Politics of Religious Freedom Workshop: Contested Norms and Local Practices
Chiang Mai, Thailand – December 14-15, 2011.
Names of Attendees: Suneetha Achyuta (Anveshi Research Centre for Women’s Studies), Flavia Agnes (Advocate, co-founder MAJLIS, Mumbai), Asad Ahmed (Social Anthropology, Harvard University), Nandini Chatterjee (History, University of Plymouth), Samia Huq (BRAC Development Institute, BRAC University), Ratna Kapur (Jindal Global Law School, and Geneva School of Diplomacy and International Relations), Charles Keyes (Anthropology and International Studies, University of Washington), Robert Yelle (History of Religions, University of Memphis), Chaiwat Satha-Anand (Political Science, Thammasat University), Benjamin Schonthal (History of Religions, University of Chicago), Mark Tamthai (Institute of Religion, Culture and Peace, Prayap University), Elizabeth Shakman Hurd (Northwestern University), Saba Mahmood (UC-Berkeley), Peter Danchin (University of Maryland Law), and Winnifred Fallers Sullivan (University at Buffalo Law).
This was the second 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 Chedi Hotel in Chiang Mai, Thailand.
The participants in this two-day workshop represented the fields of law, political science, anthropology, history, development studies, women’s studies and religious studies. Primary areas of focus included Pakistan, Bangladesh, India, Egypt, Sri Lanka, Thailand and the United States. Benjamin Schonthal, who served as rapporteur during the workshop, is the author of this report.
Overview of the Project and the Defining Concerns of the Workshop
This workshop aimed to critically appraise the histories, politics and consequences of religious freedom discourse in parts of South and Southeast Asia in the colonial and post-colonial periods. On the one hand, it evaluated the ways in which particular authorized interpretations of religious freedom (in colonial and postcolonial legal frameworks as well as in international law, charters, treaties and protocols) have (re)shaped local expressions of piety, religiosity and religious identity. On the other hand, it illuminated the particular (political, religious, legal) forces that have produced and naturalized authorized interpretations of religious freedom. The Chiang Mai workshop also built upon the July 2011 Venice workshop in continuing to map out various “nodal points” around which disagreements over religious freedom have taken shape in the Asian context. These include: debates over religious freedom as an individual or collective right, debates over the place of religious minorities and the protections accorded to them, debates over the proper relationship of religion and the state, debates over the place of religious freedom in geopolitics and international law and debates over definitions of religion and what it can mean to render it “free.”
Key Themes and Questions Raised by Workshop Participants
The workshop began with an introduction to the research projects currently underway by members of the Politics of Religious Freedom team. Saba Mahmood introduced a project that examines both the historical formation of religious freedom discourses in the Middle East (as shaped by the realities of colonialism, geopolitics and nationalism) and the ways in which those discourses (and the normative assumptions about sovereignty, secularism and community which they encode) have influenced the relationships between Muslims and Coptic Christians in Egypt. Elizabeth Hurd outlined her current research on the global institutional architecture of religious freedom promotion, highlighting important ways in which transnational religious advocacy is actively transforming the way religion is regulated worldwide. Winnifred Sullivan summarized her research on the ‘new’ politics of religious freedom in America and the growing significance of questions of church autonomy and corporate religious rights in interpreting First Amendment religion-clauses. Peter Danchin did an overview of his work on the multiple political and intellectual genealogies of the concept of religious freedom, pointing to critical conceptual tensions which took shape during the eighteenth to twentieth centuries and which continue to underlie contemporary debates over religious rights.
Following a discussion of the project team’s research, the workshop moved to consider the development of religious freedom discourse in colonial India, and its links to debates within and about Christianity in seventeenth- to nineteenth-century Europe. According to Yelle, three important valorizations of religion that undergird understandings of religious freedom in colonial India appear to crystallize in the context of Christian polemics against Judaism during this time: that “true” religion is universal, that it consists primarily of belief (or faith) and that it does not include the “arbitrary and positive” commands, such as those of (Mosaic) ceremonial law, that violate human autonomy. It was argued that those features of religion that were specially protected by colonial administrators and judges as “legal” resonated with those features of religion that were designated as “true” by Protestant Supersessionist theologians and English Deists. This observation raised important questions about the links between religious freedom and Christian theology. What does acknowledging the Christian genealogy of religious freedom tell us about the dynamics of religious freedom discourse in colonial and post-colonial Asia? What are the conditions under which these Christian genealogies are identified and have come to be contested within Asia? British colonial interpretations of (genres of) texts such as Dharmashastra and Hedaya in India certainly employ similar assumptions about religion in distinguishing the “religious” from the “secular” aspects within those texts. Are analogous distinctions and valorizations visible within Hindu or Muslim or Buddhist religious history? If regnant conceptualizations of “true” religion emerge through particular debates within and about Christianity, what does freedom of religion mean in non-Christian contexts? What happens to those facets of religiosity that are designated as outside of “true” (often a reified category) religion (ritual, bodily practices, public performance, the miraculous, etc.) that are often more experiential and more fluid? Conversely, can one identify alternative ways of imagining the universality, interiority and coherence of religion that are not linked to Protestantism? How did the processes of regulating religion and assessing religious identity differ between the colony and the metropole? Moreover, what can freedom of religion mean if it represents the hegemony of one particular religious (or secular) dispensation?
Governmental and non-governmental groups who promote religious freedom globally often presume that religious freedom facilitates the realization of religious harmony. However, the extent to which notions of religious freedom are significant in the context of religious violence in South and Southeast Asia is uncertain. In Southern Thailand, for example, religious freedom has not been articulated as a goal or mediating principle in the cessation of violence between Muslims and Buddhists. According to interviews conducted by Satha-Anand, those who engage in acts of violence against religious leaders and places of worship imagine their targets not so much as symbolic of “religion” (Buddhism or Islam), but rather as indexing broader political, social and historical forces—the centralizing ambitions of the Thai state, the “threat” of Southern Thai separatism, etc. In the context of ethno-religious violence, what does it mean to invoke the language of religious freedom or its relevance, both in terms of scholarly pursuit and policy suggestions? When and why are instances of religious violence deemed to be violations of religious freedom? What can we learn from cases in which religious freedom discourse is or was absent?
This reflection on the “absence” of religious freedom discourse in the context of violence against Buddhist and Muslim holy sites in southern Thailand gestures towards a broader possibility inherent to religious freedom discourse: to apply the discourse of religious freedom to a given context may be to impose an extrinsic category of analysis. Such an imposition has consequences. Minimally, resorting too quickly to the category religious freedom risks oversimplifying (or misreading) complex local dynamics. Maximally, overemphasizing religious freedom may, in fact, cause one to lose track of the lives and welfare of persons whose “rights” are being defended. For example, in India, political and legal debates over Muslim personal law appear to have muffled the real-life voices and concerns of Muslim women. According to Agnes, Indian activists—both those who defend Muslim personal law as well as those who contest it—often fail to adequately consider the impacts that laws and legal decisions have on the day-to-day lives of divorced Muslim women. Instead of evaluating the impact of lower court judgments on Muslim women’s financial security, for example, both types of activists use the language of religious rights to construct Muslim women as victims to be saved in and through a particular political project (the implementation of a uniform civil code, the reformation of Muslim law or the preservation of the existing minority law systems). This suggests that the application of religious freedom discourse may, in some circumstances, effect the opposite of what champions of religious freedom might imagine—obscuring, rather than securing, the well being of persons.
Achyuta argued that in the shifting terrain of debates over madrassa education in India, the “religiousness” of particular institutions, persons, places and issues itself remains a changing and contested designation. Since 1980, contests over whether and how to regulate madrassa education have been framed by two dominant discourses, a discourse of cultural or religious rights for Muslims (to autonomy in educational and religious affairs) and a discourse of development and redemption by the state of “backward” communities—with the relative importance of the two discourses shifting over time from first to the second. In this context, actors have frequently invoked the language of religious freedom as against other freedoms, rights and promises of liberal governance such as development, modernization, equality of opportunity and social advancement. Given that religious freedom and religious rights always exist alongside other socially utopian discourses (of equality, development, etc.) and legal norms, how should one assess these potential conflicts of utopias or conflicts of laws, or legal and social reform? How, when, and why is religious freedom rendered superordinate or subordinate to other utopias and laws? In what ways do systems of religious rights (as individual versus group rights, positive versus negative rights) evolve and shift in response to other social idealizations? When and why do particular actors choose to valorize one social utopia and one paradigm of rights over another? What makes an institution a ‘minority’ institution and where does religious freedom fit into this picture, or this designation? What is the role of non-local actors, whether it is the state or transnational activist networks, in shifting the center of gravity of these debates in one direction or another?
One particularly vexing aspect of contemporary religious rights discourse is that laws and judicial decisions concerning religion almost always present themselves as “secular” or religiously neutral. Yet, in all contexts, including India, important religious actors, ideas and institutions underlie the impartial self-presentation of modern law and legal professionals. In the case of India, a number of workshop participants argued that certain critical judicial doctrines for assessing religious freedom (as well certain influential judges) seem to advance the interests of the Hindu Right while at the same time presenting themselves as “secular.” Kapur in particular emphasized this point through her close reading of the Ayodhya Supreme Court decision. Principles of adjudication in India’s Supreme Court such as the “essential practices test” or the definition of Hinduism as “a way of life,” while asserted by the judiciary as “secular,” have been at times intimately intertwined with the religiously majoritarian aims of Hindu nationalists.
The influence of Hindu nationalism on legal definitions of religion in India raises important questions as to whether a right to religious freedom requires that one be able to identify core, essential elements of each “religion.” It also raises important questions about the extent to which the tendencies, processes or outcomes of defining and adjudicating those elements should be read as a mode of majoritarianism. Should the fact that religious freedom norms (and/or their authorized interpreters) often implicate majoritarian visions of religion be viewed as surprising, or avoidable? Why and how does this matter? Is this just part of the story? After all, similar stress on the “essential” aspects of religion can be seen in courtrooms in America, Thailand, Sri Lanka, Pakistan and other jurisdictions. If majoritarianism is seen as endemic to modern articulations and adjudications of religious freedom, this has implications for the promise of progressive law: law would appear as a site of power in which discourses of majoritarian secularism, normative conceptions of religion, imaginary liberalism and/or national identity are produced. If one accepts this view of law, what would religious freedom discourse actually do? Is it enough to evaluate religious freedom in particular locations as the product of particular normative conceptions of religiosity that emerged with particular types of “secular” politics? The illumination of the historical, conceptual and theological specificity of religious freedom norms serves as a first step in identifying majoritarian norms and imagining alternate forms and practices of religious diversity and pluralism. But, what happens after one exposes the politics of religious freedom in a given place and time?
Religious traditions are also constantly shifting and adjusting in response to new legal, political and social forces. That is, religious agents and institutions regularly adapt to dominant regulatory ideologies (such as secularism) and to normative legal conceptions of religion. A critique of religious freedom, therefore, must examine two moving targets: the changing shape and authority of discourses concerning religious freedom and the changing modes of religiosity “on the ground.” How should one imagine the relationship between the two? One direction of inquiry is to interrogate the ways in which normative conceptions of religion affect the formation of religious subjectivities. A second direction of inquiry examines the ways in which various actors resist and alter these dominant conceptions. This second vector of interrogation would pay attention to the alternative understandings of religion, difference, tolerance, freedom, law, pluralism etc. from which persons draw to revise or to challenge regnant understandings of religious freedom in particular contexts.
The first direction of inquiry requires one to pay attention to the ways in which actors (deliberately or not) adjust their religious understandings, practices and institutions to suit influential normative legal (and political) conceptions of religion. For instance, according to Huq, in Bangladesh members of Muslim women’s religious reading and discussion groups strategically articulate the significance of their meetings in terms that resist the narratives about Islam propounded both by the mainstream Islamic political party, the Tablighi Jama’at, and by liberal secularists. By so doing, they are able to carve out an idiom of piety and Islam that is self-consciously distinct from other dominant politicized conceptions. In this sense, the struggle for religious freedom overlaps with a struggle for an “apolitical” mode of religiosity. Yet, should one view this kind of carefully structured religiosity as a product of political domination? Are all forms of religion always already-modified by structures of power? And, who might be in a position to assess that? How could one recuperate alternative ways of being religious outside of the penumbra of state power? Would such ways of being even be legible as “religion”?
The second direction of inquiry would suggest that contemporary paradigms of religious freedom be assessed and critiqued by examining the regulation of religion in places and times distant from the modern technologies of governance. The goal of such an inquiry would be, in part, to identify alternative models of religious coexistence through which one could reexamine dominant, contemporary understandings of religious freedom. A close examination of formal and informal systems of dispute resolution that existed before colonialism, before modernity, and outside of the reach of the state are suggestive of these possibilities. Looking at the various systems operating in Mughal-ruled India, Chatterjee suggested, may be helpful in envisaging an alternate system of religion-regulation that operates outside of the assumptions of the modern liberal models—which rely on principles of equality, individual rights and legal uniformity secured in official territorial courts through an adversarial contest between two parties and adjudicated by an state-appointed ‘impartial’ judge—or on principles of legal pluralism which only slightly modify this model by conceding the fact of multiple (but no less authoritative and coherent) systems of personal laws. An examination of legal administration in Mughal India, for example, reveals rather different assumptions about religion and law. Here, the guiding principles embody not legal uniformity (or pluralism) but “permissive” legal centralization, not imagined secularism or perfect religious equality but a type of tolerant hierarchy, not rigid faith boundaries but fluid and interpenetrating religious identities and communities. Considering such models poses several crucial questions to contemporary practices associated with the promotion of religious freedom as an individual human right: What is gained and lost when religious freedom is articulated through the lexicon of liberal rights as a set of discrete freedoms claimed by autonomous units (individuals and/or groups) from an assumedly-neutral state and when religious rights are adjudicated through modern legal procedures? In such a system, what claims can and cannot be made regarding religion, personhood, freedom, etc.,? What modes of religiosity, notions of religious difference (or non-difference) and idioms of social order and harmony are rendered as unintelligible or incoherent?
Examining legal definitions of Muslim identity in colonial India more closely illuminates the inevitable transformations that occur in and through the process of translating social realities into legal categories. Through an examination of Ahl-i-Hadith and Ahmadiyya controversies in colonial India, Ahmed argued that, in adjudicating conflicts among different Muslim groups over the right to worship in a given mosque, colonial courts relied upon and reified particular legal assumptions: the assumption of a singular, clearly bounded, coherent, readily identifiable Muslim community and the idea that mosques, were, as public spaces, open to all member of that community. The fact that the colonial legal apparatus came to define who was a Muslim according to a certain index of belief (the recitation of the kalyma, for instance) meant that it was, by definition, unable to recognize fully the ritual differences that provoked disputes in the first place. Rights to worship, in short, became rights claimable through one’s status as “Muslim,” a status that, while it acknowledged religious difference at one level (propositional belief) occluded religious difference at other levels (such as ritual practice). Do the presence of such distortions within liberal legalism mean that religious freedom is always a governance project, a flattening of ‘factual’ complexity to suit particular regimes of domination? Are religious identities, practices and communities unusually affected by these flattening processes—more so than other social realities—such that the legalization of religion remains uniquely problematic? How are religious self-understandings altered through processes associated with the liberal management of religious diversity? To what extent are the schematizing, routinizing tendencies intrinsic to law generated or amplified in modernity? Is there something distinctive about modern legal technologies in this regard? If legality always requires translation or abstraction from complex social realities, what is actually being protected under the rubric of “religious freedom”? If law’s role is to transform life—to transmute reality into rules and regularities recognizable by law—why do we keep asking law to recognize religious lives and complexities?
The Politics of Religious Freedom Project faces certain challenges in linking broad comparison and careful case-study. To what extent should one consider the predicaments produced in and through the definition and administration of religious rights and religious freedom in reference to broader, global technologies of modernity, liberal legalism or the nation-state? Conversely, are the effects of religious freedom best understood through careful attention to the local? For example, according to Keyes, the case of Thailand presents certain challenges. The political and religious history of modern-day Thailand post-1800 appears both like and unlike that of India: while Thailand was never formally colonized, it was “internally” colonized through the reform efforts of kings who drew their techniques and models of political transformation from Britain and France. Although the cultural demography of Thailand differed significantly from that of India, Thai kings (and other ruling elites), no less than colonial officials in India, faced questions of how to manage (religious) heterogeneity within newly-fixed state boundaries. The Siamese/Thai solution tended towards active standardization of religion (Buddhism in particular), regularizing diverse Buddhist beliefs and practices through the creation of state-run Buddhist monastic hierarchies and systems of Buddhist education, and officially recognizing other “religions” (Islam, Christianity, Brahmanism and Sikhism) in the creation of bureaucratic offices designed to manage their “affairs.” The state management of religious diversity in Ceylon/Sri Lanka has been marked by different dynamics. According to Schonthal, since the 1940s, two opposing visions of religious freedom have come into conflict in the legal regulation of religion in Sri Lanka: one, an interpretation of religious freedom as a ideal social condition realized through the intervention of the state into the lives of citizens and the reengineering of society; and two, an interpretation of religious freedom as a social condition realized through the withdrawal of the state from the lives of citizens and the securing of particular zones of autonomy—spatial, educational, cultural, jurisdictional—for religious persons and groups.
Both in Thailand and in Sri Lanka, unlike India, the administration of religion has not been based on a rationale of secular religious neutrality, but on a model of religious governance that gives special legal recognition (and state sponsorship) to the majority-religion, Buddhism, while also guaranteeing legal protection for all religious individuals. In the legal imaginaries of Thailand and Sri Lanka, Buddhism is both like and unlike other religions. Traces of this are visible in the ways that the Thai and Sri Lanka constitutions use the term sasana, the Pali word (imported into modern Thai and Sinhala forms) most often used to designate the “dispensation” of the Buddha. Where the current Thai constitution (and earlier constitutions) appears to use the term sasana to encompass all dispensations, the current Sri Lankan constitution makes a clear distinction between non-Buddhist religions, to which the Sinhala term agama (commonly translated as religion) is appropriate, and Buddhism to which sasana alone is apposite. Such rhetorical choices suggest, prima facie, that the ideology of law in Thailand treats religions as structurally similar, comparable (with Buddhism as the prototype), while ideology of law in Sri Lanka treats Buddhism as distinct from other religious traditions. While this legalistic reading does not always bear out in practice, it does suggest an important point: in Thailand and Sri Lanka (as in other contexts), identifying and adjudicating religious freedom is explicitly or tacitly accompanied by assumptions about the (non)commensurability of “religious” communities, practices, texts, beliefs and places. What different possibilities of religious freedom are produced in cases where different dispensations are treated as noncommensurable? What does religious freedom mean in countries whose guiding legal charters declare the state to be specially affiliated with a particular religion? What are the conceptual, legal and practical effects of disarticulating religious freedom from religious neutrality or from religious equality—or even from a singular notion of religion? What are the effects of disarticulating religious freedom from secularism, or of de-linking liberalism from secularism? Does one see similar types of erasures, distortions and possibilities for action in states with different “colonial” histories and/or states that explicitly claim to embody non-establishment, laïcité, secularism, etc.? Under what conditions does religious freedom become an idiom that enables exclusionary and chauvinistic politics or that denies religious differences?
These questions raise larger questions for the Politics of Religious Freedom project as a whole. Is a critical reappraisal of religious freedom an activist project? Does it seek to alter law, politics or the lives of persons? What are the key points at which the critique of religious freedom diverges from broader critiques of modern law, liberalism and secularism? If a better rendering of religious freedom is impossible, are there other languages that will allow us to talk about religious difference, co-existence and/or well-being in more productive ways? To what extent does the Politics of Religious Freedom project assume an ultimate non-commensurability of religions and therefore, indirectly, offer its own normative vision of religion? To what extent can one separate a critique of religious freedom from a critique of religious rights, such that religious freedom might be thinkable in less fixed, rigid, absolute terms?
 The workshop recognizes that, while Thailand/Siam was never officially colonized by a European power, important processes of “internal colonization” took place in the nineteenth and twentieth centuries. These processes reflected and responded to French and English cultural, legal and political influences in the region. (See below.)