Law and Religion
Franz von Benda-Beckmann (✝ 2013)
Changing constellations of legal pluralism in West Sumatra, Indonesia (jointly with Prof. Keebet von Benda-Beckmann)
Keebet von Benda-Beckmann
Changing constellations of legal pluralism in West Sumatra, Indonesia (jointly with Prof. Franz von Benda-Beckmann)
According to salt: an Ethnography of Customary Law in Talas, Kyrgyzstan
Religion and the problem of order in Southern Africa
Reconsidering Law and Society: The dynamics of disputing processes in plural legal orders in South Africa and Swaziland
Assessing the normative power of religion in contemporary Bali: Hindu values in intra-ethnic, interethnic and transnational commercial relations
Legal diversity within and beyond the scope of the state
Law and Religion
Throughout the world, the nomo-sphere seems to be changing and this includes, on the one hand, an increase in rights discourses, and on the other hand, a mounting reliance on morality, religion, and religiosity as normative orientations. The project group studies the relationship between law and religion in order to engender insights into how the changing role of religion affects plural legal constellations. We take a broad conception of religion that not only encompasses the large world religions but also includes cognitive and normative schemes of meaning for understanding human existence and the world and involves an ontological and perhaps cosmological order by which the visible world is interpreted in the light of a general (sacred, spiritual) design beyond the visible world.
Current research traditions on disputes and religion have generated important insights into the role of religion in disputes. The issue of religion in dispute management, however, deserves a more general reflection and analysis beyond the context of religious courts, cultural defence, and the ethno-religious conflicts that receive the most prominent coverage in both the mass media and scientific literature. This is important for several reasons. One is that we cannot properly understand disputing behaviour if we relegate the role of religion in dispute management to religious courts and otherwise focus on secular modes of dispute management without considering the potential role of religion, religious law, and religious authorities. Furthermore, one cannot understand the role of religion and religiosity in society unless one also considers their role in dispute management. Religion may affect scale dimensions of disputes, up-scaling or downsizing disputes. Finally, there is a more political consideration. The tendency to connect religion with violence in the domain of dispute management might become a self-fulfilling prophecy. A broader perspective on the role of religion in dispute management might help mitigate this process.
Until 2009, the focus of research was on disputes with the aim to capture the various ways in which people draw on beliefs, religious concepts, and religious authorities for dealing with disputes in order to understand how that affects plural legal constellations. Beginning 2010, the project group also studies the relationship between law and religion beyond the confines of disputing processes of the current research programme, including rule making processes and the actors involved, as well as legitimation of legal procedures and decisions.
Issues addressed in the research of the project group include:
1. Religion as schemes of meaning: transformations in disputing processes
We look at religious factors that might play a role in the process of transformation, beginning with the emergence of a grievance to the phase following the final decision. This includes the kind of sanctions that are involved and the way final decisions are or are not being carried out. It also includes the ways causation is constructed and blame is ascribed. We are interested in underlying notions of justice, truth, purity, virtue, sin, forgiving, and repentance, and of reconciliation and harmony, and the role these play in processes of disputing as well as in the choosing behaviour of persons and institutions involved in dispute management among available fora and idioms. We are particularly interested in the question of how global legal processes affect these dynamics, either as a reaction against or in line with newly imported modes of dispute management and discourses about rights, justice, and a religious life.
2. Religion, social stratification, and disputes
An important question is, whether the choice for religious arguments, religious law, or a religious authority or institution is class, gender, and age dependent. Under what conditions does reference to religion work favour low status persons and thus have emancipatory potential, and under which circumstances does reference to religious norms and religiosity tend to benefit the powerful? And is it used to underline class or gender differences?
3. Disputes and religious identification
We are interested in how these options might affect the identity formation of disputants. The question is how disputing processes figure in the recursive links between religiously inspired identification processes within the disputing process itself, the public discourses and the media, and the individual life histories of disputing parties. We are in particularly interested in the trans-local and transnational processes of mobilising solidarity along religious lines as part of the process of identification.
4. Constitutive relationship between disputing processes and public discourse on religion
What are the mutually constitutive processes that occur between general public discourses and dispute management and between dispute management and changes in plural legal orders? Do changes in disputing behaviour reflect changes in the constellation of power relations and legitimising narratives in which state institutions, supra-state organisations, and other societal (civil society) organisations are engaged?
5. Religious activism
Religious activism of faith based organisations and religious movements seem to play an important role in the repositioning of the realms of law and religion in public life. This issue is particularly important in view of transnational religious connections and migration, where flows of ideas about law and religion are moving back and forth between the places of origin, places of migration, and possibly important religious centres that may be situated in yet another country. Questions that will be addressed are: What are the transnational networks in which such religious activism operates? What chains of transformation in legal ideas are taking place in transnational religious activism? How does this affect the legal position of religious diversity? How does that affect the constellation of legal pluralism and the hybridisation of law in the countries of origin and of migration?
6. Economy and religiously inspired law generation
Religion not only impinges on the classical realms of family, inheritance, and property relations. It plays a role in economic and financial realms such as banking, food certification (halal food), and business relations. Questions that are relevant here are: How does this affect processes of rule generation? Who are the actors involved and how are they legitimated?
7. Violence and religion in dispute management
We are not only looking at the ways religion serves to either encourage the use of violence, but also at ways in which religion is used to mitigate and prevent the use of violence in disputes. Besides, we are interested in the question to what extent violence may be used, by the state or by others, to suppress the emergence or eruption of religious disputes. And thirdly, our research deals with religious modes of dispute management for dealing with past violence, either by perpetrators, as a way to circumvent criminal procedures, or as a more general way of bringing perpetrators and victims together to come to terms with a violent past for which the judicial system cannot provide appropriate procedures.