Law, Religion, and the Common Good

Abstract

Stepping back we can now see that the background narrative of secularization-as-decline has been one of the meta-narratives of the Enlightenment. Like the other meta-narratives of that intellectual revolution—the inevitability of progress, the knowability of everything by science, the manageability of everything by technology, the continuous expansion of freedom—this narrative is in the process of being debunked. To be sure, secularization-as-decline has not been entirely a fiction. The social norms of functionally rational, bureaucratic public institutions have often been aggressive, giving empirical merit to Max Weber’s nightmare of disenchantment. Yet where this has been true, the story of secularizationas-decline can now be seen as a historically and geographically contingent development of Western European and North American societies. Yet, even here, the story was overstated. In the end, it was not so much the reality of secularization as it was the narrative that mattered. This narrative has powerfully shaped the cultural and legal framework of the debate about the relationship of law and religion for a very long time, setting the parameters of advocacy and the logic by which actors have engaged each other. 

The narrative is finally catching up to the reality. The debunking of secularization as the inevitable decline of religion is part and parcel of what is now called the post-secular. The post-secular, like secularity itself, is a pliable concept, but for the purposes of this argument, I define it fairly capaciously by the empirically undeniable persistence of religion in the late modern world, the recognition of the limits of secular epistemology and reason, and the ethical puzzles and political quandaries these developments pose. These historical, cultural, and political developments define the postsecular moment we presently occupy, and, in my view, it certainly may challenge the terms of the debate about the relationship between religion and the law and possibly even change the actual mechanisms or practical outcomes of the debate.