Helge Årsheim has an interesting piece on the Immanent Frame blog which recapitulates some of the debates that he has been sponsoring at his PluRel blog (to which I gladly contributed) and offers some thoughts of his own, particularly as respects the meaning and scope of religious freedom in the international sphere. Below is an extended chunk from Helge’s post. The only little addendum to it that I’d make here is that the extent to which US domestic law is “splendidly isolated” from international law is, of course, famously a matter of both descriptive and normative contestation within the US legal community! Here’s Helge:

The international law on religious freedom is not limited to religion, but denotes a set of legal measures set in motion to protect beliefs and their ”manifestations” from undue limitations and interference. Explicitly covering beliefs well beyond the confines of any traditional definition of religion, the right as it is codified in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and surrounding legal texts – collectively known as the International Bill of Rights – does not require legal systems, whether international or domestic, to decide on the merits of one religion over another. The expansive nature of the freedom of religion or belief in international law thus provides an unequivocal answer in the negative to the overarching question in all dealings with religion in political or legal contexts: whether religion is a special, set apart, sui generis concept that requires particular attention and protection over other concerns. Religion, as it is construed in international legal texts, is just one subset of an expansive range of protected beliefs that can be subjectively held without any form of state interference. While the inclusion of terms like “manifestation,” “observance,” “belief,” and “conscience” are drawn from, and therefore clearly favor, certain religious traditions to the exclusion of others, their interpretation in the practice of the UN Human Rights Committee are explicitly detached from a religious framework.

Once the serene, inclusive, and clear-cut concept of religious freedom in international law is confronted with the myriad cultural, historical, political and academic iterations of religious freedom that dominate domestic legal practice, however, the content of “religion and belief” moves from being non-theist and inclusive to a more ambivalent status: in these competing visions of what religious freedom may or may not be, the contents of both “religion” and its relation to “freedom” is hotly contested. These contestations take place across a wide array of societal spheres, and concern the origin and metaphysical status of religion in society and the political sphere; what groups, doctrines and practices can be construed as “religious” and competencies and duties arising from this identification; and the relationship between majority and minority religious traditions in history and culture. Contrary to the dictates of international law, the vast majority of competing visions of religious freedom in the domestic sphere are united by their emphasis on the determination of religion as religion….

While the disconnect between international and local conceptions of religious freedom is well known and has been decisive to the development of the “margin of appreciation” doctrine of the European Court of Human Rights, the exchange at the PluRel blog displays a number of different positions on how this disconnect can and should be interpreted. Winnifred Sullivan observes in her inaugural post that US law is “…constantly bumping up against the unstable collection of social facts that have come to be assembled under the word “religion,”” and that for this reason, we should “find some other words.”. At the other end of the spectrum, Marc O. DeGirolami observes that US legal actors believe that religion is a “special cultural phenomenon,” the definition of which should be based on analogies to “historical and culturally contingent settlements,” rather than findings from the “academic study of religion.”

Sullivan and DeGirolami prescribe solutions that display very different views of the power of law, but share a basic conviction that social practices that can fall under the rubric of religion are worthy of legal protection or non-interference. Where Sullivan suggests that law is unable to grant this form of protection due to its preference for certain majority traditions over lived religious practice, DeGirolami seems to consider this preference part of the culturally contingent settlements on which law relies, a preference that cannot be unsettled by the findings of academics. Although one would expect a cultural affinity between US and international law on religious freedom in their shared preference for Protestant conceptions of religion, neither Sullivan nor DeGirolami address the international legal framework, demonstrating the splendid isolation of US legislation and jurisprudence on this issue. This isolation is a common feature of US law, which has a longstanding tradition of ignoring international law. Additionally, the turning point of the non-establishment clause of the US constitutional law on religious freedom is the neutrality of the state, an issue entirely outside the purview of international law.

Along a different trajectory, posts by Linde Lindkvist and Sindre Bangstad express modest optimism on behalf of religious freedom as a category of legal regulation, due to its potential to stimulate political activism: Commenting on Sullivan’s claim that we should find other words, Bangstad, describing himself as a “Norwegian drenched in social democratic traditions,” sees a more hopeful story in the concept of religious freedom, which may allow relatively powerless citizens to follow their conscience and assert their rights. Lindkvist, writing on the drafting of article 18 of the UDHR on religious freedom, is similarly optimistic and calls for a reorientation in research agendas, from the contents and origins of religious freedom, to the ways in which this right is imagined by those who claim protection under it. Lindkvist maintains that the concept merits a future as long as it can be used as a tool for identifying and challenging ingrained patterns of injustice and inclusion.

While neither Bangstad nor Lindkvist comment on the domestic realization of the international law on religious freedom, they effectively take upon themselves the role of intermediaries by emphasizing the potential political activism arising from the international law on religious freedom. According to these scholars, the pressing issue concerning religious freedom is not the level of protection offered to particular religious traditions in concrete jurisprudence, but the ways in which individuals and groups in society can use religious freedom as a rallying cry to fight injustice.

In a related strain, posts by Benjamin L. Berger and Elizabeth Shakman Hurd reorient the discussion on whether religious freedom is “impossible” or not, to the question of what happens when legal and political landscapes are ordered according to the dictates of religious freedom: Less optimistic than Lindkvist and Bangstad on the potential for political action, Hurd highlights how religious freedom can be seen as “…a particular mode of framing and governing social difference that naturalizes the very boundaries that it proposes to mediate or transcend.” Less engaged by the problems with religion as a legal category than Sullivan and DeGirolami, Berger points to the ways in which religious freedom gives shape to a particularized form of “freedom,” one in which religion decoupled from conscience is viewed as a “constraint on the true autonomy of the legal subject.” Taken together, the posts by Hurd and Berger posit critiques of how the international law on religious freedom can be used, not only to inspire political activism to fight injustice, but to naturalize and gloss over the very same injustice by reifying and creating new political divisions. To these scholars, religious freedom cannot simply be considered a harmonious force for good, but must also be viewed as a potentially abusive instrument of those in power.

The PluRel blog exchange on religious freedom illustrates the fundamental ambivalence inherent to religion and its location in international and domestic law: The instability of religion as a social, cultural and political concept feeds into the taxonomy of law, which is forced to compromise between the impossibly inclusive concept of religion in international law, and the culturally contingent settlements of domestic legal practice, which will necessarily be exclusivist and favor majority traditions. While fashioning such compromises have previously been challenges exclusive to domestic law, the increasing tendency to call for a new and binding international instrument on religious freedom and the inclusion of the international legal concept of religious freedom as part of key foreign policy objectives have turned the nature and consequences of these compromises into geopolitically sensitive issues. In the resolution of these issues, the posts in the PluRel exchange should serve as important reminders of the split identity of religious freedom, which can variously be utilized to mobilize political activism in the fight against injustice and discrimination, or as a tool to normalize, reify, and entrench such injustices.

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