Hurd on Religious Difference and Religious Freedom

Elizabeth Shakman Hurd has an interesting post over at Helge Årsheim’s blog rounding out the discussion of religious freedom that began with Winni Sullivan’s reflections and to which I contributed as well (see here and here). I have long thought that there is an important intellectual root in the criticisms of religious freedom that both Beth and Winni advance in the work of Talal Asad (probably I am not the first to make this observation), and so I am glad to see Beth refer back to him here. Here’s a bit from Beth’s smart post:

As someone who studies the politics of secularism and religion comparatively and internationally, I became interested in religious freedom promotion because, quite simply, everyone is for it. Both liberal internationalists and those affirming a divine origin of the right to religious freedom, and almost everyone else, seem to have accepted the notion of religious freedom as a fundamental human right, legal standard, and social fact that can be objectively measured and achieved by all political collectivities. It is a matter of persuading people and governments to understand and comply with a universal standard. Peace, inter-communal harmony and prosperity will follow. States and societies are positioned along a spectrum of progress, inclined either toward the achievement of religious freedom as a social fact, or slipping back into religious persecution and violence caused by religious hatred….

This dominant storyline elicits a number of concerns. One is the extent to which it presupposes a direct convergence between the rule of law and social justice. As Talal Asad has observed of the [Universal Declaration of Human Rights], but which also applies to efforts to globalize and legalize religious freedom, “the rule called law in effect usurps the entire universe of moral discourse.” Asad concludes that this equation privileges the state’s (or associations thereof) norm-defining function, “thereby encouraging the thought that the authority of norms corresponds to the political force that supports them as law.” There is no space for non-state norms. Religious freedom, one could say, effaces the distinction between law and justice. It has, as Paul Kennedy has observed of human rights, “captured the field of emancipatory possibility.”

In my experience these concerns about religious freedom only multiply and intensify the more one considers the diverse histories and politics that attend religious freedom advocacy. Over the past three years I have co-directed the Politics of Religious Freedom project, a collaborative effort to study the discourses of religious freedom in South Asia, North Africa, Europe, the United States, sub-Saharan Africa, and Brazil. In re-describing the historical and cultural assumptions underlying national and international projects to promote religious freedom, we have sought to unsettle the agreement in policy circles that religious freedom is a singular achievement, and that the problem lies in its incomplete realization. Is it possible that a norm intended to secure human flourishing and peaceful co-existence could in some circumstances enact the opposite?

Realism and Idealism: On Law’s Limits

Last week, I attended a very interesting conference about which I’ve written here before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not  law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

  1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
  2. I was also struck by how prevalent critical methodology seemed to be.  Continue reading

The PluRel Blog

If you are not familiar with Helge Årsheim’s blog–PluRel–which is a project of the University of Oslo, you should check it out! He has posted an exchange between Winnifred Fallers Sullivan and Sindre Bangstad that is well worth reading on some of the subjects that I’ve recently been discussing. Helge has also kindly reproduced some of my thoughts over there, which, though not composed as direct responses, are in various ways responsive to Sullivan and Bangstad.

Helge is a PhD student in the school of theology doing some very interesting work on religious pluralism and international law at the United Nations.

Law and the Academic Study of Religion: Further Thoughts

A few additional thoughts on the convergences and divergences of law and the academic study of religion, prompted by thoughtful emails from legal and ASR scholars Nelson Tebbe and Donald Drakeman.

Methodological Distinctiveness

Both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law’s non-autonomy. Indeed, Posner has advocated the project of “overcoming” law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it’s mostly economics for Posner). Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown.

Practice and Theory: Maintaining or Collapsing the Division?

Both law and ASR have roots as practical endeavors–as trades and professions, rather than as purely academic subjects. For law this is obvious; for ASR the root is theology and ministry. And law schools and divinity schools historically functioned to prepare tradesmen; indeed, both continue to operate primarily to train future practitioners of their respective trades.

My friend Nelson Tebbe points out to me that Yale Law School Professor Paul Kahn notes some of these similarities in his book, The Cultural Study of Law: Reconstructing Legal Scholarship. Kahn’s project is precisely to help legal scholarship get over its past Continue reading

“After” Religious Freedom?: On the Relationship Between the Academic Study of Religion and Law

I am greatly looking forward to participating in a conference next month called, “The Politics of Religious Freedom,” and hosted by four scholars who have been at the forefront of drawing connections between the academic study of religion (or religious studies) and law–Peter Danchin, Elizabeth Shakman Hurd, Saba Mahmood, and Winnifred Fallers Sullivan.

The title of my panel is “Religion and Politics After Religious Freedom.” With the organizers’ permission, I am posting some comments that I wrote up in response to that subject. My sense is that while there may be some issues specific to the particular interdisciplinary relationship of law and the academic study of religion, at least some of the points I make may apply more broadly to the question of law’s distinctiveness as both a practical and an academic discipline. I welcome your thoughts.

My work considers the religion clauses of the First Amendment to the United States Constitution and the body of federal and state laws protecting religious freedom in the United States. One theme in my work involves doubt about the law’s capacity to protect everything worth protecting about religion and religious practice. Here the law is limited and imperfect—both because of the limits of human reason and because of the inevitable conflicts of human interests and aspirations. The law’s limits come sharply into focus for what I have called “comic” theories of religious freedom—theories that reduce religious freedom under the Constitution to one or a small set of values (most commonly equality, neutrality, and the separation of church and state). None of these comic theories includes a sufficient accounting of the costs (including the costs to religious freedom) of such a reduction. These are some of the ideas explored in my book, The Tragedy of Religious Freedom.

The topic of our panel is “Religion and Politics after Religious Freedom,” and there are several ways in which my views are sympathetic, and might even converge, with the project of exploring what might come “after” certain conceptions of religious freedom. By reducing the reasons to protect religious freedom under the Constitution to single values such as equality or neutrality, some comic conceptions of it flatten legal disputes in ways that fundamentally misconstrue the true nature of the conflicts within them. Since what goes under the label of religion is culturally contingent, multifarious, and multifunctional—ideological, personal, political, institutional, communal, a phenomenon of cultural identity and at the same time a source of trans-temporal truth—one ought to expect the same variety, conflict, and incommensurability among and within the conceptions of religious liberty cherished by particular communities and enlisted to protect religion under the Constitution.

It may be that legal conceptions of religious liberty not only are insufficiently capacious to accommodate the welter of reasons to protect religious freedom (this would not be a failing unique to this area of law) but are also so grossly inadequate as to demand some radical alternative. We would, in that case, be well-advised to begin thinking about what should come “after” laws and theories that are irredeemably maladapted to the purpose. But before reaching this conclusion, we ought at least to move away from comic accounts of religious liberty and begin to hear the music of religious freedom in a more tragic key—in a way that embraces a plurality of values and that necessarily involves sacrificing ends about which we care deeply.

In other ways, however, my views are in at least some tension with the project’s ambitions to get past, or over, or somehow beyond religious freedom. I suspect that this skepticism about getting beyond religious freedom may relate to broader differences of interest, focus, and purpose between the disciplines of law and the academic study of religion (ASR).[1] To indulge in an overgeneralization (though one that, I hope, captures something true): ASR scholars are interested in dissolving religion; legal scholars are interested in managing it. There are several reasons that the pungent and interesting critique of religion and religious freedom that has developed in ASR scholarship has been relatively slow to affect law and legal scholarship.[2]

Continue reading

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