Law and Religion

Robert Fulford writes a complex piece in this morning’s newspaper ["Modernism isn't written in stone", National Post, Saturday, August 25, 2007, p. A23], with which I both agree and disagree. Fulford, in his usual concise way, does three things at once. First, he posits the separation of religion and government as essential to the development of modern democracies, citing the contest between Islamists and secular nationalists as central to determining the political course of Middle Eastern societies. Next, he states that although state-imposed religion is always pre-modern, contemporary democracies can and do differ on their particular approach to the subject and that not all adhere to the model of strict separation. Finally, he states that Ontario’s public support for a Roman Catholic separate school system is in the tradition of democracies giving a small nod to religious heritage without undermining their essential liberal structure.

My colleague Professor Robert Gibbs (philosophy; dir. Jackman Humanities Institute) and I recently were awarded a grant to begin a 3 year project exploring reasoning in Islamic and Jewish law, and the implications of our findings for a philosophy of law more generally. I'd like to share our general proposal and methodological approach, and invite comments.

Our questions revolve around the general concern of the roles of reason and authority in interpreting and determining law in religious traditions. While the question of authority and reason arises in every legal culture, we propose to focus on these two traditions because of their explicit and extensive reflection on questions of reason, and in specific we will gain a sharper and in some ways more complex purchase on the questions by considering how jurists interwove resources that were intrinsically human, and so would be qualified as rational in their time, with both political and religious authority.

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

• Publisher's web page

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.