THE IDEA OF NEUTRAL LAW

HE standard foundational myth of political modernity portrays the modern State as the offspring of a linear trajectory of disenchantment.

- SAAI SUDHARSAN SATHIYAMOORTHY

In this narrative, modern States—a Westphalian conception—resulted from a long-drawn process of subtraction: as societies modernised, they shed religiosity and theology, make-believe and mysticism, replacing reverence for the supernatural with scientific certainty and Popperian rationalism.

The transformation into political modernity required a shift in the epistemic basis of what the polity held to be true—from the transcendent to causality. The idea of an ordered cosmos governed by divine provenance thus perished. With the collapse of this moral and political order, the death of God in our immanent realm became inevitable.

Acentral anxiety of the incipient liberal secular State, bereft of a supreme source of moral law, lay in establishing the foundations of its authority. While the State required civic virtue, solidarity and cohesion, it faced a dilemma. If it were to guarantee these on the basis of a religious ethos, it risked ceasing to be secular, for religious arguments rely on revelation that cannot be shared by all reasonable agents.

Tf, however, the State provided only a skeletal procedure without replenishing moral capital, it could become vulnerable to illiberal forces. Mere legal compulsion could not secure cohesion. Yet the moral fibre of constitutional rights and duties must originate somewhere. States addressed this dilemma by displacing religion with a democratic ethos, inventing ashared language of legitimacy supported by an origin story and a civil religion that were nondenominational, binding the populace to the State’s ideals.