The Rule of Law and the Rule of God PDF
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The Rule of Law and the Rule of God This page intentionally left blank The Rule of Law and the Rule of God Edited by Simeon O. Ilesanmi, Win-Chiat Lee, and J. Wilson Parker the rule of law and the rule of god Copyright © Simeon O. Ilesanmi, Win-Chiat Lee, and J. Wilson Parker Soffftcover r eprint off thehardcover 1stedition 2014978-1-137-44775-3 All rights reserved. First published in 2014 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 978-1-349-49631-0 ISBN 978-1-137-44776-0 (eBook) DOI 10.1057/9781137447760 Library of Congress Cataloging-in-Publication Data The rule of law and the rule of God / [edited by] Simeon O. Ilesanmi, Win-Chiat Lee, J. Wilson Parker. pages cm Includes bibliographical references and index. 1. Religion and law. I. Ilesanmi, Simeon O., 1963- editor. BL65.L33R85 2014 201’.7—dc23 2014012990 A catalogue record of the book is available from the British Library. Design by Amnet. First edition: October 2014 10 9 8 7 6 5 4 3 2 1 Contents Acknowledgment vii The Rule of Law and the Rule of God: An Introduction 1 Simeon O. Ilesanmi, Win-Chiat Lee, and J. Wilson Parker I Fundamental Concerns 1 The Return of Political Theology 15 Mark Lilla 2 Monotheistic Faith and the Cosmopolitan Conscience 31 William Schweiker II Limits in the Construction and Application of Free Exercise and Establishment Doctrine 3 Grappling with Neutrality and Liberty under the Religion Clauses 53 Frank S. Ravitch 4 A Unique Religious Exemption from Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions for Those Who Discriminate against Married or Marrying Gays in Context 83 Michael Kent Curtis 5 Accommodation as Establishment: State Sponsorship of Religious Pilgrimages in Nigeria 115 Simeon O. Ilesanmi III The Challenge of Islam 6 Theocrats Living under Secular Law: An External Engagement with Islamic Legal Theory 145 Andrew F. March vi Contents 7 The Just War Argument in Islam (Who’s Up? Who’s Down?) 173 John Kelsay 8 Veiled Women in the American Courtroom: Is the Niqab a Barrier to Justice? 189 Anita L. Allen 9 Terror(izing) the “Veil”: American Muslim Women Caught in the Crosshairs of Intersectionality 207 Sahar F. Aziz IV Concluding Thoughts 10 Rules of Law and God: Liberal Democratic Reflections on Freedom, Equality, and Religion 235 Richard B. Miller Postscript: The “Arab Spring” of 2011 and Case of Lautsi and Others v. Italy 253 J. Wilson Parker List of Contributors 271 Bibliography 275 Index 281 Acknowledgment This book is a collaborative effort and has benefited from the sage advice, research, and criticisms of a host of scholars. However, it was the vision, encouragement, and support of the office of the provost at Wake Forest University that provided the impetus for an interdisciplinary conference whose focus became the subject of this book. The editors wish to express their deep gratitude to the former provost Jill Tiffenthaler and former vice provost Mark Welker for their financial assistance. Conference organiza- tion requires the help of many individuals on numerous levels. Prepara- tion for the conference would have been impossible without the precise guidance and tireless logistical support of Debra Alty, formerly of the office of the provost, and Sheila Lockhart of the Department of Reli- gion. Special thanks go to Burke Gerstenschlager and Caroline Kracunas of Palgrave Macmillan for their expertise and editorial assistance in pre- paring this manuscript for publication. Two graduate students, Robert Martin and Kayla Wolfe, provided clerical assistance at critical stages. We thank our families for their understanding and support during the many hours of effort devoted to completing this work. Finally, we would like to thank the contributors of this volume for the great care with which they prepared their essays for this publication. The Rule of Law and the Rule of God: An Introduction Simeon O. Ilesanmi, Win-Chiat Lee, and J. Wilson Parker I Aristotle’s observation that we are by nature political animals has been widely recognized as a truism since antiquity. Equipped with a social instinct implanted by nature, human beings have sought a community of some kind with a view to some good. One may add to this that religion and law have both played significant roles in the organization of these communities, as well as providing norms governing the activities of their members. They have coexisted both in harmony and in conflict with each other through the ages and under a great variety of cultural contexts. The historical and normative issues stemming from the relations between the two are complex and have been studied by scholars of many disciplines. The purpose of this book is to renew our exploration of some of the normative issues involved from a multidisciplinary perspective in the light of our more recent experi- ences of the interaction between religion and the rule of law. The primary sense in which the word “rule” is used in the title concerns governance. In this sense, the particular vision of social and political life or the system of governance informed and legitimated by the undergirding worldview can be understood as that worldview’s rule. Ordinarily, this refers to the normative structure that governs how power is distributed in society, how members of society are supposed to act, and how various sectors of soci- ety are supposed to relate to each other. While some societies permit a wide dispersal of power among their citizens, for example, through a scheme of constitutionally protected rights that they enjoy, other societies concentrate political power in the hands of one or a few individuals who presumably exercise it on behalf of and for the benefit of the rest of the population. 2 Ilesanmi, Lee, and Parker In this sense, the rule of law and the rule of God denote two com- peting regimes or conceptions about how we ought to live, including the shape and purposes of the various institutional structures that govern our lives. Of course, this ideological battle about how and whether to draw a boundary between the sacred and the secular is not new, but it has assumed heightened urgency and global significance in the last two decades, thanks to a series of events involving many state and non-state actors. Scholars were often blindsided by this development because of the post-Enlightenment predictions that increased exposure to modern- izing influences would precipitate the gradual, if not rapid, extinction of religion. Max Weber was representative of this tradition when he charac- terized the modern society as a successor to the old order, whose author- ity was legitimized by tradition and charisma, for its acceptance of “the belief in the validity of legal statute and functional ‘competence’ based on rationally created rules.”1 Religion straddles the realms of both tradition and charisma in Weber’s theory, since it is a conduit for the transmission of what he calls “the authority of the ‘eternal yesterday’, i.e., of the mores sanctified through the unimaginably ancient recognition and habitual orientation to conform,” as well as a signification of “the absolutely per- sonal devotion and personal confidence in revelation, heroism, or other qualities of individual leadership.”2 From this viewpoint, then, the birth of the modern state is the outcome of a process by which the realm of politics and law is gradually emancipated from the encumbrances of reli- gion and constituted into increasingly autonomous political institutions. Differently put, the Weberian point is that the modern society is com- mitted to the rule of law while the traditional society governs itself by the rule of religion. The differences between the two are not inconsequential, for the basic features typically attributed to one are denied to the other. For instance, the rule of law is defended for the ends it is intended to serve within society and the institutional attributes believed necessary to achieve these ends. It seeks to “protect against anarchy and the Hobbesian war of all against all,” to “allow people to plan their affairs with reason- able confidence that they can know in advance the legal consequences of various actions,” and to “guarantee against at least some types of official arbitrariness.”3 Achieving these ends requires the existence of commensu- rate institutional devices, such as “comprehensive laws, well-functioning courts, and trained law enforcement agencies.”4 But do societies whose pillars of political and legal life are built on the authority of religious ideas necessarily lack these teleological and institutional attributes? The verdict on this question may not be as conclusive as Weber believed it to be. What is certain, according to one of the contributors to this volume, is that “religion will not go away but is in fact shaping global and local
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