During 2006, controversies concerning Shari‘a or Islamic law seemed to dominate media reports. From cartoons to apostasy trials, Shari‘a was deemed to be at the core of controversies that attained international notoriety. Furthermore, Shari‘a was implicitly invoked by the Pope in his now infamous speech at Regensberg, in which he referred to the prophet Muhammad and an early Muslim jurist in order to define Europe as Christian and contrary to all that is Islamic. The Shari‘a-related events of 2006 raised fundamental questions not just about what Shari‘a is, but more fundamentally about the place of Muslims and their religious tradition in the international system. This article attempts to survey the above Shari‘a-related events from 2006 in order to illustrate how references to Shari‘a, whether by Muslims or non-Muslims, were embedded within a larger discourse on identity, community, and difference.

This survey will not provide an in-depth analysis and critique of the Shari‘a doctrines invoked in each case, as that would be beyond its scope. Rather, this article is intended to review the events in light of how “Shari‘a” was characterized, used, and positioned within a larger legal and political discourse. All of them illuminate similar problems of definition and identity that will generally arise in any critical discussion of Shari‘a in the modern day. Shari‘a has arguably become more than a system of legal rules that can be subjected to critical legal scrutiny. Rather, it is also a symbol of political identity, such that any suggestion of legal reform may create political fall out amongst those committed to certain conceptions of identity, political and otherwise. The controversies concerning Shari‘a in 2006 arguably had less to do with legal doctrine, and more to do with how “Shari‘a” can be used and manipulated to facilitate political ends concerning the definition of identity and thereby the separation (and even marginalization) of communities.

The year 2006 marked the twenty-fifth anniversary of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. In her recent report to the United Nations General Assembly, Asma Jahangir, the U.N. Special Rapporteur on freedom of religion or belief, stated that despite the time that has elapsed since the Declaration was drafted, it “seems evident that contentious religious issues have not only evolved but also become more acute in many societies.” In a report submitted to the Commission on Human Rights in late 2004, the Special Rapporteur listed “the continuing violations of human rights of members of certain religious minorities, as well as the still widely applied practice of forced conversion” among the main concerns in the area of freedom of religion. Jahangir said that she considers that “such a practice breaches the strongest and most fundamental part of freedom of religion or belief and should be given greater attention by the international community.”

In May 2005 the Special Rapporteur made an in situ visit to Sri Lanka—a country where the issue of unethical conversions has fueled religious tensions in recent years. Approximately 69% of Sri Lanka's population are Buddhists, followed by Hindus (15%), Christians (8%), Muslims (7%) and others (1%). Despite such a majority, the ethnic conflict which has affected Sri Lanka for decades, and which began to escalate again in December 2005 and throughout 2006-07, has been largely devoid of a religious element: relations between the different religious groups have for some time been relatively peaceful. This religious co-existence has, however, begun to deteriorate, due largely to the issue of unethical conversions and a desire to protect the majority religion.

Analyses of religious liberty in eighteenth-century America often seek to uncover legal principles concerning the relationship between church and state. Many such analyses focus on the Revolutionary-era writings of famous American founders and include among recent works The Founders on God and Government, Jefferson and Madison on the Separation of Church and State, and Thomas Jefferson and the Wall of Separation between Church and State. Related work on religious liberty in early America examines that liberty in conceptual categories derived from the First Amendment's establishment clause which states “Congress shall make no law respecting an establishment of religion.” Scholarship in this field includes The Establishment Clause: Religion and the First Amendment and The First Freedoms: Church and State in America to the Passage of the First Amendment.

Although such scholarship has yielded important, though conflicting, results, the general search for legal principles concerning the relationship between church and state sometimes obscures important complexities in the historical sources. One such complexity is the combination of a political culture of natural rights and the religious culture of an evangelically rooted Protestantism in much of the public discourse on religious liberty in early America. Consider, for example, the two states at the American founding that scholars usually cite as representing two contrasting legal principles on the relationship between church and state, Massachusetts and Virginia. The new state of Massachusetts maintained a religious establishment supported by public taxes while the new state of Virginia did not.

It is a great honor for me to have been asked to contribute to this issue of the Journal of Law and Religion focusing on the work of my colleague and friend, Robert E. Rodes, Jr. In June 2006, Professor Rodes celebrated his fiftieth anniversary as a member of the faculty of Notre Dame Law School. His long career has marked him as a founding father of interdisciplinary scholarship at the intersection of faith, law, and morality—the very sort of scholarship which this journal is dedicated to fostering and preserving.

The topics that Professor Rodes has considered over the years are wide-ranging; for example, he has written insightfully on both sexual ethics and economic justice. The methods that he has used are diverse; he has deftly deployed the tools of historiography as well as logic. Moreover, the normative stances that he has taken defy location on the normal liberal/conservative spectrum as it plays itself out in American political life. He has argued in favor of a legal system that would encourage a more traditional sexual morality, while emphasizing the need to compassionately accommodate those whose lives do not conform to its strictures. He has also maintained the importance of assessing social and economic structures from the perspective of the most marginalized members of the society, without succumbing to romantic illusions that technology, progress, or the dynamism of history will eliminate class stratification and its ensuing divisions of humanity into the “haves” and the “have nots.” His writings at the intersection of law and religion reflect neither the Democratic Party nor the Republican Party at prayer—and neither party at a town hall meeting, for that matter.

I am a lawyer turned theologian turned goat and hog farmer who finds himself attempting to make sense of a path from social ascent to intentional social descent. An economics major who studied just enough philosophy at a Christian college to think he wanted to continue that work while in law school, I found my life captured by the life and work of Stanley Hauerwas. It has all been all downhill from there. As a good friend of mine from law school days who has followed a similar descending path recently suggested, “Stanley Hauerwas ruined my legal career.” Add in required readings by John Howard Yoder and Wendell Berry during graduate school, and you find yourself on a path toward political and economic radicalism, farming, and just maybe, a church for which it is worth living and dying.

But, of course, the voices of Hauerwas and Yoder were not crystallized in isolation. They were forged in the midst of conversation with good colleagues. In this collection of essays we celebrate the life and work of Robert Rodes, a colleague of both Yoder and Hauerwas at Notre Dame in the 1980s. I have learned a tremendous amount from Rodes's historical work on the shape of English law during the period of the Reformation. But in engaging Rodes here, I focus on his constructive work on the role of the law in liberation. What I offer is a set of questions and potential alternatives in response to that work, largely learned from Hauerwas and Yoder.

Coming out of a church whose marks of identity include unity, holiness, and universality, it is ironic—and painful—that the “Catholic vote” has become a “metaphor” for polarization in United States culture and politics. As one reporter described the scene in the weeks before the 2004 presidential election:

Tensions have also manifested themselves in the variety of Catholic “voter's guides.” Some list a limited number of “non-negotiable” issues—particular actions that are identified in Catholic moral theology as “intrinsic evil” and suggest that candidates be evaluated according to their stand on these particular issues. For example, the Catholic Answers Voter's Guide for Serious Catholics, first distributed prior to the 2004 election, named “five non-negotiables”: abortion, euthanasia, embryonic stem-cell research, human cloning and homosexual marriage. As these moral principles “do not admit of exception or compromise,” the Guide reasoned that political consequences should be clear: “You should avoid to the greatest extent possible voting for candidates who endorse or promote intrinsically evil policies.”

In the interim between the 2004 and 2006 elections, a few organizations congealed to formulate competing guides. Others rallied around Faithful Citizenship, the United States Bishop's long-standing official commentary on the nexus between the principles of Catholic social teaching and political participation. Others directly challenged the Catholic Answers guide as a distortion of Catholic social teaching and argued that its partisan activities were a potential threat to the Roman Catholic Church's tax-exempt status.

Robert Rodes settled on the metaphor of the pilgrim for his story of the law. For him, pilgrim law is “the jurisprudential manifestation of liberation theology.” To begin my discussion of Rodes and the ongoing story of the law, I begin with a tale of my own pilgrimage to find justice in one place in the world I thought most needed it—when, as Dorothy could have told us from the outset, if it was not in my own back yard, I had never really lost it to begin with. In the mysteries of a Christian life that Rodes emphasizes is rooted in our unknowing, Milovan Djilas figures as central to Rodes's analysis; Djilas himself gave me crucial, but slightly cryptic, wisdom for my journey. Thus I feel haunted by some of the same characters and stories Rodes deems crucial in his pilgrim experience.

It is both an honor and a pleasure to be asked to participate in this festschrift for my friend and colleague, Robert E. Rodes, Jr. Since I joined the Notre Dame Law School faculty in 1998, Bob has been an inspiration to me in so many different ways, and in my opinion, he exemplifies the best tradition of an American man of letters. It is a rare American law school that can boast a faculty member whose interests range from medieval French and English law to modern civil procedure, legal ethics, poverty law and liberation theology. But we at Notre Dame have all this in Bob, and it is through these wide-ranging interests that I found not only intellectual common ground with him, but also a mentor and a friend.

It just so happens that Bob and I received our undergraduate and law degrees from the same institutions, Brown University and Harvard Law School. Although our experiences at both places were separated by almost forty years, I like to think that our shared educational provenance links us in a special way. In addition, for the last five years or so, we have belonged to the same parish and, more often than not, we attend the same mass. This has offered our professional relationship the wonderful counterpoise of the fellowship of our parish community, and it has given me and my wife, Robin, a chance to spend more time with Bob's delightful wife Jeanne, to whom he has been married over fifty years.

President George H.W. Bush caused a few chuckles—and, more than likely, a few groans—when, out on the trail during the 1988 presidential campaign, he recalled being shot down over the South Pacific in World War II:

Mother, Dad, God, faith—“and the separation of church and state.” This train of thought probably strikes us as a bit absurd. And yet, it is entirely American. That “God” and “faith” could not be invoked by the future President, as “fundamental values,” without the addition of “the separation of church and state” speaks volumes about how we Americans think about the content and implications of religious freedom, our “first freedom.” Indeed, Professor Daniel Dreisbach observed not long ago that “[n]o metaphor in American letters has had a greater influence on law and policy than Thomas Jefferson's ‘wall of separation between church and state.’” For many Americans, this metaphor supplies—in Professor Philip Hamburger's words—the “authoritative interpretation” of the First Amendment's Religion Clauses; and “vast numbers of [us] have come to understand [our] religious freedom in terms of Jefferson's phrase. As a result, Jefferson's words often seem more familiar than the words of the First Amendment itself.”

But let the brother of low degree glory in his high estate: and the rich, in that he is made low.—James 1:9-10

I am starting this paper after looking at the latest of a series of e-mails regarding people who cannot scrape up the security deposits required by the local gas company to turn their heat back on. They keep shivering in the corners of their bedrooms or burning their houses down with defective space heaters. The public agency that is supposed to relieve the poor refuses to pay security deposits, and the private charities that pay deposits are out of money. A bill that might improve matters has passed one House of the Legislature, and is about to die in a committee of the other House. I have a card on my desk from a former student I ran into the other day. She works in the field of utility regulation, and has promised to send me more e-mails on the subject. I also have a pile of student papers on whether a lawyer can encourage a client illegally in the country to marry her boyfriend in order not to be deported.

What I am trying to do with all this material is exercise a preferential option for the poor. I am working at it in a large, comfortable chair in a large, comfortable office filled with large, comfortable books, and a large—but not so comfortable—collection of loose papers. At the end of the day, I will take some of the papers home with me to my large, comfortable, and well heated house.