(C23) Religion in Juridified Society. Legal Conflicts and Public Controversy about Religion in Germany in International Comparison

The history of the modern state is closely linked to the rise of law as a core social system. Law played a key role in the emergence of the state’s monopoly of legitimate violence; it allowed the expansion of regulation into areas of life which had been outside the purview of the pre-modern state. Even areas of religious life were incorporated.

This project examines the consequences of this process on the basis of selected recent legal conflicts about religion and the public controversies that accompanied them. The focus of the research is Germany, but to enable a clearer view the German cases will be placed in an international (in particular, French) context.

The project belongs to the field of religious, rather than legal, studies. The topic of religion and law has been neglected in religious studies for a long time, but more recently has attracted increased attention. This shift in interest is predominantly owing to the increasing public presence of Islam in Western European states. This change in the religious field has put pressure on the existing constellations of religion and law which had emerged from the history of other religious-cultural conflicts.

The goal of the project is, however, not to examine the capacity of the legal system to adapt to this change in religious culture. Rather, it (a) proceeds from the assumption that the legal conflicts about religion are essentially debates about how society understands itself, insofar as they wrestle with fundamental principles of the modern social order: freedom and equality. Legal conflicts about religion are therefore symbolic conflicts. Furthermore, legal conflicts about religion and their accompanying public controversies will be (b) understood as a process of charting the boundaries of the religious field. The project examines which ideas of religion, religious lifestyle, religious community etc. are implicit in the law, and how these implicit assumptions are changed in the course of the conflicts.

Doing this, the project (c) elaborates how law is not just a regulative authority, but also has performative potential. Thus the law on religion delimits the spectrum of possibilities for defining experiences, ideas and practices as ‘religious’ in the first place and for institutionalising them as such in society. In this way it affects the self-perception of believers and their religious lifestyles. It functions as a kind of discursive filter because believers who want to argue for their right to freedom of religion have to translate their religious convictions and lifestyle into the discursive language of the law on religion. Thus a female Muslim teacher who claims freedom of religion to support her right to cover her head at work has to explicitly present the covering as a religiously motivated symbol and an expression of individual religious freedom, when in her religious-cultural milieu it might be taken for granted und thus require no justification at all. But this discursive gesture does not remain external to her experience of religion. Numerous recent empirical studies of the biographical stories of young Muslim women show instead that this gesture detaches the controversial practice of head-covering from its previously mainly unreflective interpretative context and means that it is instead interpreted as an act of individual religious freedom. In this sense, the modern constitutional state’s law on religion and the central place occupied within it by the freedom of religion can be understood as a kind of ‘governmentality’ in Michel Foucault’s sense: as a ‘technology’ of shaping the ‘religious self’.

Within the research programme of the Cluster of Excellence ‘Religion and Politics’ this project is positioned at the intersection of the research fields ‘Normativity’ and ‘Integration’, but can also be connected to the field ‘Mediality’.