After Secular Law

Winnifred Fallers Sullivan, Robert A. Yelle, Mateo Taussig-Rubbo

• Publisher: Stanford Law Books
• Year: 2011
• Print ISBN: 9780804775366
• eBook ISBN: 9780804780704
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religion, Politics & State

Many today place great hope in law as a vehicle for the transformation of society and accept that law is autonomous, universal, and above all, secular. Yet recent scholarship has called into question the simplistic narrative of a separation between law and religion and blurred the boundaries between these two categories, enabling new accounts of their relation that do not necessarily either collapse them together or return law to a religious foundation.

This work gives special attention to the secularism of law, exploring how law became secular, the phenomenology of the legal secular, and the challenges that lingering religious formations and other aspects of globalization pose for modern law's self-understanding. Bringing together scholars with a variety of perspectives and orientations, it provides a deeper understanding of the interconnections between law and religion and the unexpected histories and anthropologies of legal secularism in a globalizing modernity.

PART I

Histories of the Legal Secular

CHAPTER ONE

Moses’ Veil

Secularization as Christian Myth

ROBERT A. YELLE

The categorical distinctions between the two kingdoms and spheres, which were handled in a practical way in epochs which recognized the institutions of state and church, do not work any longer. . . . For the walls collapse and the spaces which were once distinct intermingle and penetrate each other, as in a labyrinthine architecture of light.

—Carl Schmitt, Political Theology II¹

The “Great Separation”

The standard narrative of the birth of our age includes an account of the progressive extrication of the political domain from the clutches of religious fanaticism. Religion, in this narrative, functions as the evil Other, a monster the slaying, or rather taming, of which was one of the defining moments in the birth of the modern, liberal subject as Hero, as the champion of freedom and Enlightenment, in the sense in which Immanuel Kant defined that movement: as “man’s emergence from his self-imposed immaturity” under the “guidance of another,” or “alien guidance.”² Kant’s definition of Enlightenment as maturity or adulthood, as casting off the yoke of servitude to another, exchanging heteronomy for autonomy, parallels the charter myth of modern law, which describes a progressive growth of freedom, above all freedom of and from religion, following the European wars of religion that took place in the sixteenth and seventeenth centuries. Despite periodic relapses into barbarism, this narrative affirms an irreversible progress. Never again will we return to the evil old days, when religion oppressed the individual conscience and became the cause of violence and war. According to a frequently repeated formula, secularism and religion are polar opposites, rather than close kin; religion is distinguished from secularism on the basis of its stubborn adherence to outmoded, superstitious, or barbaric practices; and the only possible outcome of this encounter is that eventually, in some bright future more or less distant, we shall all be converted to secularism, which abolishes false distinctions based upon religious particularities.

Mark Lilla has recently advanced his own version of this narrative of secularization, which he calls the “Great Separation,” the conclusive severing of the connection between religion and politics supposedly effected by such thinkers as Thomas Hobbes and John Locke.³ Lilla portrays this as a necessary and irrevocable step in the birth of the liberal order, and a precious legacy to be defended. He rejects attempts to reintroduce the consideration of modernity as a “political theology,”⁴ in which law and politics have only apparently become separate from religion, but actually continue to be dependent on categories inherited from a theological past. Lilla’s metaphor resembles Thomas Jefferson’s “wall of separation,” or even Roger Williams’s “Garden and the Wilderness,” in which church and state were similarly walled off for mutual protection. Good fences supposedly make good neighbors. The concept of political theology threatens this accommodation, by calling into question the religious neutrality of the secular state. Lilla’s recommendation is that we should reinforce and recommit to the “Great Separation.”

From my perspective, this would mean clinging more tightly to a historical narrative that has already been exposed as a theological myth.⁵ David Kennedy has noted that modern law’s self-depiction as “that which has been able to differentiate and defeat religion, by inheritance and banishment . . . repeat[s] in a secular key a practice of distinction that, recast as the separation of the sacred and the profane, seems the most central concern of religion itself.”⁶ Indeed, Christianity arguably created a separation between the religious and political domains with its distinctions between the “Two Kingdoms (Cities, Swords)” and, even earlier, between Christian “grace” and Jewish “law.”⁷ The original version of the “Great Separation” was the founding narrative of Christianity, which, according to Saint Paul, effected a fundamental break with its own Jewish past. Following Christ’s redemptive sacrifice on the Cross, the laws that prescribed sacrifice and other rituals were ineffective as a means of salvation, and were abrogated. Religion was no longer a matter of law, but of grace; no longer of the flesh, but of spirit.

Not all law had been abrogated, of course. Later Christians divided the Mosaic laws into three categories: “moral” or “natural,” “civil” or “judicial,” and “ceremonial law,” also called “ritual” or simply “religious law.”⁸ Natural law was universal, and transcended the ephemeral distinctions embodied in external modes of worship; it bound even the Gentiles, to whom the Jewish law had not been revealed (Romans 1). Civil law was the law of a particular nation or people considered as a political body, and ended at the boundary of that nation or with the demise of its sovereignty, as had happened with the Israelite kingdom. Ceremonial law consisted of the external forms of worship of a people such as, in the case of the Jews, laws prescribing circumcision and certain dietary restrictions. Christians claimed that the ritual laws that had enforced the separation of the Jews from other peoples had now given way to the universal dispensation announced by Christ. The Christian distinction of ceremonial from the other branches of law contributed to a denigration of ritual, as well as to the identification of a universal, natural, moral law that transcended all religious and ritual particularity.

The present essay traces some of the ways in which what we call “secular law” has been shaped by Christian soteriology and supersessionism. The separation of a spiritual “religion” from both civil law and ceremonial is only the first and most obvious of these ways. This reinforces the view that we inhabit a particular political theology, and calls into question the familiar distinction between law and religion assumed by secularists. Rather than Lilla’s metaphor of the “Great Separation,” it is Carl Schmitt’s opposite image, quoted in the epigraph above, of collapsing walls—which we may identify, ambiguously, as both the walls of the monastery during the Reformation and Jefferson’s “wall of separation”—that appears to capture the present moment more accurately. What happens when these walls are shown to be vulnerable?

Enlightenment Lifts the Veil of Superstition

Lex est umbra futurorum

Christus finis promissorum

Qui consummat omnia.

—Adam of Saint Victor (d. 1146 C.E.)

I begin by tracing one of the earliest versions of the myth of the “Great Separation.” Paul described in the letters he wrote to the church communities of the first century the manner in which Christ simultaneously conserved, fulfilled, and replaced the law of Moses. The Gospel “consummated and abolished” Judaism (to borrow Edward Gibbon’s phrase).⁹ Paul defined Christian salvation as a process of universalization, interiorization, and enlightenment. One of the key passages in which Paul described this feat of conversion is 2 Corinthians 3, quoted here in the Authorized or King James Version (1611):

12 Seeing then that we have such hope, we use great plainness of speech:

13 and not as Moses, which put a veil over his face, that the children of Israel could not steadfastly look to the end of that which is abolished:

14 but their minds were blinded: for until this day remaineth the same veil untaken away in the reading of the old testament; which veil is done away in Christ.

15 But even unto this day, when Moses is read, the veil is upon their heart.

16 Nevertheless, when it shall turn to the Lord, the veil shall be taken away.

17 Now the Lord is that Spirit: and where the Spirit of the Lord is, there is liberty.

18 But we all, with open face beholding as in a glass the glory of the Lord, are changed into the same image from glory to glory, even as by the Spirit of the Lord.

Paul used the image of the veil to define the relationship of Christianity to Judaism. Moses’ veil represented the ritual law founded on the Ten Commandments, those “tables of stone” brought down from Sinai. According to Exodus 34:32–35, when Moses came down from the mountain, his face was too bright to gaze at directly; hence the necessity of covering it. Paul inverted the symbol of the veil, converting it into an image of the darkness of the ritual law, which was now replaced by spiritual laws carved not on stone, but on the “fleshly tables of the heart.” The Gospel removed the veil and liberated us to view the full noonday light of the Son, indeed, to bask in and be transformed into His image. The law of Moses was a law of death, a carnal law that held the Jews in bondage. Christ removed the religious barriers that separated Jews from Gentiles and served as marks of an external discipline that would now be replaced and perfected by a new subjectivity, an internal discipline superior because invisible, ubiquitous, and transcendent: in a word, spiritual.

The salvation consummated with Christ’s sacrifice coincided with the miraculous event of the rending of the veil of the Temple in Jerusalem (Matthew 27:51). Many Christians took this as the sign that a new dispensation had replaced the “Old Testament,” the ritual prescriptions of which symbolized, in obscure form, the spiritual promise fulfilled by Christ.¹⁰ Henceforth, these rituals were no longer required, as they had no potential to effect salvation; Protestants later insisted that salvation was through “faith alone” (sola fide). According to early Christian typological interpretations of the Hebrew Bible, Jewish ceremonies were merely “types,” symbols that foreshadowed the “antitype” or reality presented in the Gospel.¹¹ Adam of St. Victor refers to this idea with his statement that Jewish “law is the shadow (umbra) of things to come.”¹² All such dark, figurative discourses were replaced by the light of the Gospel.

While Protestants emphasized the literal sense of Scripture and, accordingly, often devalued typological interpretations, the idea that the Gospel represented the triumph of “plain speech” over Jewish mystery was encoded in the King James Bible’s translation of 2 Corinthians 3:13.¹³ Salvation would come from “lifting the veil” of the Jewish law. The sign of the eschaton or end-times was the conversion of that last, stubborn remnant of the Jews, who persisted in their ignorance. The Scottish Puritan John Weemes (1579–1636) expanded on Paul’s image, and glossed the line “He will take away the vaile” as follows:

The Apostle alludes here to the use of the vaile, which was amongst the Jewes; for the women, when they were married to their husbands, they put a vaile upon their head, in token of subjection to their husbands. So the Jewes were married to the Law first, as to a husband, and were in subjection to it; but now being dead to the Law, they are married to Christ, Rom[ans] 7:4. When this vaile which was a signe of their subjection and blindnesse shall be taken away, then they shall behold Jesus Christ the end of the Law, as in a most cleare glasse, and their eyes shall not be dazled, as they were when they beheld Moses; but it shall be a most pleasant and comfortable light unto them.¹⁴

Weemes associated the veil with womanly subjection, symbolically placing all Jews, beginning with Moses, in the feminine position.¹⁵ Weemes added that the finally converted Jews will see “as in a most cleare glasse,” echoing Paul’s image that we see now only “through a glass, darkly” (1 Corinthians 13:12, Authorized Version). Paul was drawing the analogy between darkness and spiritual immaturity: “When I was a child, I spake as a child. . . .” (1 Corinthians 13:11). Invoking these different Pauline passages, Weemes simultaneously infantilized and feminized the Jews; their passage to spiritual enlightenment would require lifting the veil of ritual.

The analogy to our contemporary discourse could hardly be plainer. The recent conflict between secularism and religion has focused much atte...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Acknowledgments
• Contents
• Contributors
• Introduction
• Part I. Histories of the Legal Secular
• Part II: Ethnographies of the Legal Secular
• Index