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Mississippi College Law Review (2008)
  • Mark C Modak-Truran, Mississippi College School of Law
The continued vitality of religion has motivated many scholars in sociology, anthropology, political theory, international relations, and philosophy to revisit their assumptions about how religion relates to their disciplines. Despite this robust re-examination in other disciplines, two outmoded paradigms about the relationship between law and religion —theocracy (pre-modern) and secularism (modern)—continue to dominate legal theory. Under the modern paradigm, the secularization of law—that the law is or should be independent of any religious foundation or values—arguably constitutes the most widely-held but least-examined assumption in contemporary legal theory. My thesis is that two quandaries or crises for legal theory—legal indeterminacy and the ontological gap between legal theory and legal practice—have called into question the autonomy of law and its professed secular foundation under the modern paradigm. First, the debate about legal indeterminacy has made it clear that law cannot function autonomously—as a self-contained set of rules—but requires a normative justification of judges’ decisions in hard cases. In addition, Steven D. Smith has persuasively argued that there is an "ontological gap" between the practice of law, which presupposes a classical or religious ontology, and legal theory, which presupposes a scientific ontology (i.e., scientific materialism) that rejects religious ontology. The ontological gap implicitly acknowledges that each act of legal interpretation presupposes a religious ontology and a notion of authentic human existence (i.e., law must be connected to our ultimate values). Consequently, I will argue that closing the ontological gap and providing a normative theory of law consistent with legal indeterminacy requires a desecularization of law and a return to a religious legitimation of law. Desecularization does not mean returning to the pre-modern paradigm (theocracy) as suggested by contemporary calls for government recognition of the United States as a Christian nation by posting the Ten Commandments, displaying crèches, etc. While somewhat exaggerated, the charge of theocracy accurately identifies the implicit assumption that the law is or should be legitimated by a particular religious tradition—the “Judeo-Christian tradition”—in the world’s most religiously diverse nation. The Establishment Clause of the First Amendment and a proper understanding of religious pluralism rule out returning to the pre-modern paradigm. They prohibit the law from explicitly adopting a religious legitimation and require that the text of the law be secularized. Nevertheless, the secularized text of the law does not mean that the law has an autonomous secular foundation. As seen by the Muslim headscarf controversy in France, the secularism proposed by the modern paradigm includes or entails a comprehensive or religious justification for the law. Secularism competes not only with Christianity, Judaism, Islam, Hinduism, and Buddhism, but also with humanism, capitalism, communism, and other so-called secular comprehensive or religious convictions. In this respect, the modern paradigm continues rather than supersedes the pre-modern paradigm and contravenes the Establishment Clause and religious pluralism. To move beyond theocracy (pre-modern) and secularism (modern), this article closes by identifying the trajectory for a new constructive postmodern paradigm that embraces legal indeterminacy and secularizing the text of the law but argues that a plurality of religious convictions implicitly legitimates and thereby desecularizes the law. Desecularizing the law does not result in the imposition of the religion of the ruler (theocracy) in a pluralistic democratic society. Rather, the constructive postmodern paradigm of law and religion allows for the religious pluralism in society to provide a plurality of religious ontologies that implicitly legitimate the law and close the ontological gap between legal theory and legal practice.
  • Religion,
  • Law,
  • Secularism,
  • Secularization,
  • Religious Pluralism,
  • Theocracy
Publication Date
Citation Information
Mark C Modak-Truran. "BEYOND THEOCRACY AND SECULARISM (PART I): TOWARD A NEW PARADIGM FOR LAW AND RELIGION" Mississippi College Law Review Vol. 27 Iss. 1 (2008)
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