A Terrible Purity: International Law, Morality, Religion, Exclusion

This article's point of departure is the US's war against Iraq, which was begun in 2003 under various rationales - political, legal, and moral. As the legal and political justifications fell away or were cast into question, the moral became the primary reason for going to war. The justifications were, however, construed in religious language. For many, this "return" of religion within US foreign policy seemed particular to the Bush Administration. Others have argued that the turn to religion in time of war is nothing new. Nevertheless, the war and its justifications made me wonder about the nature of public discourse at both the national and international levels, and why religious language stands out, especially when it is resorted either to escape or, as in the recent war, to repudiate the legal or political authority. My analysis led me to the recognition that religion's exclusion from morality (broadly conceived), and morality's liminal status under positive international law, has political consequences. These consequences involve the justification or authority for the deployment of power and the use of force either within the parameters of "legitimate" public discourse or, by resort to religious justifications, outside of the legitimating legal/political bases of authority. That the resort to religion may or may not be persuasive is an interesting question, one I have addressed in another article ("War: Rhetoric and Norm-Creation in Response to Terror," 43 Va. J. Int'l. L. 797). Here, I am interested in exploring, through an interdisciplinary approach, how these different "sites of authority" for the use of force have the effect of shaping the self-perception of power, how power sees the non-secular/religious other, and how thereby each of us shapes and is shaped by the public discursive exclusion of religion from the normative framework of a secular moral paradigm. The article begins by outlining the conflict between the rationalist tradition and the concept of "faith," arguing that whereas faith has ostensibly been resolved as that which the rational mind has necessarily repudiated, faith returns as the challenge and limit of rationalism. Part I argues that the border between law and religion is porous. Legal authority appears to depend upon the suppression of faith and the exclusion of religion. I suggest that the way this normative paradigm plays out - in practical morality and positive law - is compromised by the presence of a religious vernacular as a latency beneath the surface of law. This challenge to law in turn leads to a policing of the boundaries between law and morality, with consequences for how the secular self and the religious other are constructed and separated. Part II addresses the view that the turn to morality within foreign policy is the triumphant clarification of law's purpose with respect to the use of force to resolve conflicts abroad. This turn in fact discloses two interrelated ways in which the rule of law is eviscerated: first, by the relegation of law as a site of authority to the periphery, encouraging thereby a sense of the non-religious (purified) self as exceptional, universal, and above the fray. Secondly, the model of morality projected within this triumphant clarification is a "negative" liberty, a conceptualization of freedom that normativizes the link between morality and violence. Part III and the conclusion discuss the effects of maintaining and policing the borders between law and religion. The result has been that the religious "other" is rejected. I suggest the possibility of seeing the theological model, not as the repudiated other to the secular perspective, but as a source of creativity in thinking through the barriers between law, morality and religion. Here, I suggest that it may be possible to conceptualize the law as the meeting-ground within which to (re)imagine religion as that part of the self that it is most difficult to apprehend and to integrate.