October 23, 2013
Realism and Idealism: On Law's Limits (Religious Freedom Edition)
Last week, I attended a very interesting conference about which I’ve written before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.
The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.
- First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
- I was also struck by how prevalent critical methodology seemed to be. Deconstructing narratives and discourses of various kinds (whether of persecution, of power, of freedom, of religion, or otherwise) was a major concern. I have never attended a critical legal studies conference, in part because it is not a methodological inclination I share, and in part because, in law, CLS peaked and declined long before I entered the legal academy. But here critical method seemed to be broadly embraced.
- Following from this point, one theme of the conference was that “religious freedom” is at best a useless conceptual category and at worst a malign instrument of state power that skews or deforms the natural, organic, local interactions of particular communities–a weapon with which the state can control those communities after a fashion that suits it and under the terms that it dictates.
I’ll conclude this post with just a few reflections on some incisive comments by Ben Berger that follow from this last point. Prof. Berger writes that some of the disciplinary disjunctures between law and the academic study of religion reveal law’s removal from “the reality of the social world that we find,” whereas the work of the scholars at the conference is steeped in that reality. Concerns about text, precedent, and the social managerial function of law are, he writes, anti-realist or perhaps even idealized, whereas efforts to destabilize the concepts and categories upon which the law depends and which it formalizes are real or true or representative of what is really happening “on the ground.”
The thesis is provocative, inasmuch as it is commonly assumed that if law deals with anything, it is with fact and with the real–real cases, real people, real problems, real judgment. And Professor Berger has put the point artfully and persuasively.
But I am not sure that I agree. It all depends what we mean by “realist” or “idealist.” True, law formalizes certain categories, and in doing so it may freeze them in ways that are rigid and unresponsive. True also, the categories of law may not correspond to the lived realities of people and communities; indeed, perfect correspondence is not possible if law is to accomplish some of its other vital aims. It was Lord Coke who spoke first of law’s artificial reason, but he might just as well have spoken about law’s artificial facts.
But law has its own realism–not the realism of the academic, with her aspirations to find better and ever-fresher and truer descriptions of what is (possibly with implications for law’s adaptation and expansion), but the realism of the lawyer, with his recognition that law’s capacity to respond to the social world is limited and most appropriate when it operates narrowly, formally, conflict by conflict. At its best, law is not blind to its incompleteness and to what it misses. It takes what it finds under the terms that are presented to it–the terms, for example, as reported by the gentleman from Human Rights Watch. What is real for law is what is offered up in a court of law, in the terms that litigants understand, in the terms that exist now, and in the constrained domain that law recognizes. What could be more real and more factually specific? Law’s concern is not to imagine what might be under new, better, more creative reconceptualizations of its own making. That is an idealized project–the project of the academic–and it is a vitally important one. But it is in the nature of law’s limited domain that it does not venture into such heady territory. It sits squarely within the concepts and categories that prevail at any given time. Its stance can be described as anti-realist, but in fact its posture is a useful defense against the perpetual (and real) threat of its own expansion–not infrequently at the urging of anti-formalist skeptics–into territory that does not, and ought not, concern it.
Once again, I am grateful to have been involved with this project. It has opened up many possible lines of research for me about the role and function of law in its relationship to the rest of the world that I had not before considered.