This dialogue took place electronically between August 6 and August 21, 2020.
Nandini Chatterjee: Thank you for inviting me to read this deeply moving book. Let me start with my instinctive reaction first, which is that of relief. I was so glad for a book that systematically discarded the American “separation of church and state” paradigm, which despite some critiques, has been held up for so long as a model against which other religion and law arrangements have to be measured. Although there is now a body of literature—which you discuss—exposing secularisms as historically specific ways of regulating religion, this literature being about the non-Western world has failed (in my opinion) to dislodge the view that the “separation” model remains workable for properly working Western liberal democracies, epitomized by the United States. So, thank you! I really hope scholars in my field—South Asian history—read this book as soon as possible.
Winnifred Fallers Sullivan: Thank you, Nandini, for this generous response. The separationist model is not easy to dislodge anywhere. Certainly, it is alive and well in the United States. Too much is riding for elites on both sides of the aisle—and in the religious communities—in retaining the statist model. Secularism and separationism are of course different. The United States has never really properly been described as secular, in a European sense, something which has been puzzling to Europeans. It has always been peculiarly and proudly religious—although what that might mean has always been up for debate.
But let me also say, speaking for my field—law and religion studies in the United States— that we are in desperate need of comparative conversation. Your new book, Negotiating Mughal Law: A Family of Landlords across Three Indian Empires, while apparently distant from the twenty-first century United States, actually provides a wonderful opportunity for crosstalk. As we continue this conversation, I will be asking you some questions, as well!
NC: That would be great! To start off, we have spoken in the past about the striking parallels between the American and the Indian story. Could I get you to speculate why this should be so? Is it because of a historically contingent pattern, if not model, of disestablishment that was initiated in both the first and second British empires?
WFS: This is such an interesting question! And a difficult one. I think I have mentioned to you that when I first read Religious Nationalism by Peter van der Veer, about Indian religious politics, I was stunned by the similarities to the American context. One can see similar ahistorical religiopolitical discourses around the nation, women’s bodies, and both challenges to as well as the embrace of capitalist forms. Indeed, I thought to myself, really, in spite of all of the differences, I could just change the names and his story could be about the United States. The parallel between the two has only become more striking, I think, in the last ten years.
How might one explain the parallel? These, as is often said, are the world’s two largest democracies, each with a history of the coexistence of multiple religious communities and much diversity within them. Each one is profoundly influenced by colonization. At their best, they are large scrappy countries with an enviable openness to difference. And yet, each one has long histories of structural inequality.
Surely the British legacy is part of it. But I am not sure that British disestablishment of the first or second empire is any more real than its US or Indian version. Evan Haefeli argues that toleration across the British empire was the result not so much of ideological commitment as of the effect of division at home during the English Reformation and its aftermath, division that made imposition of uniformity in their imperial properties—and even at home—impossible. Do you agree?
NC: Not entirely, Winni. I agree that British colonial disestablishment policies were not ideologically coherent, certainly not across the American and South Asian empires. However, as Lauren Benton and Lisa Ford have shown in their cowritten book, British imperial policy arose from colonial situations (practice, if you like) and was then subsequently rationalized. They suggest there was, in fact, a post-facto Rage for Order in the nineteenth century.
More specifically, in my first book, The Making of Indian Secularism, I argued that it was the early nineteenth-century turn to evangelicalism and its influence on British imperial politics that, ironically, dislodged a tradition of incorporation and ecumenical patronage that had formed East India Company’s policy, and that of the Muslim South Asian regimes before them. If I had had your book to hand, I think I would have been able to describe the consequences of this evangelicalism-inspired-disestablishment more coherently—that it led to the legal identification and institutionalization, and only then, separation of all non-Christian religions from the state.
I think that the various kinds of institutions that were produced in the North American colonies and later in the United States are in fact very similar to the religious structures produced in response to disestablishment in colonial South Asia—as you describe in your book. All these religious associations, some of them churches, were lay-dominated and congregational. Yet they were all legally summoned to a vision of “the church,” which was imagined as a legal person, with rights enforceable in courts but few or no legally enforceable obligations to its own members. I think that is where the Indo-US commonality lies. How does that sound to you?
WFS: Yes. That sounds right. That would suggest that there is an ecclesiology specific to the British diaspora that was produced in the nineteenth century.
So, first, we must be a bit more precise about time here. Haefeli is talking about British colonial policy in the seventeenth and eighteenth centuries and its effect on what has come to be seen as religious toleration in the Atlantic colonies. I do think the explanation for the nineteenth century parallel between the United States and India you describe is different, as you suggest. There are parallels and differences. Most important of the differences, the United States is no longer subject to British colonial policy by then. And, constitutional disestablishment in the United States means that legal control of religious institutions is, I think, generally more indirect than in the Indian case. Yet American religious life is still dominated by evangelical protestants of various sorts and their theologies and ecclesiologies.
The American story in the nineteenth century with respect to the management of religion is also formed by specific antagonisms, that is, toward Catholics, Mormons, and Native Americans, as well as, of course, Black Americans. White evangelical Christians work to dominate all of these groups.
So yes, I think you are right that lay-led religious associations were created in the United States to structure the presence of religion in American life—and to separate them from government. But they also made religion legible to government.
In your book, you note that the British were doing different things in India than they were doing at home. The United States has also had such a split policy focus. Beth Hurd and I have just finished an edited book exploring what we call the “at home and abroad” in American religious politics. (See also John Corrigan’s new book on intolerance in the United States and its relationship to US foreign policy.)
What would the story be if we considered India as an exporter of religion? It seems that countries often have a more chastened policy at home than they are able to project abroad. (Keally McBride considers this dynamic with respect to legal reform.)
NC: What an interesting question. India has, of course, been a historical exporter of religions—most importantly, of Buddhism, and also of Brahmanical forms of Hinduism, to East and Southeast Asia. I really have no expertise on the nature of interactions between these exported Indic religions and the indigenous religions of those places. However, the migration of millions of indentured Indian laborers, following the abolition of slavery in the British Empire in the 1830s, also led to the export of Indian religions. I would say, though, that the position of such religions in colonial/imperial law was qualitatively different from that of Christianity in nineteenth-century Britain and British colonies. Hinduism, Sikhism, and Islam were seen as deviations—to be managed, like their adherents.
In fact, I think your concept of “church-in-law” can help us think through those modes of rendering legible, and also the tragic ways in which people subjected to such programs of legibility responded to them by cocreating reified, patriarchal, and essentially distorted versions of Hinduism, Islam, Zoroastrianism, and even Christianity. Previously, I had thought of the product (and process) as “communities-in-law.” The resonance with your book is amazing. Writing mainly on Christians in India, I had come to form the view that small and marginalized communities are most susceptible to the imposition of such rigid legal identities, due to the combination of external pressure and internal (elite male) manipulations. Your story, however, is not of minorities but of US society at large. Did we already go through the minorities phase in the United States?
WFS: I do think your work on communities-in-law in India shows a very similar shaping to serve the state. Some insular religious communities in the United States have actually rather successfully managed to engage in a kind of protected self-government even though they lack the formal personal jurisdiction arrangement prevalent in India and Israel. Examples would be Amish and ultra-Orthodox Jewish enclaves. Both have, in various ways over time, evaded state regulation—including, for example, prosecution for domestic violence—and reified hierarchical and patriarchal legal structures. Mormons were hounded into conformity in the nineteenth century but you could say that, on a larger scale, they also fit your pattern. Many minority religions do continue to suffer something closer to actual banning, particular Black ones—Afro-Caribbean groups, for example, and Islam.
The situation with Native Americans is parallel in a different way to India because many enjoy formal rights to self-government. While differing across the hundreds of pre-Columbian nations that continue to live as separate communities in the present United States, and notwithstanding impressive current efforts to re-establish more robust forms of sovereignty, federal Indian law has both severely limited the practice of indigenous religions and constrained the law of those nations—sometimes known as Indian law.
I have written mainly about dominant forms of American Christianity in part because I want to show that the American solution does not work for them either. Seeing this is necessary, it seems to me, because so often the proposed solution is just to enlarge the tent. I want to show that the tent is not a place of care.
NC: That is such a valuable message, among others, to a South Asianist from India who can see how the politically sponsored Hinduism that is being incrementally imposed in India is both a cultural loss and a legal danger to most Hindus themselves. An arguably minor, but actually profound, symptom of this is the reduction of space for culturally informed humor, and an effort to impose a flattened, synthetic form of Hinduism that constantly conflicts with deep regional traditions. For example, in 2018, a celebrity Muslim hairstylist with a nationwide chain of salons had to apologize for a rather unremarkable advertisement, by Indian standards, depicting Hindu gods and goddesses availing of his services. The supposed religious offense identified by the Hindutva brigade is in fact an essential part of the Hindu tradition—of imaging God in different forms as kin to humans, present in the world and partaking of the joys and sorrows of human life.
WFS: I think what we see in the United States right now is an increase in both the majoritarian intolerance of the kind you describe and, at the same time, a flowering of confident expressions of alternative visions of community—beyond church and state and corporation.
This might be a good time to bring up your new book. There are many wonderful insights and intriguing glimpses of premodern Indian law in your book. Perhaps I will begin by asking to explain a little for our readers how you understand Mughal law to be a local negotiated affair, rather than one of control from the center? And where religion fitted in? One of the reasons your story is so fascinating to me is that a focus on the messy negotiated multilingual arrangements of the local are so appealing in the face of the incompetence and corruption of the national governments. Is it naïve to think that we should imagine law outside of the nation-state, or at least outside of the metropole and its interests?
You describe yourself as a micro-historian. I think of myself also as working pretty close to the ground where people live, skeptical of abstract theorizing and top down solutions. Carlo Ginzburg, one of the originators of such work, writes in a 2013 preface to his classic book on historical method, of the savage attacks he received from those who thought by focusing on the small and the local he had abandoned the political work of Marxist reform, and of how hurt he was. Ginzburg resists the notion that to concern oneself with fragments is to abandon the whole. Do you agree?
NC: Let me begin with the micro-history question. Ginzburg is my intellectual hero, and following him, I don’t think that micro-history is really about looking at fragments, at least not in the antinarrative, antistructural sense recommended by the many in the Subaltern Studies collective, for example. Following Ginzburg, I want to look closely at instances that do not fit, that seem odd and out of place, because therein often lies the clue for correctly understanding the entire pattern, for sidestepping what is obvious, but misleading. For instance, when researching the history of a particular Hindu landed lineage in Mughal India for Negotiating Mughal Law, I discovered traces of a dispute in the family in the late seventeenth century. In what seemed to be a very odd document in the family’s historical papers, a Muslim man named Muhammad Asad, son of a courtesan, claimed to be part of that Hindu family, and a sharer in their property and privileges. I might have dismissed this seemingly preposterous claim as an eccentric blip, but once alerted, I could see repeated coded referrals to that dispute in other documents, and the anxious drawing up of kinship boundaries in order to exclude this unwanted relative. I also began to understand why a certain branch of the family—beginning with Asad’s Hindu father—was consistently and systematically excluded, and ultimately erased from the family’s memory. Following that one eccentric document and episode, therefore, helped me understand a key pattern to the entire archive. And moving beyond, it also helped to understand how “family” and “religious belonging” are negotiated relationships of affect, obligation, and entitlement, which are shaped through, not just reflected in, law.
So, what was Mughal law like? From what I have seen, it consisted of nested, but variably nested, circles of authority and belonging—for which I used the Arabic-Persian-Urdu-Bengali word dai’ra. At its most literal, the word means circle. I found landed families such as the one I studied literate in the norms of various such circles of authority—that of Islamic law and the qazi, of the imperial noble and imperial rules, and that of local customs and village headships. I found them receiving their privileges from and taking their disputes to some, many, or all of these circles for adjudication, as was the case when Muhammad Asad claimed his rights. This did not mean that there was no “law,” but that the system of norms, rules, and practices that people moved around in could not be conflated with any one jurisprudential system—Islamic, Hindu, or otherwise. I will not say that usage of law had nothing to do with religious affiliation—the Hindu family certainly did not have Muslim marriage contracts—but there certainly was no all-encompassing religious law encircling and incarcerating people.
Which brings me to ask you: What constitutes a religious community anyway, and what is the difference between that and who gets to legally pose as such? In your case, the question could be asked thus: Who gets to be the church? Reading your book, the answer to the second part of my question seems to be savvy employers looking to cut costs, tame uppity employees, and dodge taxes, as well as troublesome regulatory legislation. What is remarkable is that even for-profit corporations get to be such a “church-in-law” (as in the Hobby Lobby case), based on the religious views of their private owners. This seems like a really cynical use of religion! Have I got this right?
WFS: Aha! The $64,000 question! I don’t think the Hobby Lobby owners are cynically using religion. I think their relationship to the business world and to government regulation is pretty mainstream American. Low-church protestantism of the kind we agree has dominated in India and the United States since the nineteenth century is very much entwined with emerging forms of capitalist economy and very entrepreneurial. But, notwithstanding Jesus and the moneychangers, isn’t it elite prissiness about economic matters—Victorian prissiness perhaps!—that discriminates against those for whom economic matters are religious matters? (There is some interesting recent writing on this by Robert Yelle and Amira Mittermaier, among others.)
For me, it is getting state law out of the way that is important. In the United States that would mean removing the religion clauses from the First Amendment, for a start.
As for who gets to be the church, my own understanding of Christian theology would be that there are always simultaneously and unresolvably two messages: the church is one and the church is many. There is one holy, catholic, and apostolic church, and in my father’s house there are many rooms.
NC: If so, then from your book I had the sense of those rooms being shut by a monolithic, hierarchical, socially reactionary imaginary that you call the “church-in-law.” You show that these are deftly deployed claims of “religious exemption” from the constraints of laws related to employment, health, property-holding, commercial exchanges, and due process. You show how the US courts have, over the last two decades increasingly upheld such claims that are always in service of a hierarchical, exclusionary social agenda. What is leading this “colonization” in present day United States?
WFS: I think it depends on your preferred explanation for historical change. If economic, I think that the doubling down on market liberalism beginning in the Reagan administration explains a lot of the failure in the United States today. But racism is certainly baked in over centuries and the privileging of whiteness structures so much. Martin Luther King called Sunday morning “the most segregated hour.” That has changed very little over two centuries. Federalism is also an important factor. So many significant pressing social issues—including the current pandemic—are incompetently managed because federal and state governments are allowed to pretend that it is for the other to handle. Certainly that is true of the shameful inequalities in education and healthcare.
NC: Ok, let us move closer to the question of what, indeed, is a religious claim. In Chapter 3, you discuss the case of the crafts store Hobby Lobby and its refusal to purchase government-subsidized healthcare for its employees because it included provision for medical contraception. You noted how American courts accept religious claims at face value, without evaluation of any kind, such that: “Hobby Lobby simply asserted that its beliefs were religious without reference to religious authorities or texts.” This is so strikingly different from the contexts I have studied in colonial as well as postcolonial, India. For example, the Supreme Court of India ruled in 2017 that “triple talaq,” or instant, unilateral divorce by men, was unconstitutional but also not an essential part of Islam. What do you think makes for that difference in approach? And if I may lead you a bit, you hint elsewhere that such acceptance (that certain claims are religious) works in US courtrooms, but maybe more for white Americans than others. Could you expand on this?
WFS: This is where the US constitutional commitment to disestablishment comes in. And its fit with low-church protestant anti-clericalism. Virtually all Americans, across their many differences, for political and theological reasons, believe that the government should not have opinions on religion. Judges agree and are deeply reluctant to get into the business of deciding theological matters. The Indian Constitution, on the other hand, specifically prescribes the reform of religion, giving judges the license to make such pronouncements.
But there is also in the United States a deep strain of paranoid anti-intellectualism. Expertise generally is suspect. It is difficult to exaggerate this and, indeed, the US response to the pandemic illustrates it tragically well.
NC: Yes indeed, because the US courts are not averse to summoning expert witnesses, are they? Why didn’t the court summon an expert witness in the Hobby Lobby case?
WFS: This is a really good question—one which gets to the heart of American disestablishment. In an earlier book of mine I discuss a case in which I served as an expert for the plaintiff prisoners who complained that a faith-based in-prison program violated their First Amendment rights. The judge ruled the program unconstitutional. On appeal his ruling was affirmed but the Court of Appeals also ruled that it was error for the trial court judge to have heard my testimony because expert testimony on religion is itself establishmentarian!
NC: I am stunned.Your scholarship really arises from your deep engagement with law and religion in practice in the United States, and I can understand the frustration better. Your chapter on “the” church in prisons, especially the notorious Louisiana penitentiary called Angola, is heartbreaking. Indeed, it is “Church in Blackface”: a gross, distorted, racist agenda of control that seems to be parading there in the name of religious ministry. They hold a rodeo with paid audiences, with untrained inmates as participants? Why?
WFS: The harshness of American punishment has been written about a lot. But I think that the spectacle provided by modern institutions of confinement is not just American. Prurient visitors to mental institutions and penal institutions are widely attested to by Dickens and others.
NC: I think that in the final chapter—“The Church-in-Law Otherwise”—you urgently call for different imaginaries of church inspired by compassion and comradeship rather than boundaries, claims, and contests. You suggest that more imagination may be needed on all sides, that if homophobic bakers need to be kinder, gay couples can also exit the commercialized wedding industry and the sharpness of right-to-wedding-cake claims by simply having get-togethers with cupcakes. But is that a real possibility in all situations? How could the disabled employee, dismissed unfairly in Hosanna-Tabor, have been more imaginative? How could the deprived employees of Hobby Lobby have been more flexible and still received health insurance? I want to hope, together with you, but I want to ask you: is gentleness a realistic option?
WFS: It’s not just kindness and compassion, for sure. And it is not up to the individual. I think I want us to imagine different communities. I think that the seduction of state capture has to be refused. Do you see such communities in the United Kingdom or in India providing such hope? Or do you think we are bound to the modern state?
NC: It is hard to be optimistic, Winni. As an atheist, I am in an admittedly illogical position when I dream of a world of religious as well as political coparticipation. But I am not sure how exactly that would work for a person like me, who is not pious. I find god/s implausible, social conservatism infuriating, prayers boring, and literalism over religious stories stupid. But I sense in myself as well as others the alienation that we as humans feel in this world, and the longing for comfort, completeness, and beauty. Culturally, I am conditioned to emotionally and aesthetically react to certain metaphors—the typical South Asian one perhaps of playful indignation with the Divine—that can be seen as a difficult lover, a strict mother, a naughty child. What breaks my heart is that people want to grab certain stories and cannot see beauty beyond their particular stories. I sense, somehow, that aesthetics underlies politics. As long as people can decimate a heritage that exists for an imaginary one that matches their synthetic vision of community, there can be no real democratic politics. But when I hear a song like this one, I feel that there is still hope.