This short piece attempts to come at the current debate on law and religious freedom from two unusual angles. I end by looking at the strange and revealing positioning of “religion or belief” in current legislation in England and Wales. And I begin by putting a different spin on religious freedom by exploring the terrifying freedom of the concepts of religion and belief. We have never needed the rise of Al Qaeda, so-called Islamicism or a hardline religious right to terrify us with a resurgent specter of specifically religious (as opposed to purely “political”) “terror.” Instead of bearing down on us like some old specter of the Turk or Moor at Europe’s gates, the terror of religion emerges—or insurges (if “insurge” can be made into a verb)—from within the normative conceptualizations of religion in the so-called modern West. The inherited conceptual partitions that constitute and ground modernities leave “religion” and “belief” volatile, incendiary, and absolutely un-contained: in a real sense, entirely free. This conceptual freedom collides (sometimes spectacularly) with the kinds of conditions that we seek to impose on modern “world” (or “world league”) religions. We conceptualize religion and belief as non-negotiable, unconditioned. And then, crossing our fingers, we attempt to negotiate, and impose conditions on, this home-grown flighty specter of “belief.”

Consider, first, the positioning of religion (or her once-young grandmother, Theology) in that primary architectonics of modern knowledge: the frontispiece to Denis Diderot and Jean le Rond d’Alembert’s Encyclopédie.

In a “temple” or “sanctuary” of truth, a host of clever girls clutch a range of instruments and accessories from compasses, set squares, cacti, and microscopes to harps, masks, and puppets. At the top, where all the action takes place, Truth (at the apex) is being attended by crowned Reason and, below her is Philosophy (just below and to theright). Reason is lifting, and Philosophy is arranging, Truth’s diaphanous veil. Awkwardly positioned between the two is Theology. In the words of Diderot’s commentary: “A ses pieds la Théologie agenouillée reçoit sa lumière d’en-haut.” (At her [Truth’s] feet, Theology kneels and receives her [Theology’s] light from above.) The phrase “her light” is pointed. Diplomatically (or tongue-in-cheek) the image at least allows for the possibility that Mademoiselle Théologie’s light converges with, or is at least part of, the general radiance of Truth that, as Diderot says, “disperses the clouds.” Miss Theology is at a tangent and potentially independent from all that is going on around her. There’s a strong possibility that she might dash out of the temple of truth at any moment should she be led to do so by her light.

This is a scene of obfuscation and diplomacy. It is a tableau of the awkward accommodation of religion and an emblem of Modernity’s wager, or double-think, about religion. There is a founding non-synchronicity between Reason and Theology or belief. Theology’s placement is deliberately obfuscated. She is close to the throne of Truth—but also strategically below it. Truth looks at her, as if looking to her or, at the very least, taking her into consideration. Maybe Truth is a consummate politician, making Theology feel important and wanted, if not entirely believed.

At the same time Philosophy, Truth’s deputy or civil servant has an anxious eye and maybe a restraining hand on Theology, as if keeping her under surveillance, as if Philosophy were a prototype of the FBI or MI5. I am reminded of Kant’s image of Philosophy, as “police[man] in the realm of the sciences [die Polizei im Reiche der Wissenschaften].” As a tolerated heteronomy, an awkward surplus to the system, Theology seems to require surveillance more than her sisters. Theology plays no part in the unveiling of Truth, nor does she consult or even acknowledge her sisters. She seems to think it sufficient to “lend an ear to the oracle within oneself [nur das Orakel in sich selbst anhören].” We don’t know if she is going to continue in these private devotions which seem to make her oblivious to everything going on around her. With one hand she clutches her precious biblia: a potentially loose canon. The explicit state-sponsored labor of Theology and Biblical Studies in the modern university will be to discipline this biblia with Wissenschaft—and cajole her light closer to the universally shared light. This is not just a matter of epistemology, but politics. It is a way of bringing potentially diffuse voices of god into a centralized “voice of [the Christian] God,” approximately and vaguely onboard with the structures of the modern state.

But there is no need to get too scared, or alarmist. Miss Theology looks peaceful and passive enough. She is not wearing a burka or carrying a knife. Though antique, she is not atavistic. She is no more retro than her sisters. She is suitably Abendländisch: embodying the foundations of Europe as simultaneously Christian and classical—hence relatively safe. In other words, she is still Theology, not Religion, and not Religions—that more expansive category that includes the darker apparitions of “religion[s]” plural. These will become more “natural” repositories of fanaticism, intolerance, and danger—so saving Christianity by contrast. This tableau of nascent secularism precedes, or brackets out, Gil Anidjar’s important story of how “Christianity invented the distinction between religious and secular” and “made religion,” thereby “making religion the problem—rather than itself.” In Western taxonomies of religion, the other religions (and certain religions in particular) took on the danger that Christianity never internalized, that it coined the “secular”-“religious” distinction to avoid. As Anidjar deftly puts it, the invention of religions and the secular became one of the essential means by which Christianity “failed to criticize itself,” the means by which it “forgot and forgave itself.”

And yet, at the moment when Theology has not yet expanded into those religions which will become repositories and dumping-grounds for danger, we can see very clearly the structural volatility of homegrown Theology’s position. We have no idea what is being transmitted to her through supernatural media, transmitting on an unknown frequency. She incarnates the unknown and the unknowable: no longer the gods, but her belief. Modernity is the time when the mystery goes inside—to the inner sanctum, the core of the person. It is the time when the holy is privatized as “her belief.” If “belief” is the leftover space to describe that which is not of Truth or Reason or Philosophy, then it is potentially ubiquitous—and rampant. Outside the ritualized, determined, self-estranging gestures of Philosophy, all is belief. But then—as if sensing the danger—belief is penned inside the category Theology (or Religion). In the neat segregations of modernity, Theology (and her grand-daughters, the religions) become the special foci and repository for the maverick force of belief.

And in law, belief must be treated as holy—even as we have no way of knowing, or policing, the objects and investments of this chimerical force that we call belief and that we unleash as, by definition, free. All that we can ask—nay, demand, and demand very anxiously—is that Theology will continue to believe it to be possible, and desirable, to perform a double-genuflection to her own light and the general light of the temple of truth; that is, that she will believe submission to her gods to be (loosely) equivalent to submission to parliament and the courts.

This is the hope—the very insistent hope—that contemporary legislation in England and Wales places on that chimera that it calls “religion or belief,” while at the same time instituting a legalized heteronomy, and underwriting the notion of belief as a volatile and always potentially radical force.

In the Employment Equality (Religion or Belief) Regulations of 2003 which were made part of UK employment law in the Equality Act of 2010, belief (now awkwardly secularized) is subjected to the following five criteria:

—The belief must be genuinely held.

—It must be a belief and not an opinion or view based on the present state of information available.

—It must be a belief as to a weighty and substantial aspect of human life.

—It must attain a certain level of cogency, seriousness, cohesion and importance.

—It must be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

The legislation reads as a strangely updated version of the question of the jailer at Phillipi to Paul and Silas (Acts 16:30). In line with the equation of religion and identity or, in British legal terms, a “protected characteristic,” the question is no longer “What must I do to be saved?” or even “What must I do to ‘believe’?”, but rather “What must I do to be publicly recognized ‘to believe’?”

The doubled term “religion or belief” is an attempt to extend the prerogatives of religion in a properly “secularized” democracy. Like that other legal odd-couple “religion and/or philosophy,” “religion or belief” attempts to create legal room for non-religious beliefs (or philosophies). But secularization is uneven, to say the least. Religion remains the primary reference point for, and guardian of, the category of belief. And this can only ever be parsimoniously shared—lest we all become believers and all start suing on grounds of discrimination against our “belief.”

Breaking with disciplinary decorums, and refusing the limits of a purely legal commentary, we can attempt to elucidate the strangeness of “belief.” It defies the laws of physics—which is hardly surprising given that belief was a concept birthed as the other of science and its handmaids, Reason and Philosophy (in the other sense of “philosophy”). In contemporary legislation, belief, by definition, is that which has broken free from the safeguards of the empirical and material. This explains why it breaks the laws of physics—why it can be something absolutely volatile, and absolutely heavy, at one and the same time.

Looking at the first four criteria, we learn that belief is weighty. Belief is substantial. Belief is serious. Belief is heavy. But belief floats. It floats above knowledge or information or the verifiable. If it did not, it would not qualify as belief. In its detachment from, or disdain for, knowledge or the verifiable, belief is like an “opinion.” But it is much heavier, weightier, and denser than an opinion. It has a different mass index to an opinion. An opinion implies diffidence, negotiation. The word itself implies that the thought knows that it could well be otherwise. Belief is distinguished from opinion by the depth to which it goes within the individual. Religion is the guardian of depth, as it is the guardian of belief. We habitually talk of a “deeply held” belief or conviction. In an inbuilt deference to religion among the most ardent secularizers, Richard Dawkins and Christopher Hitchens regularly use the phrase “deeply held convictions” or “deeply held belief[s].”

It is not difficult to spot the old Kantian distinctions between believing (glauben), opining (meinen), and knowing (wissen). Religious belief is defined as a process of “holding something to be true” or Fürwahrhalten that is not open to verification. Contemporary legislation relies on a dusty old Kantian script. Belief is a kind of thinking that comes to us as a call, or command. This is why it qualifies as hyperthinking: a thought so strong that it qualifies as an identity category, akin to sexuality or ethnicity, in contemporary British and European law. Belief is conjured as a form of thinking that is entirely spurious and uncontained—but that takes to us as surely as our sexuality or the color of our skin. Belief is a form of thought so strong that it appears that it has chosen us, rather than that we have chosen it.

Belief is a tolerated heteronomy: indeed a heteronomy to be respected and cherished. Heteronomy is enshrined in legislation which admits no other law than constitutional law. No wonder that there continues to be such hysteria about sharia. The threat of sharia crystallizes the institutionalized heteronomy or other law that we have always admitted (without any external provocation) around belief. Massively funded government-led inquiries into “radicalization” neglect to explore how the threat of radicalization is intrinsic to our own conceptualizations of belief.

Belief is a free radical—which by definition can attach itself to anything. The only statements we can make about it with surety are vague ones regarding its volatility and its depth. By definition we cannot secure in advance the objects of belief.

Having unleashed the flighty specter of belief, the fifth criterion (“It must be worthy of respect in a democratic society,” etc.) appears as a hopeful attempt to recapture, or at the very least to manage, the chimera of belief. The first four criteria create and unleash belief as a floating vague force, not answerable to anything. They give belief free reign. Indeed they define belief by this free reign. And then, in a distinctly late modern twist on political theology, they attempt to manage the subject who has become sovereign, in an exceptional relationship to law, by virtue of proven possession of “religion or belief.”

The fifth criterion attempts to squeeze the genie back into the bottle. It attempts to negotiate with the very quality that it has defined as non-negotiable belief. Only if it submits to overriding principles of Würde can belief qualify as belief. One can only hope—or pray—at this point. Clearly the attempt to impose conditions on that which is by definition unconditioned will have limited success. Given the criteria just outlined, it is clear that not all beliefs will agree to submit.

Not surprisingly, the tension between criteria one through four (unleashing belief) and caveat five (imposing conditions on belief), is regularly played out in the courts. In the ongoing battles of our vague, amorphous freedoms, the freedom enshrined in rights and equal rights regularly goes a few rounds with “freedom of belief.” Those beliefs that refuse to aggregate in official and large-sized collectives (the World Class religions, or humanism as the official other) remain outside the compensations of the court. Those that refuse to acknowledge “modern” values are technically outside—though sometimes, and maybe even often, compromises are made (by way of concession to the compulsion of belief). But even those religious beliefs deemed unworthy, on the grounds that they do not sufficiently coincide with Würde, remain entirely inside the court’s absolutely amorphous and unpredictable definition of belief.