Law and Religion: Law, Religion, and Critical Theory

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LAW AND RELIGION: LAW, RELIGION, AND CRITICAL THEORY

In the course of a case concerned with contempt of court, an English judge not long ago remarked: "if any secular relation is analogous to that between priest and penitent, it is that between lawyer and client" (X Ltd v. Morgan Grampian ). The judge in question, officially entitled Master of the Rolls, or in a vernacular idiom, Lord of the legal writings, appears to have meant that there is no higher duty than that owed to the law. The relationship between lawyer and client is a fiduciary one, it is based upon faith, and it relays the truths contained in the texts or scripture of law.

This judicial aside can help to remind us that for all of its seemingly secular aura, the contemporary legal tradition still harbors theological roots and practices, a hermeneutics that developed first as a dogmatics or unraveling of canonical, text-based truths. The great scriptural moments of law, from the eighteenth-century bce Code of Hammurabi to the U.S. Constitution, from the civilian codes to the books of common law, still place law apart or purport to remove it from the mundane political domain, and so perpetuate a religious function. In that the interpenetration of law and religion is structural rather than always immediately apparent, its reconstruction is best illustrated historically as well as conceptually.

Under God and Law

The modern Western legal tradition has its roots in a dual law whose source is first divine and only latterly spoken through the mouth of the mundane sovereign or judge. The Judeo-Christian tradition of law depended heavily upon the image of a divine legislator whose orders governed both nature and society. From the very beginnings of the tradition, the source of law was the dictate, commandment, or tables of an invisible God whose decrees were enigmatic and in need of protection and interpretation by authorized human intermediaries, oracles, and, later, lawyers.

The Renaissance inherited a theistic—specifically, monotheistic—conception of law through the Corpus Iuris Civilis, or great code of Roman law that the Eastern Emperor Justinian I (482–565) had ordered compiled in early-sixth-century Byzantium (Berman, 1983). The text had been lost for several centuries before its rediscovery in Bologna toward the end of the twelfth century, and it became both the source of law and the rule of its method (Legendre, 1964). Although no more than a collection of fragments, maxims, and opinions of long-deceased Roman lawyers, the Corpus Iuris represented to the later age the irrefragable truth of law. It was preserved and studied as a sacred text. This means, in essence, that what mattered was the status of the text and the rites of access to it rather than the vagaries of its content. In the description of one humanist lawyer, early jurists would travel to Italy to study the original text of the law, which was "guarded like a sacred relic, only being very rarely shown accompanied by candles and torches, thus did the ancient mystagogues show their law to the faithful" (Hotman, 1567, p. 120). The source of such a view is not hard to discern. The Corpus indeed begins by announcing that God is its author—Deo Auctore —but also early on indicates that the study of law is the study of all things, both divine and human. So too, within the early common-law tradition, it was God and law that governed, and those who represented the law were expressly the delegates of maiestatis, or divine authority. In a characteristic phrase from a guide to the study of law authored by an English lawyer writing at the very end of the sixteenth century, "law and religion do lie together" (Fulbecke, 1599, p. 103). They are between the same persons and about the same things.

The rules of legal method, both in Europe and in the anglophone common-law world, are derived from the inherited Roman exemplars. Although God was from the early modern period onward decreasingly the explicit source of law, the Western tradition remained bound to a series of religiously inspired dogmatic axioms. First and paradoxically, the source of law remained a mystery, or arcanum, that exceeded the bounds of temporal human knowledge. Law was founded upon something other than law. The text was simply a visible manifestation of an invisible cause; the law was in the end the expression of a law of law and thus only the iuris peritus, or legally wise, could excavate and interpret the proper meaning of rules that by this definition were necessarily too old to be uncovered by historians or too technical to be understood by the untrained. In good Christian fashion, lawyers believed that the text was simply a mnemonic or sign of a higher order of truth, and hence it was a primary rule of method that it was not the letter of the law, but according to the Roman jurists, it was rather its interlinear force and power, the intention that spoke through it, that had to be observed. For the English legal sage Sir Edward Coke, it was equally "non verba sed veritas est amanda— not the words, but the truth that is to be loved" (Maclean, 1992, p. 33).

Second, although the source of law existed prior to and exceeded any specific written representation, the immediate secular presence of law was to be found in a text or series of texts that were the bearers of the esoteric but visible rule of law. Law was a system of texts, and it was in and through the scripture of law that the sanctity or separateness of law was maintained. A chief marker of such distance from the mundane lay in the language of law, which was explicitly that of written reason, or ratio scripta, namely Latin rather than the vernacular, because God and law were best protected from both the blandishments of popular use and the depredations of the local tongue (Goodrich, 2003).

Third, the textual basis of law imposed hermeneutics, or the science of textual interpretation, as the proper method of legal study. Encoded in a foreign tongue and surrounded by rites of solemnization and authority, only the chosen few—the sovereign and its various delegates—could properly pierce the veil of the text, and embody and interpret the laws. The historical trajectory of law from the divine ruler to the human subject meant that legal hermeneutics was not simply bound to the doctrine delivered through texts, but also was under the duty of discovering the singular and primary truth that underpinned any given legal text. Monotheism in short dictated that just as there was only one God, so too there could only be one meaning of law, and that was the meaning that accorded best with the hermeneutic labor or divination of what the deity—or latterly the emperor, the founding fathers, or sovereign—intended (Legendre, 1988).

The Normative Function of Law

Dogmatics, the patient exegesis or exposition of the meaning of an incorrigible text, is common to religion and law. To the extent that theologian and jurist are alike concerned with expounding not the letter but the spirit, not the words but the truth of the text, the technical role of interpretation is secondary to its normative function. The text must produce not simply a meaning but an object of reverence: an image, concept, or term that the subject can love. The text must bind the social, and to do so it must get under the skin of its subjects and attach them to law. Within the Western tradition such veneration of the law was both explicit in the Decretals —the primary source of ecclesiastical law, which directly ordained a love of texts in the injunction venerandae romanae leges (the laws of the Romans must be venerated)—and more structurally in instituting the image of authority: a pontiff, sovereign, or other social father figure who acted as the living emblem of a divine law.

The term dogmatics derives from the Greek dokein and means "to think," but it also has a secondary meaning of "reverie," or the recounting of dreams and visions. The alternate connotations capture the dual function of the textual art of law. According to the Roman tradition it was the function of law vitam instituere, or "to institute life," and this function can be interpreted plausibly to include two principal projects. The first was broadly aesthetic and amounted to enacting the social or instituting a theater of justice and truth (Gearey, 2001). The second was more strictly ethical—instituting a subject who would take up his or her role in the hierarchy of textually assigned places and thus live faithfully, according to the dictates of the social father, and within the law.

"The theater of justice and truth" is an expression that derives from the early modern era, and it captures well the essentially symbolic function of law that more contemporary law formulates less elegantly in the maxim that "justice must not only be done, but must be seen to be done." To have its effects, law has to be staged. It has to establish a scene of law, and this means not simply an image of authority or authorship of law, but a series of ceremonies or rites of solemnization through which the sanctity of law can be promulgated or made socially present. This depends first upon a spatial metaphor—the separation of the legal from the social within an elaborate architecture of courts and codes of procedure that include control of both how the law is represented and what can be said about it (Haldar, 1999). The architecture of law signals a hierarchy and power that is apparent not only in the often dramatic scale of the courthouse (its columns, domes, and rotunda) but also in the courtroom itself, with its familiar bar that marks the separation of law (the bench) from the social, and across which the law will sound. The bar is what Franz Kafka (1883–1924) framed as the gate or door before which the peasant protagonist of his parable "Before the Law" waited uselessly, or at least under a misapprehension for the entirety of what remained of his life (Kafka, 1976).

The law requires both a physical demarcation of its distance from the mundane, as well as a professional caste of lawyers, the fiduciaries who will mediate and disseminate the protocols that institute and maintain that distance. The role of the lawyer is that of guardian of the secrets of texts, because it is the texts of law that establish the hierarchical places and legitimate roles of the social. In classical law, the text is not simply something to read, it is the space people inhabit. Hence the life and death significance of hermeneutics, the legal art of manipulating the arcane elements of legal texts, the foreign languages, the enigmas, archaisms, and other protocols through which the law gains its legitimacy and its force. It is indeed the unique feature of the Western legal tradition that it is fundamentally enigmatic. The ritual character of legality is not directly a feature of celebration or education, but rather it separates and distances so as to establish hierarchy and inculcate reverence for a theistically derived truth and law. Whereas non-Western traditions, such as that in China, have frequently relied upon governance through the simplicity of laws, the Western tradition has used the complexity of legal language and the intricacy of texts as one further symbol of the divine provenance of law (Soupiot, 2002).

Critical Theories

The beginning of all critique lies in the critique of religion. This Marxist axiom probably stands in need of revision. The beginning of all critique now probably lies in the critique of law, although as elaborated above, this means critique of a law that is both divine and human in its origins. In a recent study of the "mediocracy," the contemporary French intellectual leftist Dominique Lecourt offers the view that it is precisely the failure to challenge an unthinking adherence to the sanctity of law that undermines critical theory: "Today," he opines, "there is no more emphatic discourse than that extolling the virtues of the 'state of law'.… When we hear encomia to a form of state that respects duly established judicial rules and procedures, another little tune insinuates that the state is 'law' in the sense that wine is 'Bordeaux'.… Has the structure via which the normativity of juridical and political institutions operates in the West really changed? Has the absolute reference point constituted by God remained vacant?" (Lecourt, 2001, p. 129).

Viewed in historical perspective, the separation of church and state was a displacement of the religious function from the former to the latter, involving a juridification of the rites of solemnization rather than their erasure. In good Roman fashion, modern people go to court for the truth, to the market for credit or belief, but only privately attend the confessional, mass, synagogue, or Sunday service (Saunders, 1997). Reason appears to be free of the church but remains staunchly Christian, indelibly Western, and resolutely singular. In the manner of the earlier juristic tradition of universalia, or imperial and global statements of legal truth, it should also be pointed out that reason attaches to institutions that are hierarchically ordered, organized according to systems of authorized texts, and generally dogmatic in their methods. The legal function, in other words, takes over the public space of religion or the founding image of the social, yet renders itself more or less impervious to the political critique of religion by adopting an increasingly secular and economical, or efficient, appearance in its more visible social forms of presence, whether on Court TV or in the various grandstand trials that more or less continuously perturb the media.

In a contemporary critical idiom, the key question that remains to be fully addressed is that of what the residual religious function of law entails. From an anthropological perspective it is evident that the rites, rituals, arcane languages, and architectural and artistic insignia of law all convey significant social and political messages, and not least the attributes of authority and attachment. In these terms, law both provides a sense of community and models the modes of belonging, of citizenship, and of social role. These begin with the family and end with the sovereign and the reason of state. Their logic, if not always their religious roots, has been the object of a variety of critiques based loosely in gender studies, social theory, and critical race studies.

In many senses the most obvious and potentially the most far-reaching of critiques of the religious function of law lies in the critique of the paternal role of the law, and specifically of the father figure in whose name the lawyer speaks. The tradition is explicitly and expressly patristic, and the law speaks in the name of a singular father. This has had a variety of detractors based in feminist theory and in gender and transgender studies. At its most basic, the tradition models a singular law and an equally monolithic reason. A logic of identity and a privileging of the same thus take precedence over difference and diversity. As Luce Irigaray, one of the most legally oriented of feminist critics, has put it, this means that there is in doctrinal terms only one sex and only one form of legal personality or citizenship. Using the fact that there are two sexes—three if one counts the relationship between the sexes as a further distinct form of sexuality—she argues for explicit legal definition, protection, and rights for a feminine legal personality (Irigaray, 1992). She continues to advocate a doctrinal accounting of the feminine and so interestingly proposes a diversification of both the texts and methods of law. Doctrinal difference here requires attention to the body as well as to the more familiar abstractions of law, and favors the reason of emotion, the aesthetic and poetic, as supplements to the rigid morality of law.

Parallel to the argument for difference predicated upon gender is the broadly sociological critique of the caste and class, or priesthood, of lawyers (Kairys, 1990). Here the social class and political place of the legal profession is subjected to a substantive critique of the instrumental function of legality. Law protects private wealth rather than public good. It favors the rich, or corporate interest, over the poor. The profession itself both represents and belongs to a ruling elite. The political economy of lawyering inexorably supports the hierarchical and singular logic of established power, or the status quo ante, leading critical legal scholars—a brief but expressive conference of radical legal academics—to the position that law is indistinguishable from politics, and that legal reason is simply theology by other means (Schlag, 2000).

Writing within a Christian tradition is inevitably a Trinitarian enterprise, and so there is ineluctably a third position to depict. Critique of the gender bias and class interests of law, of the residual paternal function and priestly status of lawyers, was in cultural terms an internal critique. Feminism and gay and lesbian studies had their roots in white, middle-class, and frequently legal circles. The critical legal studies movement was overwhelmingly masculine and rooted in a white, middle-class academy. Concerned primarily with projecting their own anger at their exclusion from power onto the juridical structure, they ironically adopted a legalistic stance in critique of law, and paradoxically offered a series of universal solutions to the problem of the extant universalism. Critique here tended to represent most directly the interests of the critics themselves, and at best simply spoke for—rather than empowering or giving voice to—the majority of those excluded by the sexism or elitism of the juristic tradition. Amongst the various flaws in such a position was the absence of any sustained attention to racial difference or to non-Western cultures.

The final branch of critique thus has been critical race theory. It has introduced the history and the plural forms of diverse non-Western cultures into the analysis of law. Histories of slavery have been introduced into the analysis of the law of property, and fiction, dance, and jazz have been culled for their expressions of alternative norms and laws (Williams, 1988). Although authored primarily from within the Western legal tradition, critical race theory provides at least one impetus for perceiving the limits of Western law. Viewed as the expression of a social form, the limit of the Western legal tradition is coincident with the limits of the religious culture and history that it represents. That the Christian tradition was both imperialistic and universalizing gains expression contemporarily in the expansionist tendencies of law and economics. The fact that the discipline of law is not any longer expressly religious in its self-presentation should not obscure the fact that lawyers currently undertake the fiduciary role and bear the status insignia that in previous eras belonged to the priest and enjoyed the protection of the church.

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