The Constitutive Power of Law and Courts

The Constitutive Power of Law and Courts Why do courts frequently stand at the center of heated debates involving religion?According to many accounts, legal struggles over religion are a product of religious challenges to secular legal orders.In the most alarmist narratives, courts are depicted as front-line defenders in a virtual clash of civilizations.Consider, for example, the view of jurist and academic, Andra ´s Sajo ´.In a 2008 article, Sajo ´warns his readers that "constitutional arrangements are now facing new forms of religiousness . . .that aspire to control or reclaim the public space " (2008: 605).What is required to meet this challenge, according to Sajo ´, is "a robust notion of secularism . . .capable of patrolling the borders of the public square" (605).This understanding of the problem ("strong religion") and what is at stake (liberty) is compelling because it affirms a nearly hegemonic assumption that courts play important roles in resolving conflict, defending fundamental freedoms, and sustaining secularism. 1 In this chapter, I wish to argue that this conventional view offers an incomplete understanding of legal conflict involving religion because it fails to consider the constitutive power of law and courts.Building on frameworks from religious studies, socio-legal studies, and comparative judicial politics, I maintain that law and courts do not simply stand above politics.Instead, they constitute political struggle over religion in at least four important ways: by delineating categories of meaning (such as "secular" and "religious"), by shaping the identity of variously situated actors, by providing an institutional framework that enables and even encourages legal disputes, and by providing a focal point for political mobilization.Long before claims 1 Lempert (1978: 99-100) summarizes the various ways that courts are thought to settle conflict: "(1) courts define norms that influence or control the private settlement of disputes; (2) courts ratify private settlements, providing guarantees of compliance without which one or both parties might have been unwilling to reach a private settlement; (3) courts enable parties to legitimately escalate the costs of disputing, thereby increasing the likelihood of private dispute settlement; (4) courts provide devices that enable parties to learn more about each other's cases, thus increasing the likelihood of private dispute settlement by decreasing mutual uncertainty; (5) court personnel act as mediators to encourage the consensual settlement of disputes; (6) courts resolve certain issues in the case, leading the parties to agree on others, and (7) courts authoritatively resolve disputes where parties cannot agree on a settlement.

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