Homo Religiosus in a Globalized World: How Religious Individuals are Actors of Global Law
On a global level, religious institutions influence the transformations of law in a variety of ways. Many of the world’s most influential religions, such as Judaism, Islam, and Hinduism, contain their own legal systems that interact with secular state law. In addition to these larger systems that drive religious legal change, individuals inspired by religious principles and norms (those whom we will refer to as homines religiosi) routinely appear before national and international legislative and judicial bodies to advocate for the recognition of their religiously-inspired versions of human and civil rights as alternatives to the more secular conceptualizations often enshrined in national and international law.
Taking the characteristics of global law into account, this essay offers some insights into important differences between “religion”—typically, but perhaps superficially or at least incompletely understood at an institutional or state level—and the phenomenon of “the religious”—understood in a more anthropologically informed and nuanced way, and which nevertheless impacts institutions and states. I choose to identify “religiosity” as the universalizing force that guides individuals when they act as private players on the global scene in order to choose what instruments and remedies are better to achieve their religious goals. In short, I will try to show how homines religiosi represent an underestimated factor of the transformation of global law.
Globalization is not limited to markets and trade; it has important implications for law as well. To understand both religion and law on a global level, we must recognize that global law is the result of economically driven globalization. Processes that originated in the economic sphere eventually led to the emergence of a global community of actors and practitioners. For example, the process of globalization has impacted international trade, giving more and more relevance to practices and values of multinational economic players and the international community at large, so that in many respects it resembles the historical notion of Lex Mercatoria.
Moreover, international law gradually displaced many of the legal mainstays of the pre-globalized world, and grew to emphasize international rather than local economic governance. New international norms have allowed individuals, firms, corporations, and non-governmental organizations to bring claims before international jurisdictions. As a result, global legal rules are not rules of particular legal systems; rather, they are rules that arise from the convergent behavior of institutional and economic players of different legal systems. Today, the objective of global law is to identify a uniform set of legal rules, principles, and procedures to manage global human rights, interests, goods, groups, and cultures. Identifying these approaches involves drawing from a variety of international practices in political and jurisprudential contexts.
In this global scenario, which is neither religiously neutral nor concerned with legal formalism―and which is polycentric and complex―“religiosity” is the global factor that guides individuals when they act as private players of global law in order to choose what global legal instruments and remedies are best to achieve their religious goals. More specifically, the nature of global law implies the augmented relevance of religions in the sphere of global normativity and human rights in a number of ways.
First, global law can transcend the limits of state law when it comes to religiously motivated legal action. Rather than states alone acting as the only legal power players, the global system includes various non-state players like NGOs, international organizations and agencies, private and civic actors (both associations and individuals), and multinational enterprises. Such subjects are established in order to pursue a particular agenda, such as human rights, humanitarian standards in wartime, environmental protections, business interests, and so on. In doing this, these non-state players use the law as an instrument to achieve their goals by functioning privately rather than publicly. This characteristic has an important effect on the global legal-scape because global law, unlike national law, is not required to be religiously neutral. In fact, religiosity can be a reason for legal action beyond the limits of the secular state.
Second, unlike many state law systems, global law is not terribly concerned with formalism. Global law instead focuses on the utility and function of norms rather than their form. In other words, at the global level, what serves to compel behavior serves as law. For example, beyond a defined state territory, a religious group can manifest its legal authority through its self-government capabilities, such as by disciplining its members, enforcing its rules, and regulating its membership independent of—and at times in competition with—state legal processes of the state. Indeed, this was how Jewish law and Jewish communities functioned for centuries in pre-modern Europe, and how Jewish and Christian communities often operated within Muslim societies during the Middle Ages.
Third, global law is polycentric and complex. In a world of legal globalization, people, organizations, and states are simultaneously governed by multiple systems of rules, including religious laws. Moreover, the multiplication of international courts and tribunals, such as the ICJ, ECtHR, ICC, and ECJ, and their overlapping and conflicting jurisdictions make the current legal framework more and more complex. This polycentricity offers religious considerations new opportunities for legal recognition.
In such a broad context, human “religiosity,” rather than institutionalized “religion,” is a proper factor for consideration in global law. This assumption is derived from the difficulties involved in finding a global meaning for “religion” in the legal language. Even though many statutes and constitutions address “religion” in official documents, the legal interpretation of the notion of religion always depends on the institutional forms that religions have historically and culturally assumed in local legal systems. The substantial ambiguity of the term “religion” is one of the main reasons why, when “religion” is mentioned in international legal documents, interpretations of this term reflect conflicts and competing explanations over the definition of what kinds of behaviors are contemplated by the term.
The reality is that unlike “contract” or “property,” “religion” is not a concept that originates within the law. Rather, religion originates in a dimension of experience dominated by ethnic sources, oral traditions and behaviors, religious texts and dogma, and specific liturgy and praxis. And it is this complex set of pre-legal and pre-political practices, beliefs, traditions, etc. to which the law refers and attempts to define through legal language and categories. Additionally, though we are accustomed to using the word “religion” to refer to religious institutions and official denominations, the term “religion” does not inherently describe a universally understood category. Instead, the word “religion” carries many different meanings and connotations in different parts of the world. As William James put it, “The very fact that they are so many and so different from one another is enough to prove that the word religion cannot stand for any single principle or essence, but is rather a collective name.”
Moreover, from a legal point of view, countries do not recognize any universally consistent way of identifying and relating to “religion” through law. While some international agreements may attempt to do so, there is currently no effective homogenous and universal treatment of religions―even when considered in the limited sense of organized denominations―in the legal sphere. What’s more, different national laws define religion in “indigenous” ways that are deeply embedded in local cultural, historical, social, and other contexts. The variables of this situation multiply in global law where institutional religions continue to be regulated differently by the national laws; meanwhile, their members use the global law to achieve their religiously oriented purposes.
In other words, religions depend on their cultural characteristics; and, in turn, religions as historical institutions are regulated and limited by national laws. By contrast, people can be religious without the assistance of a special term; they simply have faith, despite their different religions. “Religiosity” seems to be a more universalizing concept that is grounded in individuals’ human nature, faith, cultural habits, and rights―in a word, in their religious experience. Religiosity is a primordial thing that comprehends the feelings, acts, and experiences of individual people. In the global scenario, which is neither religiously neutral nor concerned with legal formalism, and which is polycentric and complex, “religiosity” is the global factor that guides individuals when they act as private players of global law in order to choose what global legal instruments and remedies are best to achieve their religious goals. This does not mean that religions are useless or inconsistent; rather, their regulatory power resides not only in their institutional shapes (e.g. codes, hierarchies, community organization, and laws) but also in their own symbolic appeal, unofficial saints, separate constitutive narratives, different jurisdictional concepts and conflict resolution norms, cross-border affiliations, transnational solidarity, and international mobilization capacity.
It is not a coincidence that religious leaders have recently sustained more and more the idea of human dignity as a direct and concrete regulatory power. For example, Pope Ratzinger challenged the idea that international law and transnational constitutionalism are the primary sources of universal human rights in his address to the Members of the United Nations General Assembly on April 18, 2008. According to the Pope, norms described in the international law are only secondary consequences of a more radical and anthropological regulating power, that is human dignity:
“Human rights are increasingly being presented as the common language and the ethical substratum of international relations. At the same time, the universality, indivisibility and interdependence of human rights all serve as guarantees safeguarding human dignity. It is evident, though, that the rights recognized and expounded in the [Universal Declaration of Human Rights] apply to everyone by virtue of the common origin of the person, who remains the high-point of God’s creative design for the world and for history. . . They are based on the natural law inscribed on human hearts and present in different cultures and civilizations.
The Pope continued with a warning that decoupling human rights discourses from conceptions of human dignity rooted in natural law could erode and dilute the significance of human right protections recognized under international law. He argued that:
“[R]emoving human rights from this context would mean restricting their range and yielding to a relativistic conception, according to which the meaning and interpretation of rights could vary and their universality would be denied in the name of different cultural, political, social and even religious outlooks. This great variety of viewpoints must not be allowed to obscure the fact that not only rights are universal, but so too is the human person, the subject of those rights.”
Another example of the competition between religious orders and constitutional orders comes from Islamic “religiosity.” On one hand, the global spread of this faith implies the rise of a sort of Islamic transnational constitutionalism, particularly in countries where Shari’a law has legal relevance because it is specifically mentioned as a source of national law in the state’s constitution, as it is, for example, in Egypt, Oman, Kuwait, Iraq, and other Muslim-majority countries. In other jurisdictions, such as Saudi Arabia, Iran, and Pakistan, Sharia law is directly enforced by the state. On the other hand, the legal relevance of Islamic religiosity in Europe comes indirectly from Muslim individuals in fields like international security, religious sectarianism, mixed weddings, Islamic economics, institution-building through the constitutions, and unfortunately, terrorism. In other words: universal religiosity requires the intervention of institutionalized religions in shaping the normative dimensions of law, but religiosity itself represents a source of concrete regulation and a sort of higher law that is more transnational and widespread than international treaties and Western constitutionalism.
To conclude, global law focuses more on agency and actions than on formal norms, and depends on the interplay between religious orders and individuals who try to obtain a legal recognition of their religiosity in national law through legislation and court decisions. Religious individuals move from country to country, work at the global level, and claim their rights before the national and international courts and in so doing play the role of real transnational subjects. Moreover, to belong to a “globalized religious community” entails that individuals have not only codified fundamental rights but also a set of religious norms to observe, and some individuals give to the observance of their faith the same importance they give to respect of the law of the (secular) state. Such homines religiosi represent a factor of the transformation of global law, even without any connection with religious institutions, because their behavior and thought are motivated completely by religious cultural premises.
Surely, individuals need the intervention of religious institutions in shaping the normative dimensions of law, but their agency matters also as a singular stance in transforming the global scenario of legal claims because the living person is the link between faith and religious order before the secular law. From this perspective, religious obligations and duties represent rules for action and give substantial meaning to different behaviors in the legal sphere. Understanding this concrete interplay between religious individuals and the state-law/international law “in context” is crucial for any attempt to drive a global transformation of law. In many cases, religious individuals express their primary interest not only in applying the norms of religious law or their own state, but just as significantly when translating their religious/cultural habits into legal claims that produce the concrete effects of religious demands and obligations into the legal systems where they actually live (for instance, the riba prohibition). In such cases, “religiosity” manifests itself within the legal limits provided by norms that consider religion to be a fundamental human freedom to be respected in different forms in pluralistic and democratic societies. 1 I would like to thank Dr. Melisa Liana Vazquez for her remarks in preparing this essay.
Giancarlo Anello is an Associate Professor at the Department of Humanities, Social Sciences, and Cultural Industries, University of Parma Italy, where he teaches “Culture & Institutional Pluralism” and “Law, Culture, and Economics.