Religion and Law

What Is Religion?

A lecture to a legal symposium on Religion: A Public and Social Good, convened by the Canadian Council of Christian Charities at the University of Toronto.  It was delivered on May 11, 2015...                                                                      

 

Years ago, the Canadian philosopher George Grant told me a joke which he said he had heard from Bertrand Russell.  It tells of two atheists who are engaged in a long and fruitless debate.  Finally, recognizing that they’re getting nowhere, one turns to the others and says, "Look, let’s just give this up.  I’m a Protestant atheist and you’re a Catholic atheist and we have nothing in common.”  It’s a joke with a sharp and pertinent point in relation to my theme this evening the slipperiness of the word religion and the difficulty of telling who has it and who doesn’t.   Religion may be renounced but that does not mean that it is not still conserved, in both the institutions and the thought styles that bear its genetic imprint.  Atheism, as one such renunciation, is entirely defined by what it rejects and can never be anything more than a slogan until it specifies what that is.  Which God don’t you believe in is always the logical next question?  And that question, when it’s taken seriously, and not answered by an attack on some celestial straw man that no one ever believed in in the first place, must necessarily involve sustained historical, psychological and existential inquiry. 

The difficulty of defining atheism is one aspect of the more general difficulty involved in trying to define religion, and I don’t intend to try.  Rather I would like, first, to explore the bewildering multiplicity of meanings that are bound up in this everyday word, religion, and then, second, to show that the institutions by which we normally define it are but the proverbial tip of the iceberg.  Most of the mass lies hidden underwater in the form of thoughts and practices that we confidently define as secular.  This matters, I think, because religion is a contested object: in law, in education, in politics, in daily discussion.  And, if we don’t really know what we’re talking about, and if all sorts of rules are being made to contain this “x,” then it is probable that what we are doing is regulating the forms of religion our definitions can catch, while giving its many unrecognized forms a free ride.  Expanding our understanding, therefore, holds a certain promise and allows us at least to imagine a way out of the perennial modern culture war in which religion has always played such a divisive role.  

According to Eric Vogelin, the first writer to create a single compact category for the proper worship of the gods was Cicero.  Before this time, Vogelin says, many of the things that we unify under the name of religion had distinct and separate existences.   No one imagined that cosmological myth, Mosaic law, Buddhist dharma, and Platonic philosophy all belonged in the same bag.   Cicero’s motive, according to Vogelin, was conservative – he wanted to protect the truth in the face of a disconcerting and, he feared, disintegrating diversity of opinion and practice regarding the gods.   However that may be, the word was taken up by nascent Christianity, but still not used in our contemporary sense for a long time to come.  Wilfred Cantwell Smith, the great Canadian scholar of religion writing in the 1960’s argued that religion doesn’t even begin to acquire its contemporary flavour before the 16th century.   “Religion as a discrete category of human activity separable from culture, politics and other areas of life,” says Cantwell Smith, “is an invention of the modern West.”  Before the 16th century - at the earliest - the word can denote a virtue, a disposition, a habit – a practice let’s say - but not the adoption of a set of propositions or beliefs as “my religion.”  In fact Cantwell Smith goes on to say that “the rise of the concept of religion is in some ways correlated with a decline in the practice of religion itself.”   (Just as an aside here some of the slipperiness of the word can be seen in that quote, in which Smith, having just said that religion is not a transhistorical essence but a modern invention then goes on to speak of “religion itself” as if it were just such an essence.  This shows, I think, the difficulty we still have in speaking of these matters.)  John Bossy, the historian of Christianity, concurs with Cantwell Smith in finding that religion remains inextricable from culture until the time of the Reformation.  Only then, did the idea of religion as a matter of rational belief and private choice begin to take shape.  By 1700, he says in his book Christianity in the West, 1400-1700, this process was relatively complete.  By then, he writes, “the world was full of religions, objective social and moral entities characterized by system, principles and hard edges.”  

Religion was isolated and packaged.  And, once it had been withdrawn from culture, it could then serve as a scapegoat, a cypher for violence and arbitrary opinion.  For example, the wars that convulsed Europe between the beginning of the Reformation and the Peace of Westphalia became known as the wars of religion.  But, as William Cavanaugh has shown in his book The Myth of Religious Violence, this name conceals more than it reveals.  What it conceals is that these wars were primarily wars of national self-assertion, the birth pangs of the modern national state, in which religion was often no more than a convenient marker for other interests.  It also effectively hides the sacred and church-like character of the emergent modern state by make this state appear to be the harbinger of freedom from religious violence.  Religion became the scapegoat of Enlightenment, the shadow in which it hid its violence.

A second important point to note is that this concept of religion was no sooner  formed than it was exported. Wherever an expanding Europe conquered, the template of religion was applied.  In India, for example, no clear distinction was drawn between religion and philosophy, and there was no thought that one ought to belong exclusively and as a matter of identity to one community of belief.   This does not mean there was never friction between communities, just that there was no object resembling what the modern West had come to call religion.  Today Hinduism defines itself as a religion; conflict between religions is endemic; and a superior secular authority is required to keep the peace and adjudicate these conflicts.

The isolation of religion was a key part of what French thinker Bruno Latour calls the modern constitution, that series of “purifications” – Latour’s word – which also included the equally artificial distinction then being established between nature and society.   Charles Taylor speaks of a “subtraction narrative” rather than a purification,  in his A Secular Age, but he has essentially the same idea.   In the conventional narrative of secularization, Taylor says, secularity is considered to be a primordial condition which is concealed by obscurantist religion.   Remove the religion and, presto, there’s the secular.  This story is no longer persuasive.  Taylor has shown convincingly that the secular is a child of Latin Christianity, and quite unthinkable without it.  Latour, likewise, has shown that the once plausible separations characteristic of the modern constitution are now in shambles.  If you had told Immanuel Kant, Latour once joked to me, that human beings were changing the weather, he would have patiently explained to you that you were a victim of outmoded mythic thinking – nature here/society there was a model that still worked for him as a demystification of occult powers.  In the new era that Latour likes to call the Anthropocene, when humans really do change the weather, it won’t work any longer.  And, I would argue it’s just the same with the separation of the religious from the secular – the fingerprints of religion on the secular are becoming too obvious to ignore.

Nevertheless they are ignored, and many still think that the category of religion covers only what goes on in mosques, churches, synagogues and temples or what goes on in our heads concerning the ultimate nature of things.  This continuing attempt to isolate and privatize religion runs into two main objections: first that religion exists in so many displaced forms, and second that it is built in to our institutions, and to our ways of thinking and speaking.  As far as its displaced forms, I think, this is pretty well worked ground, and I probably don’t need to go into it here.  I recently read a persuasive essay arguing that baseball is a religion, and I don’t think the idea is trivial.  If it walks like a duck and quacks like a duck etc.  We use the word colloquially to describe any habit whose identical repetition we cherish.  One can be religious about a certain way of making coffee.   At a more serious level, millenarian political movements are commonly understood as displacements of religion.   In his book Migrations of the Holy, William Cavanaugh makes an excellent case for hiscontention that the modern state is now the primary site of the sacred.  Carl Schmitt makes the famous claim that, “All significant concepts of the modern theory of the state are secularized theological concepts” and adds the corollary that this is not just a question of historical precedence – the sovereignty of God comes before the sovereignty of the modern state – but also of structure – the analogy between the exception in jurisprudence and the miracle in religion is not accidental but derives from their identical function.   Schmitt took his insight in disastrous reactionary directions, but I think he is right nonetheless.  I don’t  see how we could get to the modern concept of sovereignty except via our idea of God, and, more than that, I don’t see how we can ever resolve the dilemmas of modern sovereignty without addressing their religious origin – a point I’ll come back to a little at the end.

A second aspect of the question of displaced religion concerns liturgy or ritual – the terms can be distinguished but are often used in overlapping ways.  Many modern students of religion have made the point that the relationship between liturgy and belief, or between ritual and myth is reciprocal.  Liturgy doesn’t just institute or incarnate a pre-existing belief, it also engenders that belief.  The British theologian John Milbank puts it this way: “The Christian God can no longer be thought of as a God first seen but rather as a God first prayed to,  first imagined, first inspiring certain actions.”  Liturgy enacts the church; it brings it into being.   But this is true not just of the church.   Its modern descendants – the school, the hospital, the prison – are also generated and maintained by certain rituals, or perhaps it would be better to say that their institutional practices are rituals, whose repetition produces a certain belief.  Consider for example the way in which the Canadian government has recently been able to generate a belief in public safety by intensifying the ritual of imprisonment, and has been able to do so in the face of overwhelming evidence that they are actually doing the opposite of what they say.   I won’t pursue this claim further here, but I think analysis of contemporary institutions a mytho-poetic (myth-making) rituals is a promising line of inquiry, and apt to show our supposedly secular society as a religious ceremony of unprecedented scale – to say nothing of cost.

I have already begun to touch on what I said would be my second point: the way religion is built in to the foundations of our society.  Here I will just briefly mention two of my most important teachers.  The first is Rene Girard, the French literary critic, anthropologist, and philosopher – his work is not easily  pigeon-holed.  His argument is that without religion, by which he essentially means sacrifice and prohibition, there would never have been human cultures in the first place.  Only religion, he says, could ever have contained our tendency to get stuck in self-perpetuating structures of reciprocal violence.  On this reckoning religion is the genome of human culture – its genetic constitution. 

Ivan Illich, the second thinker I want to mention, holds that modernity can only be understood as a perversion of what is given in the New Testament.  This is an argument to which I can’t do justice here, but it holds, in a phrase, that modernity is the Gospel upside down.   Jesus announces freedom from religion.  The point is complicated because this announcement is very hard to disentangle from the anti-Semitism that is always implicit and sometimes explicit in the attack on the legalistic Pharisees, but, nevertheless, again and again, religious prohibitions, even family ties and funeral obligations, are denounced in favour of a freely chosen love.   The Church makes this love the law.  It institutionalizes it and tries to make it perform punctually and reliably.  The result, claims Illich, is the vast architecture of institutionalized care which arguably defines modernity.

Now that’s almost criminally condensed, but my point is that our apparently secular world is nothing of the kind – rather it’s a kind of frozen religion – and it remains that regardless of how many people sit, or don’t sit in churches.  This realization has been dawning on people in many ways in our time, I think.  Another place to look is at the so-called return of religion in European philosophy – the descendants of Heidegger, thinking within the horizons of the New Testament.  Jean Luc Nancy calls Christianity “the nervous system” of the West.  Giorgio Agamben and Alain Badiou publish commentaries on the apostle Paul.  Jacques Derridawrites his Circonfession in homage to Augustine’s Confessions.  All these thinkers in some way recognize religion as a limit – something that we can’t get beyond.  Derrida, for example, shows how the messianic belongs to structure of experience, of time, of language.  “I’m afraid we’re not rid of God because we still have faith in grammar,” as Nietzche wrote in The Twilight of the Idols.  Many of these writers I’ve mentioned identify as atheists – Jacques Derrida puts it wittily and carefully when he says “I rightly pass for an atheist” – a statement which characteristically allows him to open the very door he appears to be closing.  A favourite work of mine, along these lines, is Richard Kearney’s Anatheism.  Kearney is an Irish philosopher and novelist and poet who now teaches at Boston College.  By adding the prefix ana – up, back, again – he tries to unsettle the theism/atheism distinction, and to highlight the atheistic moments even within theistic religion.  A simple distinction God/not God, he shows, is not true to our experience.

Now let me finally try to draw out two implications of what I have been saying. I have been arguing first that religion has changed its meaning over time, so we need to know what we’re referring to when we use the word – there may, for example, be a virtue of religion, expressing itself in a habit of humility and reverence, which is quite distinct, in our peculiar circumstances, from membership in a religious institution.  Secondly, I have been arguing that conserved religion – to give it only a very tentative name – is constitutive of our very way of life.  To me this points to the need for what Harold Bloom calls “religious criticism.”  This is the first implication to which I want to draw attention.  Bloom uses this term in his book The American Religion, and defines it by analogy with literary criticism, naming Ralph Waldo Emerson and William James as his two great predecessors in the practice of this art.  Literary criticism attunes itself to the voices of a text; religious criticism reads religion in the same spirit.  Now Bloom is interested in a taxonomy of the unique forms religion has taken in the United States, whereas I have talking here about how religion has conditioned our civilization as a whole, but I still find his term evocative.  Religiosity pervades our supposedly secular existence, and religious criticism suggests the discerning eye with which I think we need to examine it. 

The second implication, and here I will end, is that the only road open to the future may run through the past.  Only there will we find what John Milbank calls “the future we have missed.”  Suppose it is true that our present way of life is a product of religious misunderstanding – a perversion of the promise of salvation that has led into what begins to look like a historical dead end.  Suppose that the word religion, even after we have patiently deconstructed it, continues to name something essential about us, that, as William Blake says, “More! More! is the cry of a mistaken soul; less than All cannot satisfy Man.”  Then I think it follows that only by understanding what has gone wrong will we be able to set it right.  This does not mean rejecting secular society and instituting utopia.  So long as religions generate oppression and war, a secular power will be necessary to restrain them.  The existence of such a power is already a remarkable religious achievement.  But it does mean re-understanding what has happened to us, which, I think, is what conversion is – not changing what has been, but seeing it with new eyes.