22 Miss. C. L. Rev. 173 (2002-2003)
Religious Freedom and the Rule of Law: Exporting Modernity in a Postmodern World

handle is hein.journals/miscollr22 and id is 179 raw text is: RELIGIOUS FREEDOM AND THE RULE OF LAW:
Winnifred Fallers Sullivan2
A curious fact about the academic study of religion today is that there is little
agreement about the definition of the object of its study. Religion remains
largely undefined. While dozens of definitions have been proffered, none has
gained widespread acceptance. Indeed the passing years bring more definitions
and less agreement. As a scholar of religion, it is my view that one way of get-
ting a purchase on this elusive topic is by approaching it from the perspective of
law. There is a real sense, I think, in which religion cannot be understood
apart from an understanding of the cluster of ideas around the invention and reg-
ulation of modem religion, including religious freedom, disestablishment, and
the separation of church and state, ideas that are largely indebted, on the reli-
gious side, to liberal protestant theological reflection and culture ... protestant is
here spelled with a small p. But more importantly for many, perhaps, from a
public policy standpoint, putting aside the arcane concerns of religion scholars, I
would argue that the instability of religion as a category, given this history, radi-
cally undermines contemporary political commitments to protect religious free-
I use protestant here loosely to describe a set of political ideas and cultural
practices that emerged in early modem Europe in and after the Reformation, not
in a narrow church-y sense. Religion, true religion some would say, on this
modern protestant reading, is private, voluntary, individual, textual, and
believed. Public, coercive, communal, oral and enacted religion, false religion
to some, the religion of most of the world and that with which most religion
scholars are concerned, has been carefully and systematically excluded, both
rhetorically and legally, from the modem world. Crudely speaking, it is the first
kind, the modem protestant kind, that is free. The other kind is closely regulated
by law.
Sorting out the history of the working out of this dualism and its ramifications
is complicated, implicated, one might say, in the entire development of individu-
alism in Western thought.3 Let us consider for a minute just the American chap-
ter in this story. What reasons are given in the United States for protecting reli-
gious freedom? There is a well-worn path in American political discourse con-
cerning the constitutional goals of the other First Amendment freedoms: freedom
of speech, of the press and of association. These freedoms are often explicitly
connected in this discourse to theories of democratic governance. Far less well
developed is the conversation about the political goals of legally protected reli-
1. This paper is a slightly revised version of a paper I delivered at the Annual Meeting of the Association
of American Law Schools on January 3, 2003. It was written for oral presentation and lacks full scholarly
apparatus. An article based on this paper will be published in a festschrift for Professor Hans Kippenberg of the
University of Bremen. (Forthcoming 2003 from Walter de Gruyter under the title RELIGION ALS LONGUE DUREE,
edited by Brigitte Luchesi and Kocku von Stuckrad).
2. Dean of Students and Senior Lecturer, The Divinity School, The University of Chicago.
3. Furthermore, one might begin the story at various points. See, e.g., MARCEL GAUCHET, THE

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