In Political Theology, Carl Schmitt wrote, “Every political idea in one way or another takes a position on the ‘nature’ of man and presupposes that he is either ‘by nature good’ or ‘by nature evil.'” Liberal political theory rejects the assertion that there is such a need “to take a position.” There is no need for a metaphysical predicate, because people are good enough to agree on reasonable terms by which to live together politically. In this talk, I recover a meaning for Schmitt’s line. and thereby demonstrate the continuing need for political theology. Schmitt had hold of the important idea that in law the most important decision precedes, rather than follows, interpretation. Decision is the condition of interpretation, not because morality precedes politics, but because every interpretation must take a position on the relationship of freedom to order. We must decide whether law is project or system, whether the sovereign is transcendent or immanent. A transcendent popular sovereign takes up law as a project; animmanent popular sovereign expresses law as system.
Paul Kahn is Robert W. Winner Professor of Law and the Humanities, and Director of the Orville H. Schell. Jr. Center for International Human Rights at Yale Law School. Kahn works in the areas of constitutional law and theory, international law, cultural theory and philosophy and is the author of numerous books, including Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia. 2011) and Making the Case: The Art of the Judicial Opinion (Yale, 2016).
Standing near the summit of Mauna Kea, two stone ahu (altars) are sites of contemporary Native Hawaiian religious vitality. The State of Hawai`i, however, has a problem with the ahu. Specifically, they sit on the proposed site of a $1.4 billion dollar telescope project and were ritually constructed in the course of protest actions against the project in 2015. The State has deemed the altars “merely political” and therefore not deserving of consultative consideration or protection. Now, as part of their ongoing effort to protect the mountain, some Hawaiian petitioners are challenging the State in the Supreme Court, insisting that the altars are manifestations of a long-held tradition.
Johnson will address this dispute, including his role as a witness in it, asking: What can be learned from cases wherein modern conceptions of jurisdiction and static notions of religion conflict with place-based forms of religious expression, especially those that emerge in protest settings? Johnson will sketch several comparative examples of such impasses, including the role of prophecy at Standing Rock. His presentation will conclude with an invitation to the audience to think about implications of such cases for Canadian contexts.
Greg Johnson is Associate Professor of Religious Studies and Interim Director of the Center for Native American and Indigenous Studies at the University of Colorado. Johnson’s work focuses on the intersection of Indigenous traditions and law, with attention to repatriation, burial protections, and sacred land claims in Hawai`i and American Indian contexts. He is co-editor of the Handbook of Indigenous Religion(s) (Brill, 2017).
Asylum seekers around the world frequently base their claims for protection on religious conversion leading to persecution. This raises a number of difficult issues, including how courts and tribunals understand religious conversion, how they assess available country of origin information, review the contents of religious convictions, and distinguish between sincere and insincere conversions. More generally, it raises the issue of the relationship between freedom of religion or belief in international law and religious persecution under the 1951 Refugee Convention. This talk provides an overview of these issues, drawing on a case study of 70 appellate court cases on asylum claimants alleging religious conversion in Norway and Canada between 2010 and 2015.
Helge Årsheim is a Post-Doctoral Fellow at The University of Oslo. His research explores the ways in which religion travels across different levels of governance in international and domestic legislation and jurisprudence. His first book, Making Religion at the United Nations, will be published by DeGruyter in 2018.