Religion, Human Rights, and Post-Secular Legal Theory

(Excerpt) The idea of human rights embodies the moral outlook and aspirations of modernity. It is through the language of human rights that political obligations are established and articulated, and it is through the language of human rights that an account of human nature and personhood is given meaning and form. The language of human rights is our common moral vocabulary. As Michael Perry writes, the morality of human rights-that is, the morality that grounds the law of human rights-has become the dominant morality of our time; indeed, unlike any morality before it, the morality of human rights has become a truly global morality. The idea of human rights, in this respect, embodies more than simply a system of legal norms. It rather represents, more elementally, a morality that aims to transcend all particular commitments and to serve as the basis of a shared moral order. The language of human rights, argues Upendra Baxi, has become a discourse that seeks to supplant all other ethical languages

Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it generates, the Court\u27s jurisprudence has instead concretized the binary. Only by cultivating a new understanding of the secular in law might there emerge an approach to Establishment Clause jurisprudence that overcomes the regnant binary. This article offers the idea of higher law secularism as way of reconceptualizing the secular that opens the Establishment Clause to such alternative forms of meaning

Faithful Presence and Theological Jurisprudence: A Response to James Davison Hunter

This paper considers how James Hunter’s arguments, presented both in his address and his book To Change the World, might inform the development of a constructive religious legal theory based in the particular resources of Christian theology. In speaking of religious legal theory, I mean something quite different than a theory of law and religion. For some time, the academic conversation about law and religion has centered around issues concerning church-state relations and, more broadly, the place of religion within the liberal political order. Yet, the regnant methodological concerns that have shaped this discourse reflect the boundedness of law to a modern secular imaginary. This being the case, pulling theology into deeper conversation with legal thought will require freeing law from its lingering state of captivity. Hunter’s work is particularly useful in this ground-clearing task because it offers a dense critique of the sociological assumptions that have shaped legal modernity. While his concern is not with religious legal theory as such, Hunter’s normative account of Christian being in the world, captured most fully in the idea of faithful presence, contains important resources for developing a model of Christian engagement with law

End of organised atheism. The genealogy of the law on freedom of conscience and its conceptual effects in Russia

In the current climate of the perceived alliance between the Russian Orthodox Church and the state, atheist activists in Moscow share a sense of juridical marginality that they seek to mitigate through claims to equal rights between believers and atheists under the Russian law on freedom of conscience. In their demands for their constitutional rights, including the right to political critique, atheist activists come across as figures of dissent at risk of the state's persecution. Their experiences constitute a remarkable (and unexamined in anthropology) reversal of political and ideological primacy of state-sponsored atheism during the Soviet days. To illuminate the legal context of the atheists’ current predicament, the article traces an alternative genealogy of the Russian law on freedom of conscience from the inception of the Soviet state through the law's post-Soviet reforms. The article shows that the legal reforms have paved the way for practical changes to the privileged legal status of organized atheism and brought about implicit conceptual effects that sideline the Soviet meaning of freedom of conscience as freedom from religion and obscure historical references to conscience as an atheist tenet of Soviet ethics

Constructing the secular : law and religion jurisprudence in Europe and the United States

This paper compares the law and religious jurisprudence of the U.S. Supreme Court and the European Court of Human Rights across three legal areas: individual religious freedom, institutional religious freedom/freedom of the church, and religious symbols/church-state relations. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. While there remains significant jurisprudential diversity between these two courts and across these different legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern the West. These legal systems will increasingly be defined by their similarities more than their differences

Law, Religion, and Secular Order

This article compares the law and religion jurisprudence of the us Supreme Court and the European Court of Human Rights across three legal areas: religious symbols and religion-state relations, individual religious freedom, and institutional religious freedom or freedom of the church. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. Although there continues to be significant jurisprudential diversity between these two courts and across these legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern West

Higher Law Secularism: Religious Symbols, Contested Secularisms, and the Limits of the Establishment Clause

There are two dominant traditions of understanding the secular, both with long genealogical resonance in western thought: Christian secularity and secularism. The former links the secular to a theological narrative, while the latter defines the secular as standing over and against religion. Constitutional debate has commonly framed the issue of religious symbols as demanding resolution in favor of one of these traditions. Rather than offering a way to overcome the divide and the culture war it generates, the Court\u27s jurisprudence has instead concretized the binary. Only by cultivating a new understanding of the secular in law might there emerge an approach to Establishment Clause jurisprudence that overcomes the regnant binary. This article offers the idea of higher law secularism as way of reconceptualizing the secular that opens the Establishment Clause to such alternative forms of meaning