This essay, part of our ongoing discussion of international religious freedom, belongs to a series of companion pieces by Danchin, Winnifred Fallers Sullivan, and Elizabeth Shakman Hurd, written in conversation with one another and Saba Mahmood.—ed.
In my opening post, I suggested that a second assumption underpinning the Chicago Report is that American foreign policy should more effectively engage with and support the “good Muslims.” In this post, I seek once again to consider the coherence and plausibility of this prescription. Is it really true that you can read people’s political behavior from their religion or culture? Again, as Mamdani asks:
Could it be that a person who takes his or her religion literally is a potential terrorist? And only someone who thinks of the text as not literal, but as metaphorical or figurative, is better suited to civic life and the tolerance it calls for? How, one may ask, does the literal reading of religious texts translate into hijacking, murder, and terrorism?
This raises the complex question of what, in the words of Saba Mahmood, “constitutes religion and a proper religious subjectivity in the modern world,” and how such a conception relates to the language and normative structure of religious freedom in international law and politics. It is not possible here to address the details of such a complex set of issues, but let me offer just a couple of observations and lines of inquiry for future thought and discussion.
A useful place to start is Kant’s essay on Toward Perpetual Peace, discussed at the start of these comments. Recall that Kant’s chief complaint with the “sorry comforters”—Grotius, Pufendorf, and Vattel—was that their versions of natural law lacked all “legal force” in restraining the belligerence of nation states. For Kant, law is not just a vocabulary of governmental technique or an instrument of governance. It is, rather, a political project to bring about what he enigmatically termed the “Kingdom of Ends.” To end war, one must eradicate the warlike disposition of nations and, indeed, of mankind itself. Perpetual peace can thus only be achieved in the form of a world republican federation governed by a law of global justice, what Kant called “cosmopolitan right.”
Herein lies Kant’s suggested path to Enlightenment—the throwing off of the self-imposed immaturity that comes from alien guidance by, inter alia, religion and recognition of the dormant inner “moral disposition” through which man can “eventually become the master of the evil principle within him.” Koskenniemi describes this idea of freedom as follows:
For Kant, freedom was not the indiscriminate realization of one’s passions or interests—indeed, this was immaturity…. Freedom could exist only as looking beyond such contingencies. To be free was to make one’s will harmonious to universal reason—a reason according to which one should always act in accordance with what one can simultaneously will as universal law. Where enlightenment lay in reliance on reason, freedom consisted in the acceptance of what reason dictated as duty.
It is on account of this uniquely “rational” normative understanding of freedom—“acceptance of what reason dictated as duty”—that Kant criticized the early modern natural lawyers.
As Ian Hunter has argued, Kant’s principles of morality and right are grounded in a comprehensive “Christian-Platonic anthropology deeply embedded in the history of north-German Protestant university metaphysics.” On the basis of this metaphysical view, Kant characterized man as “the empirical harbinger of a pure rational being”—homo noumenon—who, by intelligizing the pure forms of experience and governing the will by thinking the idea, or form, of its law, was “supposed to free himself from the ‘sensuous inclinations’ that otherwise tie the will of empirical man (homo phenomenon) to extrinsic ends or goods.” This metaphysical account of human rationality provides the basis for the two central tenets of Kant’s moral philosophy:
These are his conception of the good will as one that transcends distracting sensuous inclinations by spontaneously conforming itself to pure reason’s intellection of the idea of the law; and his conception of moral community as the ‘kingdom of ends in themselves’ that is formed when the universe of rational beings is joined through transparent reciprocal willing in accordance with this intellection.
There are two points I wish to make here regarding this metaphysical view and its projection into Kant’s notions of an “ideal republic” and the ius gentium. The first concerns the type of constraint that is imposed on religion by Kant’s notion of the good will. This is a recognizably Protestant understanding of religion in terms of interiorized (or “privatized”) and “freely chosen” conscience, or belief. In this particular historically contingent form, we see the unique double-bind that, today, still defines the secular liberal notion of religious freedom as an individual right.
As Saba Mahmood suggests, “contrary to the ideological self-understanding of secularism (as the doctrinal separation of religion and state), secularism has historically entailed the regulation and re-formation of religious beliefs, doctrines and practices to yield a particular normative conception of religion (that is largely Protestant Christian in its contours).” John Locke thus justified his theory of the right to freedom of conscience by the Protestant argument that conscience was directly bound to obey and follow God and not men; a theory of “the free and at the same time unfree conscience.”
Such premises in turn provide the defining ideas of the liberal state: neutrality and a putative public/private divide. Religion is seen as being separated from the state and “privatized,” that is, removed to a private, intimate sphere. This leaves a “neutral” public sphere that seeks to maintain its neutrality through rigorous commitment to a scheme of individual rights. The state may thus have no cultural or religious projects, or, indeed, any collective goals of its own, beyond the protection of the liberty and security of its citizens.
This view of religion and religious freedom imposes significant constraints on both the individual and the state. The individual must restrain her will according to the law of universal reason by transcending any “distracting sensuous inclinations” and by containing her religion to the private sphere of conscience or belief. The state, for its part, must remain “neutral” between all religions and beliefs, and between religion and non-religion, by both rigorously protecting the neutrality of its public sphere and not interfering in the (private) autonomous sphere of conscience and belief.
Again, as Mahmood observes, the secular state in this way has not simply cordoned off religion from its regulatory ambitions, but sought to remake it through the agency of the law—a remaking “shot through with tensions and paradoxes.” In this respect, the process of democratic self-government and the space of public debate can be seen as a space, not simply of expression and rational deliberation, but of formation, in which “coercive, regulatory, and rhetorical power is necessary in order to produce the right kind of citizen subject who can inhabit the norms of a liberal democratic polity” (my emphasis).
The best extant illustration of this liberal double-bind is, of course, the Religion Clauses in the First Amendment to the U.S. Constitution, which prohibit the “establishment” of religion while at the same time protecting its “free exercise.” These two notions are—both normatively and historically—deeply intertwined. The state can only maintain its neutrality and duty of non-interference if the individuals subject to the constitutional order both accept the form of separation mediated by the public/private divide and understand their right to free exercise of religion in the rational, protestant terms (as private belief or conscience) that I have described.
It is this deep tension within liberal theory itself that I believe underlies what is arguably the most interesting aspect of the Chicago Report: the unresolved disagreement between members of the Task Force as to whether the Establishment Clause “impose[s] constraints on the means that the United States may choose to pursue” in engaging religious communities abroad. For one group (let’s call them the “Kantians”), the clause “should be understood to constrain the manner in which the United States pursues its foreign policy objectives” in engaging religion and religious communities abroad. For the opposing group (let’s call them the “new natural lawyers”), the primary purpose of American foreign policy is “to defend and pursue the nation’s vital interests abroad.” Thus:
As this report abundantly indicates, ours is a world highly influenced by religious actors and ideas, for good or ill. Accordingly, we believe that in the absence of compelling evidence to the contrary … no administration should impose constraints on American foreign policy that are imagined to derive from the Establishment Clause…. Any further interpretation of the Establishment Clause on this issue will inevitably restrict American flexibility in implementing vital programs involving diplomatic counterterrorism and the promotion of democracy and civil society.
This is an impasse which beautifully illustrates several dimensions of Kant’s critique of early modern natural law. For the Kantians, the Establishment Clause is itself a constitutionally entrenched form of universal reason. There are good reasons, therefore, why it should, in principle, constrain all action by the U.S. government, whether at home or abroad. In this respect, Kant was correct—the inner moral law imposes significant constraints on us, on the state, and on the internal and external rights and duties of the state as a member of an international community of states. The difficulty is that, as a matter of socio-political reality, the Kantian view rests on certain contingent presuppositions regarding what constitutes a proper religious subjectivity for autonomous agents in the liberal state. Both within and outside of the United States, there is a widening gap between this normative conception of right and factual reality.
Within the U.S., the increasing presence and influence of the Christian Right and evangelical movements in the public sphere and in policy-making generally, and a corresponding rise in governmental entanglement with domestic religious groups, are radically reconfiguring and putting strain on the historical legal understanding of the public/private divide and the “non-establishment” norm. At the same time, religious groups are exerting ever increasing influence in U.S. foreign policy-making itself.
Consider, for example, the following instances.
- The impetus behind the enactment of IRFA: it is widely acknowledged that the domestic political pressure to “remoralize” U.S. foreign policy and enact IRFA came from conservative Christian and evangelical groups concerned about the persecution of Christians worldwide.
- The pressure exerted on the Clinton and Bush administrations to take action in Sudan and to term the violence in Darfur as “genocide”: the most observable factor in U.S. engagement in Sudan has been the long-standing pressure by the National Association of Evangelicals (NAE), a coalition of groups representing fifty-one denominations, 45,000 churches, and a membership of over fifty million people.
- The pressure exerted by the American Israel Public Affairs Committee (AIPAC) to support Israel and Israeli policies in the Middle East, including in relation to the Arab-Israeli conflict.
Outside the U.S.—and Euro-Atlantic modernity in general—it is sufficient to note that religion and state have entirely different historical configurations, and that religious identities define differences both between majority and minority groups and between entirely different ways of life. Non-Western religious traditions such as Islam, for one, do not make a distinction between the secular and the sacred, or, as in the case of Hinduism, they might hierarchically subsume the secular under the sacred. As Charles Taylor has observed, viewed from a non-Western perspective, the right to religious freedom in international law therefore appears inextricably linked to distinctly Christian origins—either to a quasi-religious form of post-Enlightenment Deism or to the political rise of Western secularism, and, in either case, as a form of foreign and imperial imposition. Indeed, this problem is more acute in the case of secular liberalism in its “Establishment Clause” form, which, once unmoored from Western secularism and imported into comprehensively religious societies, “understandably comes across as the imposition of one metaphysical view over others, and an alien one at that.”
Given this internal and external socio-political reality, the position of the Kantians seems hopelessly utopian, even dangerously naive. While the liberal wing of the U.S. Supreme Court can try valiantly to hold the line domestically in a still majority protestant—but rapidly changing and diversifying—society, the international situation in the post-September 11 context appears to raise far more urgent and far-reaching problems of political governance. This is the dominant issue for the new natural lawyers. Like the formal notion of sovereignty in international law discussed before, the formal legal constraints imposed by the Establishment Clause seem at once over- and under-restrictive: over-restrictive because they prevent the U.S. from engaging good Muslim communities in the promotion of human rights, democracy, and the values of civil society; and under-restrictive because, while it is “unrealistic and insensitive to insist that our Establishment Clause should be adopted by other countries without regard to their differing political and cultural circumstances … [all the same,] non-establishment norms facilitate a country’s development of religious tolerance, political stability, and other characteristics essential to a well-functioning liberal democracy.”
To summarize the position: we should not be constrained by the Establishment Clause because our vital interests demand smart strategic action and engagement which should be exercised (paradoxically) to encourage them to internalize the normative constraints of non-establishment. Our long-term security can be ensured only if we effectively change the identity of Muslims and Muslim communities by enlightening them as to the nature and demands of modernity. In the face of this imperative, the secular constraints imposed by the Establishment Clause may be, as Winni Sullivan puts it, “good policy at home,” but they should not limit our flexibility of action and engagement abroad as we advance our “more serious and reasoned” efforts to educate Muslim communities regarding the natural causation between non-establishment norms and natural social ends (religious tolerance, political stability, and liberal democracy).
In presuming that the autonomous subject (whether the individual or the state) envisaged by Kant in his Perpetual Peace is the product of, as opposed to a precondition for, secular liberal constitutionalism, the Chicago Report again reveals ignorance not so much of the role of religion in world affairs as of history and, in particular, of liberalism’s emergence from particular, historically contingent conceptions of rationality and religious subjectivity internal to Western Christianity.
This leads to my second observation on Kant’s cosmopolitanism and his derivation of a pure norm of right from man’s “rational being.” Given the regional character of Kant’s view—not only to but within Europe, and to a local branch of Protestant German metaphysical philosophy at that—it is difficult to see how this account of universal reason could form the basis of a global normative order, able to harmonize rival European and non-European cultural and political metaphysics.
As Ian Hunter has observed, unlike the sorry comforters who acted as juris consults to historical states, the Kantian political adviser (or “moral politician”), who “oversees the transformation of the maxim’s of state prudence into the cosmopolitan principle of justice,” could not in fact engage the interests of the territorial prince. This was because “the advice he had to offer—‘Convert your own state into a rational republican community and then amalgamate it with a world republic or federation of republics’—was not given in a political capacity or persona; neither was it addressed to a political personage: the Prussian prince or political class.”
Hunter proceeds to note that, by comparison with the “territorial construction of jurisdiction and the European localization of the law of nations” found in Pufendorf and Vattel, the “global spatialisation of justice in Kantian philosophical international law initially had no direct anchorage in a concrete political and juridical order.” But today, two centuries later, that has changed. Kant’s regional political metaphysics is now “tied to the interests of a different national philosophical clerisy … [and today has] a de facto anchorage: namely, in the global projection of United States power and culture.” On this premise, an outlaw state (e.g., Iraq) as much as rogue individuals (e.g., radical extremists) are unjust by definition in relation to the universal conception of justice constituting international law, and may thus be subject to military sanction in the name of the universal community.
In this move, the moral politician becomes himself a sorry comforter, a political moralist now acting as juris consult to a “global hegemon intent on projecting its own politics and culture as ‘universal’” in a way that turns Kant’s theory of cosmopolitan law into an instrumental project of technical governance and control. If correct, the real challenge that confronts us is whether it may be possible to recover the non-instrumental dimensions of Kant’s project of freedom without necessarily adopting the historically and culturally contingent aspects of his metaphysical philosophy.
In this respect, the significance of Kant’s ideal of the moral politician lies in the notion that principles of right (the communal will of a rational community) are necessary conditions for a political project which seeks to reconcile national self-interest with a pacific cosmopolitan legal order. Such a project requires both political contestation and the use of critical judgment, which are incapable of being derived from instrumental reason, and which each must encompass the perspective of the whole (the ideal of the Kingdom of Ends). For Koskenniemi, this constitutes a project of freedom in two distinct senses:
First, it holds political judgement open to different, even opposing, alternatives, highlighting the (legal) accountability of the one who makes the judgement. Second, its concept of legal expertise is not that of instrumental skill but a mindset—a ‘constitutional mindset’—that is constantly measuring any judgement or institutional alternative against the ideal of universality embedded in the very idea of the rule of law (instead of by expert decision).
On this view, the significance of autonomy is not on account of a particular conception of the good (e.g., that personal autonomy is a precondition for the good or just life), but rather on account of a moral/political notion of the person as a “reason-giving” and “reason-receiving” being with a right to justification. Further, the significance of critical judgment lies in the notion that human reason must recognize its own boundaries and finitude, and—with full knowledge, not of ends, but of indeterminacy and contingency—accept the unavoidability of conflicts between plural values.
In contradistinction to the approach adopted by the Chicago Report, to engage seriously in such a project would require a “comparative dialogue across the putative divide between Western and non-Western traditions of critique and practice.” For Saba Mahmood, a dialogue of this kind in turn depends on “making a distinction between the labor entailed in the analysis of a phenomenon and defending our own beliefs in certain secular conceptions of liberty and attachment. The tension between the two is a productive one for the exercise of critique insomuch as it suspends the closure necessary to political action so as to allow thinking to proceed in unaccustomed ways.”
It was a project of engagement along these lines that I believe Barack Obama intended to invoke with his speech in Cairo on 4 June 2009. Indicating both that the U.S. was “respectful of the sovereignty of nations and the rule of law” and that “[n]o system of government can or should be imposed by one nation on another,” his notion of a “new beginning between the United States and Muslims around the world” was premised on “mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition.” Obama appeared to understand that, while rationality is a shared human faculty, there are in fact no uncontested external or a priori universal reasons, and that all reasons appeal, at some level of justification, to substantive value commitments which may or may not be shared by persons from divergent religious and cultural backgrounds. (“We can’t disguise hostility towards any religion behind the pretense of liberalism.”) In such a situation, one may maintain good reasons to regard one’s own faith or religious tradition as true, while at the same time recognizing that the primary duty of reason is one of mutual justification.
The duty of mutual justification necessarily gives rise to a need to listen and to seek to understand the situatedness and subjectivity of others. As Beth Hurd puts it, “one of the great challenges of our time is to engage with and listen to those who enact religious agency and live religious freedom in ways that may not conform to these protestant secular understandings of religion and religious freedom.” This in turn requires a degree of openness to the possibility, if persuaded by convincing arguments, to change one’s own positions and the effort to “suspend the closure necessary to political action so as to allow thinking to proceed in unaccustomed ways,” while seeking new forms of coexistence, reconciliation, and compromise. It is disappointing that the members of the Chicago Council Task Force failed to listen and reflect critically upon even this basic premise in the President’s call for a new beginning:
I am convinced that in order to move forward, we must say openly to each other the things that we hold in our hearts and that too often are said only behind closed doors. There must be a sustained effort to listen to each other; to learn from each other; to respect one another; and to seek common ground. As the Holy Koran tells us, ‘Be conscious of God and speak always the truth.’