Law’s Making and Remaking of Religion: Middle Eastern and Comparative Perspective

Essaouira, Morocco | 17-19 October 2023

Has the 19th century seen the consolidation of a new legal paradigm in the Global North and its expansion in the Global South? Legal positivism had long been in the making, and some draw its conceptual roots all the way back to Thomas Hobbes or John Locke, but it is with Jeremy Bentham and John Austin in the Anglo-Saxon context and later Hans Kelsen in the European continental context that legal positivism has been theorised in its current form. Quite attached to the notion of autonomy of the legal system, legal positivism adopts a definition of law that heavily centres around the state and is anchored in the constitution for its ultimate justification. As such, legal positivism relegates other forms of normativity outside the confines of (state) law.

This shift in legal paradigms has been described as a ‘great divide’—with all the profoundimplications of Michel Foucault’s use of the concept—between an old and a new legal order(Dupret & Halpérin 2022). Yet, as momentous as this paradigm shift may have been, it did notalways eliminate or replace existing structures, practices and hermeneutic traditions; sometimes,it transformed them and sometimes it amalgamated with them. After nearly two centuries of on-going transformations, the conference intends to revisit some of the debates that accompaniedthe establishment of the new order, and in particular analyse not only the impact it had and is stillhaving, but also the multi-faceted encounter between positivist and non-positivist normativities.Specifically, the conference will focus on how positive law and state law have shaped andtransformed the religious domain(s) in Muslim-majority contexts, where legal positivism not onlyintersected with colonial exploitation but also worked as a social engineering tool in the hands oflocal elites.

The conference aims at questioning, testing, and assessing the effects of legal positivism –from the ‘invention of Islamic law’ all the way to the development of a new vocabulary forgovernance; from the regulation of religious authorities all the way to the shaping of inter-confessional relations; from the shaping of religious imaginary, all the way to crafting of newadjudication practices. Participants at the conference will thus aim to interrogate the various formsin which legal positivism has shaped and is shaping religion in the broad region that stretches fromNorth Africa to South-East Asia, from the Balkans and Central Asia to East Africa. The focus onMuslim-majority countries comes, however, with a desire for comparison with similar experiencesin other contexts.

The conference will consist of six panels: (1) Defining; (2) Imagining; (3) Regulating; (4)Reforming; (5) Adjudicating; and (6) Commodifying.

Panel 1: Defining
The new legal order centred around the state has engaged and keeps engaging with a complexprocess of boundary demarcation between its ‘law’ and other normative orders. Is religion merelya passive object in this operation? Given the close connection between law and language, thispanel also intends to explore how ‘defining’ operates in a very visible way on the level ofvocabulary. How was a new vocabulary articulated? And how does it relate to existing vocabulariesof other normative orders? Does the appropriation and dislocation of these competingvocabularies generate tension in the public sphere?

Panel 2: Imagining
In keeping with Antonio Gramsci’s observation that domination is not just attained by force butmostly through compliance, the panel intends to explore the working of cultural hegemony in thedomain of law and religion, and in particular how law can structure the imaginary of religion. Doesreligion, in turn, affect the imaginary of law? Acknowledging the prominent contribution of cinemaand television drama to popular culture, the panel zooms in onto the religious imaginary whichfilms and television drama both draw from and contribute to. Complex systems of authorisationsand censorship regulations limit what can be shown on screens, and so affect the ways in whichthe religious imaginary is constituted.

Panel 3: Regulating
State law - with its positivist logic and designated regulatory agencies - aims to regulate social andeconomic life, that is, to establish rights, duties and relationships among individuals and socialgroups. How have the regulatory powers of state law affected and transformed confessionalcommunities and confessional laws? How has state law affected institutional arrangements in thedomain of religion, and how has it shaped confessional identities and perceptions? This panelinvites papers addressing these questions from a variety of perspectives, in an attempt to frame amethodical and theoretically-informed discussion of this understudied topic.

Panel 4: Reforming
Recent decades have witnessed many designated efforts to reform religious family laws in bothMuslim majority states and Muslim minority states. These efforts – which enjoyed varying degreesof success – exerted far-reaching effects on Muslim, Jewish, Christian and Druze religious laws. Thepanel will aim to lay the ground for a comparative and informed discussion of reforms in religiousfamily laws. It will seek to shed light on similarities and differences between various cases of suchreforms, and to develop a theoretical and analytical framework for studying them.

Panel 5: Adjudicating
The juridical field has a constitutive capacity to shape and define other social fields. Employingthis perspective for studying the domain of religion, how does law, as articulated by judicialpractices, delineates and substantiate religion in the modern Middle east? How do judgesdefine religion, characterize religious objects, make it something exceptional or on thecontrary insert it within the routine accomplishment of their job. This panel groups papersdocumenting court cases translating religious phenomena into legal objects.

Panel 6: Commodifying
Within a capitalism-driven global economy, religious norms and principles transformed intoeconomic and financial stakes, and accompanied the creation, development, marketing, andmerchandising of new or rebranded products. The halal economy provides the best example ofthis commodification of religion. This emerging economy requires legal rules and normativestandards to operate, that is, enforceable principles that guarantee the homogeneity andpredictability of the market activities and the resolution of eventual conflicts. The panel invitespapers addressing the positivist legal and normative framing of religious economy.