How do Muslim-majority countries manage dual commitments to constitutional protections for liberal rights and Islamic personal status law? Tamir Moustafa offers a rich and nuanced study of the Malaysian case to address this question in that context and develop broader insights. Focusing on the roles played by courts and lawyers in producing a popular understanding of an opposition between liberal rights and religious provisions or, as Moustafa helpfully frames it, a “rights-versus-rites binary,” he provides a deeply textured account of how and why legal institutions play a role in bringing these commitments into conflict. Moustafa notes that in many Muslim-majority contexts, courts increasingly adjudicate questions and controversies over religion, which he calls the “judicialization of religion.” In cases where courts play a preeminent role in determining how the state regulates religion, he argues that legal institutions serve to constitute the struggle over religion rather than merely offering a forum for dispute resolution.
While Constituting Religion provides a detailed case study of Malaysia, the argument Moustafa develops has important implications for much of the Muslim world. There is an extensive literature across disciplines—from comparative law to political science to sociology of religion—making the case that there is no intrinsic conflict between Islam and liberal rights protections (and more broadly Islam and democracy). While Moustafa agrees with this, in practice he notes that the constitutional and legal controversies that have roiled the Muslim-majority world from Egypt to Pakistan have often centered on tensions between secular and religious interpretations of rights. His close reading of such controversies in the Malaysian context builds a theory about the role of courts as a focal point for social movements, legal mobilizations, and contestations over religion that has applicability beyond Malaysia.
Moustafa’s argument concerning the judicialization of religion is an important counterpoint to recent scholarship arguing that courts play a moderating role in countries where a trend of greater religiosity has put pressure on liberal constitutional commitments. Ran Hirschl has argued that in countries with a dual commitment to religion as a/the source of legislation and modern constitutionalism as a guarantor of individual rights, constitutional courts serve as a moderating force that helps constrain religious claims in the legal domain. But many of the countries of interest to Hirschl have systems of legal pluralism that accord religious courts jurisdiction over what are considered personal status or family law cases. As Moustafa demonstrates, legal institutions and courts in these contexts become the central arena for contestation over the status of religion, often enabling activists to advance a religious agenda through strategic engagement with religious courts. Shifting attention from constitutional courts to religious courts provides a different lens on how legal institutions may moderate or amplify specific religious agendas. In particular, where there is jurisdictional bifurcation between religious and civil courts—that is, where there is no appellate mechanism for civil review of decisions taken by religious courts—Moustafa highlights that constitutional courts will seldom play the moderating role envisioned by Hirschl.
Critical to Moustafa’s account of how legal institutions may serve to intensify controversies over religion and augment polarization is the question of bifurcated jurisdiction. In the Malaysian case, the absence of an appellate mechanism for civil courts to review decisions by Malaysia’s “syariah courts” generates critical legal lacunae for individuals seeking recognition for conversion, divorce or child custody in circumstances that involve cross-communal identities. As Moustafa notes, “a bifurcated legal system hardwires complex institutional dilemmas,” especially in a multi-religious society in which Muslims and non-Muslims are likely to become legally entangled. The rigid legal categories imposed by the state in defining the religious identity of its citizens are in tension with the fluidity of such identities in practice. As Moustafa shows, one result is that for those categorized as Muslim, there is no legal mechanism available for conversion. Deemed by civil courts to be a matter for syariah courts, conversion is foreclosed because syariah courts decline to adjudicate these cases. For those in mixed marriages the challenges multiply further. With no means of having mixed marriages recognized by the state, Moustafa outlines countless cases where couples have opted for paper conversion or unregistered marriages and then find themselves grappling with complex legal and custody issues that often end up assigned to syariah courts over the objection of the non-Muslim spouse or parent.
In these cases, the rigidity of the law and the absence of appellate review by civil courts generates gaps in the legal order for individuals whose identities and relationships place them at the blurred boundary between Muslim and non-Muslim. In this sense, the law literally constitutes the dispute (with categories that render claims non-cognizable and erase claimants’ identities) and produces jurisdictional limitations that deny recourse to rights protections. Weaving his argument through cases involving birth, child custody, marriage, divorce, conversion, and burial, Moustafa illustrates in vivid and often disturbing detail the personal stakes for litigants, the complex strategies deployed by lawyers, and the ways in which third party actors and social movements use dramatic cases to produce narrow and polarizing framings of the issues. Moustafa argues that the narratives mobilized by political entrepreneurs around controversial cases—and their use of mass media to target specific ethnolinguistic communities with their preferred framing of the issues—is a channel by which court opinions have radiating (and polarizing) effects on popular legal and religious consciousness.
Moustafa’s central theoretical claim is that law and courts constitute (and fuel) struggles over religion. In the Malaysian case, he shows that courts have in the process often served to advance religious agendas rather than play a secularizing role. Where religious courts are the exclusive arbiter of disputes at the boundary of their jurisdiction, it is perhaps not entirely surprising that they give greater weight to religious rites than liberal rights. Moustafa’s insights on this point are generalizable to all other contexts in which jurisdiction is bifurcated in a manner comparable to the Malaysian case, either de jure or as a de facto matter with civil courts reluctant to review syariah court decisions.
Moustafa draws on a broad interdisciplinary literature to develop several other important arguments. He argues that British colonial rule effectively entrenched an illiberal vision of Islam—producing a distinctive Anglo-Muslim law. Moustafa cites the work of anthropologists, historians, and Islamic law scholars—from Hussein Agrama to Shahab Ahmed to Khaled Abou El Fadl—to demonstrate that colonial codification of Islamic law advanced a selective reading of an otherwise heterogeneous and pluralist legal tradition. Moreover, identity categories that were once porous and permeable were demarcated by sharp boundary lines through the fixity of codification in the colonial period, contributing to the contemporary controversies that he examines. Though there may not be intrinsic tension between Islamic law and liberal rights, the colonial legacy version of shariah is, on his account, at odds with liberal rights. His fascinating discussion tracing the tight regulation of religion in Malaysia to the colonial context helps explain precisely how and why the negotiation of religious identity boundaries has been channeled to the courts in Malaysia.
The distinctiveness of courts as a forum for negotiating religious conflict comes into focus against this backdrop. As Moustafa notes, the institutional arrangements provided by the Malaysian state provide no arbiter when individuals subject to different legal regimes are embroiled in a single legal dispute. The adversarial context through which courts operate then amplifies contestation by framing parties as advancing opposing claims that are religious versus individual rights-protective. The critical role of institutional design in exacerbating religious conflict and producing the rights-versus-rites binary is further magnified by Malaysia’s structure of bifurcated jurisdiction. Formal rules of jurisdiction become the focal point for disputes over religious identity, and activists—including litigants and third parties—develop advocacy and media strategies to dramatize the stakes of adversarial cases shaped by those rules. Moustafa’s argument concerning the ways institutional complexity incentivizes actors to frame disputes in polarizing ways has several interesting implications. First, it suggests that the judicialization of religion may not have the secularizing effect theorized by Hirschl and others even in cases where jurisdiction is not bifurcated. Making courts the focal point of disputes over religion-state relations produces strategic opportunities for political entrepreneurs to capture the public imagination through stark us-versus-them presentations framed in adversarial terms. The use of courts to construct the binary of secular and religious, or rights-versus-rites, is not unique to Malaysia or even the Muslim-majority world. Indeed, Moustafa discusses examples of ideological mobilization over religious issues through litigation in the United States, particularly in debates about abortion and same-sex marriage.
A second interesting implication is the jurisgenerative potential of the strategic litigation that Moustafa describes. As he notes, “efforts to legislate Islam open new fields of contestation that draw new participants into the production of religious knowledge.” On the one hand, the codification of Anglo-Muslim law reduced the pluralism of Islamic law in ways that are illiberal and authoritarian on Moustafa’s account. On the other hand, the cases he examines in Malaysia demonstrate the ways in which litigants and advocacy groups are exercising agency in seeking to influence and shape the forum, meaning, and interpretation of sharia in the Malaysian context. Islamic law in Malaysia is far from static, despite the fixity of legal categories. Rather, the volume offers a dynamic account of actors navigating institutional complexity to reshape the legal order by advancing their religious agenda.
Moustafa concludes the volume with a brief chapter that offers some comparative reflections on the contrast between the Malaysian and Egyptian cases. He notes that judicialization of religion need not provoke the same degree of polarization everywhere—in Egypt, he finds that giving constitutional status to Islam as the religion of the state has resulted in a constitutional jurisprudence that has “bolstered liberal rights more often than an Islamist agenda” without generating much media coverage or social mobilization. The absence of jurisdictional conflict between civil and religious courts and Egyptian judges who avoided framing questions in terms of a secular/religious binary explains this difference on Moustafa’s account. One question raised by this comparison is whether Moustafa’s theory concerning the judicialization of religion is equally applicable in contexts where debates about the secular/religious divide occur largely within a single religious community. In his brief discussion of the Egypt comparison Moustafa argues that the case demonstrates the degree to which sociopolitical context and legal institutions matter to the impact of judicializing religion. This raises but does not fully address the question of whether the Malaysian case—where contestation takes place across sectarian lines and in the context of bifurcated jurisdiction—is distinctive in ways that limit the applicability of his insights about how courts may exacerbate divisions. Many of the principal debates about the secular/religious divide in the broader Muslim world find members of the same religious community on opposing sides when considering dual commitments to liberal and religious rights (the same is also true in non-Muslim countries like Israel where religion is judicialized). How do the implications of Moustafa’s argument differ in these contexts?
Moustafa explicitly notes that while he shares Ayelet Shachar’s view that there is no inevitable conflict between religious accommodation and liberal rights, he believes optimism on that score should be tempered by careful attention to institutional design and path dependent religious doctrine. In short, the combination of a commitment to an illiberal version of sharia (derived from Anglo-Muslim law) and institutional complexity in Malaysia do not bode well for a favorable balance between rights and rites. The comparison with Egypt suggests that institutional complexity and the cross-sectarian character of the divisions over liberal and religious rights may have been more significant in Malaysia than anything intrinsic to the particular version of religious doctrine. Moreover, the evident significance of activists’ roles in using legal institutions to shape popular religious and legal consciousness in Malaysia speaks to the possibility of revising understandings of the role of religion in the legal order. Perhaps this suggests room for greater optimism, leaving open the possibility that similar revisions might be deployed in future to privilege less repressive interpretations.