Most Muslim-majority countries have legal systems that are meant to embed religion in state law. In many cases, the broad outlines of these legal frameworks are an enduring legacy of colonialism. In others, state regulation of religion is of more recent vintage. But in either instance, the co-constitution of law and religion is a trend that is not likely to end anytime soon. Take, for example, the fact that all the constitutions written in Muslim-majority countries since the turn of the millennium declare Islam the religion of the state. Or, consider the fact that personal status and family law frameworks are typically regulated along religious lines.
These sorts of legal arrangements are not unique to Muslim-majority countries, but as a group they tend to regulate religion far more than the global average. Among the twenty-three countries in the “very high” category of the Pew Government Restrictions on Religion Index, eighteen (78 percent) are Muslim-majority countries. This oversized share compares with only two of eighty-eight countries (2.3 percent) in the “low” category of the Index. Whether by way of constitutional proclamations or substantive laws, the leaders of most Muslim-majority states endeavor to “constitute” religion by way of state law.
At the same time, these legal systems typically contain provisions that one expects to see in a liberal legal order, including constitutional guarantees for civil liberties, religious freedom, and equal rights before the law. These dual commitments to religion and liberal rights are not inherently at odds. Nonetheless, they generate legal questions, present legal conundrums, and afford legal and symbolic resources for those who wish to advance contending visions for their states and societies.
Constituting Religion examines these issues through an in-depth treatment of the Malaysian case. I focus on Malaysia for three reasons. First, Malaysia is home to one of the most tightly regulated religious spheres in the world. It therefore provides a textbook example of how many Muslim-majority states have sought to define and regulate religion through state law. Second, Malaysia provides a striking example of how, under certain conditions, efforts to constitute religion catalyze the “judicialization of religion,” a circumstance wherein courts are made to adjudicate questions and controversies touching on religion. Finally, the Malaysian case provides a vibrant example of how judicialization can (re)constitute religion and liberal rights as binary opposites in the public imagination. Here, I examine the radiating effects of courts on popular religious consciousness.
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Long defined by its ethnic cleavages, Malaysian politics is increasingly polarized around religious difference. This polarization is in no small part due to a recent series of high-profile cases concerning the jurisdiction of the federal civil courts vis-à-vis state-level syariah courts. The cases carried significant legal implications, but their collective impact was felt most strongly in the court of public opinion. The cases generated a flood of media attention and they became focal points for political mobilization outside of the courts. Constituting Religion examines the institutional origins of these cases and traces their radiating effects on Malaysian political life.
Shamala v. Jeyaganesh is among the dozens of cases examined in the book. It provides a striking example of how legal controversies that are ostensibly about religion are better understood as pathologies of state law. The case concerned a Hindu couple who had married under the Marriage and Divorce Act, the statute that regulates non-Muslim marriages in Malaysia. A few years into the marriage, the husband, Jeyaganesh, left Shamala and converted to Islam. As a Muslim, he was now subject to the jurisdiction of the syariah courts. As a non-Muslim, Shamala remained subject to the jurisdiction of the civil courts. Each managed to secure interim custody orders for their two young children from these two different jurisdictions, but the court orders came to opposite conclusions: the Syariah court awarded custody of the children to Jeyaganesh, while the civil court awarded custody to Shamala. To make matters worse, because official religious status determines which court one can access, neither parent could directly contest the competing court order. This absurd situation was the beginning of an epic legal battle that remained in the courts—and in the press—for years. The case turned on technical issues of court jurisdiction, rules of standing, and other features of Malaysian judicial process. But they were widely understood by the public as a zero-sum conflict between religious law and secular law.
As a direct result of Shamala v. Jeyaganesh, liberal rights groups formed a coalition to “ensure that Malaysia does not become a theocratic state.” Not long after, a broad array of over fifty conservative NGOs united in a countervailing coalition calling itself Muslim Organizations for the Defense of Islam (Pertubuhan-Pertubuhan Pembela Islam). Pembela announced that it was mobilizing to defend “the position of Islam in the Constitution and the legal system of this country.” Both coalitions worked tirelessly to lobby the government and to shape public understanding of what was at stake in Shamala v. Jeyaganesh and dozens of other cases. The two sides found agreement only in the proposition that Malaysia faced a stark choice between secularism and Islam, between rights and rites.
Constituting Religion traces the work of activists in the court of law (litigation, submission of amicus curiae briefs) and in the court of public opinion (impromptu statements on courthouse steps, press conferences at NGO headquarters, petitions, digital advocacy campaigns, public rallies, vigils, and more). Given that court cases typically involve multiple hearings and appeals, a single case can generate a continuous stream of press coverage for upwards of a decade. For instance, Indira Gandhi v. Muhammad Ridzuan Abdullah is a child custody/conversion dispute that first went to court when I began fieldwork for this project in 2009. By the time Constituting Religion went to press, the case had produced eighteen separate court decisions and thirty-five “newsworthy” court appearances. The case finally concluded a decade later (yet Indira is still not reunited with her daughter). Along the way, each hearing was covered as a distinct media event—the next installment in a politically charged and emotive drama. With each court decision, dozens of NGOs mobilized on opposite sides of a “rights-versus-rites binary.”
Constituting Religion examines how, through these mobilizations, each side derived legitimacy, purpose, and power from an oppositional stance vis-à-vis the other. Liberal rights activists rallied supporters by sounding the alarm that secularism was under siege and that Malaysia was on the way to becoming an Islamic state. On the other side, conservative organizations rallied support by contending that liberal rights groups wished to undermine the autonomy of the syariah courts and that they worked in cooperation with foreign interests intent on weakening Islam. Both groups maintained that Islamic law and liberal rights were incompatible and that Malaysians must stand for one or the other. These efforts worked to (re)constitute popular understandings of Islam, liberal rights, and their imagined relationship to one another in starkly adversarial terms.
A remarkable aspect of all this mobilization is that the cases provided a prominent platform for a variety of actors with little or no expertise in matters of religion. Constituting Religion traces the claims and counter-claims that were fielded by litigants, lawyers, judges, journalists, political parties, NGOs, and government officials. Most of these actors had no specialized knowledge of fiqh (Islamic jurisprudence) or usul al-fiqh (Islamic legal theory). And yet judicialization positioned them as central agents in the production of new religious knowledge – displacing, or at least competing alongside “traditional” religious authorities. What is striking in the Malaysian case is that most of these actors defined Islam vis-à-vis liberalism, or, more to the point, against liberalism.
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In Malaysia and elsewhere, courts often stand at the center of heated debates involving religion. Conventional accounts tend to frame these legal struggles as the product of a collision between ascendant religious movements and liberal legal orders. In other words, legal conflict is understood as originating from outside the legal system. This understanding of the root problem (religion) and what is at stake (liberty) comes easily because it aligns with the prevailing notion that courts are in the business of conflict resolution and courts serve as defenders of fundamental liberties and strongholds of secularism.
In contrast with this expectation, Constituting Religion shows that, far from consistently resolving disputes, legal institutions can generate conflict and exacerbate ideological polarization. Explanations that start and end with the “problem” of religion, without examining the intervening work of law and courts, will fail to appreciate these conflict-generative functions. And simplified explanations that lay blame on a reified “religion” will also fail to grasp the myriad ways that the state is itself implicated in the politics of religion and in modern constructions of religion more generally. Law and courts do not simply stand above religion and politics. Instead, they enable and catalyze ideological conflict.
Constituting Religion builds on recent and foundational scholarship concerned with legal mobilization, legal consciousness, legal pluralism, social movements, political Islamism, and the genealogies of secularism. As a result, the book draws on diverse approaches from sociolegal studies, religious studies, comparative judicial politics, and religion and politics. Each of these literatures and approaches is rich with insights, yet some of these bodies of scholarship are not in conversation nearly as much as they could be.
The focus on legal institutions and their role in the judicialization of religion is not meant to minimize the ideological cleavages that have gripped many Muslim-majority countries over the place of religion in the legal and political order. But one of the goals of Constituting Religion is to better understand the role of modern law in fueling those struggles. In other words, an important objective of the book is to make visible the role of law and courts in helping to constitute the very ideological conflicts that courts are charged with resolving. This aim encourages reflection on deeply held assumptions about religion as a perennial troublemaker and deeply rooted expectations about the normative role of law vis-à-vis religion.
Constituting Religion is an open-access text. It can be downloaded free of charge in its entirety here.