry. 2008. “Housing and Evictions at the N2 Gateway Pro­ject in Delft.” Abahlali  baseMjondolo, 8 May. http://abahlali.org/node/3581 (ac­ces­s­ed 25 May 2008). Chanock, Martin. 2000. “‘Culture’ and Human Rights: Orientalising, Occidentalising and  Authentici­ty.” Pp. 15–35 in Beyond Rights Talk and Culture Talk: Compara­tive Essays on  the Politics of Rights and Culture, ed. Mahmood Mamdani. New York: St. Martin’s Press.  Comaroff, Jean. 1986. Body of Power, Spirit of Resistance: The Culture and History of a South  African People. Chicago, IL: University of Chicago Press. 

Comaroff, Jean, and John L. Comaroff. 2003. “Reflections on Liberalism, Policulturalism, and  ID-ology: Citizenship and Difference in South Africa.” Social Identities 9, no. 4: 445–474.  Comaroff, John L., and Jean Comaroff. 2006. “Law and Disorder in the Postcolony: An Intro duction.” Pp. 1–56 in Law and Disorder in the Postcolony, ed. Jean Comaroff and John L.  Comaroff. Chicago, IL: University of Chicago Press.  

______. 2009a. “Reflections on the Anthropology of Law, Governance, and Sovereignty.” Pp.  31–59 in Rules of Law and Laws of Ruling, ed. Franz von Benda-Beckmann, Keebet von  Benda-Beckmann, and Julia Eckert. Aldershot, UK: Ashgate.

Reflections on the Rise of Legal Theology | 215 

______. 2009b. Ethnicity, Inc. Chicago, IL: University of Chicago Press. Coombe, Rosemary J. 1998. The Cultural Life of Intellectual Properties: Author­ship, Appro priation and the Law. Dur­ham, NC: Duke University Press. 

______. 1999. “Intellectual Property, Human Rights, and Sovereignty: New Dilemmas in  International Law Posed by the Recognition of Indigenous Knowledge and the Conserva tion of Biodiversity.” Indiana Journal of Global Legal Studies 6, no. 1: 59–116. 

Dalla Torre, Giuseppe. 1998. “A Strong Moral Conscience for a Culture of Legality.” Jubi laeum A.D. 2000, “Tertium Millennium,” No. 1, February. http//www.vatican.va/  jubilee_2000/magazine/documents/ju_mag_01021998_p-8_en.html.  

Davis, Dennis, and Michelle Le Roux. 2008. “My Rights versus Your Beliefs.” Mail & Guard ian, 20–27 March, 12–13. 

De Bendern, Paul. 2008. “Turkey’s Ruling Par­ty Fights for Its Life in Critical Court Case.”  Cape Times, 1 July, 2.  

Derrida, Jacques. 2002. “Force of Law.” In Acts of Religion, ed. Gil Anidjar. New York: Routled­ge. Dezalay, Yves, and Bryant Garth. 1996. Dealing in Virtue: International Commercial Arbi tration and the Construction of a Transnational Legal Order. Chicago, IL: University of  Chicago Press. 

______. 2006. “From the Cold War to Kosovo: The Rise and Renewal of the Field of Interna tional Human Rights.” Annual Review of Law and Social Science 2: 231–255. Esposito, John L. 1996. Islam and Democracy. New York: Oxford University Press. Ewick, Patricia, and Susan S. Silbey. 1998. The Common Place of Law: Stories From Everyday  Life. Chicago, IL: University of Chicago Press. 

Feldman, Noah. 2008a. The Fall and Rise of the Islamic State. Princeton, NJ: Princeton Uni versity Press. 

______. 2008b. “Why Sharia?” New York Times Magazine, 16 March. http://www.nytimes. com/2008/03/16/magazine/16Sharia-t.html (accessed 18 March 2008). Fogel, Robert W. 2000. The Fourth Great Awakening and the Future of Egalitarianism. Chi cago, IL: University of Chicago Press. 

Giroux, Henry. 2008. “Beyond the Biopolitics of Disposability: Rethinking Neoliberalism in  the New Gilded Age.” Social Identities 14, no. 5: 587–620.  

Grey, Barry. 2000. “The US Elections: Lieberman’s Holy War against the Bill of Rights.”  World Socialist Web Site, 1 September. http://www.wsws.org/articles/2000/sep2000/ lieb-s01.shtml (accessed 11 May 2008). 

Hansen, Thomas Blom, and Finn Stepputat. 2005. “Introduction.” Pp. 1–36 in Sov­ereign  Bodies: Citizens, Migrants, and States in the Postcolo­nial Wor­ld, ed. Thomas Blom Han sen and Finn Stepputat. Princeton, NJ: Princeton University Press. Bowen, John R. 2003.  Islam, Law and Equality in Indonesia: An Anthropology of Public Reason. Cambridge:  Cambridge University Press. 

Harper, Tim. 2005. “Re­pub­li­can Lea­der Warns Judges: You Will Answer for This,” News  Center, CommonDreams.Org, 1 April. http://www.commondreams.org/headlines05/  0401-04.htm (accessed 8 May 2008). 

Hirsch, Susan F. 2006. “Islamic Law and Society Post-9/11.” Annual Review of Law and  Social Science 2: 165–186. 

Hobbes, Thomas. 1986. Leviathan. Ed. C.B. Macpherson. London: Penguin. Hussin, Iza R. 2008. “The Politics of Islamic Law: Local Elites, Colonial Authority and the  Making of the Muslim State.” PhD diss., University of Washington. 

Kaye, Randi. 2008. “Atheist Soldier Sues Army for ‘Unconstitutional’ Discrimination.” CNN. com, 8 July. http://www.cnn.com/2008/US/07/08/atheist.soldier/index.html (accessed  9 July 2008). 

Keefe, Patrick Radden. 2007. “Letter from Jaipur: The Idol Thief.” New Yorker, 7 May, 58–67. Khan, Aisha. 2007. “Rites and Rights of Passage: Seeking a Diasporic Consciousness.” Cul tural Dynamics 19, no. 2/3: 141–164. 

Klug, Heinz. 2000. “Model and Anti-Model: The United States Constitution and the ‘Rise of  World Constitutionalism.’” Wisconsin Law Review 2000, no. 3: 597–616.

216 | John L. Comaroff 

______. 2005. “Transnational Human Rights: Exploring the Persistence and Globalization of  Human Rights.” Annual Review of Law and Social Science 1: 81–103. 

Leslie, Sarah. 2008. “Dominionism and the Rise of Christian Imperialism.” Morel Ministries.  http://www.moriel.org/articles/discernment/church_issues/dominionism_rise_of_ christian _ imperialism.htm (accessed 18 March 2008). 

Mankell, Henning. 2003. One Step Behind. London: Vintage Books. 

Mauer, Marc. 1999. Race to Incarcerate. New York: New Press. 

McCann, Michael. 2006. “Law and Social Movements: Contemporary Perspectives.” Annual  Review of Law and Social Science 2: 17–38. 

Nietzsche, Friedrich. [1973] 1990. Beyond Good and Evil: Prelude to a Philosophy of the  Future. Trans. R. J. Hollingdale. London: Penguin Books.  

Pilkington, Ed. 2008. “Will the Real John McCain Stand Up?” The Guardian, G2, 5 June, 13. Pirie, Fernanda. 2006. “Legal Complexity on the Tibetan Plateau.” Journal of Legal Pluralism  and Unofficial Law 53/54: 77–99. 

Rigi, Jakob. n.d. “The Coercive State and the Spectacle of Law in Russia.” Unpublished  manuscript. 

Rutherford, Danilyn. n.d. “The Enchantments of Secular Belief.” Unpublished manuscript. Schneiderman, David. 2006. “Transnational Legality and the Immobilization of Local  Agency.” Annual Review of Law and Social Science 2: 387–408. 

Sundkler, Bengt. 1961. Bantu Prophets in South Africa. London: Oxford University Press for  the International African Institute. 

Turner, Bertram. 2006. “Competing Global Players in Rural Morocco: Upgrading Legal Arenas.”  Journal of Legal Pluralism and Unofficial Law 53/54: 101–139. 

______. n.d. “Salafiyya Activism in the Moroccan Souss: Legal Framing, Demand for Justice  and Social Integration of an Islamic Movement.” In The Governance of Legal Pluralism:  Empirical Studies from Africa and Asia, ed. Markus Weilenmann and Werner Zips.  Münster: Lit Verlag/Transaction Publishers. In press. 

Unsworth, Barry. 1992. Sacred Hunger. New York: Norton. 

Walton, Jeremy. n.d. “Civil Religion, Secular Dispensation: Islam and Civil Society in Con temporary Turkey.” PhD diss. draft, University of Chicago. 

Waterman, Anthony Michael C. 1991. Revolution, Economics and Religion: Christian Political  Economy, 1798–1833. Cambridge: Cambridge University Press. 

Williams, Daniel. 2008. “Feminism and Islam: Can They Be Reconciled?” International Her ald Tribune, 11 June, 2. 

Wilson, Richard A. 2000. “Reconciliation and Revenge in Post-Apartheid South Africa:  Rethinking Legal Pluralism and Human Rights.” Current Anthropology 41, no. 1: 75–98. Winn, Pete. 2006. “Judge Dismisses Lawsuit against Air Force Academy.” Citi­zen­Link.Org, 31  Octo­ber. http://www.citizenlink.org/CLtopstories/A000002788.cfm (accessed 9 July 2008). Yavuz, M. Hakan. 2003. Islamic Political Identity in Turkey. New York: Oxford University Press.