Elizabeth Shakman Hurd | Beyond Religious FreedomIn the preface to his 1947 essay, Humanism and Terror: An Essay on the Communist Problem, French philosopher Maurice Merleau-Ponty wrote forcefully of the need to push past official accounts and declared principles when assessing the character and justness of a society. Focusing on the lived effects of ideas instead of on “tired sayings” formulated as “venerable truths” was precisely the genius of Marx’s critique of liberalism, Merleau-Ponty explained:

In refusing to judge liberalism in terms of the ideas it espouses and inscribes in constitutions and in demanding that these ideals be compared with the prevailing relations between men in a liberal state, Marx is not simply speaking in the name of a debatable materialist philosophy—he is providing a formula for the concrete study of society which cannot be refuted by idealist arguments.

I used Merleau-Ponty’s words to frame the conclusion of my 2015 book, Law’s Religion: Religious Difference and the Claims of Constitutionalism, because they capture the heart of my methodological ambition: to push beyond prevailing stories and theories and, instead, to focus on the experience of law as the ground for understanding the relationship between religion and the constitutional rule of law in Canada. For Merleau-Ponty, peering through the lenses of legal categories and principles cannot lead to adequate understanding of the social world: “To understand and judge a society, one has to penetrate its basic structure to the human bond upon which it is built; this undoubtedly depends upon legal relations, but also upon forms of labor, ways of loving, living, and dying.” “It is not just a question of knowing what the liberals have in mind,” Merleau-Ponty insisted, “but what in reality is done by the liberal state within and beyond its frontiers.”

Merleau-Ponty’s cri de coeur also captures the informing spirit and methodology of Elizabeth Shakman Hurd’s powerful and terrifically important new book, Beyond Religious Freedom: The New Global Politics of Religion. Calling attention to the lived realities that are both obscured and occasioned by a politics centered on religious rights and religious freedom—by “a politics defined by religious difference”—Hurd offers her book “in part, as a thought experiment that provides a glimpse of what the world would look like after religion is dethroned as a stable, coherent legal and political category.” Her whole concern is the structure of human bonds not captured by easy reliance on the category of “religion” and the character and quality of the effects of a politics nevertheless centered on that profoundly unstable concept. Her whole concern, otherwise put, is to refocus us on “what in reality is done by the liberal state within and beyond its frontiers” when religion and religious freedom are used to govern social difference.

In our individual lives, the stories that we tell about ourselves and our histories—the categories and concepts we use in giving an account of who we are—serve us in complicated ways. Our self-descriptions offer some coherence and stability in our experiences and in our relations to others, allowing us to get on with the business of living. By selecting certain events and aspects of our experience as salient to and descriptive of who we are, these accounts also serve us by allowing us to push to the side the complicated, difficult aspects of our experiences that we might not wish to talk about or reckon with. Our stories about ourselves thus offer comfort and coherence, but always purchased at the expense of complexity and reflection of the messiness of the lives we have actually led.

In our political lives, legal concepts and accounts work in similar ways. Their utility comes in large measure from the way in which ascent to such concepts cleans up the messiness of the social world, concealing inconvenient facts and situational peculiarity in favor of abstract ideals. In this sense, the conceptual tools that we seize in our legal and political accounts serve us through what they allow us not to see, not to talk about, and therefore not to have to wrestle with. These concepts are comforting by virtue of what they remove from view. Indeed, this kind of concealment is one of the core functions of law: to replace historical and social complexity with legal concepts and categories, tidying the messy social world in preparation for the necessity of judgment, with the substantial political, material, and relational consequences that flow from such judgments. Exposing this function of the legal category of “religious freedom” is one of the most powerful contributions of Hurd’s volume.

Hurd shows the way in which using the categories of religion and religious freedom has a kind of comforting, simplifying, pacifying effect. The claim that framing matters in terms of religious rights and religious disputes serves us and comforts us through simplification might seem counter-intuitive. After all, religious disputes are notoriously fraught, volatile, and intractable. And yet consider the alternative to collecting social facts and controversies under the mantle of “religion” and processing them as matters of religious freedom: one would have to wrestle with, among many other things, the character and movement of global capital, the boundaries of culture and geography, and the formidable complexities of historical understanding. Instead of all this, one can instead take hold of a single category—religion—which, as Hurd shows, is conceived of as both the cause of discord and dispute, and also its own solution. One of the central features of a politics with religious freedom and religious rights at the core is the way in which it obscures the broader social field. Hurd explains:

[T]o declare religion the cause of particular political conflicts reduces complex questions of causation and obscures the broader economic, historical, and political contexts in which discrimination and violence occur…. Social tensions and conflicts with multiple contributing factors are depoliticized, their causes explained away through reference to intractable religious difference.

As she shows so clearly in her case studies, including that of the Alevis in Turkey, “governing social difference through religious rights reduces complex social, historical, and political histories and inequalities to a problem of religion.” In Law’s Religion, I describe this effect in the realm of domestic constitutionalism as rooted in the (comforting) “conceit of religion’s autonomy from the other determinants of political and economic freedom and justice,” whereby “the practical force of constitutional protections invites the neat packaging of complicated social issues into the available categories of legal analysis, concealing the way that economics, demographic change, and political marginalization are imbricated in issues that are framed simply as matters concerning ‘religion.’”

Hurd displays the way in which projects of international religious freedom can serve governments and policy makers by advancing concrete political and economic interests, in part through the highly selective lens that “governed religion” applies to what it recognizes as religion and who it recognizes as speaking for those religions. Yet these concrete effects are enabled by, and indeed depend upon, the suppression of more complicated histories and realities, the display of which would frustrate the easy pursuit of those interests. This is a deeper way in which a politics defined by religious difference serves experts and officials. Hurd’s book is, in this respect, a project of recovery. As she carefully disrupts this putatively knowable, stable, thing called “religion,” Hurd draws back to the surface the unruly, uncomfortable complexity of history, economics, and political life. Religious freedom—dependent as it is on this intrinsically unstable, contingent, and indeterminate concept of “religion”—cannot redeem us from history and complexity.

And its effort to do so comes at unacceptable cost.

We know that leaving dimensions of our personal histories unreflected upon and complexities unexamined can produce neuroses and even pathologies. The failure to wrestle with the fraught elements of our experiences that are repressed by the stories we prefer to tell can have tangible effects on the quality and character of our lives. At those points, our accounts cease to serve us.

Some of the most powerful elements of Hurd’s book involve her showing how badly our political lives, at home and abroad, are hurt by using the story of religious freedom as a frame for analysis. The root of the pathologies produced by a politics oriented around religious rights is that this way of reading the world “heightens the sociopolitical salience of whatever the national or international authorities designate as religion.” Selecting the intrinsically unstable category of religion as uniquely notable and pivotal as amongst the various dimensions of social and political life hardens sectarian lines and “accentuates religious-religious and religious-secular differences.” Furthermore, in thrall to “governed” religion, we are apt to miss the struggles and needs of those who are rendered invisible because their lived religion is unrecognizable, inconvenient, or both, thereby narrowing our field of vision when it comes to social injustice. And, ultimately, as her analysis of the Rohingya in Burma shows so clearly, the suppression of complexity—however much it serves us by way of comfort and self-interest—actually enervates us, diminishing our capacity to respond meaningfully to issues of social and political injustice:

When social tension, discrimination, and violence are reduced to a problem of religious intolerance or religious persecution, the complex and multidimensional tapestry of human sociality and history is lost from sight, and the multifaceted problems faced by persecuted groups become more difficult to address.

The malign consequences that flow from amplifying the salience of religion are also found in the effects on the internal dynamics of communities and the lives of those governed. The strategic legal and political incentives to frame struggles and disputes in religious terms can have “back stream effects” not only on a community’s self-description, self-presentation, and self-understanding, but also by shifting and shaping relationships within a community, lending power to those who are legible when looking through the lenses of “governed religion.” As Hurd cogently puts it, “[a]dopting religion as a category to distinguish groups that are seen as in need of legal protection inaugurates new relations and realities.” And so, Hurd’s book shows that, like other mistold stories about ourselves and our worlds, a politics centered on religious rights leads us to see and understand less, leaving us less well adapted to social and political reality, and affecting the character and quality of our relations. In short, she shows the pathologies of religious freedom.

I described Beyond Religious Freedom as a project of recovery. To be more precise, it is a project of recovery in service of a salutary form of doubt. Hurd reminds us that the project of historicizing and politicizing “secularism” was not aimed at clearing space for “religion,” but rather to trouble and question the distinctions that generate the sensation of solidity (for it is only a sensation) around both concepts. And so, seeing the growth in a politics focused on religious rights, she asks us to doubt the coherence of the category of “religion,” its capacity to describe the social, and the quality of the world that its use creates. She calls for uncertainty about whether our prevailing accounts actually serve us, however convenient and comforting they might be. Hurd’s book is good therapy: she forces us to entertain the kind of doubt that leads not to paralysis, but to self-reflection and, one hopes, humility—a precious virtue when wielding the tools of state.