Religion in Disputes: Pervasiveness of Religious Normativity in Disputing Processes PDF
Preview Religion in Disputes: Pervasiveness of Religious Normativity in Disputing Processes
R D ELIGION IN ISPUTES This page intentionally left blank R D ELIGION IN ISPUTES PERVASIVENESS OF RELIGIOUS NORMATIVITY IN DISPUTING PROCESSES Edited by Franz von Benda-Beckmann , Keebet von Benda-Beckmann , Martin Ramstedt, and Bertram Turner RELIGION IN DISPUTES Copyright © Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Martin Ramstedt, and Bertram Turner, 2013. All rights reserved. First published in 2013 by PALGRAVE MACMILLAN® in the United States— a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–1–137–32204–3 Library of Congress Cataloging-in-Publication Data Religion in disputes : pervasiveness of religious normativity in disputing processes / edited by Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Martin Ramstedt, and Bertram Turner. pages cm Includes index. ISBN 978–1–137–32204–3 (alk. paper) 1. Peace—Religious aspects. 2. Conflict management—Religious aspects. I. Benda-Beckmann, Franz von, editor of compilation. BL65.P4R445 2013 201(cid:2).7—dc23 2013006560 A catalogue record of the book is available from the British Library. Design by Newgen Knowledge Works (P) Ltd., Chennai, India. First edition: August 2013 10 9 8 7 6 5 4 3 2 1 C ONTENTS Introduction: On the Pervasiveness of Religious Normativity in Disputing Processes vii Franz von Benda-Beckmann, Keebet von Benda-Beckmann, Martin Ramstedt, and Bertram Turner 1 Interminable Disputes in Northwest Madagascar 1 Michael Lambek 2 Dispelling Dispute in Native American Church Healing 19 Thomas J. Csordas 3 Religion, Crisis Pregnancies, and the Battle over Abortion: Redefining Conflict and Consensus in the American Pro-Life Movement 37 Ziad Munson 4 Religious Subtleties in Disputing: Spatiotemporal Inscriptions of Faith in the Nomosphere in Rural Morocco 55 Bertram Turner 5 “God Moves Big Time in Sophiatown”: Community Policing and “the Fight against Evil” in a Poor Johannesburg Neighborhood 75 Julia Hornberger 6 Toward Reconciliation: Religiously Oriented Disputing Processes in Mozambique 93 Carolien Jacobs 7 Religion and Disputes in Bali’s New Village Jurisdictions 111 Martin Ramstedt 8 Sanctity and Shariah: Two Islamic Modes of Resolving Disputes in Today’s England 129 John R. Bowen vi Contents 9 F orum Shopping between Civil and Shari ʿ a Courts: Maintenance Suits in Contemporary Jerusalem 147 Ido Shahar 10 L egal Pluralism in the Supreme Court: Law, Religion, and Culture Pertaining to Women’s Rights in Nepal 165 Rajendra Pradhan 11 N atural Law, Religion, and the Jurisprudence of the US Supreme Court 183 Lawrence Rosen 12 D ivine Law and Ecclesiastical Hierarchy 2 01 Matthias Kaufmann 13 R eligion, Modernity, and Injury in Thailand 215 David M. Engel 14 L aw and Religion in Historic Tibet 231 Fernanda Pirie Notes on Contributors 2 49 Index 253 IN TRODUCTION : O N THE P ERVASIVENESS OF RE LIGIOUS N ORMATIVITY IN DI SPUTING P ROCESSES Franz von Benda-Beckmann , Keebet von Benda-Beckmann, Martin Ramstedt , and Bertram Turner R eligion in Disputes: On the Pervasiveness of Religious Normativity in Disputing Processes is the result of a fruitful encounter between anthro- pologists of religion and law, religious scholars, and legal philosophers exploring variegated manifestations of the religious in disputing processes in a variety of social and geographical settings. In their in-depth ethno- graphic and historiographic analyses of cases from Germany, Great Britain, the United States, Israel, Morocco, Mozambique, South Africa, Nepal, Tibet, Indonesia, and Thailand, the authors show how “the religious” may enter into, be substantiated in, and affect the course and outcome, the scope and scale of disputing processes at different moments of their unfolding. In the event, the dynamics of the disputing process also affect “the religious” in that its tenets and practices may undergo significant transformation through code switching, idiom and forum shopping, and up- and downscaling. Disputes are seen as being simultaneously embedded in the sociopoliti- cal dynamics of local societies, as well as in processes at larger geographical and social scales. This book illustrates how global legal processes affect local dynamics, either as a reaction against or an acceptance of newly imported modes of dispute management and discourses about rights, jus- tice, and religious life (Jayasuriya, 2012; Porter, 2012). The fine-grained analyses add new insights to the imbricated debates on disputing, the role viii Introduction of religion in plural legal constellations, dynamics of legal pluralism, and religious modernities (see also Gaonkar, 2001). Building on earlier schol- arly work on the dynamics between religion and law, 1 this volume offers a new perspective on the entanglements of religious and legal normativi- ties by focusing on the creative ways in which actors draw upon different normative registers that reveal illuminating overlaps and semantic shifts. The contributions transcend more conventional accounts of disputes in religious tribunals or courts and religious processes of alternative dispute settlement by showing how time-honored tenets of faith and newly emerg- ing eschatological imaginations, along with different ritual sensibilities, become manifest in a broad array of disputes. They address processes of decision making by religious authorities, disputes in nonreligious forums in which actors use religious repertoires, and processes in which actors pursue religious goals in secular forums and via secular argumentations, thus engaging in what Engelke referred to as “strategic secularization” (Engelke, 2009, p. 39). Moreover, specific tenets of faith may enter more mundane considerations that motivate and inform actors’ disputing behav- ior and decisions, and that thus may engender alternative normative reper- toires generating their own normative dimensions in the process. The chapters furthermore demonstrate how disputes often illuminate seemingly contradictory trends at larger spatial and temporal scales that demand a more nuanced interpretation. Two major trends in particu- lar have acquired prominence in academic and public debate: one is the increasing juridification (see also Teubner, 1987) of political and moral principles engendering a proclivity for “lawfare” (Comaroff, 2009) and “rights talk” (Eckert et al., 2012) at all political levels throughout the globe. The second trend concerns the re-enchantment of the public sphere, which has stimulated debates about secularization, multicultural- ism, and diversity. These trends have been largely discussed in isolation from each other, and with little consideration for their scalar implica- tions. 2 This volume shows that the two trends not only unfold in paral- lel, but also significantly reinforce each other. The chapters also suggest, though, that the trends may not be as universal as is sometimes assumed. For all the authors in this volume, “the religious” transcends the bounds of conventional understandings of religion. We do not intend to propose a new concept here, 3 but want to stress that as compara- tive social scientists we need a comparative analytical understanding of religion.4 We therefore propose that “religion,” as an analytical cate- gory, refers to a specific kind of W eltanschauung that consists of a more or less explicit cosmological order through which the visible world is interpreted in light of a sacred or spiritual grand design beyond the visible world. It also commonly includes an eschatological order that describes how to lead a good life, and what to expect in the afterlife. Introduction ix Besides dealing with different versions of “classical” religions (i.e., Islam, Christianity, Hinduism, and Buddhism), several contributions discuss how modern forms of witchcraft, as well as inchoate forms of spirituality, may be involved in present-day disputing. One of the main properties of religions is belief in the existence of superhuman and supernatural forces that exist in an otherworldly realm but often intervene actively in social life. They may be the object of veneration and worship, and a cause for inspiration that provides as much a sense of security, belonging, and even pride as it does anxiety and awe. Religious webs of meaning thus offer emotional and cognitive orientations with explanatory and justificatory power that construct, in a more or less mandatory manner, the relations between human beings, invisible forces, and the other-worldly life, link- ing past, present, and future. Religious systems are typically part of highly complex constellations of normative and institutional registers with which they are deeply entan- gled. Moreover, virtually all religions are characterized by plurality — at a minimum, they exhibit differences between the official, orthodox reli- gious systems as understood by religious scholars and other experts, and localized, often syncretic folk registers. To different degrees, aspects of religious schemes of meaning have been juridified as religious law, as rules and principles, prescriptions, options and proscriptions, standards of evaluation, and sanctions. Such religious law may be a rather undifferen- tiated dimension of the encompassing religious universe, but it may also be separated out as a relatively bounded and sophisticated body of expert knowledge with its own experts, a separate field of study, and instructions, as is the case with the major world religions. Religious law nowadays usually coexists in different relations of inter- dependence with other forms of law (state law, international and trans- national law, traditional laws of ethnic groups), all of which may have themselves incorporated either pure or secularized versions of religious values and principles. This constitutes an important qualification of Sandberg’s useful distinction between “religion law” and “religious law” (Sandberg, 2011). While the latter refers to religion as a normative order and register of rules, the former refers to the ways religion is framed by the law of the state in its relation to other legal orders. In contrast to older literature on law and religion, which tends to employ a binary opposition of law and religion, this volume shows that legal and judicial institutions may be considered more or less religious, the difference in degree consisting in substance, legitimation, and authority of interpreta- tion. How hybrid combinations of law and religion are perceived, and whether the religious properties are emphasized and the legal character downplayed or vice versa, depends on what social actors want to highlight in the pursuit of their interests (F. and K. von Benda-Beckmann, 2009).
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