The Rule of Law and the Unruliness of Religion: Reflections on Legal Multiculturalism

In a recent work on the nature of religious speech, sociologist Bruno Latour cautioned that “the more you make religion modern and acceptable, soft and digestible, the less you are faithful to its specific order of difficulty.” This talk aims to draw out that “specific order of difficulty,” exploring the way in which the prevailing story about law’s role in the management of religious difference obscures the features that make religion a distinctively unruly phenomenon within a modern culture of law’s rule, and hides the paradoxes and awkwardness into which religion leads the constitutional rule of law. In exposing these features of the interaction of modern law and religion, the talk will touch on issues such as the way in which religion is transformed by law’s gaze, the strange relationship of law to choice and freedom in its treatment of religion, and the troubled life of legal toleration. Drawing on the experience of religious diversity and the law in Canada, where the rhetoric of legal multiculturalism has been particularly powerful, the talk seeks to set the stage for a better account of the interaction of law and religion in any liberal constitutional order.

Benjamin L. Berger is an Associate Professor at Osgoode Hall Law School at York University in Toronto and is a member of the faculty of York’s Graduate Program in Socio-Legal Studies. His research and teaching focuses on the interplay between religious difference and the culture of law’s rule; the social functions of criminal and constitutional law; and the nature, quality, and virtues of legal judgment. Prior to joining Osgoode, Professor Berger was an associate professor in the Faculty of Law and held a cross appointment in the Department of Philosophy at the University of Victoria, where he began teaching in 2004. He served as law clerk to the Rt. Honourable Beverley McLachlin, Chief Justice of Canada, and was a Fulbright Scholar at Yale University, where he earned his LL.M. and J.S.D. His work has appeared broadly in edited collections and legal and interdisciplinary journals. He is an associate editor of Hart Publishing’s series Constitutional Systems of the World and is the incoming editor-in-chief of the Canadian Journal of Law and Society. He co-edited The Grand Experiment: Law and Legal Culture in British Settler Societies (UBC, 2008) and Unsettled Legacy: Thirty Years of Criminal Justice Under the Charter (LexisNexis, 2012). Professor Berger convenes the Osgoode Colloquium on Law, Religion & Social Thought.

Professor Berger joins BCSR for a 1-month residency at the end of February 2014.

Introduction: Jonathan Sheehan, Professor of History and BCSR Director, UC Berkeley