Jack of all Trades? Introducing Law and Non-religion

Legislators, lawyers and legal theorists have been engaged in the identification, definition and management of non-religion for as long as there has been law. From the code of Hammurabi and up to the present, the inclusion and exclusion of individuals and groups from rights, entitlements, punishments or obligations on the basis of their beliefs, cultic practices, doctrines and places of worship has always been one of the basic functions of law and legal regulations. 

Hence, whereas the interest in non-religion among social scientists appears to have arrived at a “sea change”, or even a “revolution” over the course of recent years, the law has always been involved in the management of the social, cultural and political field of non-religion. While this involvement has primarily been with non-religion as the unregulated, tolerated or persecuted wilderness beyond the pristine garden of religious belief, items that can be categorized as “non-religion” have also increasingly become subject to legal regulation in their own right (see below).

Despite this long-lasting relationship, research on non-religion and law is virtually non-existent. This is despite the boom in scholarship on both law and religion and non-religion, with new journals, research networks, study programs and research centers being established at a rapid pace. So far, there has been little interest in the history and impact of the many different ways in which law and legal regulations have been involved in the construction, maintenance and negotiation of the boundaries of non-religion. 

This is notwithstanding the massive research interest in all things “secular”, whether it be concerned with secularity, secularization or secularism: While this scholarship may shed important light on aspects of non-religion, its reliance on the binary frame of reference intimated by the “secular” as the opposite or absence of religion renders the term incapable of capturing that which is “primarily defined by a relationship of difference to religion”, as itemized in the suggested definition offered by Lois Lee, the doyen of non-religion studies in the UK.

Hence, unlike the study of law and “the secular”, which can include anything from football to scuba-diving within its compass as long as they are explicitly not religious, scholarship on law and non-religion can only be concerned with items whose primary characteristics would be defined in a relationship of difference from religion.  Importantly and necessarily, this definition cannot be limited to a specific conception of “religion”, but must be open to any and all competing varieties of “religion”. Hence, any approach to non-religion under Lee’s definition will necessarily feature a clarification of how the term “religion” is understood. Following from this, an introduction to law and non-religion will have to take the interrelationship between law and religion as its first step.

Law’s Religion

Unsurprisingly, law has no singular religion – and to complicate matters further, “law” is no less complicated a definiendum than is “religion”. For the sake of simplification, however, three aspects of the relationship between law and religion appear to be of particular concern to a delineation of law and non-religion: (1) the nature and scope of the constitutive terms “law” and “religion”, (2) the nature and scope of the real or ideal relationships between these constitutive terms, and (3) the disciplinary frameworks and audiences addressed by research combining (1) and (2).

1. Terms

First, and perhaps most importantly, the interrelationship between law and religion is inherently contested and beset with interdisciplinary, political and historical controversies that have no resolution in sight in the near or distant future. 

As a field of study that branches out into ever-larger swaths of social scientific, humanities and legal areas of scholarship, discussing and identifying the boundaries of its twin constitutive concepts is an integral aspect of the field of study itself. As such, committing to one definitional strategy immediately and necessarily excludes a broad variety of alternative options that would have altered the relationship under investigation crucially.

2. Relationships

Second, the internal relationship between “law” and “religion” differs according to the selected vocabulary and the disciplinary framework utilized to investigate this relationship. 

While a majority of scholars within law and religion tend to examine either the way ostensibly “secular” law governs “religion” or the ways in which “religious” forms of law have been developed over time, other scholars seek out the ways in which these legal forms mesh and interact, both theoretically, over time and between different legal cultures.

3. Constituencies

Third, scholars working with law and religion have very different aims, constituencies and audiences in mind with their research. To some, the primary inspiration to work with law and religion is to bring about legal change, either through clarification of the exact boundaries of human rights provisions on religion within constitutional law, or through doctrinal analysis of theological propositions governing the internal structures of their church. 

Others see any interrelationship between law and religion as inherently unviable, either for its religious or its secular frames of reference, and seek to undermine any attempts to promote either an overtly religious influence upon law, or an excessively secularist legal influence upon religion. Yet others are primarily dedicated to a dissection of the multiple layers of governance involved in the interrelationship between law and religion: why that form of religion is promoted by that legal regulation in that particular setting at the expense of other options and possibilities.

Law’s Non-Religion: A Research Agenda

Taken together, the multiple options within each of these aspects structure the what, how and why of scholarship on law and religion. Translated to the exploration of law and non-religion, these aspects enable very different scholarly trajectories and analytical frameworks. In the remainder of this text, I will suggest my own approaches to these aspects and discuss how their internal composition may serve as the starting point of a research agenda for further studies of law and non-religion.

1. Which Law? What Non-Religion?

First, the delineation of “law” and “non-religion” must be done reflexively, paying due attention to the interwoven origins of both, in domestic as well as international law, and to the constraints presented by the specific field of inquiry selected for further investigation. This entails that a study of law and non-religion will have to take into account both the pre-history of the divides between law and non-religion in the field of research and the theoretical landscapes and disciplinary horizons towards which the prospective research effort is oriented.

Within international human rights law, for instance, the tendency within the European Court of Human Rights to place legal questions concerning religion within the “margin of appreciation” enjoyed by states parties means that the court has largely cut itself off from considering the material facts under scrutiny in many cases concerning “religion”, thereby also eliminating any potential views of “non-religion”. This refusal to touch the boundaries between religion and its surroundings is a far cry from domestic legal systems, which are often more than willing to patrol the boundaries of religion and non-religion, a task that is explicitly backed up by the court’s hesitance to meddle in sensitive domestic affairs.

In this way, the unwillingness of the ECtHR to tackle questions relating to religion opens up the field for domestic legal systems to determine for themselves how to identify and police the boundaries of “religion” and its counterparts. The extent to which domestic legal systems have taken up this invitation, however, varies considerably – within the small continent of Europe alone, there are as many domestic legal approaches to the religion/non-religion divide as there are major legal systems. While there is a fair amount of research being done on how these legal systems approach “religion”, and then particularly Christianity and Islam, the role of non-religion within these systems is largely unknown, and in need of further research.

2. The Interaction of Law and Non-Religion

Second, we know next to nothing about how non-religion affects or is affected by legislation or litigation, whether in contemporary or historical cases. Nor do we know how well a humanist, atheist or irreligious claimant may fare in the legal system, whether the case concerns his or her worldview, occupation, marital or other social status or not. Notably, under Lee’s definition, these questions would only become relevant if the legal framework, the material facts or the jurisprudence explicitly involved a particular boundary-maintenance over against “religion”.

Hence, if a self-avowed atheist lodged a legal claim to contest the construction of a highway over his yard, this would fall outside of the field of research, whereas if said atheist decided to contest the teaching of religion in the local school, it would be at the center of research interest.  However, as we know next to nothing of these cases apart from scattered examples of blasphemy cases or botched asylum procedures concerning humanists, atheists and agnostics, there is no way to tell how prevalent the non-religious element may be in legislative, litigative or any other legal procedure involving people who define themselves as differing particularly from “religion”.

3. Why Law and Non-Religion?

Third, research efforts mapping the interrelationship between law and non-religion, like any research effort, needs to be explicit about the purposes of the research – whether this would be to change the terminology and interpretative traditions of law faced with non-religion, to police the boundaries between “religion”, “law” and “non-religion” or simply to provide an explanation of why the relationship between law and non-religion plays out in this rather than that way in different places, times and theories. For my own scholarly interests, I would opt for the latter option: to provide the field of research, but also the field of legal practice, with an updated account of how non-religion affects and becomes affected by entanglements with law. Taken together, I hope these initial observations can help provide fertile ground for further research efforts into the relationship between law and non-religion.