Jacco Bomhoff is Associate Professor of Law at the London School of Economics and Political Science (LSE).
This should be an uncontroversial initial observation: The rhetoric of ‘faith’ and ‘belief’ is noticeably common in legal reasoning and legal theory. Take for example Lon Fuller’s famous belief in the affinity of coherence and goodness. Or the German Federal Constitutional Court’s longstanding commitment to a Constitution ‘which does not want to be a value-neutral order’. Or perhaps familiar declarations of ‘faith’ in doctrines of party autonomy or procedural justice. What is much more difficult to determine, and therefore likely to be more controversial, is whether these rhetorical similarities also signal any coherent underlying conception of faith. Faith in what, exactly, would be a first obvious question. Would it be helpful to distinguish a faith in law (a ‘juridical’ faith; a ‘legalism’?) from constitutional or political faiths, or from faith in ‘reason’ or in deliberation more generally? What would having, or not having, such faith mean? When Fuller, in earlier work, contrasted the ‘simple faith’ of conceptualism with a Realist ‘belief in the essential impotence of rules’, were these ascribed dispositions in any way similar to his own commitment to law’s inner morality? Is ‘faith’ even a useful label, or might ‘commitment’, ‘attachment’, ‘trust’, ‘ambition’, ‘hope’ – or perhaps Fuller’s preferred ‘fidelity’ and ‘loyalty’ – be more precise? Do these various terms designate different attitudes and behaviours? And how should we view other typically creedal elements, like the relevant community of believers, their priests, their rituals, liturgies or doctrines? Where – as in: within what disciplinary frame – do questions like these even belong?
Parallels and connections between law and religion have of course been studied for a long time. They are familiar themes in historical scholarship, and within the sociological traditions of Marx, Durkheim and Weber. But I would argue that where legal scholars in particular have approached these questions of law’s connections to, similarities with, and differences from, religion, they have done so mostly through the frame of theology. And then, more specifically, Western, Christian, Post-Reformation – Protestant – theology. This is often the frame of law as a ‘secular religion’. The relevant literature tends to be preoccupied with the relationships between what is taken to be ‘faith’, on the one hand, and its opposites on the other – often ‘reason’ or some form of ‘nihilism’. Well-known examples would include John Gardner’s Kierkegaard-inspired ‘Law as a Leap of Faith’ and Dean Carrington’s attack on the ‘nihilism’ of Critical Legal Studies in his ‘Of Law and the River’.
The basic idea underlying my current project is that the anthropology of religion, more so than theology, could be a useful lens for legal theorists to adopt. This may sound somewhat counter-intuitive. Even if legal theorists might be persuaded to adopt an anthropological perspective, surely the anthropology of law would be a more obvious place for them to begin? It is certainly true that some recent anthropological work on law, such as that of Oxford’s Fernanda Pirie or of Harry Walker at the LSE, for example, offers important entry-points for legal-theoretical engagement. And, of course, legal theorists might object that legal anthropology and legal theory are simply two different things, even if both fields might contribute to richer understandings of legal institutions overall. What I am arguing for here, though, is rather that the kinds of questions anthropologists of religion tend to ask, and the kinds of insights that they are able to generate through their disciplinary framework should be helpful to legal theorists working squarely within their own field. Here, very briefly, is why.
Anthropologists have always been interested in religion. More specifically, it is the literature on religious phenomena that has long formed the primary site for theoretical development within the discipline. By contrast, it has been argued that legal anthropology, in Lawrence Rosen’s striking insider’s assessment, has ‘contributed almost nothing to the development of anthropological theory’. Even if that assessment has to be qualified, it certainly seems true that legal anthropologists have traditionally often been interested in questions more tangential to legal theory in a classical sense – that is, to theories of law of the State, in the West. The anthropology of religion, in part because of intense preoccupation with its own perceived European, ‘Christian’, conceptual biases, has instead often looked at precisely the kinds of questions that legal theorists are interested in. Questions of ‘acceptance’, for example, in relation to different kinds of participants in what Roy Rappaport calls ‘liturgical orders’. Or questions in terms of ‘bindingness’. Or even more fundamentally, questions relating to religion’s ‘autonomy’ – its existence as a transhistorical and transcultural phenomenon. All of these, and many others, could easily be transposed into questions of jurisprudence. This should not be a matter of rough, wholesale ‘translation’, of course. And there may well be instances where the analogy is less helpful, although these mismatches might be interesting in themselves. But on the whole, as Michael Lambek has written, it appears that ‘religion, especially that of “others” has proved, in Levi-Strauss’s famous phrase, “good to think”’. Surely legal theorists, even the most analytically-inclined among them, should find a commendation like that hard to resist?
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