When I was in graduate school at the University of Chicago, and afterward when I worked there in the early 2000s, intellectual work on religion was divided into three committees: Constructive Studies, Historical Studies, and Religion and the Human Sciences. Constructive Studies included Theology, Ethics and Philosophy of Religion. Historical Studies included Biblical Studies, History of Christianity and History of Judaism. Human Sciences included History of Religions, Religion and Literature, and Anthropology and Sociology of Religion. (That division of things has only very recently been changed.) Much could be said about this doubly tripartite arrangement but one effect was to suggest that you should stay in your lane. I knew I had no business being constructive. I did not have the union card. I might be allowed to bridge what we called HC and HR but I could not do theology or philosophy or ethics. And initially I took this division to be a good one for law. Law might make good use of historical and social scientific approaches to the study of religion, but law—modern secular state law—retained all of the cards when it came to constructiveness. I even added a footnote in The Impossibility of ReligiousFreedom castigating the judge for enjoying what he called doing theology, explaining officiously the necessary division between the descriptive and the normative. I was wrong.
I have come to understand that modern state law is in an important sense very much like theology, theology narrowly understood. Law schools are like seminaries. You have to buy into the basic assumptions and then you can do your work—but you cannot really question the premise that the modern rule of law is necessary for human progress—or, in the US, that US law is the best of all manifestations of the rule of law. Everything else is subject to the law. Harvard law professor Thomas Reid Powell is said to have said that “If you can think about something that is related to something else without thinking about the thing to which it is related, then you have a legal mind.” Perhaps that might be said of some theology as well.I take it that the new political theology, on the other hand, as exemplified by the Political Theology Network, is for those who have trouble staying in their lane—regarding theology as a space of generosity. From a legal standpoint that means that religion is not best understood as finally domesticated by the rule of law but as a site for the re-imagining of the human—and perhaps of law as well.
I am grateful to the Political Theology Network for hosting this forum. Thank you to Vincent Lloyd, Yael Almog, Spencer Dew, Joshua Mauldin, and Méadhbh McIvor for reading my book so carefully. Thank you, too, for taking me seriously as a political theologian. I will always feel like I’m just a visitor. But that’s fine. For those of us who thought the academic study of religion was just a descriptive project, politico-theologizing is heady stuff.
One of the ways I got to political theology was through the realization that law—secular technocratic law—cannot save us. Laws guaranteeing religious freedom. Laws separating church and state. They cannot work if we do not have a viable political theology. Law is part of the work of that middle space, as Vincent terms it. In his introduction to this forum, he very helpfully displays the constraining discourse of sovereignty. He remarks that “with the force of sovereignty stilled, the God-like individual and the God-like state are no longer the starting and ending points for political-theological analysis. What comes in between matters just as much, if not more.” Law is one of those things.
Let me turn now to your generous responses.
While appreciating my critique of the law, Yael Almog asks how my approach might be used as a juridical tool. She notes the unsystematic and random nature of US judicial rhetoric about religion. But, she says, can’t it be improved? Joshua Mauldin, too, acknowledges what he calls the irresponsible messiness of the courts’ language about religion, but he also says that “courts and judges have to make decisions, nevertheless.” He notes that litigants come to the courts to get rulings. I have given a lot of thought to this. After all of our critique, don’t courts and judges still have to make decisions about religion? Don’t we have an obligation to be helpful? I don’t think so. I don’t think courts can or should define religion. Religion should not be used in constitutions or statutes. Certainly not in the US. Religious studies has thoroughly documented the problem with the category, both the instability of its referent and the history of its use, so deeply compromised, as it is, by colonialism and imperialism. Indeed, ironically perhaps, there is a sense in which the non-establishment clause could be seen to be an acknowledgement of both the instability and the history; in its bid for freedom from old world establishments, it can be understood, I think, as effectively prohibiting US law from being systematic about religion. I think that effective and fair legal management of religion is impossible. I think that instead we should work together to make law that will be nondiscriminatory without using the category of religion. Legally managing religion distracts us from the political theological work that needs to be done—from the deferred maintenance on our society—with respect to criminal justice, education, healthcare, and race.
Spencer Dew takes my brief reference to Anthony Bourdain in the last chapter, my tentatively constructive chapter, and runs with it, lyrically invoking the possibility of a revolutionary otherwise world. His piece recalled for me a remarkable experience I had as a high school student. For several years, I was invited to a friend’s house for a Seder meal. Her parents had been members of the Bund in Poland before and during WWII. They were self-described secular socialist Jews. Other refugees from Poland were at their Seders as well. One year I asked one of the questions. I practiced carefully, nervously wanting to get it right. What is most enduring for me about the memory of those evenings—now some 55 years ago—however—was not asking the question. It was listening to the singing after the meal—singing in Yiddish, I think. These adults who I knew as parents of my friends—university professors and their spouses—in 1960’s Chicago—singing with passion and abandon of a world I did not know. I could not understand the words but it was thrilling. Was this religion? It was an invocation of a revolutionary otherwise world. It was, and the work of the Bund was, I think, the work of the middle space—of what Méadhbh McIvor calls reality fiction.
Méadhbh McIvor has written a thoughtful meditation on the predicament of anthropology as a discipline. And on legal fiction. What do anthropologists of religion pretend to do? According to Méadhbh, they translate the ideas and practices of those they study while withholding (public) judgment about their activities. She urges anthropologists and the rest of us to eschew such legal fictions and instead engage in reality fiction—a collective work of reimagining. As Dew rightly insists, such imaginings have their own seductions and risk of distraction. They imagine something over the horizon. But we are all in such a hurry to use law to force progressive ends. Maybe now is a time rather for re-imagining, as my colleague J. Kameron Carter so insistently argues. We must re-imagine what it is to be human together. That is both a religious and a legal project, in my view.