The articles assembled in this symposium share their roots in a workshop we organized at the International Institute for the Sociology of Law (IISJ) in Onati, Spain, in June 2011. The workshop, titled “Legal Pluralism and Democracy. When Does Legal Pluralism Enhance, When Does It Erode Legitimacy of and Trust in Democratic Institutions?” examined the consequences of legal pluralism for various facets of democracy, from human rights and political equality to issues of stateness, legitimacy, and self-determination. Half of the papers discussed the application of customary law in pluri-legal systems, particularly in Africa and South America, while the other half dealt with the application of religious law, especially in Muslim-majority countries as well as Israel and India.

Other papers presented at the workshop have been published in the IISJ's “Oñati Socio-Legal Series” on the Social Science Research Network and are available for download at http://papers.ssrn.com/so13/JELJOUR_Results.cfm?form_name=journalbrowse&journal_id=1605943.

The three articles featured in this symposium address how the law may take account of diversity in the face of the democratic promise of universal rights standards: they probe the question of how to accommodate cultural particularity while also delivering upon the promise of universal and equal citizenship. Both are crucial sources of legitimacy of and trust in democratic political systems, even while they are also often mutually exclusive standards.

Contemporary conflicts over efforts to expand the role of Islamic law in the national legal system of Indonesia are so intense that they undermine reasoned public debate about this question. They are part of a long-standing polemic, not only about the role of Shariah in Indonesia generally but about the specific question of whether the Jakarta Charter, which references obligations to obey Islamic law, should be restored as part of the Constitution. This article is an attempt to revive the neglected academic discourse on the role of Islamic jurisprudence in Indonesian law, and to move beyond the confused polemics to a thoughtful consideration of where Islamic law fits in a non-Islamic state such as Indonesia. Because Indonesia is a secular state, the Shariah as a whole is not enforced by the state, but the Shariah has a significant meaning for Muslims in Indonesia because it provides the norms distinguishing the obligatory and recommended from those actions which are neutral, disapproved and prohibited in Muslims' lives. Moreover, some elements of Islamic jurisprudence in personal law have been absorbed into positive law in Indonesia through the decisions of religious courts, which have existed since the Dutch colonialism,3 as currently regulated by Law No. 7/1989. The Compilation of Islamic Law No. 1/1991 essentially functions as the legal code for all Muslims who must resort to the religious courts for the adjudication of disputes involving marriage, divorce, inheritance and waqf. Thus, consideration of the propriety of attempts to extend Islamic law to matters of property and of contract is appropriate at this time.

The nineteenth century was the age of legal science. Across the globe, numerous cultures began to think of their law in terms of an interlocking system of internally coherent rules. While the details differ, these movements shared the belief that numerous legal propositions were held together by a small number of core legal concepts, and that correct decisions could be determined via formal methods of legal deduction and analysis. This mode of legal thought gave increased importance to legal concepts and analytic categories. Duncan Kennedy has termed this mode of legal analysis Classical Legal Thought.

This restructuring of legal analysis brought about changes in the understanding of what the law is and how it should be studied. In its American variant, the ascendance of Classical Legal Thought is usually associated with Christopher C. Langdell's tenure as dean of Harvard's law school. Langdell created the modern law school by shifting legal training away from apprenticeship and moving it to a university setting where students were trained as legal scholars. Underlying the Langdellian moment is the assumption that law is comprised of analytic concepts which can be apolitically applied through a series of deductions made from the core legal principal.

The question of how we contend in the American public square on the many issues involved in the question of the First Amendment's religious clauses (or “clause,” as some of us would insist) is inextricably bound up in the question of who constitutes the “we” involved in the contention. That is, how we contend must take account of who we are. Unless there is some clarity on this point, the debate over the nature of the civility to which we are called is doomed to be conducted at a perilous level of abstraction.

As I survey the terrain from my own vantage point — that of a Roman Catholic theologian engaged in a host of issues and controversies at the intersection of moral norms and American public policy — the “we” involved here is a many splendored thing indeed. For our purposes, it seems to me that the “we” has at least four salient characteristics.

‘ … to a very large extent power consists in the ability to make others inhabit your story of their reality.’

The accommodation afforded to religious differences within the legal systems of the common law world is as much a political as a legal concern. As such it is part of a much wider debate about the nature of democratic government within a pluralist society. The concern is that in so far as democracy is dominated by a majoritarian concept it may not be compatible with pluralism. Majoritarianism is predicated on the assumption that the will of the majority is absolute and is the final authority when defining the limits of individual rights and freedoms and how they are best respected and enforced. A pluralist conception of society, by contrast, requires that the rights of minorities must, on occasion, be allowed to take precedence over the wishes of the majority in order to encourage diversity, whether religious, racial or sexual, to flourish. The challenge for modern democracies is, therefore, to reconcile the demands imposed by majoritarianism within a pluralist framework.

In the Nebraska Constitutional Convention of 1871, the debates between Oliver Mason, first Chief Justice of the Nebraska Supreme Court, and Experience Estabrook, first District Attorney of the Territory of Nebraska, were frequent and contentious. The two well-respected delegates squared off over many issues, but arguments over the proper role of religious freedom in the newly made State of Nebraska proved to be the most passionate and heated. Although Mason and Estabrook led the discussion over religion, neither had conventional religious beliefs.

Several highly critical theological responses to political liberalism have appeared in recent years. John Milbank, continuing his onslaught on all things modern, complains that political liberalism's “empty heart” suffers from a “totalitarian drift” toward “an increasingly joyless and puritanical world.” For Oliver O'Donovan, liberalism is “a false posture of transcendence” and modernity is “conceived as Antichrist, a parodie and corrupt development of Christian social order.” Robert Song warns against “the partial and limited character” of liberalism's freedoms and proclaims that “a responsible theology will learn to articulate its ‘No’” to liberal political society. Other commentators offer critiques of particular aspects of political liberalism, often suggesting revisions based on their own theological perspectives. These critical voices join others such as Stanley Hauerwas, one of liberalism's most outspoken theological critics for more than a quarter century, and they continue a line of critique that extends back through Reinhold Niebuhr and Karl Barth.

Not all the theological voices are critical. Christophe Insole, for example, finds that “politically liberal principles are compatible with a full-blooded and theologically main-stream Christian commitment.” Several Roman Catholic theologians have commented on the increasing mutuality between liberal democracy and Roman Catholic political and social teachings. Paul Sigmund notes that “the relation between Catholicism and liberal democracy has now become a positive and, one would hope, a mutually reinforcing one, even if there are a number of continuing tensions between them.” And Daniel Dombrowski offers a general defense of Rawlsian liberalism against claims that it is hostile to religion.