General Description: Inside the Readings folder, there are 2 scholarly articles which continue to discuss aspects of South Asian secularism. There are also 3 media articles which focus on some of the
Chapter 13
Ceylon/Sri Lanka
The Politics of Religious Freedom and the End of Empire
Benjamin Schonthal
DOI:10.7208/chicago/9780226248646.003.0016
Abstract and Keywords
This essay examines the religion provisions of the constitution of Ceylon/Sri Lanka on the cusp of the country’s independence from Britain. Schonthal problematizes the presumption that religious freedom stands outside of struggles for power by presenting the specific historical conditions in which particular and partial conceptions of religious rights jostled for authority at a formative moment in modern Sri Lankan history.
Keywords: Ceylon, Sri Lanka, religious freedom, constitution(s), religion and law, comparative constitutionalism
In May 2005 the United Nations deployed to Sri Lanka its special rapporteur on religious freedom, Asma Jahangir, with the mandate of examining the growing violence between Buddhists and Christians on the island. In a highly publicized visit, Jahangir stayed in Sri Lanka for nearly two weeks, interviewing politicians, religious leaders, human rights activists, and lawyers. Returning to Geneva, she produced a final report that linked the island’s religious strife to the government’s failure to adequately protect religious freedom. Her conclusion announced:
111. The right to freedom of religion or belief is a universal right enjoyed by all human beings and therefore by members of all religious communities, whether old or new and whether they have been established in a country for a long time or recently.
112. In this context, the Special Rapporteur condemns all acts of religious violence and intolerance that have been committed in Sri Lanka against any religious communities, but also within religious communities. These acts depending on the circumstances constitute violations, or unlawful limitations of the right to freedom of religion or belief.
113. The Sri Lankan Government has to fulfill its positive obligations under the right to freedom of religion or belief of all its citizens, irrespective of the religious community to which they belong. These positive obligations include, (p.150) first and foremost, the prompt investigation of any act of religious violence of intolerance, the prosecution of all perpetrators and the awarding of compensation to the victims of these violations.
In Jahangir’s report, the term religious freedom names multiple referents. It refers to an ideal social condition, one in which persons live unburdened from unwanted encroachments on their “religious” lives. It also refers to a set of legal norms designed to bring about that social condition, norms that Jahangir takes to be embodied in UN charters, particularly in the International Covenant on Civil and Political Rights. In both uses, religious freedom is opposed to violence and intolerance, such that the “restoration” of religious freedom depends upon dealing with the causes and consequences of violence (i.e., prosecuting perpetrators and compensating victims).
Jahangir’s multivalent use of religious freedom is by no means unusual. Increasingly, when one looks at the writings of policy makers, human rights activists, and even scholars, one sees that the term religious freedom names not one singular object in the world but an argument about the world. The standard argument goes something like this: governments should work to create an ideal social condition (religious freedom) through the elaborating and enforcing of discrete rules (rights to religious freedom) that if properly administered set the conditions for peaceful coexistence among members of a polity. Cast as an argument, the logic of religious freedom depends upon a quasi-Platonic separation of aspired-to ideals from degenerate realities. The appeal of religious freedom lies precisely in its assumed extraction from—or, rather, elevation over—the hurly-burly of politics and the one-sided interests of partisan groups. The pacific and pacifying powers of religious freedom seem to derive from the fact that religious freedom (in its social and legal manifestations) stands outside of struggles for power as a polestar that can guide political action without being contaminated by it.
The problem with this vision of religious freedom—and the religious rights understood to effect and protect it—is that it tends to obscure the specific, historical conditions that lead to the drafting of religious rights in the first place. Religious rights did not spring forth into history fully formed and self-interpreting; laws designed to protect religious freedom were in all cases born in drafting committees, honed through negotiation, and marked—dare I say it—by the pocks of political conflict. What Evan Haefeli says of toleration in this volume one might also say of religious (p.151) rights: they are “polemical tools” used in political battles. Religious freedom and religious rights are not the antitheses of fractious politics; they are the outcomes of politics.
The marks of political conflict can be seen clearly in the language of religious rights, if one knows where to look. In most cases, the marks are not found in the dictionary definitions of those words used to make law, but in the strategies of legal borrowing and omission used to frame law. Draftspersons use verbatim borrowing to signal distinct political affiliations and to silence political opponents. One’s choice of terms bears the marks of political calculation and struggle as much as—if not more than—the marks of negotiated settlement. As such, one should not read religious rights as transcending politics but as recoding and transmogrifying it—transforming struggles for power into struggles over the language and laws used to moralize power.
Religious Rights at Empire’s End
To see this process, one has to begin with the texts of religious freedom provisions and to work backward. To do so is to treat religious rights not as the solution to the problem of religious strife or persecution but as a problem itself, or at least as an object to be explained: Why this rendering of rights and not another? Why religious rights at all? Why now?
Take, for example, the legal rendering of “religious freedom” from a draft constitution in Sri Lanka from the 1940s. The text reads, “Freedom of conscience and free profession and practice of religion, subject to public order and morality, are hereby guaranteed to every citizen. The [Free Lanka] Republic shall not prohibit the free exercise of any religion or give preference or impose any disability on account of religion, belief or status.” This statement appears unremarkable, even vaguely familiar—a bland collection of legal guarantees similar to those found in other transnational religious freedom instruments, such as article 18 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The statement guarantees citizens’ rights to freedom of conscience, religious practice, and free exercise, and prohibits discrimination on the basis of religion. Much like the ICCPR, it prescribes certain limits on these freedoms (in the interests of “public order and morality”). Also like the ICCPR, it blends together positive and negative freedoms, freedoms to profess and practice, and freedoms (p.152) from state impediments to religion and discrimination on the basis of religion.
Given the language of the Sri Lankan statement, one would expect that such an expression of religious freedom would not be controversial or alarming to political leaders. Indeed, if one looks at the meanings of the words themselves, there is nothing to suggest such polemics. However, if we look again, situating this iteration of religious freedom in its own historical context, it appears anything but anodyne. For politicians at the time, the statement was extremely provocative, both in its language and format. Far from a bland promise of religious freedom, it was a carefully crafted protest against empire. Coded within the language of religious rights was an only partially concealed strain of invective against British colonialism and a strong call for a more activist, more radical, more India-like nationalist movement.
This otherwise banal-seeming statement of religious freedom was, in fact, a key salvo in a contentious political battle taking place in late colonial Ceylon. The paragraph on religious freedom was one of thirteen paragraphs of rights compiled in a bill of rights, all of which were embedded in a draft constitution for “Free Lanka.” The constitution was prepared in 1943 by a group of Ceylonese politicians who hoped it might serve as a legal charter under which the British Crown would transfer powers of self-government to a local Ceylonese parliament. A key feature of the draft was that, unlike other drafts prepared at the time it was not produced in consultation with British officials; it was the work of a cohort of young nationalists—affectionately and disparagingly dubbed the Young Turks—who rejected the idea that an outgoing British government should “give” to Ceylon the legal charter that announced its independence. Ceylonese would demand self-rule from the British, and the Young Turks would lead the charge.
In the broadest sense, the Young Turks included a section on fundamental rights in their constitution in order to mark their anticolonialist bona fides. They recognized that in the 1940s fundamental rights were taboo for Crown constitution makers. British legal advisers who participated in the drafting of independence constitutions throughout the colonies followed a Colonial Office policy regarding “bills of rights”: they were not to be included. Legal historian S. A. de Smith quotes one influential British constitution maker of the period, Ivor Jennings, as saying “an English lawyer is apt to shy away from [fundamental rights] like a horse from a ghost.” Officially, British legalists opposed justiciable bills of rights because they (p.153) were not part of modern English law and because, they argued, such rights might undercut parliamentary sovereignty by requiring that the future legislators adhere to certain core political values as defined by current legislators—a requirement that would, therefore, inhibit legal institutions from adapting to new circumstances, values, and ways of life. Unofficially British legalists recognized an inconvenient friction between bills of rights and the colonial project as a whole: if the Crown were to acknowledge and entrench fundamental rights as absolute and binding on governments, it would risk exposing the illegitimacy of colonialism more generally, insofar as colonial governments acted without consideration of such basic rights.
The drafters of the Free Lanka constitution recognized this and framed religious freedom as a fundamental right (situated within a longer bill of rights) as way to amplify the anti-British tenor of the draft. In speeches, newspaper articles, and letters to overseas’ organizations, especially the Indian National Congress, the drafters directly linked the push for fundamental constitutional rights with the campaign for independence from British rule. These advocates claimed that the British, as participants in the newly formed allied United Nations, were bound by the “human rights” expressed in the Declaration by the United Nations and therefore must acknowledge and grant to Ceylonese the same basic rights as they granted to others. In a manifesto drafted slightly later, the drafters of the Sri Lankan religious freedom provision even outlined a program of “five freedoms” for Ceylon—deliberately echoing Franklin Delano Roosevelt’s famous fourfold formulation—of which the first was “The Freedom from Foreign Rule.”
By articulating religious freedom through the idiom of fundamental rights, drafters gestured toward sources of legitimacy that were separate from (if not directly dominant over) the British Crown. They plotted religious rights, and their constitution as a whole, within a legal and philosophical terrain that treated rights not as benevolences extended by rulers but as guarantees that conditioned the legitimacy of rule itself: governments did not authenticate rights; rights authenticated governments. This alternative approach to the legitimacy and the origin of rights had radical implications. On the one hand, drafters were able to (and did) criticize the colonial government’s legitimacy by accusing it of failing to grant adequate fundamental rights to those who lived in Ceylon. On the other hand, they simultaneously claimed as a fundamental right “the right to independence and a free constitution”—thereby analogizing the political independence of the island to the corporeal independence of its citizens.
(p.154) The young nationalists’ push for a chapter on fundamental rights was calibrated to not only echo human rights discourse among the Allies but also to signal affinity with the work of the Indian National Congress (INC) and its successive efforts across the Palk Strait to produce a Declaration of Fundamental Rights for the subcontinent in 1928, 1931, and 1944. Many of the Young Turks praised the INC for its more strident, assertive, powerful strain of anticolonial nationalism, one that they felt the Ceylonese politicians ought to emulate. Members of the Young Turks had very close relations with the INC, attending important meetings of the congress between 1920 and 1948 (such as those at Ramgarh in March 1940 and Bombay in July 1942) and emulating key features of its politics, including the emphasis on “national dress” and policies of rural uplift. By 1940 there was even talk of the Ceylon National Congress joining the INC as a branch organization. During this period of close engagement between the two congresses, Ceylonese nationalists indicated publically their approval of the declarations of fundamental rights produced by the INC in the Nehru Report of 1928, then in the Karachi Resolution of 1931, and in the recommendations of the Sapru Committee in 1944. The Young Turks’ constitutional bill of rights—and its section on religious freedom—was influenced by the Indian model, and in 1945 members even drafted their own separate Declaration of Fundamental Rights which reproduced virtually verbatim the bills of rights contained in the Nehru and Sapru Reports. The Young Turks therefore hoped to use the INC’s language of fundamental rights to signal their alignment with radical anticolonialism in South Asia more generally and to remake the Ceylonese independence movements in the image of the Indian ones.
Yet the drafting of the religious freedom paragraph in the Free Lanka constitution also targeted a more immediate local audience. The paragraph on religious freedom was designed in opposition to another paragraph on religious freedom that had been framed, only months earlier, by Jennings, one of Britain’s leading constitutional scholars at the time and the author of the derisive assessment of fundamental rights quoted earlier. In a separate constitutional draft read by the Young Turks, Jennings proposed to ensure religious freedom by placing certain minimal limits on the lawmaking powers of parliament. In Jennings’s version, religious freedom was to be secured by preventing lawmakers from enacting bills that would confer advantages or disadvantages on particular religious communities, impinge upon the “free exercise” of religion, or “alter the constitution of any religious body.” When compared with Jennings’s (p.155) formula, it was not only the inclusion of religious rights within a bill of rights that distinguished the nationalists’ draft but also the nature of the rights chosen. Whereas Jennings rendered religious freedom through a series of negative legislative prohibitions, the nationalists framed religious freedom in terms of positive as well as negative liberties, prescribing not only limits on government’s powers but also guarantees of state protection for religious lives. Their limits and guarantees would apply not only to legislatures and lawmakers, but to all agents and actions of the republic.
More notably, the difference between the Young Turks’ and Jennings’s drafts reflected a distinct conflict in the politics of legal borrowing. Jennings modeled his religious freedom paragraph on provisions contained in the Ireland Act of 1920, a law ratified by the British Parliament, which, though it permitted limited Irish “home rule,” maintained London’s claims to the island. In an opposing move, the nationalists’ paragraph on religious freedom took its language from the 1937 Constitution of Ireland, a document that aimed to establish total Irish independence from the British. As one of the Ceylonese drafters, Joseph A. L. Cooray, put it, the “Free Lanka” Constitution drew from a text that effected in Ireland “a definitive break with the past” and “conduct[ed] what, in law, was a revolution.” For legal professionals and politicians at the time the implication was clear: the Young Turks demanded independence modeled on the more complete sovereignty of Ireland post-1937, not the partial sovereignty of Ireland in 1920.
Yet the anti-Jennings thrust of the Young Turks’ work had also had a more academic, historical significance. In following the INC in its push for fundamental rights, the Young Turks were also taking sides against Ivor Jennings in an academic debate with one of his best-known scholarly interlocutors: Harold Laski, a constitutional scholar with whom Jennings had taught at the London School of Economics. Laski had been a significant inspiration for the drafters of fundamental rights in India, and it was Laski’s legal theories that had provided much of the academic justification for demanding a bill of rights in what would become the new Indian constitution. During their time at the London School of Economics, the topic of bills of rights had divided Jennings and Laski, and in the years that followed Jennings argued consistently (until the late 1950s) against the inclusion of fundamental rights in constitutions, while Laski insisted that specially elaborated bills of rights were essential as mechanisms for preserving human freedoms. Many of those who were instrumental in (p.156) defending fundamental rights in India and Ceylon had been students of Laski, and these former students presented the Ceylon Congress with not only an alternative template of constitution making but also an alternative constitutional scholar on whose authority they might rely.
Rereading Religious Rights
We can now view the Young Turks’ construction of religious rights in a new light: as a polemic against British colonial policies, particularly Crown opposition to bills of rights; as the affirmation of a vision of legal sovereignty (drawn from the nascent human rights discourse of the allied United Nations) that rendered colonialism illegitimate and treated constitutions not as something “given” by colonial powers but as something claimed by citizens; as a demonstration of Ceylonese solidarity with the Indian National Congress and its more aggressive anticolonial nationalism; as a rejection of the constitution-drafting work of Ivor Jennings and an affirmation of alternative theories of constitutional law (those of Harold Laski); and as a claim to full and complete sovereignty in the manner of Ireland after 1937, not after 1920.
Rehistoricized, the language of religious freedom and religious rights represents not the transcendence of discord—a movement toward shared affirmation of a single moral and legal good—but instead the transformation of discord into competing legal ideas and ideals. That is, the legal syntax of religious rights, read against the grain and examined in context, reveals the very thing that discourses of religious freedom and religious rights tend to elide: the fragile, contingent, interested, political origins of religious rights and the embeddedness of rights discourse in larger local, regional, and global struggles for power and control.
The nationalists’ paragraph on religious rights was not included in Ceylon’s independence constitution. And this is part of the story too. What determined the shape of religious rights in 1940s Sri Lanka (and elsewhere in South Asia) was not simply a concern with the importance of resolving religious disputes or protecting religious communities but a preoccupation with ensuring that the language chosen signaled the right alliances and the appropriate politics. In Ceylon, where the handover of power occurred exclusively by way of negotiation with the British Crown, colonial politics prevailed over anticolonial politics, and Jennings’s draft, rather than the nationalists’ draft, served as template for the 1948 Ceylon (p.157) Constitution. In India, where anticolonial movements had much greater influence on the process of decolonization, a new, more nationalistic constitution (completed by a sovereign Constituent Assembly just after independence) cast religious freedoms in the idiom of fundamental rights. In each case, the rhetoric of religious freedom bears the marks of struggle more than resolution. It imprints the politics of the 1940s: the politics of fundamental rights, the politics of colonial resistance, and the politics of constitution making in the twilight of empire.
Selected Bibliography
Bibliography references:
Ceylon National Congress. 25 Years—But Yet! Colombo: n.p., 1946.
Cooray, Joseph A. L. “Human Rights and Their Protection in Ceylon.” In Constitutional Government and Human Rights in a Developing Society. Colombo, Ceylon: Colombo Apothecaries, 1969.
De Silva, K. M. A History of Sri Lanka. Colombo, Sri Lanka: Vijitha Yapa, 2005.
De Silva, K. M., and Howard Wriggens. J. R. Jayawardena of Sri Lanka. 2 vols. London: Anthony Blond Quartet, 1988.
De Smith, S.A. The New Commonwealth and Its Constitutions. London: Stevens and Sons, 1964.
Ewing, K. D. “Law and the Constitution: Manifesto of the Progressive Party.” Modern Law Review 67 (2004): 734–52.
Jahangir, Asma. Report of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir, on Her Mission to Sri Lanka. U.N. Doc. E/CN.4/2006/5/ Add.3 (Dec. 12, 2005). Accessed March 15, 2012 at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/166/64/PDF/G0516664.pdf?OpenElement.
Laski, Harold J. Liberty in the Modern State. New York: Harper, 1930.
———.The Rise of European Liberalism. Edited by John Stanley. New Brunswick, NJ: Transaction, 1997.
Parkinson, Charles O. H. Bills of Rights and Decolonization: The Emergence of Domestic Human Rights Instruments in Britain’s Overseas Territories. Oxford: Oxford University Press, 2007.
Roberts, Michael, ed. Documents of the Ceylon National Congress and Nationalist Politics in Ceylon 1929–1950. 4 vols. Colombo: National Archives Department, 1965.
Welikala, Asanga. “The Failure of Jennings’ Constitutional Experiment in Ceylon: How ‘Procedural Entrenchment’ Led to Constitutional Revolution.” In The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, edited by Asanga Welikala. Colombo, Sri Lanka: Centre for Policy Alternatives, 2012.
Chapter 4
What Is Religious Freedom Supposed to Free?
Webb Keane
DOI:10.7208/chicago/9780226248646.003.0006
Abstract and Keywords
This essay contrasts religion as belief with religion as morality. The former understands religion as propositional, while the latter is a matter of divinely sanctioned sensibilities. Keane emphasizes that proponents of religion and irreligion alike are concerned with how individuals make decisions about questions of meaning and value.
Keywords: religious freedom, religion, belief, morality, irreligion, Christian Moderns
What is religious freedom supposed to free? That is, what is the operant understanding of “religion” behind the claims of religious freedom such that religion requires its own forms, practices, and concepts of freedom under the law? Is there something about religion that gives freedom of religion either a privileged or a peculiarly worrisome character different in kind from artistic, political, academic, journalistic, or sexual freedom? And to this list why not add occupational, associational or, say, economic freedoms? Or freedom of marriage? (The latter, for one, is certainly deeply implicated in the governance of religion.) As Elizabeth Shakman Hurd and Winnifred Sullivan suggest in the present volume, one thing that institutions of religious freedom commonly presuppose is a deep connection between religion (or at least some kinds of religion) and violence (or at least some kinds of violence) such that religion requires specific forms of juridical intervention or state neutrality.
This connection is an idea commonly said to lie at the roots of the distinctive forms of European church-state relations whose early emergence is conventionally identified with the Peace of Westphalia. Of course, the actual Western history of religious freedom is far more complex and contingent than any single narrative line or conceptual synopsis can capture. Ian Hunter notes that the legal and political arrangements in Europe were as much the product of local institutional cultures and pragmatic solutions to specific problems as they were expressions of coherent principles. And, as Michael Lambek, Nadia Marzouki, and others point out in this volume, the complexity only grows once we extend our (p.58) purview beyond the Euro-American world. Moreover, the distinctiveness of religion is certainly an assumption about which doubts may be raised. Yet one way or another, the question of religion’s distinctive character still haunts juridical and legislative efforts to deal with it. However contingent the local political and juridical arrangements may be, their plausibility and legitimacy within any given social and historical context presumably depends on the ways they tap into some basic underlying assumptions about the distinctive character of religion. In particular, to posit an essential link between religion and violence is to assume that religion is defined by special emotions and deep, even primordial, commitments that separate it from the forms of instrumental rationality supposed to underlie other forms of violence such as electoral strife, class conflict, or simple criminality. Cécile Laborde makes a crucial point in this volume: cheerful views of religion that define it as a matter of people’s central moral commitments—for example, as Charles Taylor does in A Secular Age—harbor the unintended implication that religion is most authentic when it is most dogmatic.
Beyond this supposed inclination of religion toward violence, Hurd and Sullivan bring out two different dimensions of the presuppositions informing current legal and political debates about religious freedom. Hurd, drawing on Talal Asad and others, stresses the central place given to the concept of belief in discussions around the legal status of religion. Sullivan, attending to ways in which the concept of religious freedom is being reformulated in the contemporary United States, points to the anxieties about the moral nihilism that will supposedly result from any triumph of irreligion under the guise of separation of church and state. Even if belief and morality are not clearly distinguishable in actual practice, it can make a difference which one is stressed in the terms of any given form of governance.
The first of these dimensions, a focus on belief, tends to portray religions in the plural (I believe in the Trinity, you believe in karma). The focus on morality, on the other hand, can sometimes end up placing the relevant divide at a higher level of abstraction, between the presence and absence of religion altogether. Or at least this is how the situation is presently understood by many of the American religious groups whose opposition to liberal understandings of the separation of church and state is discussed by Peter Danchin, Ann Pellegrini, and Winnifred Sullivan in their contributions to this volume. And one might suggest these different emphases involve different degrees of implied consequentiality. Without (p.59) wishing to overstate the case, it may be that freedom of belief is most easily accepted if one takes it to refer primarily to theological claims of no particular immediate and practical consequence, a view famously expressed by Thomas Jefferson in the words, “[I]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.” If complete indifference is rare, more common may be the qualifying assurance that as long as a person at least has a religion of some sort, matters of content may be set aside. Perhaps something like this pluralist view underlies US senator John Breaux’s remark a few years ago, when asked whether being Jewish would affect the political fate of Joseph Lieberman: “I don’t think American voters care where a man goes to church on Sunday.”
If, on the other hand, religion is above all a matter of moralities, it is easier to imagine dire social and political consequences might be incurred through the mishandling of the relevant freedoms. As Laborde points out, to the extent that religion centers on deep moral commitments, differences of religion can also be taken as threats to public order and thereby require state intervention. They are no longer about differing truth claims or ontologies, matters about which people may, at least at times, agree to disagree. Rather, in this view, religion is a crucial factor in what motivates and directs the impact people have upon one another. For reasons like this, according to Nehal Bhuta, freedom to manifest religion in states influenced by European laws has always been limited on the grounds that neutrality toward religion is merely an exception to the state’s prior responsibility for public order. But in either case, whether one emphasizes religion as belief or religion as morality, what makes religious freedom a special case, requiring special protections, institutions, and interventions, is predicated on what one takes religion ultimately to be.
In practice the inner realm of belief is hard to cordon off altogether from the external realm of material practices whose social consequences might trigger state intervention. Even the most austere religions must still take some material form. The links between belief and materiality can raise thorny semiotic problems. Thus Hussein Ali Agrama argues in this volume that Egyptian law instigates “a particular modality of suspicion” such that disbelief, supposedly a private and inner matter, may be taken as evidence of more worldly kinds of corruption. Moreover, according to Saba Mahmood and Peter Danchin, this is not just a distortion of an otherwise straightforward principle of state neutrality. They too (p.60) say that the Egyptian state cannot help but become involved in interpreting material practices as evidence for inner states. Nor is this confounding of protected interior belief and the less protected domain of exterior manifestation restricted to Egypt. In European courts, limitations on the right to manifest one’s religion, the forum externum, evoke questions about the meaning and practical efficacy of those signs that might be taken to connect outer and inner, material and immaterial, public order and private conscience. Two famous court cases that resulted in opposed verdicts both turned on this semiotic problem: whereas in the Dahlab v. Switzerland case, the Muslim headscarf was ruled to be a provocation that might lead to explicit doctrinal assertions and thus incite conflict, in the Lautsi v. Italy case, the schoolroom crucifix was held to be merely a “passive symbol” with no consequences for non-Christian pupils.
Bridging the belief-focused and morality-focused views of religion is the idea of conscience and the freedoms it demands. The tradition of defining religion in terms of belief, to which Hurd refers, tends to privilege individual interiority and its sincere expression—thus implying a local semiotics by which externals are or are not taken to reveal inner states. Seen this way, individual interiority takes precedence over community ties, rituals, or institutional structures. One common result (if not a necessary one, for Hunter observes that there was a strong presumption in European confessional states that “faith cannot be freely chosen”) is to treat religious faith as something about which the believer has made a decision. Indeed, as Taylor has argued, even the distinction between religion and irreligion—in his view of secular modernity—has become merely a matter of choice among more or less equally weighted options. This is one reason why the focus on belief seems to lead to a view of the plurality of religions as so many members of a set, differing in their content but alike in their kind: all “go to church on Sunday.” And it is precisely because one’s religious beliefs are, at least in principle, a matter of choice that they manifest an ethics of freedom, and, in the liberal tradition at least, the freedom of an individual’s conscience. That is, they are ethical precisely because they are deep manifestations of freedom in principle; as the Lockean argument goes, one may only imprison a person’s body, but not his or her conscience. Thus one might argue religious freedom, framed as a matter of freedom of conscience and centered on belief, becomes inseparable from a long history of thought about freedom of the will tout court. What makes religious freedom special, in this view, might be the way in which it articulates a fundamental basis for there even being any human freedom at all.
(p.61) I have argued that the sincere belief model of religion is at the heart of a moral narrative of modernity such that to maintain a religious practice that is not centered on belief—to pay too much heed to (mere) rituals, icons, clothing, or dietary laws, for instance—is to remain backward. The moral narrative of modernity is a story about human emancipation and self-mastery. According to this moral narrative, modernity is a story of human liberation from a host of false beliefs and fetishisms that undermined freedom in the past. It is a narrative in which freedom as such is pitted against certain forms of religion, such that their elimination (and, in some versions, replacement with the religion of sincere beliefs but, in others, with no religion at all) is a condition for the fuller realization of human agency. Those who persist in their fetishisms are not merely behind the times; by denying the agency that is properly theirs, they can even undermine the gains made by others, such as secular liberals, over the course of that long struggle. In this light it is not only proponents of a strong religious presence in public life who worry about the social impact of moral differences; so do their opponents.
As many critics have observed, the focus on belief is not only narrow; it also tends to favor a propositional understanding of religious belief. This understanding contributes to, or at least is consistent with, the idea that a rational capacity for deliberation is a fundamental precondition for moral actions. The demand that one be responsible for one’s thoughts can translate into a demand that those thoughts be available for rendering in explicit form. Thus a legal insistence on responsibility may entail a degree of pragmatic pressure on religious practices on the ground, rendering juridically unrecognizable those that fail to assert themselves with creedal authority. Moreover, when juxtaposed to the moralityoriented view of religion, this demand may give greater impetus to the long-standing effort to organize morality under a knowable, objectified organizing principle that seems to be a distinctive project of a scripturebased monolithic religion. Given the demands for coherence imposed by a discursively explicit system of belief, religious morality may take the law as its model, and it would seem only natural as well to appeal to the law for support.
The high value often placed on the propositional stance toward one’s thoughts has become a general expectation within the frame of secularism. In this view, what freedom of religion frees is, in its most exemplary form, a set of ideas discursively available to the consciousness of individuals. Freedom of religion might be about practices and ethical commitments, but viewed in this respect its basis would seem to lie (p.62) in freedom of thought. In some important versions, the sincere belief model of religion also involves a particular semiotic ideology according to which the material forms of religion are merely conventional and arbitrary expressions of immaterial ideas. From this point of view, the state’s concerns with the forum externum could seem to be relatively disengaged from its inner counterpart, the forum internum. The distinction helps underwrite the various local differences between the ways in which inner belief and outer manifestation respectively are supposed to be scrutinized and regulated.
In the moral narrative of modernity, proper human agency requires self-awareness and reason. This must be facilitated by that semiotic ideology such that people come to recognize the true significance of words and objects. From the perspective of this semiotic ideology, any excessively strong responses to the desecration of sacred objects and texts, or to the legal regulation of such things as headscarves and crucifixes, can seem to be irrational and archaic restrictions on the freedom that people should claim for themselves. In this view, since the religious sign is merely a conventional expression of something else, such as one’s thoughts or social identity, then its regulation under the law should weigh lightly on the believer. After all, what is really supposed to matter—those thoughts or identities themselves—would remain untouched.
In this regard, consider again the idea of religion as opposed to irreligion as a basis for morality. Religion understood primarily in terms of morality differs from that understood as first and foremost a matter of belief in at least two respects. First, it does not necessarily depend upon any particular discursive formation. We can see an example in Charles Hirschkind’s account of a piety movement in Egypt, in which ethical self-cultivation aims less at the learning of or adherence to doctrines or verbally explicit sets of rules than it does at the inculcation of sensibilities, somatic responsiveness, and emotional dispositions. Second, the focus on morality may often (if not always and everywhere, as dissidents of conscience make clear) require us to understand the faithful in the context of larger communities. This is perhaps one reason why religious regulations in many places concentrate on domestic law. As Mahmood has observed, Egyptian law treated marriage and the household as special concerns of religion, appropriately handled within particular religious communities, in sharp contrast to other spheres of the law, which were the prerogative of state institutions. In broad terms this is consistent with a more general history of Euro-American modernity in which the domestic (p.63) sphere comes to be demarcated as that domain of social life most appropriately governed by affect and the moral sentiments, in contrast to the economic rationality that should prevail in the marketplace or the strategic calculations of politics. The restriction of religious law to the domestic sphere, and association of both with the moral regulation of communal life (focusing on the behavior of women), may reinforce the identification of religion with the irrational world of emotions.
The confinement of religious law—that is, law directed by religion—to the domestic sphere has, of course, been challenged by a variety of religious political movements. Much of the current discussion of these movements centers on the challenges they pose to familiar narratives about the inevitable secularization of public life. But in many places the secularization thesis has never predominated. Consider the Pacific, where, as Matt Tomlinson and Debra McDougall point out, many public figures assume that “nation-states are the means and not the ends of Christian action.” Although this claim inverts conventional social scientific understandings of means and ends, it still preserves some version of instrumental rationality operating in a knowable world. It offers a theological anthropology to account for human interests and to delimit the capacities for and constraints on legitimate political action that other legal and political traditions may leave only tacitly presupposed. This anthropology offers models of human agency directed by moral sensibilities, divinely sanctioned. Those who see politics as requiring a certain kind of morality, as is common not only in much of the Christian Pacific but also elsewhere—not least of all, the United States, as noted above—often take morality to depend on religious faith. This widespread view typically derives from a nested set of assumptions: that faith offers an ultimate foundation for morality, that appeal to theology is the necessary and sufficient justification and authorization for ethical actions, that scriptural or pastoral teachings offer moral guidance, and that religious institutions and practices are the chief practical means by which moral guidance is inculcated and those ethical demands made inhabitable, all reinforced through the discipline of life within a religious community.
One objection to this view, of course, is that it seems to render those who claim no religion, or whose religion is unrecognizable to others, as incapable of possessing a reliable moral compass. But in practice political theologies also encounter other difficulties of their own. Like religious politics elsewhere, the goal in the Christian Pacific is often totalization, a quest for a holistic world in which faith, morality, and political order (p.64) work in harmony. Yet the very terms through which that goal is sought derive from the characteristically modern and secular divisions among domains that set religion as a sphere apart from others and subject it to distinctive forms of legal permission and constraint (and, in some traditions, immune to corruption by virtue of that very separation). But the fact of being paradoxical hardly disqualifies a political theology from social success and indeed may serve as a goad to still more strenuous efforts.
Can religious freedom be understood not just as the subtraction of religion from the public sphere (as Taylor puts it) in order to emancipate some prior, authentic, self-fulfilling human essence? Can religious freedom be understood as itself helping constitute an ethical lifeworld without posing it either as liberation from the moralities produced in religions or as protecting religions from secular threats to the moralities considered peculiar to them? And can it also be understood in such a way as to recognize those people whose ethical sensibilities are not grounded in religion? To return to my opening question, the answer depends in part on what understanding of “religion” is presupposed by the laws that regulate and protect it.
A great deal turns on what is supposed to make religion distinct, in contrast to other institutions, practices, and domains of social existence. The struggles over religious freedom are many things, to be sure. But there is a possible point of convergence between the worries of those who are compelled by religious sensibilities and their opponents; for they may agree on the stakes—namely, the problem of understanding what motivates politics, what determines the outcomes of political actions, and what should constrain them. Although it may be misleading to base the legal protection or control of religion on the notion that religion taps into deep and potentially dangerous emotional sources, it may be right to recognize religion as one (if only one) organizing category for efforts to grapple with the limits of instrumental rationality as a full account of what people are up to.
Selected Bibliography
Bibliography references:
Bhuta, Nehal. “Two Concepts of Religious Freedom in the European Court of Human Rights.” South Atlantic Quarterly 113, no. 1 (2014): 9–35.
Calhoun, Craig, Mark Juergensmeyer, and Jonathan VanAntwerpen, eds. Rethinking Secularism. Oxford: Oxford University Press, 2011.
De Vries, Hent, and Lawrence E. Sullivan, eds. Political Theologies: Public Religions in a Post-Secular World. New York: Fordham University Press, 2006. (p.65)
Feldman, Noah. “Orthodox Paradox.” New York Times Magazine, July 22, 2007.
Hirschkind, Charles. The Ethical Soundscape: Cassette Sermons and Islamic Counterpublics. New York: Columbia University Press, 2006.
Hunter, Ian. “Religious Freedom in Early Modern Germany: Theology, Philosophy, and Legal Casuistry.” South Atlantic Quarterly 113, no. 1 (2014): 32–62.
Jefferson, Thomas. Notes on the State of Virginia. Edited by William Peden. Chapel Hill: University of North Carolina Press, 1955.
Keane, Webb. Christian Moderns: Freedom and Fetish in the Mission Encounter. Berkeley and Los Angeles: University of California Press, 2007.
———.“The Evidence of the Senses and the Materiality of Religion.” Journal of the Royal Anthropological Institute 14 (2008): S110–S127.
———.“Freedom and Blasphemy: On Indonesian Press Bans and Danish Cartoons.” Public Culture 21, no. 1 (2009): 47–76.
Mahmood, Saba. “Sectarian Conflict and Family Law in Contemporary Egypt.” American Ethnologist 39, no. 1 (2012): 54–62.
Mahmood, Saba, and Peter Danchin. “Immunity or Regulation? Antinomies of Religious Freedom.” South Atlantic Quarterly 113, no. 1 (2014): 129–59.
Taylor, Charles. A Secular Age. Cambridge, MA: Harvard University Press, 2007.
Tomlinson, Matt, and Debra McDougall, eds. Christian Politics in Oceania. Oxford: Berghahn, 2013.
Warner, Michael. “Is Liberalism a Religion?” In Religion: Beyond a Concept, edited by Hent de Vries, 610-–17. New York: Fordham University Press, 2008.
Three Media Article Links
1. Hinduism
https://www.bbc.com/news/world-asia-india-40116811
2. Jainism
https://www.latimes.com/world/asia/la-fg-india-jains-fasting-death-20150831-story.html
3. Sikhism
https://blogs.wsj.com/indiarealtime/2013/10/09/pressure-mounts-on-france-over-sikh-turbans/
