Secularization, Legal Pluralism, and the Question of Relationship-Recognition Regimes

Abstract

In this article I contend that the re-emergence of religion in Western liberal states is a feature of a much broader phenomenon, namely, the re-establishment of legal pluralism whereby various social actors claim to be the legitimate producers of their own law. To prove this, I first offer an account of secularization as the successful attempt of modern states to dismantle a legal-pluralist system. Based on this, I argue that the reviviscence of religions is the reviviscence of their practical side: religious practices tend to be perceived by religious group members as providing guidance for conduct, one that challenges the rules of the state legal order and its monistic structure. Finally, by exploring the issue of same-sex union recognition, I defend the claim that, in a truly post-secular society, the state should allow a multiplicity of relationship-recognition models that reflect and meet different interests and needs.

I would like to thank the guest editors of this Special Issue and the anonymous reviewers for their extensive comments and helpful suggestions. The writing of this article was supported by a Pegasus Marie Curie Fellowship of the Research Foundation Flanders (FWO).

Notes

1. See e.g. James Backford, “Public Religions and the Postsecular: Critical Reflections,” Journal for the Scientific Study of Religion 51.1 (2012): 1–19; Veit Bader, “‘Post-Secularism’ or Liberal-Democratic Constitutionalism?” Erasmus Law Review 5.1 (2012): 5–26; Ingolf Dalferth, “Post-Secular Society: Christianity and the Dialectics of the Secular,” Journal of the American Academy of Religion 78.2 (2010): 317–45.

2. José Casanova, “The Secular and Secularisms,” Social Research 76.4 (2009): 1051.

3. José Casanova, “Rethinking Secularization: A Global Comparative Perspective,” Hedgehog Review 8.1–2 (2006): 15.

4. For an interesting exchange between Casanova and Asad, see David Scott and Charles Hirschkind, eds., Powers of the Secular Modern: Talal Asad and His Interlocutors (Stanford, CA: Stanford University Press, 2006).

5. Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford University Press, 2003), 2.

6. Asad, Formations of the Secular, 2.

7. Telling examples of leading scholars who buy into this view are the champion of political liberalism, John Rawls, and the father of discursive democracy, Jürgen Habermas. Despite a few differences (see Alessandro Ferrara, “The Separation of Religion and Politics in a Post-secular Society,” Philosophy and Social Criticism 35.1–2 [2009]: 77–91), both of them, by and large, consider modern liberal politics to stem from the state forcing religions to withdraw from the public sphere and to relinquish the political authority that the latter had retained for centuries.

8. It is worth noting that, although I am primarily referring to Habermas, a variety of theoretical perspectives, such as, for instance, those of John Milbank and Phillip Blond, turn out to be affected by a vicious reading of secularization, with the consequence that, in “rejecting ‘secular modernity’,” they accept “as the terms of the debate, and the style of argument, just those categories that proponents of ‘secular modernity’ advocate” (Dalferth, Post-Secular Society, 330).

9. Jürgen Habermas et al., An Awareness of What Is Missing: Faith and Reason in a Post-Secular Age (Cambridge: Polity Press, 2010), 15–23.

10. I would like to mention in passing that, according to some critics, this also applies to those thinkers on whom I have drawn in order to outline my critical reading of the secularization narrative. A (perhaps too harsh) critique can be found in Aamir R. Mufti, “Why I Am Not a Postsecularist,” boundary 2 40.1 (2013): 7–19, where the author claims that post-secularism as a label covering a general attitude towards religion is not only internally incoherent but also provides a misleading vision of religion in today’s societies (Islam above all), and builds upon a philanthropic and historically distorting vision of the antagonism between the secular and the religious.

11. Ernst-Wolfgang Böckenförde, State, Society, and Liberty: Studies in Political Theory and Constitutional Law (New York: Berg, 1991), 34.

12. Böckenförde, State, Society, and Liberty, 34–35.

13. Cf. Lauren Benton and Richard Ross, eds., Legal Pluralism and Empires, 1500–1900 (New York: New York University Press, 2013).

14. Lauren Benton, “Historical Perspectives on Legal Pluralism,” Hague Journal on the Rule of Law 3 (2011): 59.

15. Charles Tilly, “Cities and States in Europe, 1000–1800,” Theory and Society 5 (1989): 563.

16. The literature on legal pluralism is voluminous. For pithy and thoughtful introductions to the wide-ranging debates in this field, see Brian Z. Tamanaha, “Understanding Legal Pluralism: Past to Present, Local to Global,” Sydney Law Review 29 (2008): 375–411, and Gordon R. Woodman, “Ideological Combat and Social Observation: Recent Debate about Legal Pluralism,” Journal of Legal Pluralism 42 (1998): 21–59. I provide a more comprehensive reference list in chapter 5 of Mariano Croce, Self-Sufficiency of Law: A Critical-institutional Theory of Social Order (Dordrecht: Springer, 2012), where the theoretical proposals of some leading exponents of legal pluralism are explored in detail.

17. Marc Galanter, “Justice in Many Rooms: Courts, Private Ordering, and Indigenous,” Law Journal of Legal Pluralism 19 (1981): 1–47.

18. Galanter, “Justice in Many Rooms,” 19.

19. Galanter, “Justice in Many Rooms,” 19.

20. It goes without saying that this view calls for a profound revision of the traditional concept of law. See William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009).

21. I should like to remark that, although the authors I will mention mainly look at British society, scholarship focusing on pluralism in the West extends throughout Europe and the United States. Scholars such as Rubya Mehdi in Denmark, Hanne Petersen in Norway, Andrea Büchler in Germany, Silvio Ferrari in Italy, and Veit Bader in the Netherlands—to mention just a few—are committed to bringing out underrated instances of legal pluralism in seemingly more homogeneous national states. In sum, despite remarkable variations, actual circumstances of legal pluralism in the West are not limited to manifestly multicultural contexts. An impressive amount of data on the conflicts between national legislations and religious practices throughout Europe is accessible on the website of the collaborative research project RELIGARE (www.religareproject.eu; last accessed on 6.11.2014).

22. Werner Menski, “Law, Religion and Culture in Multicultural Britain,” in Law and Religion in Multicultural Societies, ed. Rubya Mehdi, Hanne Petersen, Erik Sand, and Gordon Woodman (Copenhagen: DJØF Publishing, 2008), 50.

23. See, for instance, Samia Bano, “In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the ‘Sharia Debate’ in Britain,” Ecclesiastical Law Journal 10 (2008): 283–309.

24. Jeffrey A. Redding, “Dignity, Legal Pluralism, and Same-Sex Marriage,” Brooklyn Law Review 75 (2010): 791–863.

25. On the process of normalization that according to a good deal of queer critics is reshaping the core of homosexuals’ struggles and producing a break between erstwhile liberationist movements and liberal conservative ones, see Michael Warner, The Trouble with Normal: Sex, Politics, and the Ethics of Queer Life (Cambridge, MA: Harvard University Press, 1999); Lisa Duggan, The Twilight of Equality? Neoliberalism, Cultural Politics, and the Attack on Democracy (Boston, MA: Beacon Press, 2003); Diane Richardson, “Desiring Sameness? The Rise of a Neoliberal Politics of Normalisation,” Antipode 37.3 (2005): 515–35.

26. I would like to clarify that this section looks at the issue of marriage among lesbians, gays and bisexuals. I am explicitly not using the acronym LGBT (or LGBTQI and its several variations) because the historical trajectories of these groups differ in some important respects, and their legal status tends to vary accordingly. See for instance Susan Stryker, Transgender History (Berkeley, CA: Seal Press, 2008). I delve into this topic in Mariano Croce, “Homonormative Dynamics and the Subversion of Culture,” European Journal of Social Theory (2015, forthcoming).

27. Warner, The Trouble with Normal, 82.

28. It is stated that “only marriage between a man and a woman is valid or recognized in California.” In July 2013 Proposition 8 was ruled unconstitutional by the California Supreme Court.

29. Redding, “Dignity, Legal Pluralism, and Same-Sex Marriage,” 795.

30. For a concise and compelling argument on why marriage fails to meet homosexuals’ interests and needs, see Kenneth McKnorrie, “Marriage is for Heterosexuals—May the Rest of Us be Saved from It,” Child and Family Law Quarterly 12.4 (2000): 363–70. On the way in which, on the contrary, the current changes in family law are inspired by homonormative principles, see Francesca Romana Ammaturo, “The Right to a Privilege? Homonormativity and the Recognition of Same-Sex Couples in Europe,” Social & Legal Studies 23.2 (2014): 175–94.

31. On this risk, I would like to mention Susan Moller Okin, “Is Multiculturalism Bad for Women?” in Is Multiculturalism Bad for Women? ed. Joshua Cohen et al. (Princeton, NJ: Princeton University Press, 1999).

32. This issue is thoroughly explored in Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001).

33. For an in-depth discussion of personal laws within the Indian legal system, see Werner Menski, “Beyond Europe,” in Comparative Law, ed. Esin Örücü and David Nelken (Oxford: Hart, 2007).

34. On this way to accommodate legal pluralism, see Gordon R. Woodman, “The Possibilities of Co-Existence of Religious Laws with Other Laws,” in Law and Religion in Multicultural Societies.

35. On the way heterosexist classifications, hierarchies and values can impinge on the recognition of same-sex rights, see Katherine M. Franke, “The Domesticated Liberty of Lawrence v. Texas,” Columbia Law Review 104 (2004): 1399–426.

36. The consequences of this revision could be remarkable, at least in the long run. For example, as Justice Scalia foretold in his dissenting opinion in Lawrence v. Texas, the “hot issue” of polygamy should be expected to become a matter of controversy in the wake of this pluralization of family law. For a perceptive and open-minded discussion of this peculiar junction, see Cheshire Calhoun, “Who’s Afraid of Polygamous Marriage? Lessons for Same-Sex Marriage Advocacy from the History of Polygamy,” San Diego Law Review 42 (2005): 1023–42.

37. See Nancy D. Polikoff, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Boston, MA: Beacon Press, 2008), where the author develops convincing arguments on the need to revise and extend the set of protections that marriage offers to many other types of unions and family assemblages.

38. This is an excerpt from the “Beyond Marriage” statement, released on 26 July 2006 and originally signed by hundreds of LGBT activists, educators, public figures, and heterosexual supporters.

39. Andrea Salvatore and I seek to unearth the exclusionary force of state neutrality in Mariano Croce and Andrea Salvatore, “Why Does the Law Want Us to Be Normal? Schmitt’s Institutionalism and the Critique of the Liberal Legal Order,” Cultural Critique (forthcoming).