Benjamin Berger’s Law’s Religion: Religious Difference and the Claims of Constitutionalism is a welcome addition to the vibrantly interdisciplinary scholarship on legal secularism. Like other scholarship in this field, it shows how liberal constitutionalism works to demarcate and transform religious life according to its own internal principles. The basic story here is, by now, a familiar one: to declare religion free of state interference is, paradoxically, to require the state to define “religion” so that it can determine which institutions and actors are to be afforded freedoms on the basis of that word. Where “legal religion” differs from “lived religion,” (to recall Winnifred Sullivan’s terms) legal religion not only tends to win the day; it can also shape how actors on the ground conceptualize their own religious lives.
Berger approaches these questions through contemporary Canadian jurisprudence. Although he does consider a longer history of legal secularism in Canada (starting with the eighteenth-century incorporation of Quebec, which raised questions about the legal status of Catholics), his focus is on the period after the passage of the 1982 Canadian Charter of Rights and Freedoms. As Berger argues, the Charter implicitly defines religion in terms of inwardly held conviction or belief, thus belying Protestant presuppositions that continue to shape how Canadian courts conceptualize religion and bring it into the law.
Despite my enthusiasm for Law’s Religion, I do have some reservations about the book’s main argument—that law is itself a “cultural form.” To summarize: Where the law purports to stand above both culture and religion as a neutral arbiter, Berger wants to push it off its perch, showing that it is every bit as contingent as the religious and cultural worlds over which it claims power.
At a substantive level, I don’t disagree with this claim. My reservations have more to do with its rhetorical effects in contemporary Canada. Berger’s main objective, at least as I understand it, is to get critical traction on the discourse of multiculturalism that is hegemonic in Canadian courts and Canadian public life. He does this by making two key moves. First, he notes that the Canadian Charter of Rights and Freedoms positions religious tolerance as part of a broader program of multiculturalism. To put the matter more strongly than Berger ever does, one might say that, for contemporary Canadian law, “religion” is always already mediated by “culture” as a master sign for imagining a pluralist Canadian nation. Second, and more tendentiously, Berger describes law as “cultural,” thus denying it its purported neutrality, the constitutive sleight of hand that allows it to arbitrate among competing cultural groups. Law thus potentially becomes the object rather than the agent of its own multiculturalist agenda.
So here’s my question: Does the second of these moves undo the first? That is, by describing law as a cultural form, do we not just reinforce the discursive hegemony of multiculturalism? If the goal is to get critical distance on this discourse, is describing law as “cultural” actually the best tactic?
“Culture,” of course, is a famously slippery term. Within the discursive regime of multiculturalism, or what Wendy Brown calls “tolerance talk,” it serves a very particular function: it de-politicizes and de-historicizes, reifying its objects and generally obfuscating the workings of power. Berger knows this, and he goes to great lengths to re-politicize “culture.” Even so, I think it’s worth asking—can Berger run fast enough? Or is the word “culture” always a few steps ahead of him, de-politicizing, whether he wants it to or not?
Of course, no book can keep all of its terms in motion all of the time, and Berger carefully considers the risks involved in hanging his hat on this one in particular. Even so, I wonder how Berger’s story would change if we put “culture” back in motion? What is the history of the culture concept in Canadian law? Are there, for example, Canadian stories that parallel the story that Tisa Wenger tells about Pueblo Indians, who skillfully navigated the political semantics of “culture” and “religion” as juridical terms?
This is more than just caviling, or so it seems to me as a South Asianist. In India, after all, the ethnographic state used both terms—religion and culture—to manage the populations and territories under its control. Nor is India all that far from Canada in this regard. Both nations are very much a part of the broader history of legal secularism across the British Empire. Indeed, as I read Law’s Religion, I was struck again and again by the strong parallels between how the British governed religion in these two far-flung places.
The parallel that Berger’s book highlights best has to do with the type of subject implied by legal religion. For both the British state in India and the contemporary Canadian state, religion is a form of private property chosen by an individualized subject. It is something that a person has, rather than something that precedes or constitutes the person. To move away from this highly limited model of religion, Berger proposes a “phenomenological turn” that would pay closer attention to how religion orients the subject in space and time. Religion, like law, is a technology of the self that precedes the rights-bearing subject of liberalism rather than being a possession of that subject. A similar methodological shift is useful in the study of colonial India, as I have suggested elsewhere. Whether through the notion of “libel” or that of religious “offense,” the law implied a particular model of religious subjectivity that colonial actors had to learn to inhabit in order to negotiate effectively with the British state.
By telescoping out to India, I don’t mean to draw attention away from Law’s Religion, but rather to indicate the range of conversations that this rich book can contribute to. The more we know about the history of legal secularism in the anglophone world, the more we can begin to appreciate the transcolonial connections that weave that world together.