A while ago on this blog I commented on a judgment by a Texas court which ruled that so-called “imprecatory prayer” (that is, prayer that asks God to inflict harm) is protected speech under the first amendment of the US constitution. The court asserted that there was no evidence that the prayer had actually harmed the individual cursed by it. My own reflection on this episode made two points: That the court rejected any supernatural causation as legally relevant, thus assuming only a naturalist understanding of reality as capable of producing “evidence”. And that such an assumption is a necessary “formula of peace” in a highly pluralistic society.
This judicial wisdom has now been replicated on the level of federal law. Howard Friedman, an emeritus professor of law at the University of Toledo, publishes a blog, “Religion Clause”, which reports on developments in church-state relations. On July 14, 2012, the blog reported on a decision by a federal district court in Louisiana. The decision affirmed the judgment by a state court that a municipal ordinance banning “palmistry, card reading, astrology, fortune-telling and phrenology” violates the first amendment to the US constitution. In other words, fortune-telling in Louisiana is protected speech like cursing in Texas (and presumably anywhere else within American jurisdiction—potential litigants in Massachusetts beware!). It is worth quoting from the decision by the magistrate who first overruled the Louisiana ordinance (incidentally betraying a penchant for irony and a misspelling of the name of a book in the New Testament—both rather surprising, coming from a magistrate in the Deep South):
Based on its own clairvoyance, the City has decreed in brief that it is impossible to predict the future, and contends the business of fortune-telling is a fraud and inherently deceptive…. The City suggests that “fortune-tellers have no demonstrable facts upon which to base their predictions”…. The danger of the government deciding what is true and not true, real and unreal, should be obvious. For example, some might say that a belief in God or in a particular religion…. or in the “Book of Revelations” (sic) is not supported by demonstrable facts. Books that repeat the predictions of Nostradamus and the daily newspaper horoscope could be banned under the City’s reasoning” (my italics).
But the italicized sentence is contradicted by the very judgment of which it is the supposed justification: A federal judge represents a branch of government—and in this decision did decide “what is true and not true”, at least for legal purposes. In other words, the law accepts as “evidence” only what fits into a naturalist view of reality. Only within such a worldview can it be asserted that curses can cause no harm and that fortune-tellers cannot predict the future.
It was not always so. English common law and its early application in the American colonies contained a long catalogue of crimes involving supernatural powers. The prohibition of witchcraft and the prosecution of witches are a very clear example of this. A magisterial account of the change from this early period to our contemporary judicial culture can be found in Keith Thomas, Religion and the Decline of Magic (1971). This is how Thomas, in a foreword, explains what he was about:
This book began as an attempt to make sense of some of the systems of belief which were current in sixteenth- and seventeenth-century England, but which no longer enjoy much recognition today. Astrology, witchcraft, magical healing, divination, ancient prophecies, ghosts and fairies, are now all rightly disdained by intelligent persons. But they were taken seriously by equally intelligent persons in the past, and it is the historian’s business to explain why this was so.
And so he does—over 800 pages, with enough footnotes to silence the most critical reviewer. The medieval world was steeped in the supernatural, both as officially recognized and administered by the Catholic church, and in the uncontrolled world of folk religion and heretical movements. Thomas argues that the Protestant Reformation was the pivotal event that changed the situation. Protestantism first delegitimated the official magic of the church, by radically challenging its supernatural repertoire—the miracle of the mass, the entire apparatus of the seven sacraments, the cult of the Virgin and all the saints. This did not initially do away with magic altogether. It did so eventually, most radically in Calvinism and the churches descended from it. Protestantism did away with with what it considered to be the magical elements in the Catholic church, but then (mostly unintentionally) helped bring about what Max Weber called the “disenchantment of the world” (Entzauberung, literally “de-magicalization”).
It is interesting to note in the above passage the phrase “rightly disdained” to describe the rejection of astrology, etc. by “intelligent persons” today. When his book was published, Thomas was a professor in Oxford. He might have agreed with this “disdain” at Harvard, less so at a university in Texas, even less so as an academic in Nigeria. Then as now, England is a highly secularized country, while the United States is the least secularized among Western democracies. But it would be a big mistake to interpret the aforementioned two court decisions as expressions of secularization. The two cases come from the least secularized regions of the United States. For all I know, both judges may be fervent Christians. The first amendment, which underlies their decisions, has as its core the defense of religious freedom. What the decisions do express is a secular discourse, which has proven itself as a very useful instrument to maintain peace and civility among people with different worldviews—and which co-exists with a plurality of strongly supernaturalist ones. Naturalism—a way of looking at the world without reference to anything supernatural—now becomes a widely diffused default discourse, to which people can turn by bracketing any religious definitions of reality (on which, in the pluralistic situation of a modern society, they of course disagree). The law in western democracies necessarily operates within such a naturalistic frame.
In my early work I used the term “methodological atheism” to describe such an approach in the sociology of religion. I am not sure where I got this term from. I have the recollection that I first heard it used by my Dutch colleague Anton Zijderveld. This refers, precisely, to a method within which the ultimate truth or falsity of religion is bracketed. Thus the sociologist of religion cannot do empirical research about God, only about what human beings believe about God and what consequences follow from these beliefs. A religious believer can employ such a method within the limited sphere of his scientific work, but without giving up his faith within his much broader view of the world. The same applies to the “methodological atheism” of decisions made by contemporary American judges, who as persons may be anything but atheists. The term may be new. The concept is not. As far as I know, it was first applied to the law by Hugo Grotius (1583-1645), one of the fathers of modern international law. He proposed that such law should be formulated etsi Deus non daretur—“as if God is not assumed”—supposedly on the basis of “natural law”. (Grotius, by the way, was another Dutchman—probably not a coincidence—the Netherlands, after their independence from Spain, became an early laboratory of modern pluralism.) It is important to know that Grotius was a deeply religious Protestant, theologically committed to the Arminian offshoot of the Dutch Reformation which rejected the harsh doctrines of early Calvinism. The theologian (unlike the jurist) operates etsi Deus sic daretur—that is, “as if God is assumed). An individual may be both a jurist and a theologian, with the capacity to operate in two discrete discourses.
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