Beyond critique:

The specific order of difficulty of religion

posted by Elizabeth Shakman Hurd

In a recent essay on equality and citizenship in a multi-religious Sudan, Noah Salomon describes a commitment among development experts to equality before the law as a “non-ideological” solution to the problems of post-conflict societies. Salomon disagrees with the consensus, suggesting rather that “law, the institutions which promote it, and our relationship to them enfold deep ideological and political commitments which require a whole host of presumptions about justice and how best to achieve it.” While the rule of law is assumed to govern from a neutral public space that has transcended ideological and political particularities, the hegemony of rule of law discourse should not be taken as a mark of neutrality. It would be a mistake to remove the rule of law from conversations about power, history, difference, and governance.

The same may be said of secularism. Following the recent raft of scholarship on secularism and secularity, it is unsustainable to claim that a clean break has been achieved between secular law and politics, on one hand, and religion on the other. It is now commonplace to begin with some version of Nandini Chatterjee’s observation that “state secularism does not imply the withdrawal of the state from religious matters, but on the contrary it consists of the state assuming the role of the ultimate regulator of religious affiliations and arbiter of religious claims.” Scholars working across national contexts have shown convincingly that claims to secularism cannot be disentangled from history, power, and the construal and management of religion as a matter of difference and governance. Inquiry into different modalities of governing religion by state institutions and the broader socio-legal contexts that sustain or subvert them—many of which have been described as secular—has led to “an unpacking of secularity as a religion-free, neutral, and universal development of European modernity,” in Nilüfer Göle’s words. My earlier work on the politics of secularism in international relations was part of this effort to de-center the universal pretensions of claims to secular governance. Yet even as this approach has taken hold across the disciplines, its implications “beyond critique” have yet to be explored. This series is a welcome intervention.

One challenge is to think creatively outside and beyond the intensive scholarly focus on secularism and secularity. There is a risk of rehearsing a well-trodden debate by approaching secularism as a descriptive category and inquiring into whether and to what degree states and societies are secular, religious, undergoing de-secularization, or becoming post-secular. This limits the kinds of questions that can be asked. As John Bowen remarked, “when scholars do try to analyze the issues in terms of the very terms of debate, they usually do so as part of their efforts to advance particular policy positions: for or against school prayer, headscarves, or faith-based charities. Precisely because the historical trajectories producing current regimes also produced their ideologies, prominent ways of speaking about state and religion cannot serve as bases for analyzing state and religion.” To transcend the limitations of adopting as foundational the very terms that need to be subjected to critical analysis requires asking a different set of questions that, in Markus Dressler’s and Arvind-Pal S. Mandair’s words, “release the space of the political from the grasp of the secularization doctrine.”

What this entails in practical terms is one of the more interesting and vexing challenges facing students of religion and politics today. Various possibilities have been proposed, and a number of interesting avenues for research are opening up. In her contribution to this series, Cécile Laborde calls on political theorists to resist attempts by the law to capture religion as such while also stressing the need to account for religion’s status in the law by capturing “whatever dimensions of religion are normatively salient and suitable for legal protection.” While sympathetic to the attempt to disaggregate religion as an object of study and to the acknowledgement of the conceptual imprecision inherent in the concept, I am puzzled by the call to “protect the normative ideals underpinning freedom of religion in the law.” It would seem to require the state to serve as the ultimate authority on which dimensions of religion are suitable for legal protection, thereby reproducing in a different register the dilemmas of secular governance identified by Winnifred Sullivan as the impossibility of religious freedom. There is a risk of reproducing the liberal presumption that an unspecified “we” (presumably democratic theorists who ought to advise law-makers) are positioned above the fray and are equipped to identify those “normatively salient dimensions” of religion that demand protection.

In a recent post at Reverberations exploring the legal unintelligibility of prayer, Benjamin Berger offers a contrasting view that draws on Bruno Latour’s Rejoicing to take the critique of the rule of law’s ‘rendering’ of religion in a different direction. As Berger suggests, “making religious speech a species of other kinds of speech places it in a familiar category, makes it cognizable, but also effaces the real challenge of religious speech.” This is because prayer, like love, “is essentially unintelligible to law. Indeed, what value it retains depends on this non-digestibility, its ability to induce hesitation, awkwardness.” Berger’s discussion of the fraught intersection of law and religion offers resources for moving beyond critique—and beyond secularism—because it compels us to acknowledge the “limits of law’s ability to speak to the full range of the meaningful contours of personal and collective life.” Excessive privileging of law and legal speech, he cautions, and I agree, can “efface the affective and relational dimensions of our social worlds.” We need to be wary of chipping away at the richness of experience in the inexorable “march of juridification.” Instead, as Berger concludes, we might instead “invite modesty about the reliance on legal tools.”

How might these insights, and specifically a call to modesty in relation to the law, apply to the study of religion and politics beyond critique? One possibility is to open up the field onto a broader set of concerns, perhaps captured under the rubric of normative diversity, law, and governance. Such an approach would not limit the object of inquiry to religion, or politics, as construed by those in power. It would offer respite from the controversies over separation and accommodation, and freedom and unfreedom, which mark these debates. It would not inquire into the definitions of secularism or religion, or how religion has or should relate to secular law and politics—implicitly, in the latter case, whether religion or some proxy for it can or should be accommodated legally, and if so how and with what philosophical justification(s). It would resist the urge to normative closure that often sneaks up on such endeavors.

Instead, it would attempt to do justice to what Latour refers to as “the specific order of difficulty” of what is today often described as religion. This would entail a number of rather different approaches, perhaps sharing a common sensibility. One is to seek better understanding of the vast and shifting array of practices and histories that are associated with religion as the term is used today. This would involve an effort to understand them on their own terms, even or especially to the extent that they appear as unintelligible or illegible, rather than seeking to domesticate or assimilate them in legal or normative frameworks associated with contemporary secular modes of law and governance. Berger moves in this direction with his reading of Aboriginal prayer as “a display of the possibilities of religious speech” that “is about inducing a state of mind amongst those for whom the idiom is familiar, an awareness of a set of immanent relationships, of turning inwards and downwards.” Winnifred Sullivan’s forthcoming book A Ministry of Presence: Chaplaincy, Spiritual Care, and the Law is another example, describing the practices associated with contemporary spiritual care in the United States, understanding the needs served by these forms of ministry under a modern regime of secular governance, and situating these developments as part of a broader naturalization of religion and spirituality.

Another way to open up the field to a broader set of concerns is to take an historical approach. C.S. Adcock’s The Limits of Tolerance: Indian Secularism and the Politics of Religious Freedom deftly shows that the historical emergence of shuddhi in India as “religious proselytizing” was not inevitable and carried long-term political consequences by de-linking debates over Indian secularism from the politics of caste. Critical histories of attempts to organize social, political, and legal coexistence through claims to (religious) freedom, tolerance, and rights show not only that other modes of coexistence across lines of difference have existed historically, but also that other possibilities are available in the present. Benjamin Schonthal, in his work on ruling religion in Sri Lanka/Ceylon, moves back and forth between past and present, and inside and outside the boundaries of official law and administration, to show how constitutional law shapes local religious self-understandings and possibilities for co-existence. Anver Emon’s Religious Pluralism and Islamic Law problematizes “tolerance” as a coherent concept for understanding the significance of the dhimmī rules that governed non-Muslim permanent residents in Islamic lands, showing that these rules are “symptomatic of the messy business of ordering and regulating a diverse society.” Moving to colonial India but maintaining a focus on governance and diversity, Chatterjee’s The Making of Indian Secularism examines the political emergence of Indian Christians as a minority religious community during the nineteenth and twentieth centuries and their role in shaping “the complex, contradictory and often unintended trajectory of a bundle of laws, political ethics and institutional cultures of dealing with religion that are distinctly modern and distinctly Indian.” In unpacking the sense of inevitability and neutrality of received understandings of secularism, disestablishment, law, toleration, minority rights, and other familiar templates of late modern governance, these scholars carve out new spaces for the study of religion, law, difference, and governance—and the complex interrelations between them.

A focus on secularity or secularism as guiding analytical constructs fails to do justice to the specific order of difficulty of what is often identified as religion. Religion is part of a complex, evolving, and shifting series of fields of contemporary and historical practice that cannot be singled out from other aspects of human activity and yet also cannot simply identified with these either. The approach proposed here resists adoption of any singular, stable conception of religion, and instead acknowledges the vast and shifting array of practices and histories that fall under the heading of religion as the term is used today. It focuses on the different normative conceptions of religion, and possibilities for co-existence across lines of difference, which are produced and shaped by particular modalities of governance. It complicates attempts to develop a general definition of religion as an object of law or governance. Working out how to define what religion means for law, as Julian Rivers observes, “is inevitably, in part, an evaluative process in which the law defines ‘religion’ for the relevant purposes.” Law, political institutions, and other tools of collective governance do not possess procedural autonomy above the fray of religious lives.

For some it is hard to let go. Particularly in the social sciences, many scholars and practitioners cling, if somewhat reluctantly, to a notion of religion as a private set of interiorized beliefs and values independently chosen by individuals, and then enacted. Sullivan describes this as “a stripped-down understanding of religion that finds its origin in Protestant and Enlightenment theories of the state and of religion – one that sees religion’s role as one of teaching virtue to its citizens through the training of private consciences – and which often simply refuses to acknowledge cultural aspects of religious life.” It is the religion prescribed by one particular form of modern liberalism.

A shift away from secularism and secularity as orienting constructs and toward normative diversity and the tools used in projects of collective governance de-centers this conception of religion as “private, voluntary, individual, textual, and believed” in favor of the religion of most of the world, which is often public, oral, enacted, and communal, and, as Kristina Stoeckl emphasizes, deeply and complexly multi-vocal. It opens spaces in which to explore life worlds that are situated outside, at the margins of, or beyond the terms and understandings inherited—at times imposed—by those immersed in one “spin” or another of Taylor’s immanent frame. It approaches the subject tangentially, from the side, or from the viewpoint of processes and histories that do not appear immediately (or at all) when one claims religion as the primary object of inquiry. It draws attention to the gap between religion as construed by those in power and the diverse practices experienced by ordinary people that have complex and changing relations to the institutions that allegedly represent them. Or from which they have fallen away. Or to which they never subscribed. It welcomes legal unintelligibility.

This requires a different sensibility. In the article mentioned above, Salomon describes the divergent worldviews of the various groups he encountered in Sudan, including members of the government and allied Islamists, evangelist Salafis, and politically engaged Sufis. He begins to “imagine a conversation about interreligious coexistence which does not rely on the liberal categories bequeathed by international human rights discourse…this is not a language of human rights (or even “the rights of non-Muslims”), but rather one in which the specificity of each religious category is recognized and engaged with in a manner appropriate to each kind.” One challenge for scholars of religion and politics today is do the kind of work that makes it possible to have these conversations.

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