Wednesday, May 25, 2011
Religion's Legal Meaning
Via the folks at the Becket Fund, I thought I'd pass along this comment about a case in Tennessee involving the issue whether Islam is a "religion" or instead a political movement.
Actually the question of religion's legal/constitutional meaning is an exceptionally difficult one. The difficulty follows from the elusiveness of 'defining' religion generally, particularly after folks like Talal Asad complicated matters greatly with his formidable Genealogies of Religion. The author of the comment at Becket, Ms. Diana Verm, argues that a system of belief qualifies as a religion when it "partakes of the transcendent–its believers feel that they are connecting to something outside and higher than themselves when they practice their faith." Belief in the transcendent or some kind of higher reality is one possible approach among a set of views which would take some substantive component as essential, and it has found support in some case law (though there are significant difficulties with this approach -- for one, Buddhism seems to be left out). Another possibility, much in favor in the mid- mid-late twentieth century, is the so-called "functionalist" view, a more capacious approach which considers the various social functions that religion is thought to play in people's lives, and then accepts that those belief systems which perform similar functions ought to qualify. Emile Durkheim was one of the earliest functionalists (see his Les Formes Elémentaires de la Vie Religieuse) and the approach found favor in cases like United States v. Seeger (with reliance on the thought of Paul Tillich).
Then there is the analogical approach, which takes as its raw material the cluster of factors that religious traditions which are unquestionably -- for historical reasons -- religious share as evidence of what should qualify as religious. No single factor or characteristic is deemed dispositive but the more the system under consideration resembles traditions which are unquestionably religious, the more likely that the belief system itself will be deemed religious. This approach, developed by Kent Greenawalt, is the most persuasive to me (the reasons that I favor it are not quite the same as those often given in support of it).
At all events, it seems to me that Islam rather easily qualifies under any of these views not despite the fact, but in part exactly because, it also partakes of the qualities of a political and cultural system.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/05/religions-legal-meaning.html
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First of all, the very question of whether or not Islam is a religion is absolutely preposterous, lacking even prima facie plausibility. More interesting, are political ideologies that have religion-like characteristics: Maoism, Marxism-Leninism, fascism, some forms of nationalism....
I introduce to my students the "meaning" of religion by way of "religion-making characteristics" as follows:
1. Belief in supernatural beings (spirits, gods, etc.), God, or a supreme divine principle or force.
2. A distinction between sacred and non-sacred (or ‘profane’) objects, space, and/or time.
3. Ritual acts centered upon or focused around sacred events, places, times, or objects. This includes such activities as worship, prayer, meditation, pilgrimage, sacrifice (vegetable, animal, or human; literal or figurative), sacramental rites, lifecycle rituals, and healing activities.
4. A moral code (ethics) or ‘way of life’ believed to be sanctioned by the gods or God, or logically derived from adherence to the divine principle or force.
5. Prayer, worship, meditation, and other forms of communication or attunement with the gods, God, or the divine principle or force.
6. A worldview that situates, through (usually mythic) narrative, the individual and his/her community and tradition within the cosmos, world, and/or history. It is a significant, if not primary source of one’s identity, both in its individual form and group aspect. The worldview articulates the meaning—makes sense of—the group’s cultural traditions: its myths, history, rituals, and symbols.
7. Characteristically religious emotions or attitudes: a peculiar form of awe and fear, ‘dread’ or angst, existential anxiety, sense of mystery, adoration, reverence, love, devotion, hope, a sense of guilt or shame, serenity, compassion, etc.
8. A more or less total organization or structuring of one’s life based on an understanding (hence interpretation) of the worldview.
9. A social group wherein personal and collective identity is forged by the aforementioned factors.
10. Artistic or creative expressions related to any of the above.
A "relgion" need not possess all these characteristics, hence it does not rule out something such as "religious naturalism."
I modified this list from its original version by William P. Alston in his edited volume, Religious Belief and Philosophical Thought: Readings in the Philosophy of Religion (1963).
Buddhism is not left out of any approach that includes the notion of transcendence given the fact that Buddhism is NOT a "naturalistic" religion. The notions of samsara, karma, and nibbana (this 'transcends' karma and samsara) cannot be understood apart from a description that makes use of a notion of the "beyond," i.e., something that transcends the natural world, the latter qualified by what the Buddhists term the "three marks of existence." While the notion of transcendence is a difficult one in Buddhism, it is no less there. Some contemporary self-described Buddhists like Stephen Batchelor have attempted to formulate a theory of Buddhism (as an 'agnostic' approach) sans notions of karma and rebirth, but his rational reconstruction does not represent a traditional or conventional understanding of Buddhism, despite its appeal to those of a naturalistic bent.