Politics of Religious Freedom: Contested Norms and Local Practices
Report on Venice workshop July 11-12, 2011
Elizabeth Shakman Hurd, Saba Mahmood, Peter Danchin and Winnifred Fallers Sullivan
Names of attendees: Samuel Moyn (Columbia University), Alessandro Ferrari (Università degli Studi dell’Insubria), Maleiha Malik (Kings College London), Michael Wiener (UN-OHCHR), Hossam Bahgat (Egyptian Initiative for Personal Rights), Flavia Agnes (MAJLIS), Hans Kippenberg (Jacobs University), Mathijs Pelkmans (LSE), Elizabeth Shakman Hurd (Northwestern), Saba Mahmood (UC- Berkeley, Peter Danchin (Maryland Law) and Winnifred Fallers Sullivan (University at Buffalo Law)
This was the first of four workshops organized by the “Politics of Religious Freedom” project, funded by the Henry Luce Foundation’s Initiative on Religion and International Affairs. It was held on the premises of the European Inter-University Center for Human Rights and Democratization (EIUC) in Venice, Italy. Prior to the workshop, the four organizers of this project co-taught a six-day course entitled “Religious Freedom and the Rights of Religious Minorities” hosted by the EIUC.
The workshop lasted for two days during which we began to tell a new story about why religious freedom has become an apparently indispensable project today and to whose benefit the lurking inequalities and indeterminacies of such a project redounds. Why and when freedom of religion becomes salient politically is extremely complex, incompletely understood, and rapidly changing. It is our intention to critically re-describe this history and to responsibly engage those active politically in furthering human flourishing and the promotion of peaceful religious coexistence.
There are multiple ways in which religious freedom is being litigated and negotiated globally. We aim to document key examples of this diversity and to provide scholars, legal practitioners, and political actors, with new models for thinking about this diversity.
The July workshop participants represented the fields of law, political science, anthropology, history, and religious studies and our primary sites included Europe, India, Turkey, Egypt, the United States, and Central Asia.
This report summarizes the central themes to emerge out of this workshop, the first in an ongoing conversation. Our next workshop will take place in Chiangmai, Thailand, in December 2011. We welcome engagement and dialogue with others also working in this field.
I. Overview of the Project
Religious freedom is energetically promoted everywhere today. It is being introduced into legal instruments, bilateral trade agreements, and legislation around the world. Support for religious freedom advocacy and the study of religious freedom is well funded. Everyone is for it. But what are they for? What is being protected and promoted by this universalizing discourse of religious freedom, and what is not? What kinds of politics are enabled by its global promotion in particular circumstances?
The drive for the accomplishment of a taken-for-granted set of political goals has come, in some cases, at the expense of understanding what is actually happening as a result of the promotion and protection of the right to religious freedom. It has often obscured the complex history and politics surrounding the concept of the right itself. And it has made it difficult to see the processes through which mobilizations of this right by individuals and collectivities are transforming religious administration and religious politics globally.
An almost exclusive focus on religious freedom as a universal standard and cosmopolitan ideal that must be globalized at all cost distracts from, and arguably makes it impossible to see, a whole series of histories, practices and processes that are not captured under this ideological rubric. This project questions the assumption that religious freedom is a stable and universal construct. It seeks to develop a series of constructive interventions to document alternative ways of living with and across religious difference in the contemporary world and what the role of law is in such arrangements.
II. Key Themes and Questions from the Venice Workshop
Several key themes and questions emerged from the Venice workshop and our co-taught EIUC course:
- Religious freedom is often understood to be a secular achievement, one that secures the principle of neutrality between competing claims to religious liberty. This achievement is supported by a variety of historical genealogies, most commonly beginning in early modern Europe, with the French Revolution, or in postwar Europe, and sometimes grounded in earlier moments in European history. Recent scholarship, however, complicates this narrative by challenging its alleged secularity and neutrality pointing out that the advocacy for religious freedom has often been intertwined with the exercise of Christian power, colonial expansion, the consolidation of state sovereignty, and inter-religious struggles. Acknowledging this history offers the possibility of a different perspective on what is often termed the Westphalian settlement and an emergent post-Westphalian international order.
- Religious freedom as a secular ideal rooted in the right to individual conscience is arguably a more recent invention, finding its roots in the 1940s in the history of the Cold War, as a weapon in the war against “godless communism.” This alternative account of the emergence of religious freedom forces us to ask how this principle in its current usage departs from and/or shares with earlier histories. How does the acknowledgment of this history change our understanding of its present promises and limitations?
- Understanding religious freedom as an individual human right, a position that is characteristic of many current policy-makers and academics, occludes the complex realities of the legal and political administration of religious practice as a collective activity by both state and non-state actors. Focusing on the diverse social fields in which the law operates, and understanding the nature and consequences of religious administration undertaken by states, international courts, NGOs, humanitarian groups and religious communities themselves in multiple and overlapping jurisdictions around the world, makes it possible to see the promise of religious freedom in new ways.
- The meaning of the right to religious freedom differs across national traditions and requires careful comparative analysis. In a number of postcolonial societies, one of the primary ways in which the rights of religious minorities are protected is by according them jurisdiction over family affairs (e.g. Israel, India, Egypt, Lebanon, Malaysia). This arrangement compares with, but is also distinct from, the semi-autonomous legal jurisdictions accorded to aboriginal peoples and other concessions of sovereignty to religious institutions around the world. In such plural and layered legal regimes, the right to religious freedom creates distinct problems and solutions. An individualist conception of religious liberty is inadequate to address these questions and issues. How does religious and legal pluralism operate in fact and how does it inform various formulations of religious liberty?
- Often underestimated is the significance of the complex and multiple ways in which religious practice itself is not merely either free or unfree but is defined and constituted under regimes of religious freedom by legal practices, administrative structures, and legislative initiatives. It is important to look beyond secular positive law’s account of itself as neutral to see the effects of these processes in their complexity and entirety, both in order to avoid approaching law as self-contained and ontologically separate from other spheres of social life, and in order to understand non-state normative systems as “law,” functioning in ways parallel to secular positive law.
- It is often assumed that those championing the right to religious freedom are also advocates for the expansion of religious pluralism and democratic rule. Yet this association is hard to uphold when one examines the contestations on the ground in various parts of the world. One of the paradoxical outcomes of promoting the right to religious freedom is the necessary simultaneous restriction of religious freedom. For example, concern for the persecution of Christians over other minorities has often exacerbated local sectarian tensions and heightened rather than alleviated inter-religious conflict. Religious freedom has also been championed by far-right Islamist groups in order to defend their exclusionary practices.
- What is the role of advocacy for religious freedom in the politics of emerging democracies? What will be the place of religion in the public and political life of these societies? How will the protection of religious minorities be balanced with universalist conceptions of civil and political rights? These questions, which have precedents in earlier histories, are playing out in eastern Europe, in south and southeast Asia, in the post-Soviet republics, and are at the center of the “Arab Spring” and its unfolding dynamics.
- What concepts of religion and religious freedom does the European Court of Human Rights, and other international courts, protect today? How does the European Court know what religion is? Is it creating a hierarchy and violating its own claim to neutrality by privileging majority understandings as some critics have claimed? Is an alternative jurisprudence emerging in the ECHR on these issues and if so, what kinds of assumptions about religion and religious freedom inform it? Is a new conception of secularism/laïcité apparent here or not?
- Could the complex constellation of issues surrounding the “family,” present in many contemporary societies, be productively re-framed, for example, as a problem of patriarchy and domination, or of the politics of the state, rather than of religion? What effect would this shift have upon these debates? How does the history of family law as a distinct jurisdiction inform these issues?
III. Other questions and themes emerging from the workshop:
- The promotion of religious freedom figures today both as a cover for projects of domination and persists as a stand-in for a range of contemporary anxieties at a time of radical challenges to long-settled assumptions about the nature and future of the human and of human society. Why religious freedom now? If religious freedom is not the problem or the solution, then what is it?
- The category of culture, and specifically the positing of a strict dividing line between religion and culture, has become a useful strategy for both legal and religious actors in managing religion. What does culture mean in the politics of religious freedom and how is it being distinguished from religion? How does the religion/culture line coincide with or differ from the essential/nonessential line?
- How is religious freedom the same or different from religious liberty, religious coexistence, or toleration? What are the histories of these ideas and how are they interrelated?
- How do blasphemy laws and debates over the abolition thereof, such as the recent debate in England and Wales over the 2008 repeal of common law blasphemy offences, intersect with the politics of religious freedom? In what ways is hate speech legislation both a continuation of and a departure from blasphemy as a focus of legal concern?
- What happens when we imagine religious freedom in strictly legal terms? What falls out of the picture? What happens when an individual or group claims a right? Does the concept of the right contradict and reverse its function and practice? Who/what is transformed, and how, when it is mobilized?
- Who benefits from religious liberalization? Who is understood to be promoting religious freedom and who is seen as undermining it, and how are those determinations and demarcations made, and by which authorities? How do we make sense of the argument made by some that the abolition of religious freedom as a legal doctrine is better for religion and its practitioners?
- What should we make of the paradoxical fact that religious “establishments,” such as in Italy or the U.K., may sometimes enable enlarged spaces for religious practices of minorities in contrast to disestablishments?
- Are there parallels between the confessionalism of the sixteenth century and confessionalism today? Is confessionalism always a predictor of violence? Conversely are the universalisms of the sixteenth century, and of other times and places, parallel to the universalisms of today?
- How do neoliberal politics and economics affect the politics of religious freedom?