Thematic Pillar I

Law and Religion (Year 2)

Law and religion were the pillars of every social analysis for the classical scholars of social theory. This goes for Max Weber, but also for Emile Durkheim. Whereas it was important to Weber to differentiate between these spheres, and whereas he saw a gain in rationality precisely in avoiding a fusion of law and religion, Durkheim’s sociology upholds the general suspicion of sociology of religion (“Dans le principe tout est religieux”), by showing the religious roots of law in general. It is the students Paul Fauconnet, Paul Huvelin and Emmanuel Lévy, who can be said to have investigated the religious origin of criminal attribution and of private law in detail.

The insights into the ‘risky’ character of human action already speak to the fundamental correlation between law and religion. This is so not only because we cannot gauge the consequences of our actions, but also because the unexpected or unheard of intrudes again and again. In other words: our expectations are constantly disappointed, and man must depend on uncertainties being absorbed by societal institutions. Civilizations could be differentiated in the abstract, according to how they distribute the burdens of processing disappointment to the institutions of law or of religion. Here, it is striking how the structural parallel of law and religion leads to different figuration types, which privilege symbolic forms, normativity, organizational requirements and ritualistic dynamics to different extents. The monotheistic religions are characterized by an idiosyncratically close-knit relation between law and religion. In Judaism, this can be seen by the legal conception of the Berith-relationship, in Islam as the entwinement of legal, moral and religious commands, and in the hidden traces of the holy within legal cultures with Christian roots. Can this close relation be explained by the monotheistic religions’ concept of God, and to which conditions is the reciprocal liberation of the spheres of law and religion linked? What does the semantic shift of ‘obligation’ from its original religious sphere to law, and finally to economics entail for the relation between law and religion in the legal cultures of modernity?

Since legal and religious-dogmatic knowledge have distanced themselves from each other today – lawyers only educate themselves religiously for their own pleasure, while theologians only display legal competence in the field of church law – it is the task of the Center for Advanced Study to win religious scholars and theologians interested in legal questions over for cultural scientific analysis of the law, in which they might bring in their competence in the area of historical-systematic religious studies. It needs to be simultaneously called to mind that legal cultures which do not split up law, religion and morals in the occidental sense – for instance traditional Islam – may have brought forth a class of legal scholars familiar with law and religion, yet has not resulted in reflective analysis of law on the one hand, and religion on the other as specialized disciplines. Unity and differentiation of legal and religious spheres can thus only be understood from a cultural comparative perspective, which simultaneously demarcates how the course between the respective civilizations has been set: from a law-based religion in the Judaism of Antiquity to the theology of the modern state based on the rule of law.

The second year of research will be centered on these topics, by concentrating cultural and legal studies, but also religion studies and theology – with their respective expertise – on the processes of demarcation and interdependency of law and religion.