by Steve Smith’s thoughtful post on descriptions of the United States as a “Christian” or “Judeo-Christian” nation has important implications for questions about the place of religion in American law. I would like to note the significance of this issue to an emerging field of American legal scholarship, which some have termed “Religious Legal Theory” (“RLT”).
Like any field, RLT is susceptible to different definitions, but it may be roughly characterized as a body of literature dedicated to exploring the potential relevance of religious thought to areas of American law and public policy. Though not unconcerned with free exercise and Establishment Clause issues, RLT often relies on a more careful examination of religious doctrine and theory, in an effort to find insights that may help us rethink American law, on both conceptual and substantive levels.
For example, RLT may offer new ways of looking at the issue of capital punishment in American law, through a variety of approaches. Some religious traditions may include substantive discussions of capital punishment that are currently absent from legal and public debate in the United States. Others may involve discussions of the nature of human life that can help enrich the conversation about capital punishment. Still others may offer conceptual frameworks, unrelated to the substantive question of capital punishment but helpful for our understanding of the issue within the American legal system.
A recent conference at Seton Hall Law School provided a forum for the presentation of applications of RLT, and the conference was carefully designed to include a variety of religious traditions. One of the most common questions that arose at the conference relates to Steve’s point, and may be important on a number of levels for those who are interested in this blog. I would like to pose this as an open question:
To what extent does a legal theory drawing on a religious tradition for insights into American law require acceptance of that religious tradition as a source of authority in American law and society?
Sam, thanks for the interesting thoughts. In addition to the ways in which you describe RLT, I think there may be the following: the extent to which law and religion are, and have been, similar and different systems of human experience.
That is, it seems to me that your description of RLT emphasizes its potential to advance normative legal scholarship — how we can rethink various sorts of legal policy questions (capital punishment, health care, corporate accountability, and so on) by using the insights of religious theory.
But I think that it may be that RLT’s other real value will be to move legal theory away from normative legal scholarship, away from questions of policy, and into more historical sorts of studies. RLT has the potential to push legal theory toward the history of ideas.
And so my answer to your question is, not at all. It ought to be entirely possible to study RLT as an academic phenomenon without accepting the authority of the faith of which the particular ‘religious’ object of study forms a part. While it may be true that, in its initial phases, RLT will tend to be studied by scholars who do accept that authority (or who are sympathetic to those claims to authority), I think that with time one might see more of a pastiche of non-policy-oriented scholarship emerge that does not necessarily depend on acceptance of the entire religious tradition.
In sum, we ought to be thinking of RLT as an academic program to move legal scholarship in a historicist direction.
Marc
Thanks for your comment, Marc. I agree that RLT might provide a venue for moving legal scholarship beyond normative analysis to areas such as intellectual history. Indeed, the increase in interdisciplinary scholarship may likewise point in this direction, and the potential success of RLT may depend, in part, on whether legal scholars take it seriously as a valuable source of interdisciplinary study.
At the same time, I think it’s fair to say that the current state of RLT continues to focus on normative and policy issues, and in this context I would be interested in your response to my question, perhaps refined to ask more narrowly:
To what extent does a legal theory drawing on a religious tradition for normative insights into American law require acceptance of that religious tradition as a source of authority in American law and society?