Learning Objectives & Instructions:1) Read all of the articles in the Readings folder.2) Think about the types of assumptions that people (or secular governments) make when they generalize about other

All of the academic articles (in weeks 1, 2 ,& 3) should help illuminate some of the unique challenges to secularism in relation to religions. The shorter media articles provide examples of how some of the concepts discussed in the scholarly article are playing out in real-world situations, particularly with reference to Indigenous religions, Judaism, Christianity, and Islam. This exercise is intended to help you connect the scholarly discourse to the public discourse

Learning Objectives & Instructions:

1) Read all of the articles in the Readings folder.

2) Think about the types of assumptions that people (or secular governments) make when they generalize about others or when they normalize their own religious values and experiences as being perfectly natural, acceptable, and widespread.

3) Try to see how the broader discussions in the academic articles (in weeks 1, 2, & 3) relate particularly to Indigenous Religions, Judaism, Christianity, and Islam in ways beyond those that are mentioned in the Media. (You will need to be able to provide footnotes with citations to the scholarly articles in accordance with Chicago Manuel of Style for your writing assignment.) 

4) Proceed to the writing assignment in the Writing folder, and complete it by the Due Date.

DOI:10.7208/chicago/9780226248646.003.0004

Bringing together the frontispiece to Diderot and d’Alembert’s Encyclopédie with recent religion or belief legislation in England and Wales, this essay displays the always unstable tension between the modern secular settlement and an always shifting set of players representing the ongoing threat to that settlement, alternatively configured as theology, religion, or belief. “Belief” paradoxically figures in this uneasy settlement both as radically free, emblematic of a free people and as always threatening to a contained, domesticated democratic freedom.

Keywords:   religion or belief, belief, United Kingdom, enlightenment, equality regulation

In this essay I want to put a different spin on the question of religious freedom by exploring the terrifying freedom of the concepts of “religion” and “belief.” In the first part, I examine how belief was first released as a potentially insurgent poltergeist, a shadow of politics and reason, at once more solid (less flexible, more intransigent) than its altogether safer counterparts but also more flimsy (less tangible) and further removed from “the real.” In the second part of the essay I explore how the paradoxes and fears that accumulate around the strange space of believing escalate in recent legal definitions of “religion and philosophy” or “religion and belief.”

We have never needed the rise of al-Qaeda, so-called Islamism, or a hardline religious Right to terrify us with a resurgent specter of specifically religious (as opposed to purely political) terror. Rather than bearing down on us like some old specter of the Turk or Moor at Europe’s gates, the terror of religion emerges—or “insurges” (if insurge can be made into a verb)—from within the standard definitions of religion squeezed out from Western epistemologies and politics. The inherited conceptual partitions that constitute and ground modernities leave religion and belief volatile, incendiary, and absolutely uncontained: in a real sense, entirely (p.30) “free.” This conceptual freedom collides (sometimes spectacularly) with the highly managed “freedom” of modern democracies and the conditions that we seek to impose on religion in law and public life. We define religion and belief as nonnegotiable, unconditioned. And then, crossing our fingers, we attempt to impose conditions on this home-grown flighty specter of “belief.”

Consider, first, the positioning of religion or her once-young great-grandmother, Theology, in that primary architectonics of modern knowledge: the frontispiece to Denis Diderot and Jean le Rond d’Alembert’s Encyclopédie (see fig. 2.1).

In a “temple” or “sanctuary” of truth, a host of clever girls clutch a range of instruments and accessories from compasses, set squares, cacti, and microscopes to harps, masks, and puppets. At the top, where all the action takes place, Truth is at the apex, attended by crowned Reason and, below her and to the right, Philosophy. Reason is lifting and Philosophy is arranging Truth’s diaphanous veil. Awkwardly positioned between the two is Theology. In the words of Diderot’s commentary, “A ses pies, la Théologie agenouillée reçoit sa lumière d’en-haut.” (At her [Truth’s] feet, Theology, kneeling, receives her light from above.) The phrase “her light” is pointed. Diplomatically (or tongue in cheek), the tableau fudges the issue of whether Mademoiselle Théologie has her own independent source of illumination or whether her light converges with—or is at least part of—the general radiance of Truth that, as Diderot says, “disperses the clouds.” Miss Theology is at a tangent with and potentially independent from all that is going on around her. There’s a strong possibility that she might dash out of the temple of truth at any moment should she be led to do so by her light.

This is a scene of obfuscation and diplomacy. It is a tableau of the awkward accommodation of religion and an emblem of modernity’s wager, or “double-think,” about religion. There is a founding nonsynchronicity between Reason and Theology, or belief. Theology’s placement is deliberately obfuscated; she is close to the throne of Truth, but also strategically below it. Truth looks at her as if looking to her or, at the very least, taking her into consideration. Maybe Truth is a consummate politician, making Theology feel important and wanted, if not entirely believed.

At the same time Philosophy, her deputy, has an anxious eye and maybe a restraining hand on Theology, as if keeping her under surveillance, as if Philosophy were a prototype of the British MI5 Security Service (p.31)

Figure 2.1. The frontispiece to Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers, edited by Denis Diderot and Jean le Rond d’Alembert.

Drawn by Charles-Nicholas Cochin in 1764 and engraved by Bonaventure-Louis Prévost in 1772.

(p.32) or the US National Security Agency. I am reminded of Immanuel Kant’s image of philosophy as “the police in the realm of the sciences” (die Polizei im Reiche der Wissenschaften). As a tolerated heteronomy, an awkward surplus to the system, Theology seems to require more surveillance than her sisters. Theology plays no part in the unveiling of Truth, nor does she consult or even acknowledge her sisters. She seems to think it sufficient to “lend an ear to the oracle within oneself” (nur das Orakel in sich selbst anhören).

But there is no need to get too alarmist. Miss Theology looks peaceful and passive enough. She is not wearing a burka or carrying a knife. Though antique, she is not atavistic. She is no more “retro” than are her sisters. She is suitably Abendländisch: embodying the foundations of Europe as simultaneously Christian and classical—hence, relatively safe. In other words, she is still Theology—not religion, and not religions, plural, that more expansive category that includes darker apparitions. These will become more “natural” repositories of fanaticism, intolerance, and danger, thus saving Christianity by contrast. This tableau of nascent secularism precedes, or brackets out, Gil Anidjar’s important story of how “Christianity invented the distinction between religious and secular” and “made religion,” thereby “making religion the problem—rather than itself.”

And yet, at the moment when Theology has not yet expanded into those religions that will become repositories for danger, we can see very clearly the structural volatility of homegrown theology’s position. We have no idea what is being intimated to her through supernatural media, transmitting on an unknown frequency. She incarnates the unknown and the unknowable: no longer “the gods” but her belief. Modernity is the time when the mystery goes inside, to the inner sanctum, the “core” of the person. It is the time when the holy is privatized as “her belief.”

If belief is the leftover space to describe that which is not of truth, reason, or philosophy, then it is potentially ubiquitous—and deliriously free. All thoughts that compel and draw us, but do not meet the rigorous entrance criteria to get into the enclosure of philosophy, are “beliefs.” Sensing the danger, we contained belief by tagging it exclusively to theology or religion. This was a bold move, but, strangely, a believable one. The binary religious versus secular was invented to segregate the believers and keep the majority from wanting to join them out on the isthmus of belief. In the neat segregations of modernity, Theology and her granddaughters, the religions, became the special foci and repository for the maverick force of belief.

In the Encyclopédie, the maverick force of religion/theology/belief separates from philosophy, as a potential enemy of it and of the instruments of public reason. Henceforth we can do no more than keep insisting (somewhat anxiously) that true religion always believes in the rough equivalence of the voice of the gods and basic principles of civil obedience. We hope and pray for this and manipulate true religion in this direction, even as we betray our fears by anxiously reiterating to religion and all adherents what true religion ought to be, will be, must be (and in truth always has been). A recent reminder to religion can be found in a beautifully conflicted piece of recent British legislation, the Religion and Belief Regulations of 2003, taken up in the Equality Act in 2010. The document is on a continuum with the Encyclopédie and the division of labor between knowing and believing, or between philosophy and religion. But the key terms have undergone some curious twists.

In a giddy and bizarre demonstration of the freedom of the concept of belief, the legal odd couple “religion or belief” now means “religion or the secular equivalent of religion.” Belief in this context means, effectively, “secular, not religious, but as intense as religious belief.” In legal parlance, the secular equivalent of religion is also termed philosophy. Having been birthed as the awkward other of reason and philosophy, belief (in its legal sense) has become a synonym for philosophy (in its legal sense), and in law now means, effectively, “secular religion,” or a “secular belief with the same kind of characteristics as religion.” Following? One can reasonably expect a little confusion from the much-invoked alien from Mars, or an ambassador from one of the few still dissenting nonsecularized or nondemocratic modern states visiting on a fact-finding mission to learn how to better manage religion or belief.

The phrase “religion or belief” is an awkward response to the imperative of secularization. In being forced to come up with a secular cognate, religion is demoted, humiliated, pluralized, negated—and yet still sovereign. It still functions as the key coordinating concept, or at least the concept allowed to reign over the strange shadow state and outland of belief (the land that no other sovereign concept wants to rule). Religion remains the primary reference point for, and guardian of, the category of belief. The very phrase “religion or belief” suggests that a secular belief must meet the high entrance requirements set by religion, and this around that particularly religious assertion “I believe.”

(p.34) The ironies are legion. The committee that came up with the pairing “religion and belief” clearly did not consult religion scholars, who have spent most of their energy in the last thirty years decoupling religion from belief. In the field of religious studies, belief has undergone a strategic dethroning not unlike that of Queen Theology on the frontispiece to the Encyclopédie. Belief has been kicked into the sidelines as a Christian and colonial imposition. One would imagine that the question of “whether religion must be represented as something that derives from belief, as something with external manifestations that can ultimately be traced back to an inner assent to a cognitive proposition, as a state of mind that produces practice” would be deeply congenial and familiar to legal theorists and legislators. Which other discipline has so densely delineated all the distinctions between the mens rea (intention or state of mind) and the actus reus (guilty act)? Surely legal scholars would feel more comfortable with our preferred, if awkward, terms such as religious “affiliates” or “adherents,” or the turn to privileging religious acts and performances. In law, only a potentially illegal or incendiary act or speech act triggers questions about belief. How ironic that even as the contemporary field of religious studies has striven for a law court model of religion based on witnessing and experience, law—oblivious to this—has reinstated and reinvigorated the old category of belief. This is even more mysterious since, in practice, law operates like the purest form of religious studies, ostensibly disavowing all prior knowledge and concentrating on deductions from observation. Symptomatically, implementation of the legislation has concentrated somewhat obsessively on visible symbols—most ostentatiously, various manifestations of a veil or a crucifix worn at work.

The phrase “religion or belief” reflects a turn from the singularity of a state religion and monotheism not to polytheism but to polyrepresentational societies. A polyrepresentational society is one that is able to demonstrate that it is able to act as if multiple gods and multiple religions exist (or exist for the believers). It is able to respect different personhoods and identities, understood as vials of inviolable belief. The recent renegotiation of the place of “religion and belief” is a response to the rise of representational politics organized around ascriptive identities: identities understood as rooted in inner nature or manifested in external bodily attributes. This relates to what I have termed elsewhere a new iconography of democracy based on new modes of representation, in all senses. Put briefly, even as the rubric of democratic equality leads to the (p.35)principle of the substitutability of one individual for another (we are all equal, all the same under law), democracy compensates for the neglect of difference by identifying particular iconic individuals to become signs of democracy’s concern or investment in care. In the mechanics of democracy, an elected member of Parliament represents or “stands for” his or her constituents. In the symbolism of democracy, an iconically protected person stands for the desire to protect or defend all people. There is an aesthetics or symbolism of democracy in which the good faith of a government, turned toward the individual, is shown through representative, selected personhoods or, in legal terms, “protected characteristics.” Freedom is manifest in protection. “Religion or belief” stands as a sphere of protection alongside sexuality and gender, pregnancy and maternity, race, ethnicity, disability, and age. But “religion or belief” seems something of a misfit here. Though ethnicity and sexuality raise complex questions about choice and givenness, each identity category carries a sense of that which one uncontrovertibly and undeniably is: being pregnant, being gay, being bisexual, being sixty-five. By putting the phrase “religion or belief” on this list we create and legislate for a mode of believing that has a privileged relationship to essence. And this only intensifies a commonplace mode of thinking about religion. We talk about being or not being religious in a way that we would not talk about being or not being feminist or Marxist. Belief is a mode of thinking presumed to reach the parts of an individual that other thoughts (such as political ideologies) do not reach.

As a term of nonnegotiation (unlike an “opinion”), the obvious correlate for age, pregnancy, or sexuality in the realm of ideas is belief. Exceptionally and anomalously, religious belief is defined as a mode of thinking that is not, in a sense, chosen. It insists that it must be understood as defining or exceeding the individual, operating as an incontestable given such as sexuality or the color of his or her skin. Believing is understood as a form of agency that, paradoxically, takes us beyond decision to the point where it becomes that from which I cannot dissociate myself, that which cannot be wrenched apart from me except by violence—and hence a given, like sexuality or race. But because it is also understood as a particularly intense and nonnegotiable thought, and thoughts can change, belief teeters on the brink of collapsing back into something far less concrete and less worthy of legal protection than a category like race. There are clear indicators that religion is a far less robust category in law and public opinion than sex and race.

(p.36) This awkwardness is beautifully articulated in the regulations for qualifying beliefs both religious and quasi-religious. They read as a strangely updated version of the question of the jailer at Phillipi to Paul and Silas in Acts 16:3. The question is no longer “What must I do to be saved?” or even “What must I do to ‘believe’?” but “What must I do to be publicly recognized as ‘believing’?” There are five criteria to be met in order to qualify as a public believer:

1. 1. The belief must be genuinely held.

2. 2. It must be a belief and not an opinion or view based on the present state of information available.

3. 3. It must be a belief as to a weighty and substantial aspect of human life.

4. 4. It must attain a certain level of cogency, seriousness, cohesion, and importance.

5. 5. It must be worthy of respect in a democratic society, not incompatible with human dignity, and not in conflict with the fundamental rights of others.

Breaking with disciplinary decorums and refusing the limits of a purely legal commentary, we can attempt to elucidate the strangeness of “belief.”

Looking at the first four criteria we learn that belief is weighty. Belief is substantial. Belief is serious. Belief is heavy. But—belief floats. It floats above knowledge or information or the verifiable. If it did not, it would not qualify as belief. Belief defies the laws of Newtonian physics. This is hardly surprising given that belief was a concept birthed as the other of science and its handmaids, reason and philosophy (in the other sense of “philosophy”—remember?). In contemporary legislation, belief, by definition, is that which has broken free from the safeguards of the empirical and material. It is heavy, weighty, inflexible—and absolutely free.

In its detachment from—or disdain for—knowledge or the verifiable, belief is like an opinion. But it is much heavier, weightier, and denser than an opinion; it has a mass index that is different from that of an opinion. Opinion implies diffidence, negotiation; the word itself implies that the thought knows that it could well be otherwise. Belief is distinguished from opinion by the depth to which it goes within the individual. Religion is the guardian of depth, as it is the guardian of belief.

These criteria are not based on the empirical observation of the lives of religious adherents. In practice and popular speech, people may lose and regain their religion; find religion; go through a religious phase; return to their religion; take on their partners’ religion for reasons of (p.37) love more human than divine, or they may espouse religion as a mask for realpolitik. Strangely, none of these commonplaces seem to rattle the faith in religion in law and public discourse, where religion continues to signify intensity, constancy, and depth. Without promoting the truths of demystification or declaring that religion does not exist, I wonder why we are so devoutly committed to the opposite position, where religion’s purchase on depth and truth is regarded as unique. We habitually talk of belief as, by definition, “deeply held.” This is even stranger given that religion is also seen as a privileged zone of fakery and dissimulation. (See, for example, Hussein Ali Agrama’s discussion in chapter 25 of the present volume of constitutional legal theorist R. Kent Greenawalt’s work on separating “the spiritual” from self-interest and secular advantage.) The fact that even the most ardent secularizers such as Richard Dawkins and Christopher Hitchens regularly use the phrase “deeply held convictions” or “deeply held belief(s)” suggests that the unique depth of belief has become something of a blithely rehearsed social creed.

This is what is so potentially upsetting and threatening about believers and their believing. In its volatility and solidity, belief does not simply defy the laws of Newtonian physics; it defies the laws of society, based on contract, negotiation, and compromise. Belief, the strange stuff that we have made, is by definition solid, immovable, and intransigent, but also unbounded, free. And this is why we fear, and feel the need to protect ourselves against, belief. Bad belief is that from which we must protect ourselves. But good belief becomes in contemporary terminology, a “protected characteristic.” Because belief can be very bad and because everyone can be a believer, belief itself has to be protected from the inbuilt freedom and danger of belief.

Several commentators have already noted how an evenly hospitable gesture of “equality of religion or belief” is on something of a collision course with (for example) the Anglican Settlement in Britain or various concordats between the Catholic Church and democratic states. This is the obvious, but perhaps the more trivial, problem. The question does not stop with religion, for what is claimed is equality of “religion or belief.” Law and society pledge to respect and protect the gods (lowercase) wherever they have gone. It legislates for myriad god effects, all over the place, even outside religion proper. Belief must be treated as holy, even as we have no way of knowing or policing the objects and investments of this chimerical force that we call belief and that we unleash as, by definition, “free.” The protective mechanisms around belief can only (p.38) ever be parsimoniously shared lest we all become believers and all start suing on grounds of discrimination against our belief.

Take, for example, the case of Grainger v. Nicholson (2009–10). In 2009, Tim Nicholson, former head of sustainability for the property company Grainger PLC, claimed that his redundancy (the elimination of his position) was an act of discrimination against his environmental beliefs. His legal team massaged his environmental “beliefs” into the forms set by the authoritative legal text. The legal team defending the property company argued that environmental commitments did not qualify because they were (merely?) political and a “lifestyle choice.” The operative dichotomies were belief versus politics, belief versus opinion, belief versus knowledge, and sincerity or depth versus the mere: mere surface, mere choice, mere play. In November 2009 Justice Michael Burton ruled that “A belief in man-made climate change, and the alleged resulting moral imperatives, is capable if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations” and added “In my judgement, his belief goes beyond a mere opinion.” Nicholson was awarded a large out-of-court settlement that backed, with large sums of money, the legal reality and force of “secular belief.” But this was something of a pyrrhic victory. Commitment to a belief in climate change was elevated to a protected status akin to religion but was placed in the outlands of the numinous and the dubious for all believers. In a beautiful demonstration of the ephemerality of belief, this led to an instant disavowal of the belief that had just been so ardently claimed. It turned out that belief had only existed qua belief within the confines of the courts, for the purposes of the case. Once the case was over it disappeared in a puff of smoke. Having been defined as indelible and irrevocable, belief was promptly disavowed. Climate change was emphatically not the equivalent of a “new religion” because it was not based on “faith or spirituality” but science, Nicholson told the press.

The ruling and its aftermath contained a strong element of deterrence; it became clear that it was not altogether a desirable thing to sue for protection on grounds of belief. To gain entrance, one must sever relations with good, solid, universally acknowledged things like science, fact, and knowledge. One must publicly confess to old ideas of a form of thought that cannot be substantiated and yet is so strong that it appears that it has chosen us rather than that we have chosen it.

Even as environmentalism was admitted (for the duration of the tribunal), as a belief, the ruling carefully controlled the parameters of (p.39) qualifying belief. The judge offered humanism as an example of another kind of belief that would satisfy the criteria. Belief was being pluralized only in the most parsimonious way as, effectively, the “official unbelievers”: those who don’t believe in God (or gods) to such an extent that they get together in publicly recognizable groups in order to do so. This is the common way of paying lip service to the exorbitant demands of the secular. By giving a place at the table to humanist societies as, effectively, an “extra” world religion, and allowing them to function as an official “lack of religion,” a state can appear to do justice to all the sites where the gods may have gone while in truth only protecting all the gods and the nongod (or rather their believers and adherents). As examples that failed to meet the criteria, the judge offered “belief in a political party or the supreme nature of Jedi knights.”

Earlier we noted that Mademoiselle Philosophie looks like an undercover version of Kant’s “police in the realm of the sciences,” shadowing and watching Theology. In the legal formulations of 2003 and 2010, we find a far more explicitly Kantian performance of the scene of belief. The distinctions among opining, believing, and knowing looks as if it has been lifted straight out of Kant’s Critique of Pure Reason. This is not just because legal scholars unwittingly repeat formulae that are over two hundred years old. What is attractive to modern democracies, loosely founded on Judeo-Christian virtue and committed to the protection and freedom of religion, is Kant’s double-think around the notion of “belief.” Kant is important because, just like Justice Burton, he both carefully delimits and valorizes belief.

In Kant’s sphere of pure reason, as in the legislation of 2003 and 2010, judgment has three degrees: opinion(consciously insufficient, objectively and subjectively); knowledge (consciously sufficient, objectively and subjectively); and belief (only subjectively sufficient and objectively insufficient). As Kant notes, “The subjective sufficiency is termed conviction (for myself), and the objective conviction is called certainty (for everyone).” Clearly opining and knowing are parallel and less scary states, since the levels of objective and subjective sufficiency, or public certainty and personal conviction, agree. Belief is a mode of knowing that, “somewhat modestly,” knows it is not knowing and knows it is not objective. But at the same time, “from the subjective point of view” it is an expression of “the firmness of our confidence.” Belief is lopsided: heavy at one end and light at the other; firm at the level of “personal conviction” and entirely weightless at the level of public certainty.

(p.40) Belief is unbalanced and unpoliceable. For this reason it does not get a special permit to enter the limited access domain of pure reason. But this is not Kant’s last word on the place of belief. True enough, doctrinal belief is “somewhat lacking in stability” and must be excluded from the court of pure reason. But it is “quite otherwise” from what he calls moral belief: “For here it is absolutely necessary that something must happen, namely that I must in all points conform to the moral law. …”

For Kant, moral belief is the miraculous force that compels universal faith in human liberty, dignity, and equality (as well as God and immortality). Similarly, in the words of the fifth criterion of the Employment Equality Regulations, “[The belief] must be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.” This is another version of that quintessentially modern hope and prayer that Mademoiselle Théologie/Religion will not turn against her industrious sisters, and not be as crude as to point to significant differences between her light and Reason’s light.

Belief is a free radical that can attach itself to anything. By definition we cannot secure in advance the objects of belief. Having unleashed this flighty specter, the fifth criterion in the Employment Equality Regulations appears as a hopeful attempt to recapture—or, at the very least manage—the chimera of belief. The first four criteria create and unleash belief as a vague force that is not answerable to anything. They give belief free reign. Indeed, they define belief by this free reign. And then, in a distinctly late-modern twist on political theology, they try to manage the believing subject who has become sovereign, in a potentially exceptional relationship to law, by virtue of proven possession of “religion or belief.” The fifth criterion attempts to squeeze the genie back into the bottle: it attempts to negotiate with the very quality that it has defined as nonnegotiable belief. Only if it submits to overriding principles of Würde (dignity) can belief qualify as belief. It seems that one can only hope—or pray—at this point. Clearly the attempt to impose conditions on that which is unconditioned will have limited success. Given the criteria just outlined, it is clear that not all beliefs will agree to submit.

Not surprisingly, the tension among the first four criteria (unleashing belief) and the fifth (imposing conditions on belief) is regularly played out in the courts. In the ongoing battles of our vague, amorphous “freedoms,” the freedom enshrined in “rights” and “equal rights” regularly goes a few rounds with “freedom of belief.” Qualifying believers—for example practicing Christians—are regularly admitted as conforming to (p.41) the fifth criterion because to question, let alone sever, the links among Christianity, equality, and liberty would be more than the mythology and demography of modern Western democracies could bear. But at the same time, religious believers are allowed to be in conflict with the rights of others, even as conformity to the fifth criterion is declared. Courts have issued controversial opt-outs on religious grounds from legislation concerning gender and sexual orientation, but never ethnicity or disability. The protected characteristics (sexuality/gender, pregnancy/maternity, race/ethnicity, disability, and age) are not equally established, equally protected, though all are responses to social and political ferment of very recent date. The conflict between religion and sexuality (and particularly homosexuality) has become an incendiary cultural flashpoint and a stage for the trial of competing freedoms because religious belief and (homo) sexuality are more insecure and vulnerable than age, maternity, disability, or race.

Every time an institutionalized belief is granted an exception from the demands of equality on the issue of sexuality, the judgment turns our attention back on the tenuous alliance and disequilibrium between “religion and [secular] belief.” Why does opposition to homosexuality only count when God-endorsed or issued from an exceptional sacred space? Belief is a limited-membership club. There is no place at the table for purely political beliefs (known as “opinions”)—that is, beliefs that cannot aggregate in official and large collectives, or beliefs that lack the institutional edifices and props of antiquity to assert their status and make their case.

Every time adjustments are made to the fifth criterion by way of concession to the undeniable compulsion of belief, belief becomes, so to speak, stronger and we highlight the insurmountable force of the chimera we have created. We reify the notion of belief as “nonnegotiable,” “intransigent” (problematic for community), “inflexible,” and “not real,”—and yet so real that one has to act as if it were more than real. We reinforce the strange and frightening set of terms that assemble around belief, a term that itself becomes an assembly point for recognized collectives that need to join, en masse, in order to meet the legal requirements to believe. Some beliefs are admitted, whereas others are forcefully and polemically excluded, but all remain entirely inside the court’s absolutely amorphous and unpredictable definition of “belief.”

We cannot escape the paradox that we have instituted: a tolerated and respected heteronomy—submission to the law of the (divine) other—within (p.42) a worldview that prioritizes autonomy just as long as that heteronomy does not impinge on the day-to-day running of democracy or provide an alternative law to the legal system. No wonder that there continues to be such hysteria about Islamic sharia. The threat of sharia crystallizes the institutionalized “heteronomy” or other law that we have always admitted (without any external provocation) around “belief.” Massively funded government-led enquiries into “radicalization” neglect to explore how the threat of radicalization is built into our own conceptualizations of belief. This delineation of belief as an exceptional and essentially religious category originates in the Enlightenment, but has recently been intensified to a fever pitch. By protecting belief and restricting the cabal of potential believers, we have generated another round of texts that mystify and spook us with “belief.”

Clearly the religion or belief regulations are not attempting to reflect on epistemology or enquire into the actual operation of “belief” in society. The task is legal management. This is accomplished by placing some core concepts on the chessboard (“belief,” “opinion,” “choice,” and “knowledge”) and then adding, for good measure, the contrast between sincerity and the “mere” (the mere as moderate, but also the mere as on the surface, fake). The concepts and contrasts are deliberately loose and flexible. They allow for different arrangements of the pieces and different checkmate scenarios that will only work for a particular game. Words like belief or knowledge operate rather like the rock, paper, and scissors in the game. As paper covers rock, so belief wins over knowledge (under certain conditions, if the belief is adjudicated as having the requisite “depth”). In each case the outcome depends on how the relative strength and virtue of words like belief and choice are calibrated and the order or hierarchy in which they are placed.

The British regulations are a stark case of similarly awkward/flexible accommodations of “religion” as concept and protected characteristic. Clearly other European legislative bodies are playing similar games. Hussein Agrama’s contribution in chapter 25 of the present volume (and, in particular, his discussion of the work of Mayanthi Fernando) suggests that a very similar set of word pieces have been operative in France in prohibitions against the Muslim veil. To argue that the veil is a “choice” is to argue for its virtue because it is freely chosen and not coerced. But then, to argue that the veil is a personal choice is to leave oneself potentially stranded without sufficient backing from mainstream authorities. Without sufficient support (which can be inflected, oppositely, as coercion), (p.43) the case for the veil would be indefensible, flimsy, and stranded like those beliefs that do not come into court with sufficient numbers to count. The conflicting rationales for prohibition demonstrate just how flexible the range of outcomes can be when words like belief and choice are put into play. They also help us to reflect further on how law uses this moving bar of “depth.” Trials of depth or sincerity place the law in the simultaneously sinister and absurd position of playing omniscient deity and peering into the soul. Ironically, the interior of the individual is to be examined by those public (secular) bodies that have always declared their commitment to a fundamental separation between private belief and public behavior in a citizen of the state. But more can be said about this strange trial of sincerity. In the implementation of sincerity tests, the operative spatial metaphor is breadth as well as depth and the spotlight is not simply on individual depth. Beliefs and practices cannot stand alone. They cannot spring up de novo. They must pass (vague) synchronic and diachronic tests. To be admitted, they must be validated in sufficient numbers, and they must have sufficient historical depth. Usefully, this often means that the qualifying beliefs are those supported by religious authorities and mandated by mainstream (qualifying and ancient) religious texts. But arbitration by appeal to the schismatic and divided terrain of text and authority allows considerable room for maneuvering. It allows us to assign weight and lightness in different measures to different religions and different practices within those traditions. It allows us to adjudicate on what will be deemed the central, authoritative, and true interpretation—which is to say the one we judge to be “not incompatible with human dignity” and in line with the aims of the modern state.

The equal and opposite rationales for banning the veil show just how much leverage can be extracted around this moveable bar of “depth.” French Muslim women who seek to defend the veil must find, somehow, just the right amount of context: just enough validation for the veil to make it an obligation, mandated by the authorities, but not so much that this validation becomes “coercion.” They must get the force of compulsion just right. This is akin to getting the weight of a qualifying belief just right in UK legislation. True belief must prove a certain excess, or transcendence, to distinguish it from knowledge. But it cannot exhibit the kind of excess that is potentially fanatical and not supported in the religious mainstream. It must be sufficiently heavy, but light enough to be flexible and ally itself with fundamental notions of human rights. Similarly, French Muslim women must show that they have been moved (p.44) by something outside or beyond themselves without allowing the force to get so strong that it potentially turns them into the kind of dumb puppetbelievers who say yes to anything. They must find just enough context (depth/breadth) to qualify as genuinely called and obligated, lifting them above the bar of mere choice (and mere opinion) into faith. Only the state holds the secret of where exactly this ideal medium point lies. It is difficult to imagine Christianity being set such an impossible, fairytale test. The pieces on the chessboard make it possible to checkmate from equal and opposite directions. In their quest for the very best kinds of religion, states do more than hope and pray.

Selected Bibliography

Bibliography references:

Anidjar, Gil. “Secularism.” Critical Inquiry 33, no. 1 (2006): 52–77.

Diderot, Denis and Jean le Rond d’Alembert. L’Encyclopédie. Paris: Bordas, 1967.

Employment Equality (Religion or Belief) Regulations 2003. Accessed April 8, 2014 at http://www.legislation.gov.uk/uksi/2003/1660/contents/made.

Equality Act 2010. Accessed April 8, 2014 at http://www.legislation.gov.uk/ukpga/2010/15/contents.

Grainger plc and others v Nicholson, Employment Appeal Tribunal 3 November 2009 [2010] I.C.R 360.

Kant, Immanuel. Critique of Pure Reason. Trans. Norman Kemp Smith. London: Palgrave Macmillan, 2007.

Lopez, Donald S. “Belief.” In Critical Terms for Religious Studies, edited by Mark C. Taylor, 21–36. Chicago: University of Chicago Press, 1998.

Sherwood, Yvonne. Biblical Blaspheming: Trials of the Sacred for a Secular Age. Cambridge: Cambridge University Press, 2012.

DOI:10.7208/chicago/9780226248646.003.0009

This essay describes the active resistance to both Christian and Islamic efforts in sub-Saharan Africa to exclude the indigenous religious traditions of Africa from legal protection. African traditional or indigenous religions are often not acknowledged as “religions” due to a lack of centralized structure and leadership. Hackett explores the legal prejudice African religious practitioners encounter both locally and internationally.

Keywords:   Africa, African traditional religion, indigenous religion, religious freedom

Given my associations with Uganda over the last few years, it might be expected that I would address the internationally infamous Anti-Homosexuality Act or the problematic KONY 2012 campaign that aimed to raise awareness and provoke action against Joseph Kony and the Lord’s Resistance Army. Both initiatives flow from the demonization of a feared other; it is instead the various strategies to limit, if not eradicate, “traditional” forms of religious belief and practice in many parts of Africa that interests me in the present context. Human rights debates in Africa have largely excluded the question of religious freedom, and even the question of whether this category includes indigenous religions.

I have been observing and analyzing religious trends in various parts of sub-Saharan Africa for several decades, with a particular focus on new religious movements, variously termed “minority religious groups,” “sects,” or “unconventional religious groups.” My years of living in southern Nigerian cities afforded me valuable insights into the workings of complex religious landscapes. As democratization, neoliberalism, media deregulation, and global religious activism increasingly change the stakes of coexistence among religious groups, and between such groups and the state, the management of Africa’s increasingly competitive religious public spheres has become a more compelling area of investigation. How do state and nonstate agents act to facilitate or limit the public functioning and recognition of some or all religious organizations? How do the resources they draw on, such as globally circulating ideas about “international religious freedom,” serve to frame what counts as (good (p.90) or bad) religion, and which constitutional or statutory provisions are they informed or bound by in negotiating religious diversity? How much do local histories, politics, and demographics continue to influence the balancing of majoritarian and minoritarian religious interests?

In a recent article, “Regulating Religious Freedom in Africa,” I explored the legal and extralegal strategies used to keep religious groups in check, noting that African states frequently defend limitations on religious practice and association as being in the public interest. Elsewhere I have also paid some attention to the growth of mass-mediated forms of religious expression in Africa and the capacity of these media forms to open up new possibilities for religious communication, often providing increased visibility and audibility for minority religious groups. Yet this recent liberalization of the media sector across Africa also replicates or generates patterns of exclusion and discrimination through the granting of licenses, transmission power, broadcasting access, and program content.

The angle I want to pursue here is the treatment of indigenous forms of African belief and practice in light of these postcolonial reconfigurations, or what Jean and John Comaroff term the Age of Millennial Capitalism. African traditional religions were particularly vulnerable during the earlier phases of Christian and Muslim missionary activity and colonization. The current dominance of Christianity and Islam is well evidenced by the 2010 Pew Forum project “Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa.” Still largely perceived as premodern, with ambiguous status as either religion or culture, indigenous religions struggle for public recognition and equal treatment under the law. Customary practices such as marriage and initiation rituals are vulnerable when states harmonize their legal systems and promote policies of detribalization. Moreover, African indigenous or traditional religions are hampered by being part of a generalized and heterogeneous category with no clear designation or centralized leadership. This situation recalls some of the legal battles faced by American Indians in trying to prove that their traditions were “religious” so that they could enjoy constitutional protection, as discussed by Tisa Wenger in her appositely titled book on the 1920s Pueblo Indian Dance Controversy, We Have a Religion.

While it is Muslim-Christian relations in Africa that command current geopolitical attention, we should not overlook the fact that subSaharan Africa provides some of the most instructive examples of how (p.91)indigenous religions are still religious freedom misfits. The case that local forms of religious belief and practice have been subject to ongoing delegitimization by the state in collusion with missionary religions and postcolonial elites has been most forcefully made by Kenyan legal scholar Makau Mutua. He writes pointedly of the constitutional silence and refusal to acknowledge the existence of African religions or cultures in the country of his birth as well as in many other postcolonial African states. Moreover, Mutua contends that the “liberal generic protection of religious freedoms,” with its guarantees of the right to manifest, propagate, and change one’s religion, favors mission-related religions and is ultimately inimical to indigenous African religions and lifestyles.

Furthermore, Mutua argues, limitations on religious freedom for reasons of “public morality” and “public health” targeted the elements of traditional religious practice that many colonial states found problematic, even abominable. Such fears and statutory tests perdure in modern times. In a Pew Forum report on restrictions on religion worldwide from 2006 to 2009, Brian Grim notes that, after Christians and Muslims, members of “tribal or folk” religious groups are the second most commonly harassed group in Africa (in twenty-three countries). In sub-Saharan Africa the harassment is generally linked to accusations of witchcraft, ritual sacrifice, and charlatanistic healing practices. Nigeria’s booming video and film market, known as Nollywood, has helped perpetuate negative stereotypes across Africa about traditional cultural practices; so, too, has the sensationalist media coverage of purported ritual abuse of African children suspected of witchcraft, whether in Africa or the diaspora. Evangelical and Pentecostal movements generally lead the fray in demonizing indigenous religious and cultural practices.

South Africa is one of the optimal places to explore current debates over the status of traditional African religion(s) in a modern postcolonial state. The radical transformation from apartheid to democracy generated a wealth of public debates, policy initiatives, and scholarship on matters pertaining to discrimination and self-determination (see Waheeda Amien’s chapter in this volume on the recognition of Muslim marriages). On the face of it, according to the country’s 2001 census, traditional forms of religious belief and practice appear to be almost nonexistent (at 0.3 percent). Nearly 80 percent of the population identifies as Christian. But as the contributors (mainly legal experts) to the most valuable book Traditional Religions in South African Lawunderscore, the defining and classifying of these religions is still a live issue. The authors discuss a (p.92)number of recent legal cases that have tested the evenhanded treatment of traditional religions under the new constitutional protections for religious freedom. The conflation of traditional religion and culture, and an emphasis on communal identity, proved problematic in some human rights cases, as exemplified in the public outcry and lawsuit (the Smit NO and Others v. King Goodwill Zwelithini Kabhekuzulu and Others case, 2009) over a ritual bull slaughtering in a revived Zulu First Fruits festival. While the case brought by animal rights activists was eventually dismissed for want of factual evidence, Christa Rautenbach argues that demonstrating that the festival was “religious” and not “cultural” in nature (despite their interdependency in practice) would have afforded greater protection from the judiciary. Similarly, Jewel Amoah and Tom Bennett note the surprising lack of reference to religious beliefs in legislative efforts to reform the laws of African customary marriage; they see this as ongoing evidence of the way that indigenous African religions are being treated as “incidents of African culture,” depriving them of the legal deference shown to other religious communities.

Another critical and contentious issue, ably discussed by Nelson Tebbe, is the outlawing of witchcraft by government and human rights organizations. While the practice of naming witches may be permitted under free speech and religious freedom, so too may limits on the practice because of its often violent consequences. These new laws have led to backlash from South Africa’s pagan and Wiccan communities, such as the South African Pagan Rights Alliance. Furthermore, the problems of trying witches in state courts and allowing religious experts to give evidence would compromise constitutional prohibitions on government involvement in religious affairs.

Because of her background in politics, broadcasting, and higher education, Nokuzola Mndende, one of the leading advocates of African traditional religion in South Africa today, is highly critical of the ways her religious heritage continues to be mis-or underrepresented by media organizations. As conveyed by the title of her 2009 book Tears of Distress: Voices of Denied Spirituality in a Democratic South Africa, Mndende finds it problematic that traditional religion is often represented in the public sphere by “white reverend gentlemen,” African Christian converts, and syncretistic diviners, and that it only gains legitimacy as an appendage to Abrahamic religions or as a secularized form of traditional healing. Mndende calls for “affirmative action” by the South African government to redress the fate of “disadvantaged religious communities.” (p.93) It remains to be seen if the South African Charter of Religious Rights and Freedoms (in whose drafting Mndende has participated) will provide any such benefits.

Marleen de Witte’s insightful work on the neotraditionalist Afrikania Mission in Ghana also addresses the challenges facing such revivalist politicoreligious movements as they seek to be modern and African. These local struggles are bound up in decades of subjugating encounters with missionaries, colonialists, and scholars (whether of anthropology or comparative religion). De Witte provides a rich discussion of how Afrikania seeks to negotiate the new media opportunities and constraints, knowing that how it represents its “traditions” and “spiritual power” to the predominantly (Pentecostal) Christian Ghanaian public is critical to its survival as the principal face of African traditional religion in Ghana. She argues that this overly intellectualist focus on “representation” has been at the expense of the practices and concerns of shrine practitioners. Some feel that traditions of secrecy have been sacrificed in the quest to produce a modernized “world religion.” Furthermore, De Witte describes Afrikania’s position as “difficult and ambiguous” as it seeks to defend “superstitious” religious practices, such as libation, as part of its nationalist heritage project, even when these run afoul of “universal” human rights norms embedded in the Ghanaian constitution.

David Chidester has long claimed that the “inventory” of religious elements that have come to characterize African traditional religion (belief in God, veneration of ancestors, sacrifice, initiation, divination, and healing rituals) is a product of “colonial containment” and “Christian theological appropriations.” Birgit Meyer observes too that Protestant missionaries in colonial Ghana attempted to “lock” people up in their own culture to prevent the development of syncretistic beliefs that might threaten the colonialist and nationalist project. In his book on the wild and surprising religious creativity of South Africa, Chidester discusses how, under the postapartheid national motto, Unity in Diversity, political leaders have drawn on indigenous religion as a national resource, whether as the spiritual dimension of heritage projects or through rituals at key national and international events such as the World Cup in 2010. He also considers how traditional religion finds its way into religious tourism, school syllabi, global Zulu spirituality, New Age neoshamanism, and traditional sovereignty. Facilitated by South Africa’s new democratic dispensation, these “transactions,” as he terms them, are often contested by those seeking to protect their sense of religious integrity, (p.94) whether African traditionalists or devout Christians. It is worth noting that the popular African concept of Ubuntu (shared humanity, humanism) did not find its way into the revised 1996 constitution, leading many to view the omission as an act of de-Africanization.

While the government of South Sudan is taking encouraging steps to include traditional religions in its new political dispensation, as noted by Noah Salomon in this volume, the reality is that only one African state, the People’s Republic of Benin, officially recognizes traditional religion in its constitution, granting it a national public holiday. In Nigeria the International Congress of Traditional Religion and Culture has advocated (unsuccessfully) for similar state recognition. This may account for why some groups such as Godianism, a traditional religious expression of Nigerian nationalism at the dawn of independence, now known as the Global Faith Ministries of Chiism, have reinvented themselves as modern, family-friendly, and heritage-oriented. Cultural tourism, especially if it receives the UNESCO World Heritage imprimatur, is a way to attract state support for traditional religious festivals, as evidenced by the internationally renowned Oṣun festival in Nigeria’s Oṣun State. Another strategy is for traditional religious practitioners, especially healers, to create associations that promote their interests in the public sphere. The Zimbabwean National Traditional Healers Association and OrisaWorld, a global association to promote Yoruba religion, would be cases in point. The latter would be a vivid example of the strategic role that diasporic communities can play in the promotion and protection of traditional religious practices in their home countries. We should not neglect to mention the capacity of academic publications to legitimate the category of traditional religions for wider audiences, from the landmark work of John Mbiti in the 1970s through to recent texts such as Orisa Devotion as World Religion.

While foregrounding indigeneity has been arguably more strategically successful than ethnicity in protecting the rights of traditional African religions, the indigenous rights option as a tool for social and political mobilization turns out to be a less viable alternative, as the criteria in Africa for deciding who is indigenous are far “murkier” compared to the first peoples of the Americas; in the view of Dorothy Hodgson it tends to be used to refer to those with distinctive lifestyles, such as pastoralists and hunter-gatherers, and those who have special relationships to land and lineage. Some would claim that all Africans are indigenous.

An increasingly influential source for data on religious freedom around the world is the annual US State Department International Religious (p.95) Freedom report, produced since 1999. Even a brief examination of the Africa reports can reveal the challenges faced by those trying to quantify and evaluate the rights pertaining to indigenous religious entities in national contexts. To begin with, the report writers face a problem of sources for demographic data. If the source is a census, it is not always clear whether there was an entry for traditionalists or was it rather a default category such as “other” or “remainder.” In other words, some of the politics of recognition is embedded in the checkbox and is unquestioned in the reports. Then there is the possible bias of mainstream religious sources for data on nonmainstream religious groups. Clearly there is some reliance on data derived from the registration of religious organizations—a politically charged process if ever there was one, especially if there are tax preferences and legal benefits—but in the majority of instances governments do not register traditional religions. They may also be excluded from official or unofficial lists of religions. Only occasionally is the relative absence of traditional religious leaders from state or public events alluded to in the reports more generally or the fact that traditional religion is often represented at public events by traditional rulers (who are not religious functionaries and who may actually be Muslim or Christian, or some other religious affiliation).

The US State Department country reports are predicated on the status and activities of distinct religious organizations or groups. Several of the report writers make reference to the challenges of categorizingtraditional religions, mainly because of their conflation with ethnicity and cultural practices. There are frequent references to the fact that many Africans (overtly or covertly) incorporate traditional beliefs and practices (such as visits to diviners and healers and ancestral veneration) into their Christian and Muslim lifestyles or practice them “in tandem” (see, for example, the Burkina Faso 2011 report). Another major challenge for the report writers, as for any researcher trying to analyze a religious landscape, is how to classify those eclectic, often urban, groups or movements that draw on elements from a variety of religious sources (e.g. indigenous, mystical, metaphysical, Indian, Christian, Muslim). These neotraditional (or some might say pseudotraditional) movements end up in the “syncretist” box, which seems guaranteed to lessen the chances of public recognition on most fronts. The report writers do not draw out the implications of this on the religious freedom credit or debit scale. In sum, this brief excursus into these globally circulated reports throws up the data deficit, as well as categorizing problems, in relation to indigenous African religions.

(p.96) Anthropologist Ronald Niezen also sheds light on the ambiguity and paradoxes surrounding the concept of “indigenous religion,” leaving us in no doubt about the effects of human rights activism and public and popular mediations of human difference in a globalizing era. Recent moves to grant institutional, protective space to indigenous expressions of “spirituality” not only essentialize and objectify traditional forms of belief and practice but also translate and recast them to appeal to cultural outsiders who formally or informally adjudge these rights’ claims. Legal scholar Martin Chanock reminds us that cultural differences are not simply given but have their roots in the “intellectual history of empire.” For that reason, the claim that rights are “cultural” (and, by extension, “religious”) needs to be challenged in the same way that the claim that human rights are Western rather than universal has been challenged. Chanock emphasizes the strategic yet ambivalent role played by elites in postcolonial Africa in the creation and representation of cultures. He rightly notes that the processes of cultural formation and “branding” are increasingly linked to globalized advertising rather than social structure. A case in point would be the controversial Ghanaian traditional priest, Nana Kwaku Bonsam, who has built his fashionable image via modern media. This critical development seems to have been missed, Chanock argues, in human rights debates over “culture.”

Just as Chanock advocates for rights and culture questions to be pursued “‘beneath’ that of constitutions and rights declarations” into the world of known oppressions and political interests such as family law and land law, both often linked to religion, Harri Englund demonstrates that abstract, elitist, and neoliberal ideas of individualized freedom in Malawi are counterproductive to struggles against poverty and injustice. As an anthropologist he proposes that more attention be given to the politics of translating human rights discourses into particular cultural contexts. Such ethnographic work can unmask the inequalities associated with rights talk in contemporary African contexts, as we have seen in relation to “religious freedom” and “traditional religion” in the course of the present essay.

Despite the undermining of African states by neoliberal policies and unreliable governance, the national level remains indispensable for thrashing out respect for what Lourens du Plessis terms a “jurisprudence of difference.” As adumbrated above, the interpretation of the relationship between religion and culture proves more consequential for traditional or indigenous African religions than individualized notions (p.97) of religious freedom in relation to a secular state. The rise of enterprising traditional religious leaders who are reconfiguring their identities in Africa’s competitive religious public spheres, at times supported by diasporic (online) communities (as with the case of Yoruba religion), further problematizes attempts to define these “religious minorities” as discrete groups that are entitled to nondiscrimination on the grounds of religion. That notwithstanding, the local and global debates over what counts as “African,” “traditional,” “indigenous,” “religious,” and “freedom” are all vital grist for the religious freedom analytical mill, as well as for the development of constitutional governance in Africa.

Selected Bibliography

Bibliography references:

Amoah, Jewel, and Tom Bennett. “The Freedoms of Religion and Culture under the South African Constitution: Do Traditional African Religions Enjoy Equal Treatment?” Journal of Law and Religion 24 (2008–9): 1–20.

Bennett, T. W., ed. Traditional African Religions in South African Law. Cape Town: University of Cape Town Press, 2011.

Chanock, Martin. “‘Culture’ and Human Rights: Orientalising, Occidentalising and Authenticity.” In Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture, edited by Mahmood Mamdani, 15–36. New York: St. Martin’s Press, 2000.

Chidester, David. Wild Religion: Tracking the Sacred in South Africa. Berkeley and Los Angeles: University of California Press, 2012.

Comaroff, Jean, and John Comaroff, eds. Millennial Capitalism and the Culture of Neoliberalism. Durham, NC: Duke University Press, 2001.

De Witte, Marleen. Spirit Media: Charismatics, Traditionalists, and Mediation Practices in Ghana.Amsterdam: Amsterdam School for Social Science Research, University of Amsterdam, 2008.

Englund, Harri. Prisoners of Freedom: Human Rights and the African Poor. Berkeley and Los Angeles: University of California Press, 2006.

Hackett, Rosalind I. J. “Religion, Media, and Conflict in Africa.” In The Wiley-Blackwell Companion to African Religions, edited by Elias Kifon Bongmba, 483–88. New York: Blackwell, 2012.

———.“Regulating Religious Freedom in Africa.” Emory International Law Review 25 (2011): 853–79.

Hodgson, Dorothy L. “Becoming Indigenous in Africa.” African Studies Review 52, no. 3 (2009): 1–32.

Meyer, Birgit. “Christianity and the Ewe Nation: German Pietist Missionaries, Ewe Converts and the Politics of Culture.” Journal of Religion in Africa 32, no. 2 (2002): 167–99. (p.98)

Mutua, Makau. “Returning to My Roots: African ‘Religions’ and the State.” In Proselytization and Communal Self-Determination in Africa, edited by A. A. An-Na’im, 169–90. Maryknoll, NY: Orbis, 1999.

Niezen, Ronald. “Indigenous Religion and Human Rights.” In Religion and Human Rights: An Introduction, edited by John Witte Jr. and M. Christian Green, 120–34. New York: Oxford University Press, 2011.

Nwauche, Enyinna S. “Law Religion and Human Rights in Nigeria.” African Human Rights Law Journal 2 (2008): 568–95.

Olupona, Jacob K., and Terry Rey, eds. Orisa Devotion as World Religion: The Globalization of Yoruba Religious Culture. Madison: University of Wisconsin Press, 2008.

Pew Forum on Religion & Public Life. Rising Restrictions on Religion. August 2011. http://www.pewforum.org/files/2011/08/RisingRestrictions-web.pdf.

Quashigah, E. K. “Legislating Religious Liberty: The Ghanaian Experience.” Brigham Young Law Review 2 (1999): 589–601.

Rautenbach, Christa. “Umkhosi Ukweshwama: Revival of a Zulu Festival in Celebration of the Universe’s Rites of Passage.” In Traditional African Religions in South African Law, edited by T. W. Bennett, 63–89. Cape Town: University of Cape Town Press, 2011.

Tebbe, Nelson. “Witchcraft and Statecraft: Liberal Democracy in Africa.” Georgetown Law Journal 96 (2007): 183–236.

US Department of State. “International Religious Freedom Report, 2011: Burkina Faso.” http://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?dlid=192685.

Wenger, Tisa. We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom. Chapel Hill, NC: University of North Carolina Press, 2009.

CHAPTER 8

DOI:10.7208/chicago/9780226248646.003.0011

This essay documents the wide variety of forms that “toleration” has assumed in an array of historical and geographic contexts. In the act of definition, certain historical arrangements with respect to toleration, intolerance, persecution, religious freedom, and neutrality are privileged while others are ignored. Haefeli shows that narratives of toleration and religious freedom inevitably pass off a partisan narrative as a universal one.

Keywords:   tolerance, toleration, intolerance, religious freedom, persecution, neutrality

The problem with the history of toleration is not that no one is studying it. There is now a rapidly growing number of books and articles approaching the topic from a number of angles and in several different countries. These histories address what is alternately called toleration or tolerance, an anachronistic distinction that pervades the literature. When and why people began to think this was a meaningful distinction remains to be determined. It was not significant before the modern era, and thus is difficult to distinguish in earlier periods. Nonetheless, most contemporary scholars insist they mean two different things: the first being the formal laws and policies of states, the second being the ideas, attitudes, and personal practices of individuals. However, they are inconsistent in their usage of the terms. What is designated toleration in some studies appears as tolerance in others—or the terms are simply used interchangeably. Either way, the problem with the history of toleration is also the problem with the history of tolerance, for although they may point to different dimensions, historically the two are difficult to keep apart.

The problem with the history of toleration (or tolerance) is the assumption that it exists as an autonomous topic of study, separate from any particular social or cultural context, and that all of those studying it (regardless of where or when) are investigating the same thing. Toleration is imagined to be distinct from the historical context within which it operates, even though local studies indicate that, in fact, we are describing a diversity of arrangements, dynamics, and possibilities taking (p.106) place in different societies at different times, for different reasons. There is, of course, a history of toleration out there. Anyone can immediately conjure up certain associations and images when the phrase is invoked. However, exactly what comes to mind would, I am certain, vary significantly depending on the mind in question. Is it the struggle of Jews for recognition in Peter Stuyvesant’s New Amsterdam? Catholics in Ireland? Mennonites in Switzerland? Remonstrants in the Dutch Republic? The Greek Orthodox in the Ottoman Empire? Episcopalians in Scotland? Muslims in contemporary Europe? Hindus in Mughal India? Christians in Japan? And so on. These are a series of distinct partisan struggles among a variety of different groups. Different writers can and do come down differently on each of these issues. As historians is it really our job to champion one narrative over the other? When scholars assume that all of these different conflicts revolve around a shared set of values or tend toward a common goal, they tend to favor the aspirations of certain groups over others: usually of Christians over non-Christians, and within that, of Protestants over Catholics (for this reason, toleration is more easily associated with the Protestant British Empire than the Catholic Spanish or French empires).

Toleration is one group’s recognition and accommodation, or even acceptance—to varying degrees and for different lengths of time—of the existence of another or others—in the case of this essay, the groups entail different religions or nonreligions. Toleration takes on different hues depending on several factors: the immediate parties involved, who has the power to set its terms, and whose expectations one credits when deciding whether it is toleration or intolerance (an accusation of a failed toleration). For example, the toleration of the Edict of Nantes guaranteed separate spheres of worship for Reformed Protestants and Catholics within France but, like the toleration of the Ottoman Empire, it did not permit further religious growth of the tolerated minority. According to Louis XIV, it was not even supposed to last indefinitely—merely long enough to allow Protestants to be persuaded to return to the Roman Catholic Church, something he claimed had happened by the time he revoked it, claiming it was no longer necessary. This was quite different from the toleration in Cromwellian England, which allowed a plethora of Protestantisms to thrive within certain broad limits. Yet, even as Cromwell’s armies did their best to suppress Catholic worship most everywhere they went (denying them the basic rights that Huguenots had under the Edict of Nantes), they did not force Catholics to convert, and Jews were even encouraged (p.107) to return to the country (albeit without official, legislated sanction). Finally, there is the tolerance of missionaries such as the Jesuits, who learned local languages, adapted to local cultures, and even permitted many aspects of non-European culture to continue provided that the individuals became Roman Catholics. They are often held up as models of tolerance in contrast to Puritan English missionaries, who generally insisted that the indigenous people convert first to English culture (in dress, economic behavior, gender roles, housing, etc.) before they could become proper Christian converts. On the other hand, the Jesuit method allowed indigenous people to be Catholic without fully incorporating them into colonial society. While toleration was at work in all of these situations, it was in different ways and to different ends. They are not all equal. Simply to employ the term without outlining its consequences is to privilege one or another version of tolerance over others.

Wittingly or not, historians usually adopt one or another partisan perspective when they write and argue as if there were a single proper form of toleration to which all others should adhere or a single ideal, like “religious freedom,” to which all should aspire. Perhaps the greatest symptom of this problem is scholars’ persistent failure to find a fully satisfactory form of toleration. With regularity, various manifestations of toleration are described as somehow incomplete, lacking, or—worse—actually a form of intolerance rather than tolerance. In fact, this “less-than-ideal” quality is inherent in toleration itself, which is not, has not been, and never can be an ideal state of existence, for it always has different content depending on the context, and not everyone will be equally satisfied by the same arrangements. Another indication that there is a problem is the repeated efforts by a range of scholars to define the terms tolerance, toleration, religious liberty, and religious freedommore precisely. Upon closer inspection, their definitions often do not match up—a clear sign that we are not always talking about the same thing after all, even when we try to. This difficulty suggests that we need to privilege the particular contexts within which they are deployed over abstract definitions.

Employing toleration in a decontextualized manner leads some historians to see it as an issue full of hypocrisy and contradiction, in part because it is becoming increasingly clear that a degree of hostility toward—and disapproval of—religious difference existed in many if not all cases. For example, in her account of the ambivalent position religious tolerance occupied in early modern England, Alexandra Walsham claims “toleration is a form of intolerance,” not “religious freedom. Nor did it (p.108) proceed from indifference or neutrality.” Rather, it was “a paradoxical policy, a casuistical stance involving a deliberate suspension of righteous hostility and, consequently, a considerable degree of moral discomfort.” Likewise, “persecution” was in the eye of the beholder. Those accused of it often defined their actions as a necessary “correction” to nudge individuals toward the path of truth and salvation and thus save their souls. To tolerate their errors and heresies would be to let them damn themselves; one man’s persecution was another man’s loving care for their eternal well-being. Here, toleration, intolerance, religious freedom, persecution, and neutrality all slip in and out of each other, each being held up to some presumed universal standard, and all of them failing to match up—a perfect reflection of the problem with the history of toleration.

Some scholars are beginning to insist on clearer, contextually rooted definitions instead of deploying toleranceand persecution as self-evident terms. For example, Andrew Murphy, addressing whether a dispute between Quakers in 1690s Pennsylvania could be considered an example of Quakers “persecuting” others who disagreed with them, notes the “answer to such questions depends, of course, upon how one defines” the terms—in his case “persecution, liberty, and conscience.” This is an important step to take. Persecution, after all, is not a policy anyone ever defends as such. Even those involved with organizations most indelibly associated with persecution, like the Inquisition, would not describe themselves as persecutors but instead as enforcers of truth, conformity, or even evangelicals compelling false believers into a chance at salvation. Nonetheless, it continually appears in situations that otherwise could be described as tolerant. The intrusion of the term is a sign of a clash of priorities between two or more groups, especially in a Christian context where persecutionhas long had negative connotations while being persecuted has been taken as a sign of righteousness.

Thus, evaluating the history of toleration in any sort of objective manner is perplexingly difficult, for this history—like toleration itself—is a deeply partisan phenomenon. Far from being a stable category or experience, toleration, like history, is constantly in flux, for it is fundamentally a relationship, not a static condition, and it thus cannot be abstracted out of its constituent elements. Toleration is inherently an ongoing, everevolving relationship, the content of which varies significantly depending on the parties involved. For example, one can say that there was toleration in the Ottoman Empire as well as the British Empire, but the first bolstered a form of rule dominated by Muslims and the latter did the (p.109) same for Protestants. Each group lived in a situation of tolerance but would have found itself living in very altered circumstances in the other’s system. Does that make one or the other less tolerant? It depends, as Murphy says, on how one defines the term. It also depends on whom you ask and where you draw the line. Is it at the point of refusing to kill, imprison, or otherwise physically punish an individual because he or she is of a different faith? Perhaps this kind of “unmurderous” coexistence is part of the essence of “toleration,” an opinion bolstered by the histories of tolerance that Protestants began to write in the early modern period, which held up the Inquisition’s notorious autos da fé as the opposite of toleration.

The tendency to see toleration as a singular universal quality—as “the idea of toleration,” as Perez Zagorin sees it—obscures the partisan dimension of toleration, and most notably its close association over the past five hundred years with Protestant Christianity. Likewise the tendency to treat toleration as a distinguishing feature of, say, Dutch, British, or American history confuses content and context to the extent that toleration almost becomes that which the Dutch or the Americans do—a standard that those who are not Dutch or American will never be able to live up to. This problem is exacerbated by the habit of many scholars to take a single manifestation or interpretation of toleration (most popularly for theorists of liberalism, John Locke) as representative of the whole rather than as what it is: merely one manifestation among many. In the case of Locke and the Anglo-American world it is, of course, a highly influential version of toleration. However, to assume that it is then a universal model by which all others, past and present, can and should be evaluated (or, conversely, upon which “liberal” toleration can be indicted tout court) is to confuse the general with the particular. That is the main problem with the history of toleration: it passes off a partisan narrative as a universal standard.

Another symptom of the partisan dynamic unwittingly preserved in the history of toleration is the assumption that one can find a person or place that embodies the ideal of toleration better than others. Was it the Persian Empire? The era of convivencia in medieval Spain? The Dutch Republic? Sixteenth-century Poland-Lithuania? Roger Williams’s Rhode Island? Mughal India? Was it Sebastien Castellio? Erasmus? Pierre Bayle? Baruch Spinoza? Here, too, one’s answer depends on one’s predilections. The predominance of early modern European history and Protestant thinkers in the scholarship on the history of toleration betrays its frequently close (p.110) alliance with the history of the rise of Protestantism as well as the rise to global dominance of Britain and the United States. Indeed, some thinkers make little distinction between the two. For example, the English historian John Coffey, noting that most Christians today consider “persecution with a mixture of revulsion and incomprehension” and view it “as antithetical to Christian faith,” argues that this “tolerationist version of Christianity” is rooted in radical Protestantism, a tradition in which he includes John Locke’s famous Letter on Toleration and which arguably “reached its fulfillment in the Virginia Statute for Religious Freedom and the First Amendment to the American Constitution.”

Traditionally, Roman Catholicism has played the role of the great antagonist in histories of toleration: many of the earliest histories of the rise of toleration were also histories of the decline in power of the Inquisition. Roman Catholics have tended to embrace the cause of religious toleration (or, nowadays, religious freedom) only when they have been a minority faith: Elizabethan England, for example, or colonial Maryland, or the mid-twentieth-century conservative American Catholics described by Samuel Moyn in this volume. One need not hold this as a reproach against Catholics, for most of the great advocates of religious toleration have been members of a minority faith agitating for greater rights and recognition: Jews and Quakers in Cromwellian England; Lutherans in the Dutch Republic; Baptists almost anywhere; British Protestants in India. Indeed, one could say the same (at least for the first few centuries) about Arab and Mughal Muslims in their newly conquered lands in the Middle East and India, when they preserved local religious diversity rather than compel conversion. In all of these cases, the nature, effect, and understanding of the toleration shifted over time, as the religious makeup of the particular population in question changed along with other factors, political and otherwise.

One of the great transitions between the early modern and the modern period is the role that toleration, or religious freedom, has come to play in various groups’ battles for wider recognition, acceptance, or power. In the earlier period, it was rare for someone to argue in favor of toleration or religious liberty per se without attaching it to the cause of a particular group. At the same time, when an individual did do so, such as the Baptists or Separatists who regularly spoke in favor of toleration of Jews, Muslims, and a variety of Christians, it clearly fit their partisan needs as members of a group that either had given up pretensions toward universal appeal or (more often) were convinced of the persuasive power (p.111) of their message in any situation in which they could operate free of constraint. Likewise, when members of a Protestant establishment, such as Hugo Grotius or William Chillingworth, spoke up in favor of tolerating a variety of opinions it was also with the assumption that eventually the variety of opinions would coalesce around the truth, which they never doubted resided more in their faith than any other.

Ever since the Age of Revolution in the late eighteenth century, figures have increasingly spoken out in favor of religious tolerance and freedom as an ostensibly universal quality. However, here too one can easily detect a partisan dimension. American Protestants did not fervently advocate religious freedom in the nineteenth century because they anticipated the flourishing of Buddhism in the United States but instead because it helped to justify the predominance of Protestants in a nation without an established church and a growing Roman Catholic minority. Likewise, Roman Catholics have not now embraced the cause of religious freedom because they believe it will diminish their position within the United States. On the contrary, it is proving (as it has since the days of US independence) a powerful tool for enhancing the prestige and influence of their church within the United States. Indeed, the US separation of church and state cannot be understood apart from the clashing ambitions of Protestants and Catholics in the nineteenth century. All of this is simply to point out that these diverse groups are not all advancing the same cause, their use of the same terminology notwithstanding. The struggle over religious freedom today has significantly different connotations than it did in 1780s Virginia, or 1650s Hamburg, or British India in the second decade of the 1800s, even though all of those can and have been described as cases for toleration.

By treating toleration as a distinct, clearly identifiable phenomenon rather than a problem that needs to be explained, we are in danger of depriving toleration of any analytical power while preserving it as the polemical tool that it has always been. My point is not to say that others have “it” wrong and I (or someone else) have “it” right. Rather, it is simply to emphasize how unstable a category toleration is on its own without any contextual referent. Given the relational nature of toleration, this dilemma should not be surprising. Can there ever be a situation in which what is really at stake is an abstract quality that stands above the constituent parties? States that claim to rise above the partisan dynamics of toleration can always be shown to be merely adding a different twist to the relationship between their religious constituencies, be it the (p.112) United States with its vaunted religious freedom or the self-proclaimed secular states of India, Turkey, or France. To deploy the term tolerance without specifying the context and makeup of the toleration in question is to adopt and champion a particular partisan stance, often one with deep roots in European history. It is not to employ a powerful, never mind objective, category of analysis. Indeed, an unexplored problem in the history of toleration is that modern scholars’ expectations regarding religious freedom and pluralism, with a wide range of faiths coexisting peacefully in a pragmatic acceptance of the primacy of economic profit over religious purity, are in fact often little more than a positive spin on the vociferous criticisms of antitolerationists. The idea that toleration of one group would or should lead to the toleration of many more (or even all) did not originate with advocates for toleration like Locke or the Quakers; it came from their opponents, who presented it as a nightmare situation. What, then, are we advancing if this is our assumption of what toleration is or should be?

The partisan dimension of religious tolerance need not be read as a sign of hypocrisy, contradiction, or a fatal flaw in thinking. Rather, partisan implications should be accepted as inherent in the topic of toleration itself: they are the “core” of the phenomenon. As long as one expects toleration (or reifies it as a concept or phenomenon) to stand above all parties, it will always appear flawed and compromised, for it cannot do so. Toleration, however described, whether as an ideal state of being, or religious freedom, religious liberty, secularism, or pluralism, can never attain an objective status or transcendent condition. Toleration is a relationship—and a deeply, inescapably partisan one, for it involves a relationship between two or more different parties, none of whom will be equally satisfied with whatever their particular relationship happens to be at a given moment. Given the difficulty of writing a history of toleration that is not partisan, the least we can do is be open about this difficulty, and to emphasize context over abstractions when we chart its history.

There are many reasons to keep the context of toleration in sight whenever we trace out a particular history, not least of which is by not doing so we often inadvertently advocate for a position held by a particular group in the past, including the views of antitolerationists. If objectivity is well nigh impossible, the best we can do is to be as specific as possible, pointing out who is involved in any particular arrangement of toleration and how they are affected. All of these situations can and (p.113) do change over time, and not always in the same direction. It is not a story of rise or fall; it is a story of changing relationships among different groups. As long as that difference persists, then there is toleration in play (whether the authorities will it or not). Toleration ceases to be in play only in situations dominated by efforts to deny, suppress, or erase those differences (regardless of the reasons for doing so). This separate history of intolerance and antitoleration faces similar problems of definition and scope as that of toleration, and there are certain histories (such as that of the Jesuit missionaries) that could arguably fit within both categories, making even this distinction difficult to draw.

Rather than evaluate the relations (some more fraught than others) among different religious groups along a presumed universal scale of tolerance, we should focus on the specifics of the situation at hand. Only once we can appreciate how the “rise” of tolerance in a particular place, such as Ireland, would affect the relationship between the various groups involved (in this case, a demographic majority of Roman Catholics versus smaller populations of various Protestants, including Presbyterians, Baptists, Quakers, and the Church of Ireland but not, before the nineteenth century, Jews, Muslims, or other non-Christians) can we then embark on a fuller discussion of what it is we are talking about when we talk about religious freedom (see, for example, Saba Mahmood’s suggestions with regard to the Middle East in her essay in this volume).

Toleration is not something that can be improved to a higher or superior state. We would do well to abandon our habitual use of vertical terminology when describing toleration (as more or less, as rising or falling) in favor of lateral terms (wider, narrower), for the later form focuses on the number of parties involved, while the former one implicitly judges the situation via criteria that would apply better to some groups rather than others. There is not, and never has been, a situation of toleration in which all participants were equally satisfied with the results. It is time to step back from this impossible ideal and instead examine actual situations, how and why they have emerged and changed, and where they might be leading.

The challenge for today’s world, in which global awareness and implications are unavoidable in a way they were not in the sixteenth century, is to come up with an approach to the history of toleration that can capture its perpetually evolving character. Although it has been intimately associated with the rise of Protestantism, it is no longer limited to that history. However widespread and powerful religious unity and conformity was in medieval (p.114) Europe, one could still find exceptions even then—bits of diversity that brought questions of toleration alive long before the appearance of Protestants. And if one goes back further, to the late Antique period, then one returns to a world of religious diversity in which the Roman Catholic Church was but one of many contenders. (Indeed, for the fervently Christian Roger Williams, everything went downhill after the conversion of the emperor Constantine and the fusion of his church with his empire.) Toleration in some form or another has been around for a long time; it will not go away, though it will change. We need to move away from models of rise and fall, progress and decline, and toward capturing the perpetual motion machine that toleration really is. Only then will the ideas of longgone Protestants retain relevance in a world where now Catholics take the lead as advocates of religious freedom and Protestants are beginning to denounce it as a pernicious force undermining their spiritual welfare.

The author would like to thank Teresa M. Bejan and the editors for their thoughts and suggestions on earlier drafts of this essay.

Selected Bibliography

Bibliography references:

Coffey, John. Persecution and Toleration in Protestant England, 1558–1689. New York: Longman, 2000.

Forst, Rainer. Toleration in Conflict: Past and Present. Cambridge: Cambridge University Press, 2013.

Grell, Ole Peter, and Bob Scribner, eds. Tolerance and Intolerance in the European Reformation. Cambridge: Cambridge University Press, 1996.

Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002.

Murphy, Andrew. “Persecuting Quakers? Liberty and Toleration in Early Pennsylvania.” In The First Prejudice: Religious Tolerance and Intolerance in Early America, edited by Chris Beneke and Christopher S. Grenda, 143–65. Philadelphia: University of Pennsylvania Press, 2011.

Walsham, Alexandra. Charitable Hatred: Tolerance and Intolerance in England, 1500–1700. Manchester, UK: Manchester University Press, 2006.

Zagorin, Perez. How the Idea of Religious Toleration Came to the West. Princeton, NJ: Princeton University Press, 2003.