Tamir Moustafa’s Constituting Religion incisively reveals both the enduring and disturbing impacts of constitutional law on the ways Malaysians imagine and manage religion. It demonstrates how a constitutional system designed to protect Islam and guarantee religious freedom ended up undermining each while, at the same time, making the two goals appear incompatible.
I am very persuaded by Moustafa’s arguments; and I have found similar dynamics at work in Sri Lanka. Nevertheless, Moustafa’s book raises for me two questions about the broader links between law, religion, and social conflict, questions with which I have also struggled. First, precisely how blameworthy is law, itself, in these stories of acrimony and contestation? Don’t these disputes occur even in the absence of law? Second, why is religion special? Shouldn’t the dynamics of polarization and exacerbation, which Moustafa observes, happen with other legal rubrics as well?
Moustafa is aware of these questions and he points to them in his conclusion. His response to the first is definitive. No, he insists, the “rites versus rights” binary could not have emerged in the absence of constitutions and courts because that binary depends upon notions of jurisdiction and authority that arise neither from Islam nor from liberal rights, themselves. Those binaries are produced, instead, by the legal “finger trap” of Article 121(1A) and its “radiating effects” in politics and the media.
The second question—about whether religion is special—is harder to handle, and Moustafa’s book gives a less direct answer: religion is special, he argues, because of “the multivocality and indeterminacy of religious traditions themselves” and the “instability” of religion as a category of law. This makes sense. Nevertheless, why precisely, is the “judicialization of religion” more problematic than the judicialization of other multivocal and unstable categories such as race, or custom, or culture?
This question is vitally important for scholars because it flickers dimly in the background of so much academic writing on the legal regulation of religion. In this article, I want to add to Moustafa’s response: Yes, I will argue, religion does pose special challenges as a category of law; and these challenges arise not simply because religion is difficult, if not impossible, to define nor because legal agents deploy the category in strategic, prejudicial, or inconsistent ways. Religion is a uniquely thorny category of law, I will insist, because the use of that category—in legislatures, courtrooms, and mediascapes—evokes (at least) five distinct discursive contradictions, opposing ways of representing and understanding those things that are supposed to be protected or regulated by law: contradictions of communality, authority, acquisition, imagination, and independence.
I. Contradictions of Communality
Striking in many of the cases that Moustafa describes is an ostensible clash between religious individuals and religious communities. On the one hand, these cases involve individuals seeking protection from the courts for their personal rights to observe or declare religion. On the other hand, they involve representatives of the “the Muslim community,” which (according to Malaysian case law) also has rights to uphold its own communal standards of entry and exit. Religious rights, as figured through the Malaysian legal system, therefore, apply not only to citizens but to groups. In fact, within the same article of the Malaysian Constitution (Article 11), sits subsection (1) guaranteeing “every person has the right to profess and practice his religion” and subsection (3) stating that “every religious group has the right to manage its own religious affairs.”
Malaysia’s constitution is not unique in this regard. The constitutions of many countries—for example, India, South Africa, Singapore—include similar religious rights guarantees for both individuals and groups. Yet tensions between individualistic and communalistic understandings of religion are also seen in jurisdictions that prescribe no explicit group rights. Think, for example, of the rights conferred to “churches” under the US “ministerial exception” or UK marriage laws.
This tension, in other words, is baked into many legal protections for religion, meaning that the judicialization of religion, wherever it may occur, has the tendency to set in motion contests between individual “religious” people and the communities they claim (or, in the Malaysian case, disavow) being part. For this reason, religious rights cases also lend themselves to political and social mobilization: because judicializing religion implicates religious communities, even when it is addressing individuals, it also serves as an invitation for activists, clerical organizations, and others to represent those communities and advance claims in their name.
II. Contradictions of Authority
The tension between individual and community rights, described above, is not unique to religion. Similar tensions also appear in countries that grant rights and recognition to local customs, traditions, or indigenous laws. What happens, for example, when members of indigenous communities in Australia or Canada advance diverging interpretations of customary law? In most cases, federal courts make a group-based calculation: to the extent that the recognition of indigenous law is the (at least partial) recognition of indigenous sovereignty, state judges will tend to accept the fact that the interest of the groups (qua nations) outweigh those of the individuals. Those with greater status or rank in the group, such as an elder or chief, will therefore be granted greater authority by the state than less-senior members.
What about in the case of religion? In the same way that rights to freedom of religion seem to empower both citizens and groups, so, too, do they seem to suggest both equality and inequality in the nature of claims made by them. As interpreted in most jurisdictions and in international law, religious rights are, at their core, rights to believe what one likes, analogous to (or a species of) rights to freedom of conscience. Understood in this way, claims to religious freedom ought not to be assessed according to their authenticity or accuracy (even if they are sometimes evaluated in terms of their sincerity). On the other hand, legal and popular understandings of rights to religious freedom also imagine those rights in ways similar to indigenous law: that is, they are rights to follow and maintain a separate normative system, along with its distinctive rules and obligations. Imagined in this second way—especially in cases involving exemptions and accommodations to general laws—religious rights appear to be rights to submit oneself to non-state structures of authority, structures which are not (by their very nature) reducible to or dependent on the beliefs of the individual.
Built into religious rights, therefore, are contradictions of imagined authority. In courts and legislatures, religion appears, on the one hand, as a domain of dispersed or egalitarian authority, in which individuals alone determine the validity of their own religiosity, and, on the other hand, as a domain of hierarchical, structured power in which established texts and leaders have a greater say. This particular contradiction appears throughout Constituting Religion in the form of disputes between syariah court officials who, by virtue of their recognition by the state, are permitted to speak for Islam, and individual petitioners and civil society groups (such as Sisters in Islam) who speak as individual Muslims asserting their own power to study and interpret the faith.
III. Contradictions of Acquisition
Also present in legal debates over religion are sharp divergences in how parties perceive and portray the acquisition of religion by individuals. Is religion something chosen willingly by persons or given to individuals by their families and communities? While this question pops up from time to time in court cases in the “secular” jurisdictions of North America and Europe, particularly in the context of children’s religious affiliations (as it relates to matters of schooling or custody), it comes up frequently in places like Malaysia or Sri Lanka, where one’s religious identity is determined by government officials at birth and recorded in official files. For the purposes of public education in Sri Lanka, for example, legislation requires that (under normal circumstances) students study their own religion for ordinary-level exams. Yet a student’s religion is determined not by his or her declaration, but by parents’ official religious identities. In contexts such as this, where religious affiliation is a predetermined part of one’s legal identity (or public education), asserting a right to religious freedom naturally brings to the fore a clash between the two ways of determining or acquiring a religion: choice and parentage.
IV. Contradictions of Imagination
One of the most fascinating cases in Constituting Religion is the Allah case, in which Malaysia’s higher judiciary upheld an order forbidding a Catholic newspaper from using the word “Allah” to refer to (the Christian) God. While the case brings up all kinds of interesting questions about speech, censorship, and property, it also highlights another fundamental tension that makes the legal regulation of religion so complex. Religion, as deployed in law, is something both abstract and concrete. Thus, when invoked in the context of courts and legislatures, religion generates certain contradictions of imagination: some litigants and jurists imagine religion as having a small footprint in the world consisting of “purely spiritual matters” such as salvation, morality, or ritual; others, however, imagine religion as having a much larger physical presence, consisting variously of objects such as communities, churches, properties, texts, and, perhaps, even words. According to this second imaginary, religion is not just something that can be professed or observed, but an object that can be acted upon and therefore saved, protected, rehabilitated, or transgressed. There are few basic constitutional rights that evoke similar imaginative splits.
V. Contradictions of Independence
Given all these other contradictions, it is perhaps unsurprising that lawyers and legislatures do not agree on the proper way to protect religion. But even if they could agree on how religion ought to be imagined, acquired, and authorized, the category of religion generates yet another discursive contradiction. This is because, in almost all jurisdictions, religious and legal elites imagine religion in its “liberated” condition as independent of the modern nation-state. Thus, as Moustafa skillfully points out, even in Malaysia, where Islam is highly regulated by the state, clerics and legal officials nonetheless speak and write about Islam as though it were (or should be) autonomous from state power. The same could be said of religion in other jurisdictions. In the United States, for example, talk of disestablishment (or a wall of separation) is common in the very court decisions and legislation that limit what is considered normal, acceptable, or licit forms of religiosity. In this contradiction lies the most ultimate rub: when it comes to the legal management of religion, the very measures that are designed to ensure the independence or autonomy of religion (e.g. Art. 121[1A]) end up also compromising and undermining that autonomy because they require state institutions (e.g., syariah courts, civil courts, parliaments) to first determine the proper boundaries and representatives of the religion with which they are pledging not to interfere. This applies as much to religiously preferential legal regimes as to “secular” ones.
These five discursive contradictions—and perhaps others—make the category of religion different from other categories of law. They work together and independently to make the legal regulation of religion uniquely challenging and troublesome. For this reason, the judicialization of religion has a greater likelihood of leading to tension, conflict, impasse and resentment than the judicialization of other legal categories such as race, custom, tradition, or language. Adding to all of this, and deepening the special challenges of religion as a category of law, is the fact that legal protections for religion are both more widespread and deeply entrenched than protections for categories such as custom or language: virtually all of the world’s basic laws mention religion and most of them treat religious freedom as a special or “core” type of right. All of this points even further to the broad importance and generalizability of Moustafa’s findings in Constituting Religion. This book is not just an important contribution to the study of Islam and Malaysia. It should be required reading for anyone interested in the dynamic entanglements of law and religion in the modern world.