Religion and Law: John Witte – Conversations with History

Religion and Law: John Witte – Conversations with History


– [Voiceover] This program
is a presentation of UCTV for educational and
non-commercial use only. (upbeat electronic music) – Welcome to a conversation
with history, I’m Harry Kreisler of the Institute of International Studies. Our guest today is John Witte,
who is the Jonas Robitscher professor of law, the Alonzo
L. McDonald distinguished professor and director of the
Center for the Study of Law and Religion at Emory Law
School at Emory University. He is the 2011 Jefferson
lecturer on the Berkeley campus. John, welcome to our program. – Thank you very much,
it’s good to be here. – Where did you go to college
and what was your major in? – I followed the natural path
for a Dutch immigrant boy which was to go to Calvin College
in Grand Rapids, Michigan. It was the college of the
Christian Reformed Church, of which I was member. I was there, my world opened
up rapidly when I got there. That was a big city, that was
a big intellectual environment and I studied biology,
history, and philosophy. I simply couldn’t settle on
one, and so I was a pre-med, a pre-law, and a
pre-graduate school student. And it was a small enough
college where you could do all three without
being too much of a fool. – And what helped you sort that out? A lot of different paths
that you could’ve taken. – I was inspired by teachers
in all three of those fields, and I ultimately did the MCAT,
the LSAT and the GRE, and applied for law school, medical
school and graduate school. Got into all three, and
then couldn’t decide. And what ultimately helped
me decide was I wrote to this wonderful professor
at Harvard Law School called Harold J. Berman,
whose work I had read a great deal in my undergraduate days. He had been writing on
issues of Soviet law, but also law and religion
in Western history. And I found his work deeply
satisfying intellectually. And I just took, as a 21 year
old punk out of Calvin College the whim of writing him and
asking him for his advice. And he gave me a long two
page letter back, and the core of his advice was come study
with me, and we can work together on issues of law and
religion in Western history. That was the key for me, and
I went to sit at his feet. – And so it was Harvard
Law School, and there, was there a kind of a focus
that immediately attracted you, this kind of, obviously you ended up with law and religion as a very great interest. – Yeah, I spent, all law
students have their fist year prescribed, and during that
first year of law school courses I spent 40 hours at work
working with Berman. It was a little grueling,
but it was a wonderful opportunity to be released
into the treasure room of the Harvard Law Library
and read all these fabulous tracts of the 14th
through the 18th century focusing on different aspects of law and religion in Western history. Throughout my second and third
year, I continued to work with Berman, I took elective
courses in the grad school, the divinity school as
well as the law school. You don’t specialize in law
school, but I tended to focus on courses that looked at
issues of legal history, legal philosophy,
interdisciplinary approaches to law which were just beginning to
bubble at Harvard Law School at the time, with critical
legal studies especially. And I had a chance to
just smell the flowers in a number of different
fields, and convince myself that the stuff I was doing a-vocationally
as a research assistant with Berman was really front and center of what I wanted to do professionally. – And the important new path here is really history, and
the history of the law. Not just being a lawyer. – Not just being a lawyer,
I couldn’t see myself as being a conventional
lawyer and practicing in public or private or public interest work. I would do that if it was
necessary for five or 10 years to cultivate a traditional
specialty and then hold that out alongside my passionate interest in law and religion and legal history. But I really didn’t see myself
actually practicing law. What I wanted to do was
to be a legal scholar. And one of the things
that Professor Berman pushed me to do was to
write, and to write early. He co-authored a couple
of articles with me while I was a law student, and
then really turned me loose and pushed me hard to
get into writing myself. And so I followed none of
the conventional routes. I didn’t do law review,
I didn’t do moot court, I didn’t do federal
clerkships, I just worked with Berman 40 hours a week,
and I wrote up a storm while I was a law student,
and that got me started rather quickly as a law professor. – And as you talk about your background, there seems to be an
interesting dynamic between what you’re calling a
provincial background, within kind of a closed
community, but really opening up to a cosmopolitan
world, and then focusing on this interface between
the law and religion, which is key to that interface. – Yeah, it was really
interesting to move from this tiny cultural cocoon in
St. Catharines, Ontario, to what I considered to be
the big city of Calvin College in Grand Rapids, Michigan,
and then to go from there to Harvard Law School,
where in many ways you had a platform to look at the world. And to have the chance to
interact with fellow students from all different walks
of life and all different parts of the world, to be
able to interact with ideas in the Western tradition but
also well beyond the Western tradition, to have a chance
to look both historically and along very very wide public
policy grids at some of the fundamental questions of
faith, of freedom, of family, and other things that captivated me. Convinced me that binocular
of law and religion that Berman was giving me the
opportunity to look through, and to think about how these
two great universal solvents of human living have worked
historically, how they work today, how in many ways they
provide the biggest challenges for us historically and today,
that was a captivating way to think about the world anew. And it was an unpopular way
of thinking about the world in the 1980s when I was a law
student, people didn’t really think about religion as a
category of legal study. Most people still were working
under the Enlightenment assumption that religion was superstition, it was the opiate of the masses,
it was something that would happily die a quiet death
as scientific rationalism took over, and technology
would replace the priesthood as the leaders of our society and culture. And at the time, making an
argument to say that religion actually is an important
source of Western law, that religious dimensions of
law are actually important to take into account, that
religious legal systems are really part of our cultural
identity and civilization and we have to take them
seriously, that at the time was controversial, but I felt
in part by reason of my own upbringing in a conservative
Christian community and in part by looking by analogy into
Jewish and Muslim communities, could see this was something
that we needed to do. And I thought Berman was
remarkably prescient and courageous at the time, to be pressing this as a fundamental part of legal education, and happily we were
vindicated in that over time. – So you were coming… To your education just at a time when there was intellectual ferment. Let’s talk a little about that,
because the reigning notion had been, well, law is an
isolated set of studies, and that it’s really, you quote Holmes in one of your articles,
it’s really from experience that we get the law, it’s
not from a natural law or from any other sectors of society. – Yeah, legal education
from the 1920s to the 1970s, in North America at least,
was intensely positivistic in the sense of law is
really its own science, it’s an autonomous science. What we’re looking for is the
instruments, the techniques of law, and how law emerges,
to what extent it’s influenced by or has influence on
other dimensions of life, to what extent we wanna take into account any other institutions besides the state and the operation of law were all considered to be taboo subjects. In the late 1960s and 70s, there was the rise of interdisciplinary legal study. Some of that on the back
of legal realism that had challenged this notion of
autonomous legal reasoning, but a lot of it with the rise
of recognizing that holistic understandings of knowledge
had to also apply to law. That law properly had to
be understood in concert, in conversation with other
disciplines, and we were just beginning to see interdisciplinary
legal study emerging. Law in economics was a first one, law in politics a second,
law in literature a third. These were suddenly new
areas of interdisciplinary discourse that were
beginning to be accepted into legal education, and began to fracture the traditional legal positivism paradigm. The law and religion movement
that Berman and others were starting in the 1970s
built on the momentum of that interdisciplinary legal
studies movement all together. – And what was going on
in society, in your mind, that accounts for this change of thinking? ‘Cause one always wonders,
what makes for intellectual ferment, for new paradigms,
new ways of looking at things. – Yeah, it’s the good
political scientist’s question, of course. I think one was simply the
exhaustion of the legal positivist paradigm as just
methodologically impossible to maintain, and the
recognition that these doctrines don’t just sit, they’re
not just isolated icons, they have to really be
thought about in context. Part of it was the Marxist critique of law that began to challenge
some of the economic and sociological assumptions
that were being made in legislation and litigation. Some of it was a kinda new
approach of psychologists and anthropologists who
began to look at law as very much part of a cultural
and civilizational fabric. Part of it was feminist
critiques of law that began to challenge a lot of the
patriarchal assumptions that were explicit or latent in legal institutions. And I think part of it
was simply the new wholism that was beginning to
emerge in epistemology. Where people were beginning to say, look, in order to understand
life, in order to understand a big institution like law,
or religion, or the economy, or things of comparable
heft, we really needed to have a kaleidoscopic methodology. And I think all of those
converged together in higher legal education to force people to
try to develop new paradigms. And interdisciplinary legal studies was the beneficiary of that
in the 1970s and 80s. – What is the skillset involved in the kind of work that you do? Obviously a knowledge
of the law, but this, you clearly come to the
profession at a time when interdisciplinary skills are
very important, and it would also seem that comparative
skills are very important. It’s not just what’s happening in Christianity or Judaism, but also Islam. – Yeah. You have to remember, interdisciplinary legal
study is about legal study. And first an foremost what we’re doing for people coming through a
law and religion focus is to prepare them to be lawyers. In any walk of life, in any
profession or any institutional structure, they’ve gotta learn
the basic black letter rules and tools of contracts and torts and property and constitutional law. They have to learn the
basic methods and matters of legal science, methods of
reasoning, methods of evidence collecting, methods of building
and breaking down arguments. They have to understand
that they’re part of a long tradition, and understand what precedent means and how to apply it. There’s no substitute for
that in any interdisciplinary legal approach; that betrays
those fundamentals of the profession, really in many
ways betrays itself over time. So what we do is we add a
dimension to education that says that religion has been an
important historical source for many of our legal ideas,
for better or for worse, that religion is a dimension
of life that has to be taken into account when you look
at how a legal institution or system as a whole
operates, and that religious communities themselves have legal systems. Halakhah within Judaism, Sharia
within Islam, canon law in Ecclesiastical discipline
within Christianity, and that these are massive
non-profit organizations, global in their sweep, that
have internal mechanisms of law that have to be understood. And that we have to understand
the relationship between them and state law, we have to
understand the religious freedom claims that those
individuals and groups make on the strength of their
religious convictions and religious institutional apparatus, and we have to understand
how to broker the inevitable tensions one has between
different religious communities’ understandings of law, or
their own particular religious legal system, with each
other and with the state. And then I think finally, the
real question is trying to sensitize people to the
reality that law and religion is simply one example of
interdisciplinary legal study. And to do this right, like to
do legal education in general right, you have to have very
strong peripheral vision. You have to understand law and economics, you have to understand law and sociology, law and politics, law and literature. The best lawyer who’s
trained is always trained at least to have very very
powerful peripheral vision. That even if he or she is
specialized in a given area of law like law and religion, they
have to be sensitive to and have enough peripheral
vision to understand what’s there on the
outside of your discipline. Law is a big universal
solvent of human living, law is a huge science
that has to be mastered, and even if you specialize,
you’ve gotta have enough sense of when you don’t know. – You refer at one point in
one of your essays to kind of a binocular vision when it
comes to understanding the interface between law and religion. Talk about that, because
the trajectory in the past was to focus on one or
to focus on the other. – Well part of it’s it’s
just a clever image to try to get people to recognize
that when you’re looking at, especially an historical
phenomenon or a movement, say the 16th century
Protestant reformation. You can’t just look at that
through theology or through doctrine or through liturgy,
you can’t just look at that as the time of the reception of Roman law, or the transformation of the Roman empire, the Holy Roman Empire, or the
rise of the legal profession. In many ways what you want,
what you’re interested in is taking a binocular vision
of that movement, of that period, and saying, how do
these two feed each other? In many ways it’s a
species of the question you asked me a few minutes ago, what caused the change
in the 1970s and 80s toward interdisciplinary legal study. This is a spin on that question which is, to what extent if you put
law and theology together, if you look at this
through the lenses of both the professional legal
historian and the professional church historian, what do
you see in the 16th century that’s distinctive and how
do they feed each other? It’s that image that I acquired
initially as an historian that I’m trying now to
train on modern questions, questions of family, for
example, family being both a legal and a spiritual institution. Issues of education, which
in many case has both religious and secular dimensions, issues of charity and the like. So in many ways it’s an attempt to say, rather than simply
training one methodology, one set of institutional
concerns, one set of professional aspirations on a given topic
or theme, let’s try to bring the two together into an interesting widening of the perspective
that’s offered by that. – I’m curious in terms of
being a historian of a faith, and if one actually believes in the faith, what is that tension like,
because the law in history is finding the truth by
rigorous standards and searching for objectivity,
but on the other hand, a person of faith is a believer,
but somehow I get the sense from your work that this tension really is helpful in probing what
happened in the religion, and understanding the dynamic by which this is brought into the legal system. – That’s a big question and we
could be here a little while. First of all, objective historiography is a wonderful thing to do in the classroom, but it’s not really
easy to do in practice. So people bring their
blinders, people bring their prejudices and preferences,
and that’s simply part of the epistemology
of being an historian. Secondly I would say I’m not
an historian of a particular Christian community or a
particular tradition of thought, I’m really a historian of the West. I happen to study the two
millennia of the common era, sometimes dipping into
ancient Greek and Hebrew and Roman texts, and
increasingly as I’ve gotten a bit older, trying to
look beyond the West for analogy for competing perspectives, for different ways of
thinking about things. I’m interested in this
in part as a person of religious faith who wants to
find a way of reconstructing some of the wisdom of
my particular tradition of Christianity, and making it applicable to a modern, pluralistic world. Where there is no longer an
assumption of a Christian magistrate, when there’s
no longer an assumption of an established religion, and
when there’s intense pluralism and people’s argument from
faith or from a canon or from a tradition simply the
start rather than the end of a conversation, that
in many ways developing the rational logic to make
this wisdom of the tradition applicable and useful to
wider pluralistic society. So part of my exercise is that. Part of my exercise is
that of an historian, historian of law, excuse me, to say, I’m interested in seeing
what precedent is useful and what precedent needs to be discarded. Jaroslav Pelikan, the great
Yale church historian, now alas a blessed
memory, has this notion of tradition is the living faith of the dead, traditionalism is the
dead faith of the living. And I like the idea of traditions being something that grows. Understanding where we came from, understanding where we’re going, and trying to find the
mechanisms, the methodologies, the responsible ways of
moving the growing end of tradition to accommodate new realities, to purge injustices of the past. So both of those exercises are going on simultaneously in my mind. I don’t pretend that I’m
objective, but what’s interesting to me personally as I walked
through this last 25 years is that, and as a little boy
in St. Catharines, Ontario with a very very small Christian cocoon, of a Dutch Calvinist
variety in particular, and having the privilege
to grow in humility as you look across the
world and you look at all these fabulous ideas
and institutions that are out there and to see all these different faith communities and how they operate. And it reminds me, and I’ll
stop at this, it reminds me of this wonderful adage that
Martin Marty, the great church historian at University of Chicago has playing with this movie theme. It takes a thief to catch a
thief, and his flip on that is it takes a person of deep
religious conviction to appreciate the deep religious
conviction of another. You’ll learn by analogy, and
you appreciate, tolerate, respect the rights, evidence,
support the existence of the other, just because
by analogy you can see what they’re doing and
why they’re doing it. That’s kind of been what’s
interesting for me as I’ve kind of toured Judaism, Islam,
and dabbled a bit in other faith traditions and their
influence upon law and culture. – One of the conclusions
that I think you’ve come to as I read some of your essays
is really that there is a lot of commonalities in
the law and in religion, that these are two
domains that in some sense mirror each other, there are a lot of similarities that have evolved over time. – Yeah, I mean we share certain concepts. Covenant and contract,
justice and righteousness, we share certain institutions, take marriage, take
education, take charity. We share a number of methods,
how to parse the text, how to build a tradition,
how to create a canon, how to reason responsibly
from text and tradition to modern prescription or principle. We share a lot of
institutional structures. Religious communities are
organized as corporate entities in many ways, and have government
structures that sometimes are analogous to that which
prevails in the state. Historically sometimes these
overlap, they were the same, today they’re often differentiated. And so what I’m interested in is kinda looking at that creative interplay, and then taking again the binocular angle. In many ways when we’re talking about an agreement that we have together, from a religious side it’s a covenant, from a legal side it’s a contract, and what’s interesting is the
convergence between those two where the overlapping consensus and the creative tension between those two. We talk about redemption
and rehabilitation as ways of moving beyond
a point of conflict and coming back into community. From a religious side, this
has some really interesting liturgical and other
institutional and psychological elements, on a legal side
there’s a lot of methodology in that, and institutional
responsibility that follows. So part of what I’m interested
in is to look at those binaries, especially where
there’s creative tension. – I would be curious ’cause
you seem to be well-positioned to give us some insights on
this, what does creativity look like in the law, and
what does creativity look like in religion itself, the
practice of religion? Can they be compared at all? – That’s an interesting question. Well we’re both working out of traditions. We both presuppose
precedent and we all make, we both make changes only when we overcome the presumption of the null hypothesis. There has to be strong
argument to make change. So creativity is in part a creature of what we’re faced with in a society. Law works, theology works,
religious communities work with the contingencies of where they live. I’d say secondly there’s,
inspiration works in both these traditions
in different ways. Religious communities talk
about divine inspiration, or inspiration from the heart, but legal communities talk the same way. We have transcendent ideals, we have transcendent values that
we seek to aspire to. What is liberty, what is
due process of law, what are some of these fundamentals
that we take for granted? These are transcendent ideals
that inspire certain change over time and induce creative change. I think third we also sometimes
face common calamities. The Holocaust, the World War, a tsunami. The blight of terrorism,
a nuclear holocaust. All of which face us today. And those demand sometimes
serious institutional and intellectual changes in
our particular communities and we sometimes will work together as religious and political
communities to respond to those. It’s not a good answer, it’s a question I’m gonna have to ponder. – No, it was more than satisfactory. I know that in your work,
you’ve done a lot of work on looking at the way
religion impacted the law, changed the law, that it was the religious individuals and groups who
in practicing their religion sought freedom, sought the
right to speak, sought the right to pray, to association, and
sort of built the foundation that a lot of what we understand as the Western human rights, that
that definition came about. Talk a little about that,
because that interface really becomes important in
understanding how the law emerged and how it should relate
to other religions. – It’s a hard question, that’s a shifting, you’re moving into a shifting field of the history of human rights. Our schoolboy and schoolgirl
logic in textbooks always taught us that human
rights are a product of the Enlightenment, they are the
final celebration of reason over religion, the celebration
of the individual over community, the celebration
of the sovereignty of the individual over the sovereignty of god, and we’ve now finally
broken the shackles of religious establishment and
created human rights for all. Now that’s a wonderful schoolboy logic that many of us grew up with. The reality is that historically
it’s complete nonsense. It’s an interesting anecdote,
but an important one, to say that by 1650,
1650, 150 years before the Bill of Rights was passed,
every one of the rights set forth in the Bill of
Rights had already been defined, defended, and died for by Protestants and by Catholics. Forged out of great struggle,
oftentimes responses to the ardor of persecution, of
pogroms, of religious warfare, but a recognition over time
through cruel experience that there are certain
features of human nature, certain features that we share with all brothers and sisters on this earth, that really have to be
respected by the state. What that anecdote tries
to illustrate is that rights talk is not something that is a creature of the
Enlightenment, number one. Rights talk is also not
something which is a creature of the West, or a creature
of Western Christianity. In many ways, rights are
fundamental goods of human nature. Fundamental gifts that we’ve
all been given, that have evolved over time or been
imbued in us through a creator or through a creative
process, depending on how you want to deal with human anthropology. And that the West, sometimes
through hard and cruel experience, began to discover
these rights of human nature, and began to think about how to implement them in serious ways. And oftentimes were forced
to implement them and fight for them in serious
ways when they were fundamentally betrayed by tyranny, by warfare, by persecution, by pogrom. And that we can find, if you
look at the history of the West we can find rights talk
already in the Hebrew Bible, in some of the early Roman law
texts and medieval canon law and early modern civil law and common law. And in many ways the
Enlightenment is living off of the capital of the intellectual
discovery and institutional implementation of rights
that the West had, through long and hard
process, come to discover. And why that’s important for discussion of universal human rights in the
20th and 21st century is that what human rights instruments today become for other communities, are
simply mirrors in which they can reflect upon
their own civilization and cultural and religious experience. And invitations for them
to go back to their texts, their canons, their original
ideas, their great prophets, some of them slaughtered for
their courageous advocacy. And to begin to see, in their
own religious traditions and civilizational patterns,
what are the teachings and practices, norms and
habits that are most conducive to what we in the West now in the 20th century have called human rights. And the interesting thing that’s going on, and one of your prior guests,
a dear friend and colleague Abdullahi An-Na’im calls a
hermeneutic of human rights that’s beginning to emerge in
different parts of the world. With Judaism, Islam, Hinduism, Buddhism, Confucianism, Daoism, even
traditional communities beginning to use this human
rights as mirror image, to begin to look back at their traditions, to reclaim their own voices in
the human rights discussions. And then, to criticize
some of the formulations of human rights that we have as
purported universal statements after World War II, and to
begin to make particular claims to their unique understandings
of what human nature demands and needs in the 21st century. – So building this edifice
of a lawful society where religion is respected,
it involves hard work. It’s a navigation that requires
both the law and society to change on the one
hand, but also religions, you’re suggesting, to think
about their own history and their own set of values
in light of what you call the mirror of human rights, hard work. – It is hard work, and
a cruel work sometimes, and oftentimes is induced
or catalyzed by the sudden, then traumatic absence, or
betrayal of fundamental rights. What happens when you blow
up 100 thousand people? What happens when you
see tens of thousands of people dying from
famine or treatable disease when there’s food rotting
in the storage sheds? What happens when you
have massive atrocities, alas as we’ve seen in
Chile and southeast Asia and Rwanda, Burundi, into
Chechnya and elsewhere. There we’re beginning to see,
we viscerally react against that in part because it
violates our very human nature to see brothers and sisters in
different parts of the world so trampled in their human existence. And what it induces, and
the hard work it causes, is to get the local communities
to begin to process, painful as it is, to claim,
what are the grounds on which we can properly treat
the other, and what are, on those grounds, the
violations that have to be, what are the violations that
have to be both advertised, indicted, and then ultimately
pursued for remedy? And I think what’s
happening, interestingly, in different parts of the world today, see the democratic revolutions
in the Mediterranean basin and North Africa all the
way up to Libya, Yemen and elsewhere, from Libya to
Yemen and Biran and elsewhere is that each of these
communities is going through this hard experience now
through revolutionary fervor. Some of them are prepared,
some of them are not prepared, to accept the human rights
that they’re advocating. What’s important, especially
for our Muslim brothers and sisters around the world, is
to recognize that the West did not create rights,
western Christian paths to discovering rights are not translatable into other religious communities. And western formulations,
constitutional formulations of rights, are not exportable
entities that simply can be put in place in these communities
as the be all and end all. Every community has to
discover for itself, every religious tradition
has to discover for itself, the resources it has to
put in place the rights that ultimately are going to respect the fundamentals of human nature. And that’s gonna be a creaky, a painful, an arduous, sometimes a
centuries-long process, as it was in the West, but every community I think eventually will get there. – Help us understand
what this work involves. In a way, in a particular religion, it seems to be in part
a struggle over power. Who will define what our tradition is. Which text will we look to. What is the interpretation of those texts. So this is kind of the
work that takes time, it takes argument, and
it takes persuasion, but it can also be a bloody conflict within any particular religion. – Sure. And you put your finger
right on the hardest part at the beginning, which is the power. Those who hold the power
are not interested in changing institutional structures that have propped them up in that power. And oftentimes it takes
not just persuasion, but serious pressure and
sometimes revolutionary fervor, and outright revolution and
warfare, to remove our brokers that stand in the way of
the realization of rights. Whether they’re religious
or political or cultural or tribal leaders, these folk
are not gonna give up easily. And a mere argument out of
John Locke’s two treatises on government is not gonna convince them. And a mere argument to say,
but it’s gonna be good for your people, and think of what’s
gonna happen to them once you give them their full human
rights is not gonna work either. It takes violence, unfortunately. Violence is a necessary,
or at least an essential and sometimes a necessary condition for the move toward democratic government and human rights
vindication on the ground. And one virtue we have in a
21st century globalized world with its transparent media
is that it’s not so easy for tyrants to continue to sit without accountability to the world. And so one of the things
that human rights does, and international diplomacy,
and forgive me for treading on your own area of expertise,
it mobilizes shame. It allows for diplomatic pressure. It allows for sanctions
and other kinds of pressure that don’t rise to the level of violence, but nonetheless make it very uncomfortable for tyrants to sit
comfortably in their seats, trampling the rights of the
people under their authority. It also provides ballast and
enthusiasm for those that would advocate ideally by peaceable
means, but oftentimes necessarily by tense and
sometimes violent means, to begin to prop that
tyrant off of his throne and to put in place a more
responsible government that’s consistent with
the rights of the people. But this is hard work, and
in religious communities especially, the mechanisms
for change, especially in hierarchical communities,
just aren’t easily there. It takes reformations. Reformations have occurred in
the history of Christianity since the third and fourth century. It’s not just a Protestant
reformation, reform movements have been a perennial part of
Christian identity in the West and some of them have turned
into violence, some of them have resulted in huge
dislocation of people and deprivation of
property and loss of life. That’s part of the process,
and unfortunately our Islamic, Hindu, Buddhist
and other friends are experiencing the same
things around the world now. – What is the responsibility
on the other side, that is looking at it
from the perspective of the human rights advocates,
the people who sort of embody all of the rights that we’ve achieved. So in this interplay between
religion and the Western notion of rights, what is
the responsibility of those individuals and the law that
they represent to be sensitive to what’s going on in these
religious communities and to be respectful of where those
religious communities are even as we would desire
change on their part to come closer to the mirror
of human rights values. – There are two pieces to that. One is, what obligation befalls
the democratic human rights revolutionary in the first
place, regardless of the object of his or its or their or her advocacy. And I would say there we have,
I think Martin Luther King is a shining example, who always
insisted that the first way to advocate for human rights
is to live them yourself. And not to violate the
human rights of the other, including the tyrant on the throne, in the name of some cause that ultimately betrays the very thing that you’re doing. You’ve gotta respect basic
rights of other people, including the enemy, including the other whom you’re trying to displace. I think that’s a lesson
that’s really powerful for human rights advocates in
general, as they press for democratic revolution, to
try to do this with as much deference to the universal
claims that they themselves are trying to make in
the particular moment of the people that they’re going after. I would say especially with
respect to human rights advocates looking at
religious communities. I think we have to avoid
the easy assumptions of the 1950s through 70s
where it was assumed that religion is irrational,
that religious communities are simply bastions of power,
that religious communities themselves are simply incapable
of being reasoned with on human rights terms, and come
to realize that human rights communities historically,
and human rights communities potentially still today and
in some places in reality still today, are bastions of human rights, they’re zones of liberty
that provide opportunity for revolutionaries, they provide
many of the basic what we call second generation rights
of education and healthcare and artistic opportunities and more. And that religious communities are allies, not enemies, in the
struggle for human rights. There’ll be hardened,
sometimes intractable religious leaders out there periodically
whom one will encounter, some of them will betray
the caricature that we have of religion in general, but I
think folk have to recognize that if you can find ways of
appealing to these religious communities in and on their own terms, find ways of making this human rights mirror something that
they’re forced to reflect on. Your own canon says, your
own tradition teaches, your own prophets have
articulated, your own great traditional heroes have
spoken to these issues in this particular way, and
to allow those folk to be betrayed by their own religious
traditions and teachings rather than simply having human rights imposed on them from outside. I think that is in many
ways the strongest advocacy and most effective revolutionary move that human rights advocates can make. – Let’s look at a case
in point, and that is the growing number of Muslim
communities in the West. The question is raised,
well, to what extent should Western courts recognize
Sharia in court proceedings of Muslim courts, and so on,
so what, give us a sense of how you see this tension
evolving over time in a way where there is appropriate
adjustment on both sides, for bringing these communities together. – Yeah, this is really the
issue just over the horizon of the frontier of family law,
of religious freedom, of human rights and of the place of
Islam in Western societies. The question is, is to what
extent can faith-based family laws, Sharia courts, be given
jurisdiction or power over the marriage and family lives
of their voluntary faithful? It’s an issue that’s getting
pressed very very firmly in western Europe and the United Kingdom. It’s being pressed with a
little less alacrity in Canada. It’s just around the corner
here in the United States. Think of Oklahoma last year
just passing a law that says hmm, no Sharia, thank you, here. Nine states have that under advisement, people are seeing this as the big issue. So here’s the question. Marriage and family law has
transformed over the last 50 or 60 years in the United
States, in part through due understandings of sexual
liberty, personal autonomy, privacy, and the
institutional requirements for what marriage is, or what a
proper domestic relationship is, have dramatically changed and been thinned compared to their traditional form. And now marriage
increasingly is a private, bilateral contract to
be formed, maintained and dissolved as the parties see fit. Sexual relationships outside
of marriage are perfectly permissible as long as they’re
voluntary and the parties are consenting adults, and the
traditional range of sex crimes that are out there, abortion,
contraception, adultery and the like, are increasingly
becoming private offenses at best, that are not
enforced in part because of dead letter or constitutional
change that’s emerged. Muslims don’t like these
changes, for the most part, in their new Western host
homes, and they want out. They want to be free from
this marriage and family law system that now obtains
in many western democracies, including the United States, and they want to become
a law unto themselves. And their argument increasingly
is to say, we would like to have our voluntary faithful
opt out of the state law and into the law of our
own religious community. And we would rather have our
imams and our Sharia tribunals and our religious
leadership in our community govern our questions of
marriage, family, sexuality, child custody, inheritance and the like, rather than have these questions
be dealt with by the state. And if we have our voluntary
faithful who accept our jurisdiction over marriage,
we don’t want any one of them appealing to the state when we
judge against their interest and they all of a sudden seek relief from a local state or from a federal court. Their argument is that we’d
like to have that autonomy. ‘Cause actually Jews have that. They have their Halakah,
they have their Beit Din. Christians have that, they have
their Ecclesiastical courts that deal with marriage
and family questions, and we wanna have that, too. And if you don’t like those two examples, native peoples, traditional tribes, they have their tribal
rulers, they have their ancestral laws and they operate
their own legal systems. And we want that autonomy, as
a matter of religious freedom, as a matter of personal
autonomy, as a matter of basic individual rights, equal
protection, due process of law, and as a matter of simple
cultural coexistence or multiculturalism, as the political. The argument they’re
pressing is an argument that so far has gotten
nowhere in North America. But that argument is
going to be increasingly in the courts and in the culture wars over the next 20 or 30 years
as Muslim communities grow, as state laws of marriage
and family get thinner and thinner, as different
forms of marital pluralism, de facto or de jure are in place. We have domestic partnership
arrangements, we have civil unions, we have covenant
marriage in a few states. We have traditional heterosexual
monogamous marriage. We have same-sex marriage. Why can’t we have, in
the off-the-rack models that the state holds
out, religious marriage. That a party can simply take
that bundle of rights and privileges that the state puts in place and use those for their system. That issue is gonna be pushed
over the next 20 or 30 years, and I think we’re gonna
have to develop resources to start dealing with it responsibly. – One of the things that
comes out in your essays and also in our conversation here is this. The separation of religion
and the law in the past led to a kind of a general
misunderstanding, or a lack of appreciation of the dignity
of the other, basically. ‘Cause when one looks at
the issues, let’s say in the United States, where religion
seems to be a factor, it’s issues of gay marriage,
it’s issue of abortion. I think it originally started
in the question of busing in religious school, so the
interesting problem here is how do we restore a sense of the other, and their dignity, and
where they’re coming from, as we prepare to argue
about which direction the law should go in the general society. And this then also applies
in the international context where we, it’s even harder
to appreciate what Hindus or Muslims or whatever might want
because of their traditions. – Yeah. That’s, again, a set of hard
questions and observations. I think a lot of us grew up with another school boy and school girl logic which was strict separation of church and state. That America’s first amendment
teaches that there must be a high and impregnable wall of separation between the religious and the secular, between religious or church
autonomy and what the state does and the two should be
as separate as possible. And political life, the public
square, laws, legislation, laws by legislation or by
judicial decision making had to be done free from any religious preferences, premises, or preferences. We oftentimes, both in our domestic policy as well as in our foreign policy, took that as a given about
how religion existed. It was the private hobby
horse for the superstitious, and it was something
interesting that they could do and they had freedom
to do, but it couldn’t have any effect upon public life. And we would suspect anybody
that made religious arguments about legal and political
matters, and we would suspect any politician that would
involve him or herself actively in a religious community. That’s given us a reflex about
the purported secularity, and the neutrality of law
and government in general. And I think over the last
30 years, that’s just flown very very strongly into
very strong headwinds of epistemology that have said,
come on, this notion of neutrality really doesn’t work anymore. Everybody has basic founding assumptions, meta ideals that they work
with, and that some of them are religious, some of them are secular, but they’re equally fervently held. Secondly, we’ve come from
that separation of church and state logic into an
assumption that the state has omnicompetence over things like marriage or things like family, education, charity. Religious communities may
want to do that themselves, but the state really has
exclusive authority over this, and a cooperation between
the two shouldn’t exist. And over the last 30 years
we’ve come to realize with the pervasiveness of the
state’s presence in society and the activity of religious
communities in society, that there are plenty of
areas where they overlap. And so what the burden going forward is is to find the places of
overlapping consensus, of cooperation between the
two, where they can get along and conserve each other rather than being in constant tension with each other. Whether that’s a respect
for the dignity of the other or the office of the other,
that’s I think an aspiration, but I think it’s pragmatically at least, religious communities
and political communities are gonna have to figure
out how to get along on some of the fundamentals,
both domestically and then increasingly internationally. And marriage and family questions
that we just talked about a few minutes ago, education
questions, charity questions, are areas where we’re
renegotiating those boundaries. And it’s in this awkward business
of faith based initiatives and this funny business
of religious legal systems dealing with marriage and family, that’s the constant
renegotiation about the boundary between public and private
schools, those are gonna be perennially contested zones
of blurriness that happily I think we have the mechanisms to continue to negotiate day by day and over time. And I think we’re gonna have
to just get over the lie that religion and law are
hermetically and hermeneutically separate, and that religious
and political institutions can live in completely separate
and distinguishable spheres. The overlap is inevitable
in finding the hermeneutic to allow them to interact responsibly, maintaining the integrity of each side’s responsibility in society
I think is the goal. – The tension here, it
seems to be on the one side we can have fanaticism
and prejudice emerging from one or another of the actors. On the other hand, we see
things like humanitarianism, charity, a fellowship
for the other and so on. Is there an ideal lever
here helping us to move down the right path to negotiate
these contradictions between what can be the
dark side of religion, which is a piece, that is
present in different places and different times,
but on the other hand, the real virtues and strength that are brought by religion to the law. – Yeah, I think the lever is
being constructed as we speak and is being constructed
case by case, issue by issue, area of competence by area of competence, I don’t think there’s a
one size fits all for this. Secondly I think it’s
increasingly obvious that the fundamentalists,
political fundamentalists and religious fundamentalists
who are utterly dogmatic about the certainty of their positions, simply can’t play in this
game, and need to be excluded, and then that sends the
Constitution in the United States through its establishment
clause, provides I think very very strong support that
needs constantly to be there. I think third… No new cooperation between
religious and political communities can betray the fundamentals. The fundamentals of freedom
of speech and press and assembly and association,
the fundamentals of equality, on racial, gender,
culture and other grounds that have been so highly sought after. No cooperation I think
can sacrifice due process and equal protection
ideals more generally. And I think one of the
things that we’ve learned, in part by trial and error,
is that as we think about bringing religious communities
and political communities back into cooperation, we’re
gonna have to make sure that we don’t give up on those
constitutional fundamentals. So in the faith-based initiative program, to give an example, where
religious communities now can be amongst others to receive
federal or state funding and deliver that to the needy in society, for whom the funding is directed, those religious communities
can’t discriminate on any ground, religious,
gender, culture, racial or other ground in
delivery of the services. They can’t coerce a person to,
as a condition for receiving the aid, participate in their
religious worship service. They can’t use the… Funds that have been directed
to them by the federal or state government and divert
them to the support for their religious worship or the collection of religious obligations and the like. There’s a rather careful
set of boundary lines that have been set, which
I think are healthy ones. The education area is
another good example. Yes, we can allow religious
schools and public schools to sit side by side, and
that parties have a choice where they want to send their children. Or if their children are becoming young adults, where they want to go. But there are certain fundamentals
that are non-negotiable. They have to get basic
reading, writing, arithmetic, they have to have basic
physical education, there have to be basic
facilities requirements for laboratories and gymnasiums,
libraries that are there. They have to have, they have to be prepared as democratic citizens. We cannot handicap them if they choose to go to a religious school. There, too, a religious freedom
objection or an argument to say no no, we wanna
cooperate only on our own terms by teaching them only Hebrew
or Arabic or Dutch or Latin, simply is not gonna fly. And there too I think we have
made the kind of pragmatic adjustments, the construction
of at least one lever, to make this cooperation work. And those are hard things
to construct and they’re, it’s a malleable
instrument that’s gonna be renegotiated from time to time. I think it’s worth constructing them so that religious and political
communities can cooperate with the outsiders, the
fundamentalist outsiders, left out of that cooperative vehicle and vigilant, vigilant,
transparent regulation to ensure that the areas of cooperation simply do not become stepping
stones for coercion or for betrayal of some of our
fundamental Constitutional ideals. – One final question, how
would you advise students to prepare for the future where
whether they are religious or not, religion will
play an important part in kind of the public area,
the public discourse. – I would go back to my
argument a few minutes ago about the importance of learning to
train your peripheral vision. Even if you don’t wanna be
focused on religious life or religious identity, you don’t
wanna be part of a religious community, that’s taboo for
you, you’ve got your own faith, you’ve got your own spiritualism, or you have no faith
or you have anti-faith. It’s important as a learned
member of society to have just enough knowledge of
those that have a different set of beliefs and practices,
to be able to understand what they’re about, what
drives them, what are their punch points, what are the
things that you have to watch out for, and what are the things within them you have to respect? It’s interesting, Mahatma
Gandhi has this wonderful idea, a community and an individual’s
commitment to freedom is judged by how they treat
their most hated minorities. And I like that idea. It’s basically a learned
citizen who’s democratic and who believes in human rights values as a sine qua non for our
existence of living together has to be able to know
enough to know how to, not to love the other,
but not to hate the other. And I would say for a person growing up, to learn about different faith traditions. To wander into a temple or a synagogue, or a mosque or a church,
and kinda feel what’s there. To read a few of the key texts, to be aware of what’s going on in society. So that you can be in learned conversation and you can advocate the
position that you take, which happens to be of
no faith or anti-faith. If you don’t have the resources
to understand the other, you can’t argue convincingly
about the other. – On that note, John, thank you very much for this fascinating discussion. – Thanks so much for having me. – And it was a great pleasure
to have you on our program. And thank you very much for joining us for this Conversation with History. (upbeat electronic music)

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