Reflections on the Rise of Legal Theology

Law and Religion in the 21st Century

Publication Date:

Journal: Social Analysis

Reissue Date:

Page start: 193

Page End: 216

Volume: 1

Edition: 53

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

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 “dia- sporic 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 legaltheology. 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 confes- sional (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, muscu- lar 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.


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 bounda- ries; 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 dis- placed 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.


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-ideologi- cal” 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 differ- ence; 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 Broth- erhood, 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 recog- nised 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 politi- cal, 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 Swe- den, 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’ … wor- king 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 regula- tion 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 sove- reign 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.


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-olo- gies—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 poli­culturalism. The prefix ‘poli-’ denotes both plurality and a political claim to the exercise of gov- ernance 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 lib- eralism, 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-lega- lity 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.


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 govern- ment 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 dif- ference 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 scaffold- ing, 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.

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