Law and Modernity

Semester and Year Offered: 2nd semester (winter semester 2018)

Course Coordinator and Team: Dr. Ngoru Nixon

Email of course coordinator: ngoru@aud.ac.in

Pre-requisites: None

Aim: To talk about modernity is to be confronted with varied concerns ranging from questions about its identification with the West, the narrative of progress/emancipation and the repudiation of it, to the claims of the existence of not one but ‘multiple modernities’ or ‘alternative modernities’ etc. Much of the anxiety and distrust about modernity stem from the understanding of it in terms of the binary conception of reason/science vs. religion/myth or secular vs. faith and so on. It remains as a predicament of our time marking the relation between the modern state and society or the West and the non-west.

Secularization is commonly conceived in terms of the disenchantment of the world brought forth by modern science and rationality. The course seeks to engage the students in a discussion of how secularization germinated and emerged from Christian theology and the implication it effectuated in the constitution of the imagery and the conceptual staging of the modern secular law and the sovereign. This entwined phenomenon and event is not just the concern of the western world but of the larger world we inhabit today which has had been traversed by the experience of the West either through colonial imposition or importation. It is pertinent here to note that the intellectual critique of secularism in India (notably T.N Madan’s and Ashis Nandy’s) hinges on the argumentation that secularization is rather ‘a gift of (post-medieval European) Christianity’ and hence contravenes the lived reality of India. The engagement with the West, therefore, is not to privilege “Western modernity” but to rather engage in the spirit of what Gayatri Spivak has described as ‘persistently to critique a structure that one cannot not (wish to) inhabit’.

Course Outcomes:

After the completion of this course, the student would be able to:

1. Delineate the distinctive characteristics of secularization and its constitutive relation with modernity.
2. Provide an account of the historical and intellectual trajectory underlining the debate on secularization pertaining to the entrenched binary conception of science/reason versus religion.
3. Arrive at an understanding that secularization process in Europe has its root in theological engagement.
4. Illustrate the ways in which modern secular law and the sovereign bear the mark or are infused with the sacred/religious tropes and imageries or vocabularies.
5. Explain the mode of the staging of secularization process and the accompanying implication on the conceptual configuration of law in colonial context, notably India.
6. Develop a critical understanding/perspective and analytical capacity to examine the larger evolving debate on the question of secularization vis-à-vis the legal paradigm in post-colonial and contemporary India.

Brief Description of modules/Main modules:

The course examines the relation between secularization and the emergence of modern law. This entails an engagement by way of looking at the secularization process. What is involved in the task is to complicate the understanding of secularization beyond the reductive thesis of disenchantment. Drawing on the conception which traces the sources of modern secular law in Christian theology and thinking, the course proceeds to examine how Christian eschatology, method and practice remain embedded in the constitution of the imagery and the conceptual staging of the modern secular law and the sovereign. The course further looks at the mode/process of secularization (considering the Christian lineage) in the colonial context where the encounter is with a religious world-view but of a different kind. This exercise includes examining how it underlies and informs colonial discourse and practices.

The course is composed of five modules.

Module 1: Modernity, Secularization and Law (2 weeks)

The opening module discusses the process of secularization to delineate the emergence of modern law. It is commonly held that secularization is the outcome of the disenchantment of the world engendered by modern science and rationality. The narrative feeds and draws on the binary conception of reason/science against religion/myth etc. Modern law, according to this understanding, is the result of purely rational enterprise and procedure. The module complicates this understanding by tracing the source of secularization as well as the modern secular legal tradition in the Christian tradition and theology.

Module 2: Law and the Sacred (2 weeks)

In the second module, the religious underpinning of modern law is further foregrounded through critical engagement with the assumption of its rational foundation. Attempt will be made to show how law persists with the characters of God by referring to the Natural law tradition. The question of the relation between law and the sacred will also be complemented by the discussion on how it plays out in India.

Module 3: Sovereign and the Sacred (2 weeks)

In this module, the discussion will focus on Hobbes’s conception of the sovereign or the figure of the Leviathan to foreground the mark of Christian eschatology and beliefs underlying it. Hobbes’s idea of the sovereign remains crucial in understanding the modern state beyond the conception/claim of liberal-democracy.

Module 4: Law and Pastoral Power (2 weeks)

The fourth module, continuing with the running theme of the course, examines Foucault’s concept of pastoral power and the signification involved in conceiving an understanding of law. Signifying Christianity’s notion of salvation, Foucault draws on the concept to analyse the imbrication of law and disciplinary power characterising the modern state/society.

Module 5: Colonialism, Secularism, and Law (4 weeks)

The last module examines the mode/process of secularization (considering the Christian lineage) in the colonial context where the encounter is with a religious world-view but of a different kind. It includes looking at how the entailing mode and process of secularization underlies and informs the colonial discourse and practices

Assessment Details with Weight:

• Mid-Semester Exam: 20%
• Two Short Response Essays: 10% +10% =20%
• Term Paper: 30% (20% for the written and 10% for presentation)
• End Semester: 30%

Reading List:

Module 1:

Essential Readings:

• Berman, Harold J. Law and Revolution: The Formation of the Western Legal Tradition. Harvard University Press, 1983. (Chapter 4: Theological Sources of the Western Legal Tradition).
• Davies, Norman. Europe: A History. Pimlico, 1997. (Extracts).
• Kant, Immanuel. “An Answer to the Question: ‘What is Enlightenment? In Kant: Political Writings, edited by H.S. Reiss. Cambridge University Press, 1991.
• Taylor, Charles. A Secular Age. The Belkap Press of Harvard University Press, 2007. (Chapter 1: The Bulwarks of Beliefs).

Supplementary Readings:

• Gauchet, Marcel. The Disenchantment of the World: A Political History of Religion. Princeton University Press, 1999.
• Lilla, Mark. The Stillborn God: Religion, Politics and the Modern West. New York: Vintage, 2008.
• Skinner, Quentin. The Foundation of Modern Political Thought: The Age of Reformation. Cambridge University Press, 1978. (Chapter 1: The Principle of Lutheranism).
• Sullivan, Winnifred Fallers, et al. ed. After Secular Law. California: Stanford University Press, 2011.
• Weber, Max. The Protestant Ethic and the Spirit of Capitalism. London and New York: Routledge, 2005.

Module 2:

Essential Readings:

• Edwards, Charles. “The Law of Nature in the Thought of Hugo Grotius.” The Journal of Politics, Vol, 32. No. 4 (Nov., 1970).
• Fitzpatrick, Peter. The Mythology of Modern Law. London and New York: Routledge, 1992. (Extracts)
• Locke, John. Two Treatises of Government. Cambridge University Press, 1988. (Extracts).

Supplementary Readings:

• Aquinas, Thomas. Selected Writings. Penguin Books, 1998.
• Fitzpatrick, Peter. “Legal Theology: law, modernity and the sacred.” Seattle University Law Review 32, No. 2 (2008): 321-341.
• Sarat, Austin, Lawrence Douglas, and Martha Merrill Umphrey. eds. Law and the Sacred. Stanford University Press, 2006.

Module 3:

Essential Readings:

• Agamben, Giorgio. Stasis: Civil War as a Political Paradigm. California: Stanford
• University Press, 2015. (Chapter-2: Leviathan and Behemoth).
• Hobbes, Thomas. Leviathan. Penguins Books, 1985. (Extracts)
• Lloyd, Howell A. “Sovereignty: Bodin, Hobbes, Rousseau.” Revue Internationale de Philosophie, Vol.45, No. 179 (4): 353-379.

Supplementary Readings:

• Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford University
• Press, 1998.
• Hobbes, Thomas. Behemoth or the Long Parliament. Forgotten Books, 2017.
• Rousseau, Jean-Jacques. The Basic Political Writings. Cambridge: Hackett Publishing Company, 1987. (pp.141- 227).
• Schmitt, Carl. Political Theology: Four Chapters on the Concepts of Sovereignty. Translated by George Schwab. Cambridge: The MIT Press, 1985.
• Schmitt, Carl. The Leviathan in the State Theory of Thomas Hobbes. Green Press, 1996.

Module 4:

Essential Readings:

• Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1995. (Chapter 3).
• Foucault, Michel. Security, Territory, Population: Lectures at the College De France, 1977-1978. Translated by Graham Burchell. New York: Palgrave Macmillan, 2007. (Extracts)
• Siisiainen, Lauri. “Foucault, Pastoral Power, and Optics.” Critical Research on Religion, Vol. 3, No. 3 (2015): 233-249.
• Supplementary Readings:
• Foucault, Michel. Power/Knowledge: Selected Interviews and Other Writings, 1972-1977. New York: Pantheon Books, 1980.
• Foucault, Michel. “The Subject and Power.” Critical Inquiry, Vol. 8, No. 4 (Summer, 1982).
• Foucault, Michel. The Birth of Biopolitics: Lectures at the College De France, 1978-1979. Translated by Graham Burchell. New York: Palgrave Macmillan, 2004.
• Nietzsche, Friedrich. On the Geneaology of Morals. Translated by Walter Kaufmann and RJ Hollingdale. Vintage Books, 1989.

Module 5:

Essential Readings:

• Chatterjee, Partha. Nation and Its Fragments: Colonial and Postcolonial Histories. Delhi: Oxford University Press, 1994. (Chapter 2- The Colonial State)
• Chatterjee, Partha. Dead Man Wandering: The Case that Shook a Century. Ranikhet: Permanent Black, 2016.
• King, Richard. Orientalism and Religion: Postcolonial theory, India and ‘the mystic East’. London and New York: Routledge, 1999. (Extracts).
• Mani, Lata. “Contentious Traditions: The Debate on Sati in Colonial India.” Cultural Critique, No.7 (1987).
• Mehta, Uday. Liberalism and Empire. University of Chicago Press, 1999 (extracts).
• Prakash, Gyan. “Body Politics in Colonial India,” In Questions of Modernity, edited by Timothy Mitchell. University of Minnesota Press, 2000.
• Yelle, Robert A. The Language of Disenchantment: Protestant Literalism and Colonial
• Discourse in British India. Oxford University Press, 2012. (Extracts).
• Yelle, Robert A. “The Hindu Moses: Christian Polemics Against Jewish Ritual and the
• Secularization of Hindu Law under Colonialism.” History of Religions, Vol. 49, No. 2.
• (November, 2009).

Supplementary readings:

• Anidjar, Gil. “Secularism.” Critical Inquiry, Vol. 33, No. 1 (2006): 52-77.
• Asad, Talal. Formation of the Seculars: Christianity, Islam, Modernity. Stanford University Press, 2003.
• Cohn, Bernard S. Colonialism and Its Form of Knowledge: The British in India. Delhi: Oxford University Press, 1997.
• Gandhi, M.K. ‘Hind Swaraj’ and Other Writings. Edited by Anthony J. Parel. Cambridge University Press, 2007.
• Scott, David. “Colonial Governmentality.” Social Text, No. 43 (Autumn, 1995).
• Said, Edward W. Orientalism. New York: Vintage Books, 1979.