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Massimo Rosati

Post-secular society, transnational religious civilizations and legal pluralism

Abstract Taking for granted a radical criticism of the universalistic value of a post-Protestant understanding of religion and of the nexus between political democracy and secularization, the article aims first at framing the perspective of multicultural jurisdictions within contemporary processes of change of religious pluralism on a transnational scale; secondly at framing that perspective within the intellectual tradition of legal pluralism; and finally at inquiring into the compatibility of the new conceptual constellation post-secular society plus legal pluralism with a liberal frame. Key words civilizations legal pluralism liberalism multicultural jurisdictions post-secular society

stanbul seminars, I had the On the occasion of the first edition of the I great honour of presenting a paper that was aimed at criticizing the idea that political democracy implies necessarily the substratum of a secularized society. I tried to maintain, implicitly from a Durkheimian point of view, that western not only European conceptions of lacit are frequently biased by a very particularistic idea of religion, understood as a matter of personal choice individualized, spiritualized, basically Protestant-like and by similarly particularistic representations of the self, of the division between public and private, and of the difference between the good and the right. Consequently, I suggested that in order to deal with contemporary religious pluralism we would have to make a
PHILOSOPHY & SOCIAL CRITICISM vol 36 nos 34 pp. 413423
Copyright The Author(s) 2010. Reprints and permissions: DOI: 10.1177/0191453709358845


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change of paradigm, looking at the conceptual constellation of religion, the self, social and political space through post-post-Protestant lenses. Finally, I argued that from my point of view Ayelet Shachars idea of multicultural jurisdictions (and above all the so-called transformative accommodation model of joint governance, on the one hand, and the temporal accommodation model, on the other) might be considered in principle a political and legal arrangement coherent with such a postpost-Protestant idea of religion and the self, and coherent, too, with a Durkheimian paradigm.1 In order to push my reflection ahead, what I want to do in this article is, first of all, to try to frame the perspective of multicultural jurisdictions within contemporary processes of change of religious pluralism on a transnational scale, second to frame that perspective within the intellectual tradition of legal pluralism, and finally to enquire into the compatibility of this new conceptual constellation (post-secular society plus legal pluralism) with a liberal frame.

1 Transnational religious civilizations

Recently, Shmuel N. Eisenstadt showed how one of the main characteristics of the contemporary global panorama is the development of transnational associations, communities and networks, frequently religious, and mostly diasporic.2 Islamic networks in Europe and in the United States are the most evident examples, but there are obviously other diasporas Jewish, Christian, Armenian, etc. and each of them has interesting features. Let us examine those that are specifically religious. First, they are communities capable of connections with transnational networks.3 Second, they aim at being recognized within the national context in which they are active, refusing both assimilation and privatization; on the contrary, they bring their religious and cultural difference into the public sphere. Third, even if they reject simple assimilation in specific national contexts, they do not replicate in a mechanical way beliefs and practices proper to their tradition in the homeland. As diasporic communities, strictly connected with other diasporic communities or with communities within the homeland by means of intra-religious nexuses, they show a transnational profile, better grasped according to Eisenstadt by the idea of civilization networks. Needless to say, mass media play a crucial role in the shaping of these networks, being responsible for those processes of uprooting and re-anchoring that contrary to earlymodernist reductionist assumptions gave new life to religious traditions within the modern horizon.4 The notion of civilization is experiencing a sort of revival, above all in relation with the study of axial civilizations.5 From the point of view of the sociological tradition, theories of civilizations are frequently neo-

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Weberian. However, recently Johann P. Arnason stressed the relevance of a neglected, very short note by Mauss and Durkheim, published in the Anne sociologique in 1913 (that is to say, one year after Durkheims Elementary Forms of Religious Life). In that note integrated by hundreds of pages written by Mauss on specific civilizations6 Mauss and Durkheim maintained that there are cross-national forms of life that have a sui generis nature, such as the Christian civilization, the Mediterranean civilization, a North-American civilization and so on.7 On the basis of their definition, civilizations can be conceived of as social phenomena that are not strictly attached to a determinate social organism; they extend into areas that reach beyond the national territory or they develop over periods of time that exceed the history of a single society; they constitute a moral milieu encompassing a certain number of nations or a plurality of interrelated political bodies acting upon one another (1913: 452). Mauss and Durkheims definition can be considered the first sociological definition of the pluralistic concept of civilizations,8 given that civilization complexes encompass a plurality of interrelated political bodies acting upon one another.9 As Arnason emphasizes, the 1913 note has been mostly overlooked by those who criticize the Durkheimian school for modelling its idea of society on the nation-state and thus imposing a reductionist frame of reference on the whole subsequent sociological tradition,10 whereas Durkheim and Mauss adumbrated the idea that there are diverse civilization areas and civilization traditions, and that their historical individuality differs from that of a single society, and finally that the civilization perspective was clearly relevant to modern no less than to premodern societies (1913: 701). The point I want to stress now is not the underestimation of the Durkheimian tradition per se, but the fact that recovering that tradition might be precious in order to look at the contemporary scenario described by Eisenstadt. In fact, Durkheim and Mauss seem to foreshadow the idea of a multi-civilization society, characterized by a noncoincidence between political organisms (nation-states) and civilizations, and at the same time by the creative interaction between civilizations and modernity understood as the environment in which every civilization has to find its proper form of accommodation;11 in other words, a possible deconstruction from within of the Westphalia international order (1648), and also of the overlapping between modernity and the West. Actually, this is what we are witnessing today. Religious communities that operate as global actors connected with intra-civilization networks are part of those broader institutions of globalization12 that are breaking the Westphalia order. Economic and legal associations and networks, the huge galaxy of NGOs, obviously mass media, but also religious diasporic communities, all of them are actors that produce a fragmentation and pluralization of sovereignty, showing the contingent

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namely only modern coincidence between sovereignty, the state and the law. They show also the existence of plural and global spheres and social arenas that lay claim to new forms of regulation. Contemporary religious pluralism beyond mythologies of modernity (secularization, individualization and privatization of religious beliefs, real tendencies of modern societies but erroneously considered the only relevant ones, factually and normatively) has to be considered within this broader frame, as a facet of a multi-civilization society, and as a facet of a postWestphalia order.

2 Legal pluralism and religious multiculturalism

A frame like this requires, analytically and normatively, new means of analysis and new policies. The order subsequent to Westphalia was based on the ideology of Enlightenment, on natural law, legal positivism and the ideology of nationalism.13 At least in continental Europe, it took the form of the civil law tradition, as opposed to common law. As is well known, civil and common law traditions reflect not only very different legal and political traditions, but also this is the point I am mostly interested in underlining now different ways of understanding the relationship between society, politics and law. Within the context of my reflection, this is a very crucial point: if within the common law frame politics has to give order to an intrinsically anomic social sphere, and law is the way politics drops norms on society from above, on the contrary in the civil law tradition politics (the state) has a less central role, and in turn the law has a more direct relationship with a plural and multiform society; society in this model is understood as capable in different ways including customary law of giving order to itself. Even if frequently these are no more than ideal-typical models (Italy, for example, where state law had to live together with canonical law, and regional and local legal regulations), above all now that state sovereignty has to give up portions of autonomy to European Community law, it is notwithstanding true that in common law any countrys pluralism is mostly a hierarchically structured pluralism, rather than a genuine pluralism of sources of law. Against the background of the erosion of the Westphalia order and of the emergence of institutions of globalization that claim an autonomous juris genesis, what seems relevant is the emergence of a true legal pluralism, so that it seems possible to talk about options of choice on the part of single actors between different legal regulations. In other words, what we are witnessing is the emergence in Teubners words of a global law without a state, a global law very different from international law and understandable only in terms of legal pluralism.14 The fact that I mention Gunther Teubner is not arbitrary or

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coincidental. Perhaps he can be considered one of the most influential outspoken representatives of legal pluralism. However, legal pluralism has a long tradition, which deserves to be considered in its completeness. It is not a coincidence that legal pluralism has its roots basically in anthropology and sociology, namely in those fields that are more sensitive to the social background of law. Neither is it coincidental that legal pluralism at its very beginning was a form of reflection on non-western, pre-modern and traditional societies, and that it became a form of reflection on western and modern societies after discovering that the latter are not so dramatically different from the former (a typical ethnographical detour proper to the Durkheimian tradition).15 Even if the definitional issue of legal pluralism has provoked much controversy,16 for the time being we can assume a working definition such as the following: from a third-person perspective, legal pluralism indicates a situation of coexistence of a multiplicity of legal systems that interact in the same territory; from the no less important first-person point of view, legal pluralism can be considered as that situation in which the same individual is subject to more than one legal system.17 What legal pluralism cannot accept is, first, a Jacobin understanding of society, as an undivided body without intermediate social groups, organizations, communities, corporations and so on between the individual and the state; and, second, the idea according to which legislative power (a national parliament) is the only legitimate source to produce rational law. Religious, professional organizations, minority groups, may be juris-generative individually. Touching more specifically on the Italian tradition of legal pluralism, I believe this can be translated as a sort of general theory of law which interestingly underpins the framing of those issues of contemporary religious pluralism we are dealing with here. It is quite usual to recall to mind Santi Romanos work, particularly his Ordinamento giuridico (1918), and Lo Stato moderno e la sua crisi (190910). However, nowadays the most outspoken representative of the same tradition is certainly Paolo Grossi, whose work is a perfect combination of criticism of possessive and atomist individualism,18 underlying both natural law but also the Treaty of Nice19 and the European Constitution project.20 From the methodological point of view, Grossi invites us to avoid simplistic and nave transposition from ancient legal systems to contemporary ones; at the same time, his work is a true demythologization of our time by means of a comparison with past legal systems; more specifically, Grossi is very critical of the Enlightenment and postEnlightenment propaganda that mythologizes the modern image of law.21 According to Grossi, our contemporary situation has several similarities with medieval law.22 The most relevant are: the incompleteness of political power, and the existence of a social complexity that cannot be

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oversimplified by a legal system centred on the legislative power, with no mediation between individuals and the state. Incompleteness of political power means that politics does not aim at controlling society as a whole, but quite the opposite; it is almost completely indifferent towards those areas of social life that do not directly interfere with the government. Consequently, society in all its articulations economic organizations, professional orders, religious congregations, family groups is free to live its life autonomously, in all the wealth of its expression. Proper to medieval law, it is also that this rich and variegated social world is based on a communitarian ideology, whereas the subject is understood as constitutively imperfect and in need of community protection (2006: 74 et seq.). Needless to say, we are far both from the stage of the immunization of homo oeconomicus, and from the narcissism of contemporary therapeutic culture;23 Medieval law also has a social understanding of freedom, thought as possible and meaningful only within thick non-domination relationships. Intermediate social groups, consequently, are not simply permitted to exist by the state, but they are the backbone of both collective and individual life. Grossis analysis of medieval law does not aim at being a sort of anarchical criticism of the state, but it is an invitation to think of relationships between society, politics and law in a way not biased by the absoluteness of the state, but actually contingent to the modern era. What one has to avoid is the overlapping between one state, one territory and a single legal system.24 In a comparative perspective, it is clear that law has to do with a variegated society, it is the way a variegated society organizes itself in a plurality of forms. The law is part and parcel of society, it is the way to self-organize and self-regulate a spontaneous social sphere. Grossis suggestion, in other words, is that of connecting the law to a plurality of social institutions, beyond monism of modern legal positivism. It does not seem surprising that a connection has been established between legal pluralism, on the one hand, and multiculturalism, on the other.25 They have the same understanding of the centrality of social groups constitutive and not only instrumental groups as they have the same idea of the self as situated but with multiple (the family, religious communities, professional groups, political organizations) affiliations and loyalties.26 If we return for a moment to the above-mentioned features of contemporary religious pluralism, it is clear that legal pluralism can meet the post-post-Protestant understanding of religion and the self proper to many civilization complexes and to the many religious legal systems.27 Sociologically speaking, it is not inappropriate to look at the world we live in as a frequently incoherent normative universe, and the law is part and parcel of the same. Showing brilliant sociological sensitivity,

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Robert Cover28 invited us to conceive of the law as an integral part of a complex of narratives, which derives its normative force from its mythological and sacred nature.29 Law is always inscribed in broader narrative structures, texts and counter-texts that shape and express at the same time the normative core of specific (redeeming, insular in Covers vocabulary) communities. As the expression of a sacred linguistified by a narrative, the law establishes models of action, establishes order(s). However, as Cover stresses interestingly, the law gives a vision depth of field, provided that it opens up still unredeemed visions of reality, it opens up not to the world of an abstract ought, but to the world of the conjunctive, of the might be, of the as if achievable by means of normative commitments.
Law may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative. Thus, one constitutive element of a nomos is the phenomenon George Steiner has labelled alternity: the other than the case, the counterfactual propositions, images, shapes of will and evasion with which we charge our mental being and by means of which we build the changing, largely fictive milieu for our somatic and our social existence. But the concept of nomos is not exhausted by its alternity; it is neither utopia nor pure vision. A nomos, as a world of law, entails the application of human will to an extant state of affairs as well as toward our visions of alternative futures. A nomos is a present world constituted by a system of tension between reality and vision. (1983: 9)

In Habermas terms, one could say that the law is a bridge between facts and norms,30 but norms do not express only an order consensually legitimated, but also the alternity of another possible order, the imaginative opening to a still unredeemed form of life. I would say that the law, as ritual, is in between a sacred but mundane and always imperfect order and a still not achieved redemption, it is always open to its own selftranscendence.31 As Teubner wrote, law is always self-subversive.32 Self-subversion is, according to Cover, intrinsic to laws nature: it is that the very act of constituting tight communities about common ritual and law is juris-generative by a process of juridical mitosis. New law is constantly created through the sectarian separation of communities.33 The so-called paideic nomos, which establishes normative orders capable of asking for social conformism, is from the very beginning unstable and doomed to hermeneutical mitosis. Juris-genesis is, according to Cover, a too fertile process, that forces paideic law to develop imperial virtues capable of stabilizing meanings over time. Law, in other words, is intrinsically dissociative and incoherent, and meanings-proliferation is part of its DNA. This is why, to come back to legal pluralism, the states monopoly of interpretation restricting communities juris-generative

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force represents a sort of statist impasse in constitutional creation that must soon come to an end (1983: 67). Law must be created by associations and groups, communities. In terms perfectly coherent with Grossis Cover writes that
It is not the romance of rebellion that should lead us to look to the law evolved by social movements and communities. Quite the opposite. Just as it is our distrust for and recognition of the state as reality that leads us to be constitutionalists with regard to the state, so it ought to be our recognition of and distrust for the reality of the power of social movements that leads us to examine the nomian worlds they create. And just as constitutionalism is part of what may legitimize the state, so constitutionalism may legitimize, within a different framework, communities and movements. Legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence. We ought to stop circumscribing the nomos; we ought to invite new worlds. (1983: 68)

What I am defending is not a mysticism of the social sphere, but certainly I am opposing those conceptions that consider society as intrinsically anomic and in need of regulation from outside. According to Cover, it is a position not so different from classical anarchy, if anarchy means absence of dominators, not absence of law (1983: 69). I am not sure I share Covers preference for anarchy, but I am quite certain that his position is perfectly consistent with an idea, pluralist from the very beginning of social life, and confident in societys self-organization capabilities. I know no better way to label it than as a sort of Gramscian socialism.

3 Post-secular society, legal pluralism and normative constraints

What I have tried to maintain is that contemporary religious pluralism can neither be grasped simply with traditional modern categories: individualization, spiritualization, religious bricolage, believing without belonging and all the package of tools proffered by sociologists of religion; nor with the fundamental concept coined by Casanova of de-privatization of religions.34 My suggestion is that we have to look at the contemporary panorama from Eisenstadts idea of a complex of civilizations, characterized as the Durkheimian scholars showed by a sui generis form of life not coincidental with that of a single society, neither state nor territory. A multi-civilization society like this is, religiously speaking, clearly a post-secular society. Given the non-coincidence between state and civilizations, legal monism becomes a sort of straitjacket that prohibits us from inviting and at the same time from constitutionalizing new worlds into our normative universe, and from releasing societys energies. Legal pluralism should be explored as a better form of regulation of a religiously (and not only religiously of course) variegated society. Seyla

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Benhabib, whose discursive and deliberative model of democratic multiculturalism I take as the most open and inclusive among those available, defends the idea that legal pluralism can be accommodated within a discursive and deliberative model of democratic multiculturalism, and represents a valid completion, provided that it respects three normative constraints and principles: equalitarian reciprocity, voluntary association and freedom of exit.35 Now, here I must confess my incapacity in taking up a clear position. My feeling is that this can be just another way of superimposing too thick constraints on cultures that do not easily recognize autonomy of choice in important spheres of life, and that think of, for example, matters of life and death as heteronomous. Here my only feeling is that we must proceed pragmatically, by means of inner social criticism, looking for sources of tolerance inner to religious traditions (epistemic humility, for example),36 by means of democratic iterations,37 and above all by means of that complementary learning process38 that should be, in my understanding, the true core of a post-secular world. Dipartimento Ricerche Filosofiche, Universit di Roma Tor Vergat, Italy

1 See Massimo Rosati, Ritual and the Sacred: A Neo-Durkheimian Analysis of Politics, Religion and the Self (Farnham, Sy: Ashgate, 2009); Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Womens Rights (Cambridge: Cambridge University Press, 2001). 2 S. N. Eisenstadt, The Transformations of the Religious Dimension and the Crystallization of the New Civilizational Visions and Relations, in Religion and Democracy in Contemporary Europe, ed. Gabriel Motzkin and Yochi Fischer (Van Leer Jerusalem Institute and Network of European Foundations: Alliance Publishing Trust, 2008). 3 See Transnational Transcendence: Essays on Religion and Globalization, ed. Thomas J. Csordas (Berkeley: University of California Press, 2009). 4 See J. B. Thompson, The Media and Modernity: A Social Theory of the Media (Cambridge: Polity Press, 1995). I wish to thank Chiara Moroni for urging me to take this important book into serious consideration. 5 See Axial Civilizations and History, ed. J. P. Arnason, S. N. Eisenstadt and B. Wittrock (Leiden: Brill, 2005). 6 See Marcel Mauss, uvres, vol. II (Paris: Les ditions de Minuit, 1974). 7 Marcel Mauss and mile Durkheim, Note sur la notion de civilisation, in ibid., , p. 453. 8 Johann P. Arnason, Civilizations in Dispute: Historical Questions and Theoretical Traditions (Leiden: Brill, 2003), p. 69.

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9 Mauss and Durkheim, Note sur la notion de civilisation, p. 452. 10 Arnason, Civilizations in Dispute, p. 70. 11 See Jrgen Habermas, La rinascita della religione: una sfida per lautocomprensione laica della modernit?, in Religione e politica, ed. Alessandro Ferrara (Rome: Meltemi, 2009). 12 See Maria Rosaria Ferrarese, Le istituzioni della globalizzazione (Bologna: Il Mulino, 2000). 13 Alessandro Pizzorusso, La produzione normativa in tempi di globalizzazione, available online at: 14 See Gunther Teubner, Global Law Without a State (London: Dartmouth Publishing, 1997). 15 See Michle H. Richman, Sacred Revolutions (Minneapolis and London: University of Minnesota Press, 2002). 16 See John Griffiths, What is Legal Pluralism?, Journal of Legal Pluralism 1 (1986): 155; Luca Giuseppe Pes, Il pluralismo giuridico (Di laurea thesis, Universit degli Studi di Torino, 2003). 17 Pes, ibid., p. 10. 18 See Crawford Brough MacPherson, The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1964). 19 Paolo Grossi, Prima lezione di diritto (Rome and Bari: Laterza, 2003). 20 Paolo Grossi, Le molte vite del giacobinismo giuridico, in Mitologie giuridiche della modernit (Milan: Giuffr editore, 2007). 21 See Paolo Grossi, Oltre le mitologie giuridiche della modernit, in Mitologie giuridiche della modernit; Paolo Grossi, Il costituzionalismo moderno fra mito e storia, in Mitologie giuridiche della modernit. 22 See Paolo Grossi, Lordine giuridico medievale (Rome and Bari: Laterza, 2006). 23 See Frank Furedi, Therapeutic Culture: Cultivating Vulnerability in an Uncertain Age (London: Routledge, 2004). 24 Grossi, Prima lezione di diritto, p. 73. 25 See Alessandra Facchi, I diritti nellEuropa multiculturale (Rome: Laterza, 2008). 26 See Rosati, Ritual and the Sacred, ch. 4; Adam B. Seligman, Modernitys Wager (Princeton, NJ: Princeton University Press, 2000). 27 Silvio Ferrari, Lo spirito dei diritti religiosi (Bologna: Il Mulino, 2002). 28 Bibliographical details on Cover and a stimulating introduction to his ideas are available in Italian in Marco Goldoni, Introduction in Robert Cover, Nomos e narrazione (Turin: Giappichelli editore, 2008); for an analysis of Covers idea of law in relation with Judaism, see Marco Goldoni, Il diritto come ponte: la concezione ebraica dellordine sociale di Robert Cover, Daimon, forthcoming. 29 Robert Cover, Nomos and Narrative, Harvard Law Review 97(4) (1983): 468 (23). 30 Jrgen Habermas, Between Facts and Norms (Oxford: Polity Press, 1996). 31 Rosati, Ritual and the Sacred. 32 Gunther Teubner, Self-Subvertive Justice: Contingency of Transcendence Formula of Law?, Modern Law Review 72 (2009): 123. 33 Cover, Nomos and Narrative, p. 12.

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34 See Jos Casanova, Public Religions in the Modern World (Chicago, IL: University of Chicago Press, 1994). 35 Seyla Benhabib, The Claims of Culture: Equality and Diversity in the Global Era (Princeton, NJ: Princeton University Press, 2002). 36 See Modest Claims. Dialogues and Essays on Tolerance and Tradition, ed. Adam B. Seligman (Notre Dame: University of Notre Dame, 2004). 37 Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (Cambridge: Press Syndicate of the University of Cambridge, 2004). 38 Jrgen Habermas, On the Relation between the Secular Liberal State and Religion, in Political Theologies: Public Religion in a Post-Secular World, ed. H. de Vries and L. E. Sullivan (New York: Fordham University Press, 2006).