Law’s Religion: Religious Difference and the Claims of ConstitutionalismI cannot help but see a pun in the title of Benjamin Berger’s book, Law’s Religion: Religious Difference and the Claims of Constitutionalism. I see the pun not in the terms “law” and “religion,” but in the multiple meanings emerging from the possessive marker. I see the pun in Laws. It is a pun of grammar-play, not word-play.

Taken in one way, the possessive ending connotes a proprietary claim. The term law’s religion suggests the idea that law controls religion, holds sway over it. It is this sense of the phrase that appears most prominently in the book. Berger argues that Canadian constitutional law “digests” religion through its own “interpretive horizons,” which contain notably narrow assumptions about the nature of religious time, space, belief, and toleration. Constitutional law does not deal with Canadian religion on its own terms, Berger tells us. Rather, it maintains and deploys its own prototype of religion.

For the most part, Berger seems to invoke the possessive suffix in this sense. He uses the idea that law rules over religion to trouble the self-presentation of Canadian constitutional law and, in so doing, to unsettle the confidence of those agents that speak in its name—lawyers, judges, lawmakers, activists, jurists. As a propriety claim, the title, Law’s Religion, is provocative. It calls attention to the fact that constitutional law is neither impartial to, nor entirely tolerant of, the diversity of religious life in Canada.

The phrase law’s religion can, however, be interpreted in another sense. Rather than making a proprietary claim, the genitive suffix can also communicate a sense of encompassment. Taken in this way, the book’s title might denote the idea that law manifests its own forms of religiousness. Rather than suggesting law’s dominance over religion, law’s religion might also position religion as an equal partner in, or a constituent of, the apparatus of law itself. Interpreted along these lines, law’s religion does not point to the disjunctions between religion as a rubric of law and religion as an element of life (and to the “residue,” as Berger pithily puts it, which persists after, or because of, law’s forcible acts of translation). It calls attention, instead, to the features of legal institutions, discourses and practices that appear cognate with those of religion.

Consider, for example, Berger’s analysis of how Canadian law imagines time. Berger argues that Canadian constitutional law has a distinctive temporality, characterized by a powerful synchronicity. Constitutional law’s time exists in an eternal present conditioned only by a few formative historical episodes (e.g. those episodes deemed essential to “the founding” of the Federation). Canadian constitutional temporality is, for Berger, a “species of mythic time.” Although Berger does not put the matter in these terms, law’s religion, qua its religiosity, involves myths.

But one does not have to stop at myth. Constitutional law partakes equally of ritual practices, which, rather than accessories to constitutional law, undergird and enable it. Just as constitutional law transforms religion in jurispathic and jurisgenerative ways, so too do legal rituals transform the constituents of constitutional law. They transform the time of conflict into the time of adjudication, the observer into the witness, the citizen into the judge. Before rituals of ratification, constitutions are rough-hewn contracts, the written products of contentious political bargaining. It is ritual that transforms these texts into national charters. Ritual gives the words a hallowed ring. Paul Kahn makes a similar point regarding the confirmation of Supreme Court justices in the United States:

Confirmation is literally a ritual of transformation—a rite of passage—whereby an individual who had been a political being becomes an instrumentality of the rule of law. Nothing is allowed to survive that breaks from one world into the other. The appointee will be born again, stripped of her old party attachments, institutional affiliations, contacts, and even friendships. Elected officials bring their political advisors with them; a Justice is not even supposed to accept a phone call from the very people who helped her obtain office. Once she enters the Temple of Justice, she is literally on her own—with the exception of a few law clerks, who are themselves characterized by their political innocence—standing before that mysterium tremendum of our civic order: the Constitution.1Paul W Kahn, “Comparative Constitutionalism in a New Key,” Michigan Law Review 101 (2003): 2677–2705, 2687. On ritual practices in legal culture generally, see: Peter A. Winn, “Legal Ritual,” Law and Critique 2, no. 2 (1991).

As Kahn indicates, ritual does not just confirm the ontology of law, it calls that ontology into the world.

One could extend this analysis of law’s religion further, to the practices of textuality, commentary and authorization that characterize the legal process. Law, as John and Jean Comaroff have written, functions as a fetish in South Africa—not like a fetish, but as a fetish. Law’s (elevated) status and significance appears as though an end in itself, totally unrelated to its effectiveness as a tool of governance.2Comaroff, Jean & John L Comaroff. 2006. Law and Disorder in the Postcolony. Chicago: University of Chicago Press. Also, Tomlins, Christopher & John Comaroff. 2011. “‘Law As…’: Theory and Practice in Legal History,” UC Irvine Law Review, 1(3): 1039-79. The text of law is, in this way, talismanic. This word, too, is not simply metaphorical. A scholar of Thai history once told me that during the 1930s, supporters of Thai constitutional reform wore pen-sized scrolls of the new constitution around their necks, in a manner deliberately evocative of Buddhist amulets.

What would such an analysis add to this book? What might one gain from fully leveraging the pun? I want to suggest that by exploring law’s religiosities one might extend further the critical project in which Berger is engaged. Berger wants to deny law’s pretense of autonomy, its claims to “stand apart from and above” culture and, thereby, to give a view from nowhere. He does this by demonstrating that law, itself, has a culture, a particular framework of ideas and expectations through which it orders and makes sense of the world.

However, by considering the other meaning of law’s religion, by exploring the religiousness of law, one might further call into question law’s claims of autonomy. Examining the religiosities of law illuminates the fact that law and religion partake of similar, perhaps identical, techniques for transforming the status of objects, marking authority, establishing epistemic boundaries. It points towards the historical intertwining of what we have come to treat as separate domains, legality and religiosity. It also highlights the co-emplacement of these domains in broader fields of human activity. (Perhaps it is ritual that should be seen as superordinate?) Taken as a phrase of encompassment, law’s religion challenges the conceit of law’s autonomy not only by calling into question its claims to transparency, but by calling into question its very separateness as a mode of reasoning and human action.

I conclude with one last point, unrelated to my claims about the benefits of a fully exploited pun. Law’s Religion has come along at time of wide interest among scholars in the false promises of liberalism, secularism, and rule of law. Berger’s book, however, stands out from the crowd. Quite simply, it is one of the best books on law and religion that I’ve read. Berger shows a rare ability to be simultaneously empathetic and critical in his engagement with the topic. Rather than dismiss constitutional law as faulty or ineffectual, he illuminates the benefits (and creative insights) that come from reading it closely, and against the grain. Berger also demonstrates unusual skill in his treatment of philosophical sources, modeling for readers how one might profitably—and gracefully—bring thinkers such as Wilhelm Dilthey, Heidegger, Martin Cassirer and Maurice Merleau-Ponty into conversation with socio-legal research. And then there is the writing. Berger’s prose is not just precise, it is beautiful; and it is Berger’s virtuosity as a writer that makes possible the subtlety of his analysis. If Law’s Religion is a product of its times, it is truly a product worthy of emulation.