One of the lies modernity pedals is that you can and should choose your own religion, your own religious tradition, and your own version of that tradition. Virtually every country in the world now formally subscribes to the necessity of legally-protected freedom of choice in matters of religion. And much has been written to show how the law that encoded and encodes these guarantees, what Tamir Moustafa, in his terrific new book, terms the “constituting” of religion, was and is founded on poorly considered and ideologically-indebted assumptions about what counts as religion, assumptions that are dependent on a peculiar conjunction of notions of the modern self with identity politics. (See, e.g., Benjamin Berger, Law’s Religion (2015); Cécile Laborde, Liberalism’s Religion (2017); Jolyon Thomas, Faking Liberties (2019); and Winnifred Fallers Sullivan, et al., eds., Politics of Religious Freedom (2015).) Many of us have argued that the widening gap between law’s religion and the religion of actual people has become fatal to the project of legally protecting religious freedom. But I am not sure that our effort at exposing these lies has been entirely successful. Among other things, as I will discuss below, after engaging Moustafa’s work, in making these arguments we have often found ourselves in the troubling position of explaining to litigants and to their supporters that they do not understand their own religion and that they are victims of the false consciousness produced by the modern state. Doing this exposes us to the just criticism that we ourselves are advocating for a kind of religious orthodoxy.
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In his wonderful and wonderfully concise new book, Constituting Religion: Islam, Liberal Rights, and the Malaysian State, Tamir Moustafa makes an important contribution to this literature. Setting his study in the context of socio-legal scholarship more broadly, Moustafa shows how the judicialization of religion has worked in Malaysia in particular. But the lesson of his book is a much broader one. This is a book that should be read by all who are interested in how religious freedom works, legally speaking, particularly, perhaps, by Americanists.
Moustafa describes several recent Malaysian cases and the play that they have received in the press, the “court of public opinion,” as he terms it, in order to illustrate the paradoxes and contradictions produced by the extensive laws regulating religion in Malaysia and the litigation generated by them. Employing ethnographic, survey, and archival methods, Moustafa shows how modern law has had the unintended effect, not of defusing, but of ratchetting up, religious tensions. As he further shows, while Malaysian law today is widely regarded as one of most complete instantiations of an effort to codify and enforce Islamic norms through state law, both the British colonial and post-independence legal regimes have been and are largely run by people who know little of Islam.
Malaysia is a religiously and ethnically diverse country; slightly more than 50 percent are Malay (mostly Muslim), 25 percent are ethnically Chinese (of whom 75 percent are Buddhist, and the rest principally Taoist or Christian), and 8 percent Indian (mostly Hindu). Religion and personal law matters are governed in Malaysia today through a two-tier court system, a system of Syariah courts at the state level for Muslim Malaysians, and civil courts at the state and federal levels for non-Muslims. Both sets of courts enforce a state-produced code, one significantly indebted to British colonial era law. All judges are trained in common law style. Over the last decade, jurisdictional disputes between the two court systems have increasingly led to a deferral of issues concerning religious status to the Syariah courts, even in the case of mixed marriage, conversion, child custody, and inheritance, where one of the parties is not Muslim. Appeals to constitutional norms of religious freedom are more and more falling on deaf ears in the face of claims by some Muslims who express concern about an existential threat to the Muslim community from what is characterized as liberal secularism. In the media-saturated and stoked environment of what he calls the rights versus rites controversies surrounding these cases, Moustafa carefully traces the ways in which an earlier legal and religious pluralism of interpretation has given way to an often simple-minded and dogmatic orthodoxy.
While the hot cases differ in their details from those in the United States, the structure of the story is familiar. A clash between communalist and individualist versions of religious freedom creates an impossible bind. A polarized public discourse exacerbates tensions.
Speaking of the illusions of religious freedom in the United States, Courtney Bender has shown how faith in pluralism combined with legally guaranteed freedom in matters of religion has over time come to be understood according to a market model. While earlier mid-twentieth century sociological versions of pluralism were understood to generate a kind of benign convergence in a tolerant religion of Americanism, today pluralism is understood by researchers and by the public to generate a free market in religion, one that, as with other consumer products, produces better versions of each religion. Yet, as Bender explains, if sociologists of religion were to take the market metaphor seriously they would also have to take seriously the ways in which markets make their consumers: “Various regulations and norms operate within and at the boundaries of fields, and have the effect of shaping (or demanding) some measure of conformity by all actors who participate within them.”
We see in Moustafa’s account a similar shaping process, disciplining the participants into the state’s discourse about religion. But these new streamlined illiberal versions of religion are not solving the Malaysian state’s governance problems. They are only producing more judicialized religion.
As in many other places, legal regulation, litigation, and media together have produced in Malaysia a discourse which pits secular liberalism against a particular anti-modernist version of religion in a zero-sum game, one understood to be natural. As Moustafa says, “Islam and liberal rights are increasingly co-constitutive.” Yet the Islam of this familiar now global discourse is unrecognizable to scholars of Islam, particularly to those who celebrate its complex and varied history. Earlier pluralist accounts of Islamic law and of its varied accommodations across space and time of the diverse populations of Malaysia are no longer recognizable to many Malaysians.
While there are aspects of the Malaysian case that are particular to its history and its mix of population, the dynamic Moustafa describes, as he himself notes, can be found elsewhere, including in the United States. While marriage, custody, and inheritance laws in the United States are not explicitly tied, as they are in Malaysia, to identification with religious communities encoded on state ID cards, litigation on other issues, particularly with respect to abortion, accommodation of religious conscience, and schools, produces a familiar pattern of simplified opposition between secular liberals and religious conservatives, with various media fanning the flames.
A by-product of the whole modern religious freedom regime, as Moustafa notes, is the production of expertise on religion. On the one hand, governments since colonial times have designed laws and produced regulations and handbooks designed to foster legal religion, laws and processes based in selective and narrowing appropriations of the tradition. On the other, academics and liberal pundits scurry around explaining that good religion is not like that. Good religion, they say, is rich, capacious, and forgiving.
Another by-product of the modern legal regulation of religion is that the state’s efforts are remarkably effective at converting subjectivities. People’s own understandings of their religion have in fact been changed by the new legal and media environment. While scholars show how the religious authority constituted by the Syariah courts is invented by the state, and is not essential to Islam, which boasts a much more nuanced and sophisticated legal history, Moustafa cites surveys that show that most Malaysians now believe that Islam is properly understood as dogmatic and inflexible. This Islam is a product of the modern state, characteristic of what Shahab Ahmed called the legal-supremacist model of Islam, and yet it has taken on the aura of a timely essence. (An analogous shift in south east Asian religio-legal consciousness is well documented by David and Jaruwan Engel in the case of Northern Thai Buddhism in their Tort, Custom and Karma.)
The culture wars within religions then, as Moustafa shows so well, are not native to those traditions but are in fact generated by the very law that is supposed to prevent them, in Malaysia and elsewhere. Liberal academics—and liberal Muslims—cry foul, just as do liberal Christians in the United States—when presented with a version of religion that they argue is inconsistent with its history. Christians, many American academics say, have not always been defined by sexual morality. Reducing Christianity to these positions misrepresents what Christianity is, they say. Religious freedom laws, they imply, should protect good liberal religion, not these distortions of its teachings.
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I would argue that now is a good moment to step back from the valiant efforts of legal and religious historians, sociologists and anthropologists to describe the effects of modern law on religion; we are now in a position to ask whether we are not also, like the modern state we so relentlessly criticize, victims of unintended consequences. We might see ourselves, not as well-meaning reformers, but as liberal mansplainers telling people that they don’t understand their own religion. Indeed, an entire segment of the media, low-brow and high-brow, is devoted to this work, from the spirituality sections of airport bookstores and public radio to immensely learned books like Shabab Ahmed’s What is Islam?, cited by Moustafa. A large part of projects on fostering religious literacy and improving journalism about religion is also devoted to this work. But we also do it in our classrooms.
Rereading Moustafa’s Constituting Religion in the same week in which I was re-reading Ahmed’s What is Islam?, both fascinating and important works, has dramatized for me the challenges faced by those of us who would teach religion today—under the flag of religious freedom—because I think most of religious studies does understand itself to fly under such a banner. I want particularly to note the effort of many in the academy today, notwithstanding the thorough critique of the category, to stabilize religion in service of liberal norms. (Those who would teach outside those norms are also captive in many ways to the same legal logic, given the dominance of law’s religion today.) There is a sense in which many of us in religious studies today conceive our job to be to teach people that Shahab Ahmed rather than the Malaysian court has got it right when it comes to Islam—with parallel oppositions relevant in other national and religious contexts. Is it our job to do that? Why should people listen to us? Have we carefully considered what exactly is at stake in this effort? Do we understand why—and if—religious choices are being made, whether by Malaysians or by Americans?
One of the many frustrating paradoxes of religious freedom as a liberal project is that having promised people religious choice, liberals cannot now, in good conscience, dictate to them what they should choose. (See my post on the Hobby Lobby decision.) Unless we are willing to start listening and speaking theologically, that is, unless we are willing to listen carefully and speak directly of the existential realities that we all face, rather than using religion as a proxy for our differences, I fear that our efforts at explanation will fall on deaf ears.