Sciences Po Bordeaux, France | 16-17 May 2024

 

Concept Note

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 profound implications 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 not always 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 accompanied the establishment of the new order, and in particular analyse not only the impact it had and is still having, 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 and transformed the religious domain(s) in Muslim-majority contexts, where legal positivism not only intersected with colonial exploitation but also worked as a social engineering tool in the hands of local 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 for governance; 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 new adjudication practices. Participants at the conference will thus aim to interrogate the various forms in which legal positivism has shaped and is shaping religion in the broad region that stretches from North Africa to South-East Asia, from the Balkans and Central Asia to East Africa. The focus on Muslim-majority countries comes, however, with a desire for comparison with similar experiences in other contexts.