The cover of my book Constituting Religion features an image from the Iranian artist Kiarash Yaghoubi. I came across Yaghoubi’s exquisite, untitled painting on a visit to the Islamic Arts Museum Malaysia. The museum holds the largest collection of Islamic art in Southeast Asia, brilliantly showcasing the beauty and diversity of fourteen centuries of Islamic civilization.
Amidst this celebration of Islamic eclecticism, one could easily miss the irony that was more subtly on display: If Yaghoubi were to visit Malaysia, he would not be able to practice Shia religious rites. To be clear, I know nothing of Yaghoubi’s religious practice and sensibilities, but it is a fact that Shia Islam is designated as a “deviant” faith in Malaysia. Indeed, state authorities criminalize dozens of so-called deviant religious practices, whilst mandating a state-sanctioned Islamic orthodoxy. (This recently came to the attention of over two hundred Iraqi nationals who were arrested for participating in a Shia religious ceremony to commemorate Ashura.)
In contrast with the legal straitjacket on religious practice in contemporary Malaysia, Yaghoubi’s artwork suggests the nearly limitless forms that any religious tradition can assume. The jumble of letters, stylized in Islamic calligraphy, is to me a metaphor for the myriad ideational formulations that are possible when these letters are alternately arranged to produce different words, phrases, texts, and meanings. Religious practice and understandings will always be diverse, complex, fluid, and contested, despite the wishes of a jurispathic state.
One of the meta-themes of Constituting Religion is how state efforts to define, regulate, and administer Anglo-Muslim law generate new legal questions and conundrums; provide continuous fodder for activists; and serve as rocket-fuel for countervailing social movements. These developments in turn shape new understandings of religion—and not only for self-identified Muslims.
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I want to thank everyone who contributed to this forum, along with the editor of The Immanent Frame, Mona Oraby, who made all of this possible. It is an honor to have the sustained attention of so many impressive scholars from across so many different disciplines. From the start, this project was both exhilarating and humbling because the co-constitutive dynamics of law, religion, politics, and society are so complex. These essays—along with many conversations that I have had with many of the contributors over the years—have deepened my understanding and have helped me to see how this project is viewed from diverse disciplinary vantage points.
Asli Bâli’s contribution captures many of my core arguments concerning the link between institutional design, judicialization, and the radiating effects of law and courts on politics and religious consciousness. No doubt, her important book with Hanna Lerner, Constitution Writing, Religion and Democracy, attunes her to the inextricable links between judicial institutions and their radiating effects. Kristen Stilt’s essay provides more details on the political anxieties that are wrapped up in Malaysia’s demographic balance, both historically and right up to the present moment. Matthew Nelson’s detailed commentary alerts us to the ways that these issues have traveled, both historically and geographically, in the vein of Iza Hussin’s important work. And Patricia Sloane-White provides an eye-opening view onto what she sees as a deepening of a zero-sum binary by way of the otherwise celebrated Islamic banking and finance industries.
Given the space limitations for this response, I will focus the bulk of my reflections on the remaining essays. It is a particular honor that Shanmuga Kanesalingam contributed to this forum with his firsthand analysis of the Indira Gandhi case. It is hard to overstate the formative role that Shanmuga has played in cause lawyering when it comes to matters of religious freedom in Malaysia. For me, his participation in this forum is a reminder of how important it is for those activists who we write about to have the opportunity to respond and engage with our scholarship. It is important that his voice is heard directly, unmediated by my own writing and analysis. In retrospect, I realize that this was a missed opportunity to also invite one of Shanmuga’s legal adversaries to join us for this exchange. Throughout my fieldwork, I always found it easier to relate to the views and positions of liberal rights lawyers and activists like Shanmuga. Yet I was mindful that a better understanding of the aims, concerns, and anxieties of conservative activists and their audiences is essential for a deeper appreciation of the complexity of the legal entanglements and their polarizing effects on popular consciousness.
Winnifred Sullivan raises important questions about whether “the efforts of legal and religious historians, sociologists and anthropologists to describe the effects of modern law on religion” are, in their own way, forms of “mansplaining religion.” While my own liberal inclinations may come through in passages of Constituting Religion, my principal aim is not to advocate for one side or another, but rather to examine the politics of claims-making by the government, the courts, advocacy groups, the religious establishment, and everyday citizens. Nonetheless, I agree with Sullivan that to write on law and religion is to navigate a minefield, whether one recognizes it or not. To use Elizabeth Shakman Hurd’s metaphor, it is as important as it is challenging to avoid “the religion trap” that would have us define, authorize, and reify alternate visions of religion that are used to advance political projects. Doing so may serve to “stabilize religion in the service of liberal norms” as Sullivan points out. Worse still (at least in my view) is when religion is stabilized in the service of authoritarianism. Hurd nicely illustrates this with the example of Abdel Fattah el-Sisi’s despotic rule in Egypt. Whether in Egypt or Malaysia, the construction of a “secular” versus “religious” cleavage (or “good religion” versus “bad religion”) can be a powerful device to advance authoritarian projects.
Ironically, the charge of mansplaining religion is one that the Malaysian women’s advocacy group Sisters in Islam faces regularly, albeit not with that specific turn of phrase. Sisters in Islam pushes for women’s rights from within the Islamic legal tradition rather than against it. Nonetheless, they are frequently chastised for challenging “God’s law.” Their rejoinder is a powerful one: if Islam is invoked as the basis of public policy, then they, too, have the right to speak on Islam. This is a position that I respect wholeheartedly. As Shanmuga briefly references, I have shared my concern that many of the tactics liberal activists embrace (litigation, press campaigns, bringing foreign pressure to bear) risk reinforcing a counterproductive narrative that religion is under siege. The “within the tradition” approach of Sisters in Islam is perhaps best able to deactivate these binary constructions, even if it might be considered liberal mansplaining by some of their detractors.
Let me move now to address Jaclyn Neo’s concern that the book gave “short shrift” to matters of race and language. I am in full agreement with Neo that both race and language are crucially important in the construction of Malaysia’s constitutional identity. This is why a discussion of race informs every empirical chapter of the book, beginning with the legal formulation of race in British Malaya, to the discussion of how race-based politics gave rise to Article 3 (and others) in the Federal Constitution, to the variety of ways that religion is continually invoked in court and by social movements to advance notions of racial supremacy. The suggestion that “he could have also engaged with the choice of language in judicial decisions” is also puzzling. Neo provides the Lina Joy case as an example where language is used to communicate and construct constitutional identity, yet the choice of language (in the Lina Joy decision and others) is examined in the book in precisely this way.1
In keeping with a decentered analysis of law, Constituting Religion also strives to underline the importance of language by comparing press coverage of court cases across Malaysia’s diverse media landscape, from the Malay-language newspapers Utusan Malaysia, Berita Harian, and Harakah, to the Tamil-language papers Makkal Osai and Malaysia Nanban, to the Chinese-language Sin Chew, and the English-language press. These comparisons suggest the extent to which Malaysia’s segmented ethnolinguistic media environment further refracts competing frames of understanding across ethnolinguistic groups. Neo’s instinct is correct that one of the challenges of writing this book was to do justice to the specificities and complexities of the Malaysian case, whilst pursuing a more general theory-building agenda. My earnest hope is that readers who are motivated by one or the other of these objectives will each find the analysis enriching.
Benjamin Schonthal’s contribution to this forum is characteristically sharp. He has taken some of the core observations that are presented in Constituting Religion, compared them against his own hard-earned insights on modern law and religion in Sri Lanka and elsewhere, and rendered these insights into lucid corollaries that address the question, “Why is religion different?” To be clear, this is not the question that I pose in the concluding chapter of the book, which is more along the lines of “Does law matter? (And if so, how?)” In any case, the book presents dozens of thorny examples that underline the instability (and contradictions) of religion as an object of law.
One of the well-known cases examined at length in the book is that of Lina Joy v. Religious Council of the Federal Territories. In litigating Joy’s right to religious freedom, her attorneys argued that restrictions on conversion violated her right to religious freedom, a right enshrined in Article 11 of the Malaysian Constitution, which states (in part) that “Every person has the right to profess and practice his religion . . .” [emphasis added]. However, Joy’s opponents invoked another clause from the same Article, which states, “Every religious group has the right . . . to manage its own religious affairs . . .” [emphasis added]. This second set of attorneys also claimed the right to religious freedom, but they argued that Article 11 safeguards the ability of religious groups to craft their own rules and regulations (including rules of entry and exit) free from outside interference. Ironically, advocates on both sides of the controversy invoked “religious freedom.” Both sides grounded their claims in constitutional texts. And both sides called upon the state to secure their contrasting visions of Malaysian state and society. In this single case, we can see all five contradictions that Schonthal enumerates (communality, authority, acquisition, imagination, and independence) at play, and all at once.
Whether “religion is different” and functions as a special object of law, with specific contradictions that are not shared by other categories such as race, custom, or culture, is a good question. It is also one that I am not presently equipped to answer with any degree of sophistication. Another way of approaching the question, however, is to affirm that religion does not operate as a solitary or stable category. Instead, religion is intertwined with other categories of identity and meaning, and it is always shaped by the push and pull of politics, society, and state. In Malaysia, this has meant that when questions around religion emerge in court, issues and anxieties around race often go hand in hand. This intertwining also means that religion is frequently employed as a proxy to advance other overlapping identities. So, litigation in pursuit of religious supremacy is often equally an effort to advance an agenda of racial supremacy.
Regardless of the contradictions that may distinguish religion as a special category of law, we must keep our eyes trained on variation in legal institutions. Constituting Religion endeavors to demonstrate how certain legal configurations exacerbate these contradictions. What may appear as conflict arising from the unique properties of religion as an object of law can often be traced back to specific legal configurations that hardwire and amplify these contradictions (e.g., Malaysia’s bifurcated judiciary, pluri-legal family law provisions, etc.). Recognizing problematic configurations of state law provides some hope that law and legal institutions might someday be reformed to mitigate conflict. Yet, as I elaborate in the book, fundamental institutional changes are unlikely due to political gridlock. In the meantime, perhaps the best we can do is to be clear about the source of the problem, which has little to do with religion (as a practice of faith) and far more to do with the regulation of religion (as a state project).
Constituting Religion is an open-access text. It can be downloaded free of charge in its entirety here.
In my discussion of the Lina Joy case, for example, I note that: “The decision provides a clear illustration of how law and the social imaginary conflate Malay racial and religious identity in contemporary Malaysia. In fact, it is worth noting that the majority opinion in Lina Joy was written in Bahasa Malaysia and not in English, as is conventional practice. This departure from standard convention was surely meant to deliver the message that matters concerning Islam and Malay identity are first and foremost Malay issues, as opposed to Malaysian issues” (p. 75).↩