Belonging to Law
| Date | 01 March 2015 |
| Published date | 01 March 2015 |
| Author | Benjamin L Berger |
| DOI | 10.1177/0964663914549408 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2015, Vol. 24(1) 47–63
Belonging to Law:
ª The Author(s) 2014
Reprints and permission:
Religious Difference,
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DOI: 10.1177/0964663914549408
Secularism, and the
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Conditions of Civic
Inclusion
Benjamin L Berger
Osgoode Hall Law School, York University, Canada
Abstract
This article examines the appeal to law as the basis for civic identity and political
belonging under conditions of religious diversity. Beginning by assessing the descriptive
utility of the concept of ‘secularism’, the article argues that secularism is best approached
as a repertoire of moves available in negotiating the relationship between religion and
political authority, focusing then on one such move evident in the contemporary project
of liberal secularism: the assertion, in the face of the challenges posed by religious
diversity, that to belong to the political community means, above all else, to belong to
law. This shift of ‘obedience to the law’ to the diagnostic center of civic belonging is
explored by turning to two case studies drawn from the legal encounter with Islam in
Canada: the debate over official recognition of Sharia law and controversies surrounding
the niqab. Having assessed the implications that this move has for the understanding and
management of religious difference, the article explains the attractiveness of this sym-
bolic appeal to law – whereby law begins to stand as a kind of synecdoche for the secular
state – and assesses the effect of this alignment of law and belonging on the politics of
religious diversity.
Keywords
Canada, civic belonging, religion, religious freedom, rule of law, secularism
Corresponding author:
Benjamin L Berger, Osgoode Hall Law School, York University, 4700 Keele Street, Toronto, Ontario, Canada,
M3J 1P3.
Email: bberger@osgoode.yorku.ca
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Social & Legal Studies 24(1)
Within the modern politics of liberal secularism, can law serve as the conceptual basis
for civic identity and belonging?
A common way of imagining law is as technique. Law is a tool at the disposal of
states and – for the more pluralistically ambitious – transnational and subnational com-
munities to achieve functional ends. In this way of thinking about it – perhaps a ‘folk’
understanding (Moore, 1978) – law belongs to us. Law is something that communities
develop, that communities hold and deploy, and in this sense, one can speak of law in
the possessive: Canada’s, England’s, or France’s legal system. But this is not the only
way of imaging the lines of belonging between law and community. One thinks of Jew-
ish law, in which a community is defined and constituted by its relation to law; Jews are
those who belong to the Torah, who belong to law. In Canada, one cannot but think of
Indigenous legal traditions, in which law is not created or deployed by communities as
much as it is engaged with as a means to constitute and affirm communities (Borrows,
2010). Nor is this sense of the configuration of law and belonging foreign to modern
national political contexts. The imaginative heart of American republicanism is the
idea of a community constituted under law, the Constitution being something that one
could intelligibly claim to be defending, making law something for which one would
fight and die (Kahn, 1997).
The political and social challenge of religious diversity is, in sizeable measure, a chal-
lenge of community self-definition. Religious difference makes patent the diversity that
subsists behind the patinas of value convergence characteristic of too much modern
nationalist politics (Webber, 1994). Religious diversity is one fact that stirs us from the
oneiric aspiration of a political community bound together by shared worldviews and
lends urgency to the search for a common ground of community belonging. How does
a secular state – one committed, in some fashion, to the disentanglement of political
authority and religious and metaphysical claims – respond to deep religious difference
while maintaining some workable sense of political community? The lessons of modern
history, as well as the facts of transnational mobility and migration, preclude any
straightforward or overt political self-definition on ethnic or racial lines. Common cur-
rencies, access to markets, and social welfare entitlements do not seem sufficiently
robust to carry the weight of community belonging, as the European experiment seems
to consistently show (see e.g. Guibernau, 2011; Haltern, 2003). But what about law? Met
with the challenges of community definition occasioned by deep religious difference,
should secular liberalism look to law as a candidate to sustain community belonging?
And so I return to the question of how to imagine the role of law in the modern politics
of religious difference. In a liberal secular paradigm, does law belong to us or do we
belong to law?
To some, this question is flawed at its foundation because it assumes a mistaken pre-
mise that there is one historical or sociological phenomenon called ‘secularism’. In the
past many years, an important body of research has developed that emphasizes the broad
range of political and legal configurations that subsist under the general mantle of secu-
larism, a rich variety of secularisms that is obscured by reference to a single modern
phenomenon. Jakobsen and Pelligrini (2008) urge a pluralization of the idea of the
secular, offering a range of studies of the ways that religion and political power can
be disentangled in various historical and social contexts. Ahmet Kuru’s examination
Berger
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of secularism in France, Turkey, and the United States draws out the diverse methods and
mechanisms used to give local shape to the secular in each national setting, emphasizing
in particular the influence of political history and reactions to an ancien r ´egime in the
development of various approaches to realizing secularism (Kuru, 2009). These and
other works have been insistent in their call to attend to the range of local approaches
to decoupling religion and political authority and the diverse social, institutional, and
legal dynamics involved in the ‘varieties of secularism’ (see e.g. Warner et al., 2010; Whit-
man, 2008). The forms of secularism are also made various in part by virtue of the political
and emotional polysemy of religion itself, ‘[t]he ways in which the concept of ‘‘religion’’
operates in [a] culture as motive and as effect, how it mutates, what it affords and obstructs,
what memories it shelters or excludes, are not eternally fixed’ (Asad, 2006: 106). ‘That’,
Asad insists, ‘is what makes varieties of secularism . . . always unique’ (Asad, 2006: 106).
It seems dangerously reductive to speak of what happens within ‘the modern politics of
secularism’ or what features characterize secularism. Too much of interest and importance
is elided when this diverse range of phenomena are assembled under a capacious umbrella
of ‘the secular’.
Yet there nevertheless seem to be a set of commonalities, linkages, and ‘family
resemblances’ between manifestations of the secular, shared or analogous features
across these varieties of the secular that make it not only intelligible but also edifying
to speak in broader terms. And so there is also something lost in an insistent focus on
the particular. As one author aptly puts it, thinking of secularism only in local and
particular terms presents the risk of underestimating ‘the globalizing power of the beha-
viors, knowledges, sensibilities, and political arrangements that have come to comprise
the secular’ (Fernando, 2010: 31). In a transnational and not yet entirely postcolonial era,
political and legal common sense have a distinctive mobility, lending importance to the
work of those who seek to identify patterns, trends, and attitudes that appear to adhere to
the idea of the secular (see e.g. Asad, 2003; Taylor, 2007). Certain experiences of the
politics of secularism are common enough across local contexts, and deviations from
these larger trends seem significant enough, that these broader brushstroke analyses are
also indispensible.
It seems, then, that we should seek to analyze the politics of secularism while some-
how holding together the imperatives and insights of both the particular and the general.
With this methodological challenge in mind, secularism is perhaps best approach as a
repertoire of moves available in the project of untethering religion and political author-
ity. Local context, social and political history, and institutional structures will condition
the moves that have particular purchase or appeal in a given national or regional tradi-
tion; certain tools will lie more readily at hand depending on these factors. Yet one can
still intelligibly and usefully speak of certain possibilities and resources available by vir-
tue of participation in something like a project of secularism, a project that is more or less
recognizable as such across diverse local instantiations. Within that broader context,
when facing particular social or political challenges, certain of these resources will pres-
ent as attractive candidates for use; each will also carry their own risks and pathologies.
The analysis of this repertoire – what makes certain moves appealing or troublesome and
what social and political dynamics they engender – is one fruitful way into the study of
secularism and the politics of religious difference.
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Social & Legal Studies 24(1)
This piece examines one such move, the political dynamics it generates, and the
reasons for its...
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