Law as the New Religion


"Man cannot exist without bowing before something…. Let him reject God, and he will bow before an idol” - Dostoevsky


I’ve been reading this book “Law’s Quandary”for sometime now and thought I’d share some of the interesting discussions mentioned in the book about the relationship between law as the religion of people (particularly in the US legal tradition). I’ve had discussions with my friends about our impressions of this feeling and the author of the book details this theory in full.

In the gist of the two arguments he lays out for the view of the law as this new religion of people, the first:

Is this persistence in the practice of law as the people’s new religion but NOT in the metaphysical premises that seem necessary to support the practice. To shift the religious vocabulary, if contemporary law is a species of idolatry, it is a peculiar and confusing sort of idolatry in which the devotees regulary deny that the idol has the transcendent qualities it would need to justify the uses they make of it.

This confusing condition leads to considering the second, not only different but almost opposite possible view: Could it be that at some level legal practitioners do sincerely believe in “the law,’ and that if they are guilty of ‘bad faith,’ their misrepresentation or self-deception occurs not when they engage in the practice an discourse of the law but rather when they consciously or explicity disavow its metaphysical commitments? Meaning, while lawyers and judges might be in ‘bad faith’ when they engage in practice of law, their overall behavior seems more consistent with the hypothesis that self-deception occurs when they engage in explicit theorizing about law- and when in the course of such theorizing they deny the metaphysical commitments that they in fact hold.

Interesting huh? Not many lawyers, judges, or even Americans view their legal system in such a light… and this isn’t even comming from a Muslim but thier own legal theorists.

In the end, I found Smith's answers quite shallow. I mean he resorts to the platonic thinkers mode of analysis and says that that should be or could be the best way to consider the question of how we can know that the law exists and is. The problem with the platonic mode is the reliance upon this "form" of "law" out there that everyone assumes exists - and somehow agrees is the same form of "law."

I felt he coped out of real answer - or just found it hard to admit that there was none or he didn't have one. I know his answer or semi-answer is more complicated than that, especially his explantion of the ontological gap, but I'll discuss that another time.