Law’s Religion: Religious Difference and the Claims of ConstitutionalismIn Theory From the South: Or, How Euro-America is Evolving Toward Africa, Jean and John Comaroff consider the juridification of history and politics in the “endemically policultural” postcolonial South, and ask the question, “why the fetishism of law?” “[T]he language of legality,” they offer, “affords people in policultural nation-states an ostensibly neutral medium to make claims on each other and on the state, to enter into contractual relations, to transact unlike values, and to deal with conflicts arising out of them. In so doing, it produces an impression of consonance amidst contrast: of the existence of universal standards that, like money, facilitate the negotiation of incommensurables across otherwise intransitive boundaries” (78-79).

Law’s Religion: Religious Difference and the Claims of Constitutionalism is, of course, not theory from the South. It is a book about law and religion in the north of the Americas. Yet in the concerns that animate the book, and the concepts with which I work, there is something of an affinity with the spirit of this passage. My concern is similarly with the relationship between law and the cultural, with the appeal of certain comforting accounts—however misleading—about the character and function of law, and with the toll that such misleading accounts exact on our social and political lives. The heart of Law’s Religion is a critical skepticism about the impulse to use “tidy stories” about law and religion to hide the messy and unruly relationship between religious difference and modern constitutionalism, stories that overwhelmingly depend on the conceit of law’s distance and autonomy from culture, history, politics, and, indeed, religion.

Many such tidy stories circulate in the study of law and religion. My target in this book is the Canadian constitutional and political story about the management of religious difference through legal multiculturalism and toleration. Law’s Religion emerged as I wrestled to understand the abiding force and purchase of this story despite its descriptive inadequacy in capturing the experience and challenges of law’s engagement with religion. I take a step back from this account and look afresh at the relationship between constitutionalism and religious difference, offering a different story, one that denies us the comfort afforded by law’s conceit of its distance and autonomy from culture. The cultural pluralism imagined by legal multiculturalism, I observe, never includes the constitutional rule of law itself; rather, law sits in a managerial role above the realm of culture. On this juridical account, law is the curator—rather than a component—of cultural pluralism. In this book I seek to trouble this account by inviting readers to see what can be seen when we knock law from this managerial or curatorial perch and understand the constitutional rule of law as itself a cultural form.

There is some peril in employing the concept of “culture” as centrally as I do in this volume. But the invitation to understand Canadian constitutionalism as a culture is intended to offer an alternative starting point in the study of religion’s contemporary interaction with law, one whose point of departure is the experience of living within the constitutional rule of law. This is a methodological intervention. As I use it, culture is a marker for a kind of phenomenological approach to the study of law and religion, one that steers a course between the gravitational poles that tend to structure the area: ideal theory, on the one hand, and the internal analysis of legal concepts, on the other. It involves asking a different set of questions when analyzing the points of interaction between law and religion, questions about how law digests and defines religion and about how religious individuals and communities experience the force of such legal understandings. This is what it means for me to talk about understanding the constitutional rule of law as a cultural form: it is a way of positioning law as an object of inquiry rather than an authoritative analytic frame or simply a species of the political. It is an approach that takes as its primary focus the particular way that law shapes and gives meaning to experience and, given that particularity, the way that it can itself be experienced.

The core of the book is then a study of the ways in which Canadian constitutionalism shapes the perception and understanding of religion and the consequences of these constituting framings on the experience of religious difference and legal toleration. Moving through an exploration of the ways in which law’s foundational spatial and temporal commitments establish the terrain of religious freedom—what I call the “aesthetics of religious freedom”—the analysis alights on the way in which constitutional law fashions religion as a social and political phenomenon. I seek to show that when constitutional law sets its gaze on religion, religion takes on a particular form, one that accentuates certain aspects of religious life and practice, while concealing others. In this, my analysis has a kinship with Winnifred Sullivan’s work in The Impossibility of Religious Freedom: there is an experiential residue left after the shaping and trimming of religious life into “law’s religion.” Religion is not only what the law imagines it to be. Law’s religion—individual, chosen, and private religion—is but a corner of lived religion. In this sense, Law’s Religion is a local constitutional study of the gap that Elizabeth Shakman Hurd has so elegantly demonstrated between lived and governed religion. Appreciating the effect that this has on the character of the relationship between law and religion is crucial to the account that I offer in this book.

One such effect of seeing the particularity of law’s religion is what it discloses about the character of legal toleration and what this means for the way that the culture of law’s rule is experienced by religious actors and communities. Consistent with the approach of viewing the constitutional rule of law as a cultural form, I offer an analysis of the juridical practices of legal toleration of religion as a mode of cross-cultural interaction. The analysis disturbs prevailing wisdom about the nature and limits of legal tolerance of religion, showing it to be a far more complex, modest, and ambivalent practice than our political and legal rhetoric would suggest, a practice forcefully circumscribed by the culture of liberal constitutionalism. Law’s tolerance of religion is a form of cultivated and continually refined indifference towards religious cultures—not the more ambitious posture of inclusion and accommodation suggested in the conventional stories—and when the boundaries of this indifference are found, when religious belief and practice begin to push on law’s understanding of religion, this posture of tolerance collapses into one that is essentially assimilationist or conversionary in nature. Importantly, these limits of legal toleration are, I show, limits that liberal theory about law, religion, and multiculturalism tends to enact and confirm, rather than solve.

The account that emerges in Law’s Religion seeks to capture aspects of the experience of the relationship between religion and the constitutional rule of law left in the shadows by the conventional story of legal multiculturalism. Disrupting constitutional law’s self-presentation as a field that can serve as a neutral meeting ground for diverse forms of culture, the book seeks to repoliticize our understanding of the interaction between religious difference and constitutionalism.

It is not, however, an account aimed at yielding the kind of prescriptive solutions to which we are accustomed in legal scholarship. As a legal scholar, I am interested in the content and features of legal argument and analysis. But generating a refined doctrinal scheme that could resolve the tensions and paradoxes that I describe is not the goal of this book; indeed, the approach and animating ethic of this volume stand firmly against an orientation towards such legal “solutions.” Yet the book nevertheless arrives at a certain kind of prescription. It is an ethical prescription, a claim about the political and legal virtues that would be suited to actors inhabiting my story about religious difference and the constitutional rule of law. Drawing inspiration from William Connolly’s call for a “bicameral orientation to political life” appropriate to conditions of cultural pluralism, I argue that the account I provide in Law’s Religion should inspire particular virtues in constitutional adjudication: an ethos characterized by fidelity and humility and a commitment to practices that ennoble and exploit the irenic potential of a cultivated indifference. Fidelity, for me, describes the sense that the judge has a role in reflecting and nurturing a certain commitment to the web of meanings, ways of being, and public gifts of a liberal constitutional culture. The humility that I imagine is a humility about the potential universality of law’s culture, about the capacity of law to understand other cultural forms, and about the ultimate contingency of the privilege enjoyed by law’s culture.

Law’s Religion draws affectionately and unapologetically from the history, jurisprudence, and debates generated out of the Canadian constitutional experience of religious difference. There is a resulting specificity to the claims that I make in these pages. And yet many of these claims also speak to features that are found in other constitutional orders. As such, in identifying the partial character of “law’s religion,” the limits of legal toleration, and the analytical, political, and ethical challenges posed by the adjudication of religious freedom, my hope is that this book will be useful to the broader and comparative study of law, religion, and politics in contemporary constitutional life.

I wish to thank in advance the four outstanding scholars who will be providing responses to my book on this forum—Elizabeth Shakman Hurd, John Borrows, J. Barton Scott, and Benjamin Schonthal—for their generosity in engaging with my ideas. I very much look forward to the conversation.

Read excerpts from the book, including the full introduction, here.