Stanley Fish's recent column, "Serving Two Masters: Shariah Law and the Secular State", will be of interest to MOJ readers, I think. He considers, among other things, this question:
“How far can liberal democracy go, both in accommodating minority groups in public policy, and, more profoundly, in granting official legal recognition to their beliefs, customs, practices and worldviews, especially when minority religious conduct and values are not congenial to the majority,” that is, to liberal democracy itself?
The question is, of course, an important one. To be sure, Christians will want to ask themselves a related, but different, question, namely, "how far can Christians go, in submitting to, or embracing, the demands made by contemporary understandings of liberal democracy?"
Fish also notes John Milbank's suggestion (which is consonant, I think, with the proposition that animates Dignitatis humanae) that
"only a distinctly Christian polity — not a secular postmodern one — can actually accord Islam the respect it seeks as a religion.” The italicized phrase is key: the respect liberalism can accord Islam (or any other strong religion) is the respect one extends to curiosities, eccentrics, the backward, the unenlightened and the unfortunately deluded. Liberal respect stops short — and this is not a failing of liberalism, but its very essence — of taking religious claims seriously, of considering them as possible alternative ways of ordering not only private but public life.
Christianity, says Milbank, will be more capable of deeply respecting Islam because the two faiths share a commitment to the sacred and to a teleological view of history notably lacking in liberalism (again, this is not a criticism but a definition of liberalism): A “Christian polity can go further in acknowledging the integral worth of a religious group as a group than a secular polity can.” Christianity can acknowledge the worth of Islam not merely in an act of tolerance but in an act of solidarity in the same way that Christian sects can acknowledge each other. . . .
Fish's column, no surprise, prompted lots of comments; here is Fish's response to those comments.
“If you live today you breathe in nihilism. In or out of the Church, it’s the gas you breathe. If I hadn’t had the Church to fight it with or to tell me the necessity of fighting it, I would be the stinkingest logical positivist you ever saw right now. With such a current to write against, the result almost has to be negative. It does well just to be.”
(August 28, 1955)
UPDATE:
“I was once, five or six years ago, taken by some friends to have dinner with [a group of their friends]. [One woman had] departed the Church at the age of 15 and is a Big Intellectual…. I hadn’t opened my mouth once, there being nothing for me in such company to say…. The conversation turned on the Eucharist, which I, being Catholic, was obviously supposed to defend. Mrs. Broadwater [the Big Intellectual] said…she thought of it as a symbol and implied that it was a pretty good one. I then said, in a very shaky voice, ‘Well, if it’s a symbol, to hell with it.’ That was all the defense I was capable of, but I realize now that this is all I will ever by able to say of it…except that it is the center of existence for me; all the rest of life is expendable.”
(December 16, 1955)
I am giving a talk on Friday at St. John’s Religious Legal Theory Conference on “Theology and Our Constitution.” One of my preliminary points is that it is not possible to interpret the Establishment Clause in a way that would avoid contradicting someone's theology – indeed there is major disagreement within major faith traditions about the relationship between religion and the state. I am still working on Islam in this respect. In the 46 countries with Muslim majorities 26 have something like Establishment. I wonder about inferring anything about the 20 though. In Turkey, for example, the military is largely responsible for the secular character of the state. I have yet to find a good overview about the different positions taken within Islam about the relationship between religion and the state although the Christian Science Monitor published a helpful set of views in 2007.
One of those views comes in a column by Abdullahi Ahmed An-Na`im as a precursor to his book Islam and the Secular State (which I am in the process of reading) in which he argues that “The state should not enforce sharia (the religious law of Islam) because compliance should never be coerced by fear or faked to appease state officials. When observed voluntarily, sharia-based values can help shape laws and public policy through the democratic process. But if sharia principles are enacted as state law, the outcome will simply be the political will of the state.” I am struck by the similarity between his argument and that of Locke though Locke does not appear in the index (perhaps discussion of Locke would detract from the persuasiveness of his book to Muslims who are his primary audience). The Lockean view rules out impingements on religious liberty, but there are some state actions that those on the religious left would see as violations of Establishment (on Roger Williams grounds) that fellow travelers of Locke (think of the Roman Catholic Church - I would be grateful for comments on the differences between Locke and Murray) might see as perfectly appropriate (think of subsidies to private religious schools).
Monday, November 1, 2010
Thanks very much to Rick and the other posters here for including me in your discussions. It is fair to say that I've long admired the writing of many of the blog's denizens (of all political stripes!), and I'm delighted to be here with you. My own writing interests are, as Rick mentioned, in law and religion and criminal law. I've also been teaching a seminar in Catholic Social Thought and the Law here at St. John's, and I very much hope to share my approach with MOJ writers and readers and get your thoughts.
One of those folks whose writing I've always found challenging and provocative is Steve Shiffrin. Here's a short review I just put up considering his thoughtful book, The Religious Left and Church-State Relations. I noticed just below this post that Rick put up Professor Paulsen's critical take on the idea of separationism. Somewhat surprisingly, one of the things that I took away from Steve's book is just a hint of nostalgia for the days when separationism ruled the theoretical roost. I say surprisingly because I'm not generally a separationist. But of all the ideas which John Rawls made famous among the pointy-headed set, I've always found the idea of restraint -- in one's personal and public expressions -- to be the most attractive. At all events, I highly recommend the book, even as (or, perhaps better, because) there are points of disagreement between us.
Responding to the kerfuffle the other day regarding the disagreement between Mr. Coons and Ms. O'Donnell regarding the constitutional status of church-state "separation", Michael Stokes Paulsen has this characteristically helpful essay. He writes, among other things, that:
The correct understanding of the First Amendment is not that it forbids contact—and even voluntary cooperation—between church and state. Rather, it protects private religious liberty, but does so in two complementary ways. In a nutshell, government may neither compel nor prohibit religious exercise. The Establishment Clause side of the coin says that government may not prescribe religious exercise; the Free Exercise side says that government may not proscribe, disfavor or otherwise punish or prevent religious exercise voluntarily chosen by the people. But the two phrases are two sides of the same coin. It is little wonder, then, that the Supreme Court has abandoned entirely the misleading metaphor “separation of church and state.” It simply does not help explain the true meaning of the First Amendment.
This is more than a quibble. The different understanding makes a difference in results. Under a separation view, government must discriminate against religion, reject school choice “voucher” plans that include religious options, and extirpate religious references and symbols from public discourse. Under the original meaning of the Constitution, government must protect religious choices and include religious persons, groups, and speakers on an equal basis. It may recognize and accommodate religion, as long as it does not in effect compel persons to engage in religious exercises or practices against their will—the hallmark of what an “establishment of religion” was understood to mean at the time the framers wrote the First Amendment.
