—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

Michel Foucault famously describes Jeremy Bentham’s Panopticon as a “cruel, ingenious cage” to be understood not as a “dream building … [but as] the diagram of a mechanism of power reduced to its ideal form … a figure of political technology.” For Foucault, panopticism is “the general principle of a new ‘political anatomy’ whose object and end are not relations of sovereignty but the relations of discipline: [t]he celebrated, transparent circular cage, with its high towers powerful and knowing.” In reading the Supreme Court’s decision in Hosanna-Tabor v. EEOC recognizing a “ministerial exception” to antidiscrimination law—a case hailed almost immediately as a victory for religious freedom—it is for me the specter of the Panopticon that haunts every page.

I offer these reflections on the case and what it may teach us about contemporary law, politics, and theorizing on religious freedom from the perspective of international legal theory. Viewed from outside the strictures of First Amendment scholasticism, the judgments are at once striking and familiar as compared to cases arising in other parts of the world. Striking because the justices do not justify, or even acknowledge, the antinomies and contradictions in their reasoning regarding the two cardinal principles of religious freedom orthodoxy: (1) that the State must be “secular” and thus “neutral between religion and religion, and between religion and nonreligion”; and (2) that the right to religious freedom protects what Martha Nussbaum has recently called the “essential idea” of “liberty of conscience.”

I read the case instead as an attempt to rebel against these two ideas and, at a deeper level, to resist what Foucault termed Kant’s “contract of rational despotism with free reason: the public and free use of autonomous reason will be the best guarantee of obedience, on condition, however, that the political principle that must be obeyed itself be in conformity with universal reason.”  To me the judges seem trapped simultaneously in the tower and circle of the modern Panopticon of Enlightenment rationality. On the one hand, they speak with authority in an objective register of right and reason as they gaze upon the category of “religion,” while on the other they speak defensively in a subjective register of history and culture as they seek in vain to resist the disciplinary implications of the category of “freedom.” This leaves their reasoning exquisitely caught in a fraught but familiar dialectic of power and illusion.

Hosanna-Tabor presented the Court with the two standard dilemmas in religious freedom cases. First, if a “ministerial exception” was to be recognized under the First Amendment (a) who is a “minister” and how (and by whom) can this be determined in a way that is neutral between different religious traditions; and (b) if so recognized, how can the exception be justified to secular groups performing the same activities to whom neutral laws of general application apply and to “ministers” themselves whose rights under laws such as the Americans with Disabilities Act are now to be denied? How can this be neutral between religion and nonreligion? Some argument is needed to explain why religion is accorded special treatment either because it is distinctly burdened or under a special legal disability, an argument which itself cannot be “religious.”

Second, how can religious liberty be justified as a collective right, here attaching to religious groups and institutions as opposed to individual persons? Religious institutions don’t have consciences per se, only their individual members do, although religious entities do have texts, traditions, rituals and practices. If such groups or institutions are indeed bearers of rights, what is the scope of that right, what forms of conduct and activity does it include, and with what legal consequences? Does the right generate, for example, a duty on the State not to interfere in some “autonomous” sphere (as yet undetermined) or officially to recognize certain group manifestations of religious practice? If so, why does this not pose the same threat to the modern administrative state articulated by Justice Antonin Scalia in Employment Division v. Smith, where he stated that “permitting [a person] by virtue of his beliefs ‘to become a law unto himself,’ contradicts both constitutional tradition and common sense”?

For Chief Justice John Roberts, writing for a rare unanimous Court, the answers to these two sets of questions were to be found simply in “the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.”  Added to this textualism were two forms of historical argument: one looking at the original understanding of the Religion Clauses on the basis of which the Court (re)tells a founding story of the principled rejection after 1776 of the established Church of England and entrenchment of “disestablishment” and “free exercise;” and the other interpreting the Court’s own labyrinthine Religion Clause jurisprudence from which distinctly Protestant terms such as “Church,” “minister,” “ecclesiastical,” “belief,” “faith,” and “mission” are neatly distilled and woven together in the Court’s final ratio that “the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s alone.”

I will make three general arguments concerning the reasoning in Hosanna-Tabor.

First, the paucity of reasoning in Hosanna-Tabor regarding the two sets of dilemmas above is best explained in terms of a political theology based on popular sovereignty and a prophetic hermeneutics of textualism and originalism. This form of political theology is unstable, however, for two reasons: one concerning the relationship between liberty and religion and the other the relationship between popular sovereignty and universal freedom.

Second, the privatization of churches and religion more broadly and their Erastian control by the State are the premises of freedom in the private sphere—a sphere unilaterally defined, protected, delimited, and increasingly regulated by the State itself. Regardless of how the sphere of conscience is delimited by the State, the background assumption underpinning the assertion of line-drawing power itself is the denial of the coercive authority of religious institutions in enforcing the demands of conscience. This is the critical point.

Any interest of the State in appointing officials to the Church would arise only if either the Church had a corresponding official role in the public realm of the State (as in England where, for example, of the Church of England’s 44 bishops and archbishops, 26 are permitted to sit in the House of Lords) or an agreement was negotiated between sovereigns (as is possible in Italy in its relations with the Holy See and Vatican City). It is difficult to see why the State would wish to appoint officials to a “free church” assigned the legal status of a voluntary association in the private sphere of civil society. If this is what is claimed to be a victory for religious freedom, it is a Pyrrhic victory. The churches have long ago ceded or been denied their former ecclesiastical jurisdiction and are now unilaterally “free” to select their ministers in private under the disciplinary gaze of the Panopticon.

This legal understanding is expressly confirmed in the Court’s opinion, which states that the ministerial exception is not a “jurisdictional bar” but a “defense” on the merits because “the courts have power to consider ADA claims in cases of this sort and to decide whether the claim can proceed or is instead barred by the ministerial exception.”  This, in Foucault’s terms, is not a relation of sovereignty, but of discipline. The Church has already been absorbed into the State, the former ecclesiastical jurisdiction has been collapsed into the secular and, in the words of Bradin Cormack, the temporal law has become “the rule against which the claim of conscience [is] to be measured.”

Finally, the other great transformation that defines the modern politics of religious freedom is the definition of religion itself as conscience or belief in an age of what we might term “secular equality” and the ensuing unstable convergence between conscience and autonomy on the one hand and gradual reversal in the secular imaginary whereby freedom of conscience is today viewed as autonomy on the other.

What is most interesting in Hosanna-Tabor is how the Court first expands the notion of individual autonomy to include “the Church” as a legal subject with a right to a certain autonomous sphere. But unlike in Smith, as soon as the category of “religion” is broadened to include not only the forum internum of conscience but also the forum externum of manifestations of religion or conscience, then potential conflicts arise with State jurisdiction (which potentially extends to any action implicating State interests).

In order to deal with the legal consequences of this move, the Court almost seamlessly shifts to the language of conscience and in effect analogizes the “inner conscience of the Church” to individual conscience seen as extra-legal and pre-political. In other words, the Court seeks to identify a realm not merely of autonomy but sovereignty—a jurisdiction in some sense separate from the State. As a sovereign realm, this must include not only decisions made for a religious reason but more broadly must ensure “that the authority to select and control who will minister to the faithful—a matter strictly ‘ecclesiastical’—is the church’s alone.”

This turns the autonomy argument on its head. Indeed, this is the kind of classical religious freedom argument which communitarian theorists have long adduced against Rawlsian liberals claiming the self to be prior to its ends and the right prior to the good. The communitarian argument hinges on the moral importance of religion and rests on the idea that religious liberty should also protect those “who regard themselves as claimed by religious commitments they have not chosen” and thus encompasses the right to “pursue a substantive good characteristic of a group moral identity.”

The idea appears to be, as Winni Sullivan has observed, that the “‘Church’ is prior to the sacraments” for it is in Churches that the individual conscience is formed. This, of course, is a deeply theological argument which unselfconsciously claims to identify the proper attributes of religion and religious subjectivity. But it does so unilaterally—by an act of imagination rather than mutual recognition of sovereign relations—and it does so in an almost nostalgic gesture towards a now extinct legal relation that has vanished from the modern secular democratic state.

But how exactly does the Court know which matters are “strictly ecclesiastical” or which affect “the faith and mission of the church”? From a religious point of view, the scope of the “inner conscience of the Church” is likely to be viewed more broadly than that permitted under the ministerial exception as delimited in Hosanna-Tabor. Conversely, from a secular point of view there are likely to be a host of activities and actions pertaining to the “inner conscience of the Church” which raise the question of proper exercise of legal jurisdiction.

Given the depth and scope of these complexities, the puzzle remains why the Court in Hosanna-Tabor so effortlessly assumes the compatibility between autonomy and conscience in the formulation of the ministerial exception. What is central is that the Church “freely decide” ecclesiastical matters as a matter of right and further that it have autonomy to control matters even on non-religious grounds provided these pertain to the “inner conscience of the Church.” The first position defines conscience in terms of autonomy and the second defines autonomy in terms of conscience. In this set of historically- and culturally-contingent dialectic moves, a Protestant understanding of “the Church” and an Enlightenment conception of freedom are simultaneously asserted and naturalized.

This necessarily creates what Winni Sullivan has termed a “protestant de facto establishment,” privileging one religious subjectivity over another. This is easily visible when the ministerial exception is considered in relation to different religious traditions, especially those that historically or currently are seen as threatening either the security of the state (public order) or the freedom of others (freedom of conscience). Consider, for example, the vast governmental surveillance and monitoring of mosques in America since September 11, 2001. This has gone far beyond the extension of criminal law to suspected acts or support of terrorism. The government has directly targeted theological issues and established intrusive mechanisms to monitor the content of religious speech thought to foster “fundamentalism” or “radicalism.”  U.S. policy in both domestic and international fora has thus comprehensively set out to “reform Islam from within.”

As Saba Mahmood has observed, the “effectiveness of such a totalizing project necessarily depends upon transforming the religious domain through a variety of reforms and state injunctions …. [and t]his has often meant that nation-states have had to act as de facto theologians, rendering certain practices and beliefs indifferent to religious doctrine precisely so that these practices can be brought under the domain of civil law.”  Muslim adherence to the phenomenal forms of religion such as Islamic laws, scriptures, rituals, liturgies, and observances potentially disturb such naturalized understandings of religion as conscience and conscience as autonomy (see my previous posts on this topic).

To an international lawyer then, the most glaring antinomy in Hosanna-Tabor is between the exceptionalist and universalist strands of U.S. religious freedom discourse. This is especially so viewed from the perspective of international law and foreign policy where the U.S. continues to wage a global war against “religious fundamentalists” said to pose an existential threat to modern liberal democracy and where the monitoring, promotion, and protection of the right to religious liberty (in countries apart from the U.S.) is both strongly encoded in national law, e.g. in the International Religious Freedom Act of 1998, and implemented through extensive governmental machinery, e.g. the U.S. Commission on International Religious Freedom.

A better understanding of the contemporary politics of religious freedom may help us diminish the disciplinary power of the Panopticon and see more clearly what is at stake for Christian and non-Christian traditions and conditions both within and beyond North-Atlantic modernity.

In my opening post, I suggested that a second assumption underpinning the Chicago Report is that American foreign policy should more effectively engage with and support the “good Muslims.” In this post, I seek once again to consider the coherence and plausibility of this prescription. Is it really true that you can read people’s political behavior from their religion or culture? Again, as Mamdani asks:

Could it be that a person who takes his or her religion literally is a potential terrorist? And only someone who thinks of the text as not literal, but as metaphorical or figurative, is better suited to civic life and the tolerance it calls for? How, one may ask, does the literal reading of religious texts translate into hijacking, murder, and terrorism?

This raises the complex question of what, in the words of Saba Mahmood, “constitutes religion and a proper religious subjectivity in the modern world,” and how such a conception relates to the language and normative structure of religious freedom in international law and politics. It is not possible here to address the details of such a complex set of issues, but let me offer just a couple of observations and lines of inquiry for future thought and discussion.

A useful place to start is Kant’s essay on Toward Perpetual Peace, discussed at the start of these comments. Recall that Kant’s chief complaint with the “sorry comforters”—Grotius, Pufendorf, and Vattel—was that their versions of natural law lacked all “legal force” in restraining the belligerence of nation states. For Kant, law is not just a vocabulary of governmental technique or an instrument of governance. It is, rather, a political project to bring about what he enigmatically termed the “Kingdom of Ends.” To end war, one must eradicate the warlike disposition of nations and, indeed, of mankind itself. Perpetual peace can thus only be achieved in the form of a world republican federation governed by a law of global justice, what Kant called “cosmopolitan right.”

Herein lies Kant’s suggested path to Enlightenment—the throwing off of the self-imposed immaturity that comes from alien guidance by, inter alia, religion and recognition of the dormant inner “moral disposition” through which man can “eventually become the master of the evil principle within him.” Koskenniemi describes this idea of freedom as follows:

For Kant, freedom was not the indiscriminate realization of one’s passions or interests—indeed, this was immaturity…. Freedom could exist only as looking beyond such contingencies. To be free was to make one’s will harmonious to universal reason—a reason according to which one should always act in accordance with what one can simultaneously will as universal law. Where enlightenment lay in reliance on reason, freedom consisted in the acceptance of what reason dictated as duty.

It is on account of this uniquely “rational” normative understanding of freedom—“acceptance of what reason dictated as duty”—that Kant criticized the early modern natural lawyers.

As Ian Hunter has argued, Kant’s principles of morality and right are grounded in a comprehensive “Christian-Platonic anthropology deeply embedded in the history of north-German Protestant university metaphysics.” On the basis of this metaphysical view, Kant characterized man as “the empirical harbinger of a pure rational being”—homo noumenon—who, by intelligizing the pure forms of experience and governing the will by thinking the idea, or form, of its law, was “supposed to free himself from the ‘sensuous inclinations’ that otherwise tie the will of empirical man (homo phenomenon) to extrinsic ends or goods.” This metaphysical account of human rationality provides the basis for the two central tenets of Kant’s moral philosophy:

These are his conception of the good will as one that transcends distracting sensuous inclinations by spontaneously conforming itself to pure reason’s intellection of the idea of the law; and his conception of moral community as the ‘kingdom of ends in themselves’ that is formed when the universe of rational beings is joined through transparent reciprocal willing in accordance with this intellection.

There are two points I wish to make here regarding this metaphysical view and its projection into Kant’s notions of an “ideal republic” and the ius gentium. The first concerns the type of constraint that is imposed on religion by Kant’s notion of the good will. This is a recognizably Protestant understanding of religion in terms of interiorized (or “privatized”) and “freely chosen” conscience, or belief. In this particular historically contingent form, we see the unique double-bind that, today, still defines the secular liberal notion of religious freedom as an individual right.

As Saba Mahmood suggests, “contrary to the ideological self-understanding of secularism (as the doctrinal separation of religion and state), secularism has historically entailed the regulation and re-formation of religious beliefs, doctrines and practices to yield a particular normative conception of religion (that is largely Protestant Christian in its contours).” John Locke thus justified his theory of the right to freedom of conscience by the Protestant argument that conscience was directly bound to obey and follow God and not men; a theory of “the free and at the same time unfree conscience.”

Such premises in turn provide the defining ideas of the liberal state: neutrality and a putative public/private divide. Religion is seen as being separated from the state and “privatized,” that is, removed to a private, intimate sphere. This leaves a “neutral” public sphere that seeks to maintain its neutrality through rigorous commitment to a scheme of individual rights. The state may thus have no cultural or religious projects, or, indeed, any collective goals of its own, beyond the protection of the liberty and security of its citizens.

This view of religion and religious freedom imposes significant constraints on both the individual and the state. The individual must restrain her will according to the law of universal reason by transcending any “distracting sensuous inclinations” and by containing her religion to the private sphere of conscience or belief. The state, for its part, must remain “neutral” between all religions and beliefs, and between religion and non-religion, by both rigorously protecting the neutrality of its public sphere and not interfering in the (private) autonomous sphere of conscience and belief.

Again, as Mahmood observes, the secular state in this way has not simply cordoned off religion from its regulatory ambitions, but sought to remake it through the agency of the law—a remaking “shot through with tensions and paradoxes.”  In this respect, the process of democratic self-government and the space of public debate can be seen as a space, not simply of expression and rational deliberation, but of formation, in which “coercive, regulatory, and rhetorical power is necessary in order to produce the right kind of citizen subject who can inhabit the norms of a liberal democratic polity” (my emphasis).

The best extant illustration of this liberal double-bind is, of course, the Religion Clauses in the First Amendment to the U.S. Constitution, which prohibit the “establishment” of religion while at the same time protecting its “free exercise.” These two notions are—both normatively and historically—deeply intertwined. The state can only maintain its neutrality and duty of non-interference if the individuals subject to the constitutional order both accept the form of separation mediated by the public/private divide and understand their right to free exercise of religion in the rational, protestant terms (as private belief or conscience) that I have described.

It is this deep tension within liberal theory itself that I believe underlies what is arguably the most interesting aspect of the Chicago Report: the unresolved disagreement between members of the Task Force as to whether the Establishment Clause “impose[s] constraints on the means that the United States may choose to pursue” in engaging religious communities abroad. For one group (let’s call them the “Kantians”), the clause “should be understood to constrain the manner in which the United States pursues its foreign policy objectives” in engaging religion and religious communities abroad. For the opposing group (let’s call them the “new natural lawyers”), the primary purpose of American foreign policy is “to defend and pursue the nation’s vital interests abroad.” Thus:

As this report abundantly indicates, ours is a world highly influenced by religious actors and ideas, for good or ill. Accordingly, we believe that in the absence of compelling evidence to the contrary … no administration should impose constraints on American foreign policy that are imagined to derive from the Establishment Clause…. Any further interpretation of the Establishment Clause on this issue will inevitably restrict American flexibility in implementing vital programs involving diplomatic counterterrorism and the promotion of democracy and civil society.

This is an impasse which beautifully illustrates several dimensions of Kant’s critique of early modern natural law. For the Kantians, the Establishment Clause is itself a constitutionally entrenched form of universal reason. There are good reasons, therefore, why it should, in principle, constrain all action by the U.S. government, whether at home or abroad. In this respect, Kant was correct—the inner moral law imposes significant constraints on us, on the state, and on the internal and external rights and duties of the state as a member of an international community of states. The difficulty is that, as a matter of socio-political reality, the Kantian view rests on certain contingent presuppositions regarding what constitutes a proper religious subjectivity for autonomous agents in the liberal state. Both within and outside of the United States, there is a widening gap between this normative conception of right and factual reality.

Within the U.S., the increasing presence and influence of the Christian Right and evangelical movements in the public sphere and in policy-making generally, and a corresponding rise in governmental entanglement with domestic religious groups, are radically reconfiguring and putting strain on the historical legal understanding of the public/private divide and the “non-establishment” norm.  At the same time, religious groups are exerting ever increasing influence in U.S. foreign policy-making itself.

Consider, for example, the following instances.

• The impetus behind the enactment of IRFA: it is widely acknowledged that the domestic political pressure to “remoralize” U.S. foreign policy and enact IRFA came from conservative Christian and evangelical groups concerned about the persecution of Christians worldwide.
• The pressure exerted on the Clinton and Bush administrations to take action in Sudan and to term the violence in Darfur as “genocide”: the most observable factor in U.S. engagement in Sudan has been the long-standing pressure by the National Association of Evangelicals (NAE), a coalition of groups representing fifty-one denominations, 45,000 churches, and a membership of over fifty million people.
• The pressure exerted by the American Israel Public Affairs Committee (AIPAC) to support Israel and Israeli policies in the Middle East, including in relation to the Arab-Israeli conflict.

Outside the U.S.—and Euro-Atlantic modernity in general—it is sufficient to note that religion and state have entirely different historical configurations, and that religious identities define differences both between majority and minority groups and between entirely different ways of life. Non-Western religious traditions such as Islam, for one, do not make a distinction between the secular and the sacred, or, as in the case of Hinduism, they might hierarchically subsume the secular under the sacred. As Charles Taylor has observed, viewed from a non-Western perspective, the right to religious freedom in international law therefore appears inextricably linked to distinctly Christian origins—either to a quasi-religious form of post-Enlightenment Deism or to the political rise of Western secularism, and, in either case, as a form of foreign and imperial imposition. Indeed, this problem is more acute in the case of secular liberalism in its “Establishment Clause” form, which, once unmoored from Western secularism and imported into comprehensively religious societies, “understandably comes across as the imposition of one metaphysical view over others, and an alien one at that.”

Given this internal and external socio-political reality, the position of the Kantians seems hopelessly utopian, even dangerously naive. While the liberal wing of the U.S. Supreme Court can try valiantly to hold the line domestically in a still majority protestant—but rapidly changing and diversifying—society, the international situation in the post-September 11 context appears to raise far more urgent and far-reaching problems of political governance. This is the dominant issue for the new natural lawyers. Like the formal notion of sovereignty in international law discussed before, the formal legal constraints imposed by the Establishment Clause seem at once over- and under-restrictive: over-restrictive because they prevent the U.S. from engaging good Muslim communities in the promotion of human rights, democracy, and the values of civil society; and under-restrictive because, while it is “unrealistic and insensitive to insist that our Establishment Clause should be adopted by other countries without regard to their differing political and cultural circumstances … [all the same,] non-establishment norms facilitate a country’s development of religious tolerance, political stability, and other characteristics essential to a well-functioning liberal democracy.”

To summarize the position: we should not be constrained by the Establishment Clause because our vital interests demand smart strategic action and engagement which should be exercised (paradoxically) to encourage them to internalize the normative constraints of non-establishment. Our long-term security can be ensured only if we effectively change the identity of Muslims and Muslim communities by enlightening them as to the nature and demands of modernity. In the face of this imperative, the secular constraints imposed by the Establishment Clause may be, as Winni Sullivan puts it, “good policy at home,” but they should not limit our flexibility of action and engagement abroad as we advance our “more serious and reasoned” efforts to educate Muslim communities regarding the natural causation between non-establishment norms and natural social ends (religious tolerance, political stability, and liberal democracy).

In presuming that the autonomous subject (whether the individual or the state) envisaged by Kant in his Perpetual Peace is the product of, as opposed to a precondition for, secular liberal constitutionalism, the Chicago Report again reveals ignorance not so much of the role of religion in world affairs as of history and, in particular, of liberalism’s emergence from particular, historically contingent conceptions of rationality and religious subjectivity internal to Western Christianity.

This leads to my second observation on Kant’s cosmopolitanism and his derivation of a pure norm of right from man’s “rational being.” Given the regional character of Kant’s view—not only to but within Europe, and to a local branch of Protestant German metaphysical philosophy at that—it is difficult to see how this account of universal reason could form the basis of a global normative order, able to harmonize rival European and non-European cultural and political metaphysics.

As Ian Hunter has observed, unlike the sorry comforters who acted as juris consults to historical states, the Kantian political adviser (or “moral politician”), who “oversees the transformation of the maxim’s of state prudence into the cosmopolitan principle of justice,” could not in fact engage the interests of the territorial prince. This was because “the advice he had to offer—‘Convert your own state into a rational republican community and then amalgamate it with a world republic or federation of republics’—was not given in a political capacity or persona; neither was it addressed to a political personage: the Prussian prince or political class.”

Hunter proceeds to note that, by comparison with the “territorial construction of jurisdiction and the European localization of the law of nations” found in Pufendorf and Vattel, the “global spatialisation of justice in Kantian philosophical international law initially had no direct anchorage in a concrete political and juridical order.” But today, two centuries later, that has changed. Kant’s regional political metaphysics is now “tied to the interests of a different national philosophical clerisy … [and today has] a de facto anchorage: namely, in the global projection of United States power and culture.” On this premise, an outlaw state (e.g., Iraq) as much as rogue individuals (e.g., radical extremists) are unjust by definition in relation to the universal conception of justice constituting international law, and may thus be subject to military sanction in the name of the universal community.

In this move, the moral politician becomes himself a sorry comforter, a political moralist now acting as juris consult to a “global hegemon intent on projecting its own politics and culture as ‘universal’” in a way that turns Kant’s theory of cosmopolitan law into an instrumental project of technical governance and control. If correct, the real challenge that confronts us is whether it may be possible to recover the non-instrumental dimensions of Kant’s project of freedom without necessarily adopting the historically and culturally contingent aspects of his metaphysical philosophy.

In this respect, the significance of Kant’s ideal of the moral politician lies in the notion that principles of right (the communal will of a rational community) are necessary conditions for a political project which seeks to reconcile national self-interest with a pacific cosmopolitan legal order. Such a project requires both political contestation and the use of critical judgment, which are incapable of being derived from instrumental reason, and which each must encompass the perspective of the whole (the ideal of the Kingdom of Ends). For Koskenniemi, this constitutes a project of freedom in two distinct senses:

First, it holds political judgement open to different, even opposing, alternatives, highlighting the (legal) accountability of the one who makes the judgement. Second, its concept of legal expertise is not that of instrumental skill but a mindset—a ‘constitutional mindset’—that is constantly measuring any judgement or institutional alternative against the ideal of universality embedded in the very idea of the rule of law (instead of by expert decision).

On this view, the significance of autonomy is not on account of a particular conception of the good (e.g., that personal autonomy is a precondition for the good or just life), but rather on account of a moral/political notion of the person as a “reason-giving” and “reason-receiving” being with a right to justification. Further, the significance of critical judgment lies in the notion that human reason must recognize its own boundaries and finitude, and—with full knowledge, not of ends, but of indeterminacy and contingency—accept the unavoidability of conflicts between plural values.

In contradistinction to the approach adopted by the Chicago Report, to engage seriously in such a project would require a “comparative dialogue across the putative divide between Western and non-Western traditions of critique and practice.” For Saba Mahmood, a dialogue of this kind in turn depends on “making a distinction between the labor entailed in the analysis of a phenomenon and defending our own beliefs in certain secular conceptions of liberty and attachment. The tension between the two is a productive one for the exercise of critique insomuch as it suspends the closure necessary to political action so as to allow thinking to proceed in unaccustomed ways.”

It was a project of engagement along these lines that I believe Barack Obama intended to invoke with his speech in Cairo on 4 June 2009. Indicating both that the U.S. was “respectful of the sovereignty of nations and the rule of law” and that “[n]o system of government can or should be imposed by one nation on another,” his notion of a “new beginning between the United States and Muslims around the world” was premised on “mutual interest and mutual respect, and one based upon the truth that America and Islam are not exclusive and need not be in competition.” Obama appeared to understand that, while rationality is a shared human faculty, there are in fact no uncontested external or a priori universal reasons, and that all reasons appeal, at some level of justification, to substantive value commitments which may or may not be shared by persons from divergent religious and cultural backgrounds. (“We can’t disguise hostility towards any religion behind the pretense of liberalism.”) In such a situation, one may maintain good reasons to regard one’s own faith or religious tradition as true, while at the same time recognizing that the primary duty of reason is one of mutual justification.

The duty of mutual justification necessarily gives rise to a need to listen and to seek to understand the situatedness and subjectivity of others. As Beth Hurd puts it, “one of the great challenges of our time is to engage with and listen to those who enact religious agency and live religious freedom in ways that may not conform to these protestant secular understandings of religion and religious freedom.” This in turn requires a degree of openness to the possibility, if persuaded by convincing arguments, to change one’s own positions and the effort to “suspend the closure necessary to political action so as to allow thinking to proceed in unaccustomed ways,” while seeking new forms of coexistence, reconciliation, and compromise. It is disappointing that the members of the Chicago Council Task Force failed to listen and reflect critically upon even this basic premise in the President’s call for a new beginning:

I am convinced that in order to move forward, we must say openly to each other the things that we hold in our hearts and that too often are said only behind closed doors. There must be a sustained effort to listen to each other; to learn from each other; to respect one another; and to seek common ground. As the Holy Koran tells us, ‘Be conscious of God and speak always the truth.’

In my previous post, I suggested that one of the latent assumptions underpinning the Chicago Report is that terrorism is “religion-based,” i.e., that there is a necessary (although unexplained) causal link between Islam and Islamic extremism.  In this post, I seek to consider the coherence and plausibility of this assumption.

Consider again story of the bombing of the Golden Mosque in Samarra. In using this example to illustrate American ignorance of the role of religion in acts of terrorism, the Chicago Report is curiously silent about one salient fact: that the U.S. is militarily occupying a Muslim country, which, following its earlier intervention and continuing presence in Afghanistan, it has unilaterally invaded in violation of both the UN Charter and international law. The report is similarly silent on the fact that the U.S. project of “occupation as liberation” violates the occupatio bellica (the international law of occupation), which restrains the occupant’s authority to unilaterally transform Iraq’s political order.

Today, we interpret the refusal of Great Powers in an earlier time to recognize “uncivilized” non-European states as equal sovereigns as a moral failure that vitiated the possibility of an inclusive international legal order. We similarly view colonialism as an imperial attempt to impose a Eurocentric standard of constitutional order on peoples and territories lying outside of the jus publicum Europaeum. The argument that Iraq is an outlaw, or “rogue,” state, whose political order must be transformed in order to bring it within the law of “civilized nations,” is thus eerily familiar. By simply eliding the identity of the state in this formula with that of a “liberal democratic governance regime,” Iraqi sovereignty is held to be irrelevant—in other words, the legal status of Iraq as a sovereign state under international law is denied a priori.

But perhaps the most striking reinterpretation of the preservationist ethos of occupatio bellica in the Iraqi occupation has been the suggested right of the occupier to institute sweeping reforms of the political order in accordance with human rights norms. This assertion gets to the heart of the paradox of “occupation as liberation.” The belligerent occupant’s authority to create a new political order based on democracy and human rights derives from force—that is, from its prior achievement of military control over a subject people. As Nehal Bhuta has argued:

The occupant’s ability to legitimate a new order in place of the old depends on his capacity to engender among the occupied population the belief, post facto, in the legitimacy of the occupant’s ‘naked power’ as a precondition for the new basic norm to which the occupied is subjected.

How to achieve this legitimacy? The project of transformative occupation ineluctably turns on a precarious dialectic of subordination and legitimation: the military occupier has to subordinate before it can effectively legitimate, and the more it tries to subordinate, the harder becomes the legitimation. As recognized in the Chicago Report, force alone, though necessary, is insufficient for the new order to become firmly established. The subjects of occupation must cease their resistance and either acquiesce or consent to the basic norms that define the new order. The desperate struggle for the occupier is to convince the occupied population not to resist its military dictatorship on the promise of the justice and legitimacy of the normative order being instantiated thereby.

The desperate struggle we have witnessed against the U.S. occupation, and the ensuing brutal conflict it has produced, must be understood against the background of this dialectic. If so, might we find reasons for the bombing of the Golden Mosque in Samarra other than a supposed link between Islam and Islamic extremism, and the attempt to get religious communities to “rally around their extremist elements”? As Mahmood Mamdani has argued, rather than seeing politics as an outcome of archaic cultural and religious traditions, should we not perhaps see it as an outcome of contemporary conditions, relations, and conflicts?

Instead of ignoring or dismissing history and politics, especially the history and politics of Western imperialism in the Middle East—a topic conspicuously absent from the Chicago Report—there is a desperate need to situate cultural and religious debates in their historical and political contexts. Viewed in this way, terrorism is not a pre-modern “cultural residue” persistent in modern politics. It is, rather, a distinctly modern construction, which, even when it harnesses tradition or culture, does so in the service of a modern project. It is only if we can begin to understand this history—our history and ourselves within it—that I believe we may start to understand the origins and causes of terrorism and its relationship to issues of culture and religion.

To view international politics and relations in this way, however, requires us first to understand and engage ourselves. If undertaken seriously, an inquiry of this kind would require us to draw the culture of Western imperialism out of the shadows and to explore its deep roots and pervasive implications in multiple domains. This is no easy task. In the vast literature on the role of Enlightenment in the making of Western civilization and its discourse—and I refer here to the rich debates on, for instance, rationalism, secular liberalism, democracy, and individual rights as aspects of Enlightenment—there is a remarkable tendency not to mention the influence of imperialism and settler colonialism.

Might we not see the distinctive contours and shape of the Bush doctrine—preemptive strikes and expansion/projection of force as the path to security—as parallel to the historical experience of European colonists in the Americas and Africa? If so, might not contemporary forms of political Islam and attendant violence be better interpreted in terms of different forms of response and resistance to the colonial condition? Recently, Nir Rosen made this point in the following terms:

[If the objective is to stop acts of terrorism, then stop] supporting dictatorships in Egypt, Saudi Arabia, Morocco and elsewhere. Stop supporting the Pakistani dictatorship or quasi-dictatorship. Stop supporting the Israeli occupation of Palestine. Be perceived as a fair player in the Middle East and the Muslim world. Stop killing Muslims and Muslims will not want to kill you.

However one views such arguments, they are not to be found in the Chicago Report. If they were there, the easy assumption of the legitimacy (and, presumably, the legality) of killing or capturing “radical Muslim extremists” would need to be comprehensively revisited.

Even a cursory review of U.S. foreign policy in the region over the last thirty years seriously puts in question the report’s two central policy findings, viz. first, that American “ignorance about the role of religion in world affairs has inhibited smart strategic thinking”; and second, that the imperative of U.S. foreign policy is therefore to “engage religious communities abroad.”  Was it not President Reagan who in 1985 “constructively engaged” the mujahideen in Afghanistan, calling them “the moral equivalent of America’s founding fathers”? Looking back, we can appreciate today how effectively U.S. foreign policy was able to harness one version of political Islam to the cause of armed struggle (“holy war”) against the Soviet Union and, following the Iranian revolution against the Western-backed Shah, to convert a religious schism between Sunni and Shia Islam into a political schism. (Tellingly, the report attributes this schism to the “volatility and instability produced by the rise of Al Qaeda, the terrorist attacks on the United States, and the U.S. invasion of Iraq, which created the first-ever Arab, Shia-governed state.” Myopia of this kind is illustrative, not of ignorance regarding “the role of religion in world affairs,” but simply of history.)

The war in Afghanistan killed more than a million Afghans, turned one third of the Afghan population into refugees, forced the abandonment of more than half of the country’s farming villages (due to aerial bombardment), and ensured the complete collapse of the economy. Throughout the 1980s, the U.S. provided $2-3 billion in weapons (65,000 tons of arms per annum by 1987) and supplies through the CIA and Pakistan’s Inter-Service Intelligence Agency (ISI) as part of the largest U.S. covert action program since the end of the Second World War. Notably, the CIA and the Pentagon worked with the ISI to create a network of deeni madrasas (religious schools) in Pakistan to train legions of young men to join the ranks of the mujahideen.

During this period, militant religio-political groups and madrasas proliferated in Pakistan. By the early 2000s, there were 58 registered religious political parties and 24 armed religious militias in the country. As is often observed, many of these past recipients of U.S. support and engagement are today’s “bad Muslims,” described in the Chicago Report as those responsible for religion-based terrorism and thus constituting legitimate targets for elimination. This history too, and its explanatory potential for today’s patterns and matrices of political violence in the region, is completely absent from the Chicago Council’s narrative and imaginary of violent Muslim extremism, i.e., any notion that contemporary fundamentalism is in fact a distinctly modern project that seeks to unleash terror in the name of liberation.

The point is that U.S. engagement with religious communities for specified strategic ends is hardly new and, far from exhibiting ignorance about the role of religion in world affairs, suggests instead a high level of skill and understanding in harnessing the power and influence of religion in the lives of the people in the region.  All that has changed in our time are the strategic ends. Now that the Cold War proxy battles have been eclipsed by the tasks of transformative occupation and transitional administration, the challenge is for “religious communities to play even greater roles in the positive transformation of their societies” and for the U.S. to foster and channel “vital and autonomous religious agency.” As Winni Sullivan observes, this time, the man for the job of projecting a softer version of American power and influence is not the CIA or the Special Forces, but the National Security Council, which “will serve as the guardian and the definer of the strategic parameters of engagement.” Beth Hurd refers to this in her companion piece as the “projection of American power through the global securitization of religion.”

Sorry comforters indeed.

Read Part III of “‘Sorry comforters’ and the new Natural Law” here.

I read the Chicago Council Task Force Report, “Engaging Religious Communities Abroad: A New Imperative for U.S. Foreign Policy,” as a student of the history and politics of international law. From this perspective, the report evokes Immanuel Kant’s famous denunciation of Grotius, Pufendorf, and Vattel in his 1795 essay Toward Perpetual Peace as the “sorry comforters” of the law of nations. For Kant, the principles and doctrines of the early modern natural lawyers not only lacked all “legal force” in restraining the belligerence of nation states, but, by appropriating the voice of international legality to the interests of power rather than right, they were ultimately apologists for such belligerence. Kant accordingly denounced these juristic advisers to historical states as “political moralists,” who, by basing their conceptions of justice on the political governance of conflicting interests in an attempt to humanize relations between warring nation-states, subordinated principles to ends and became thereby accomplices to war, imperialism, and colonialism.

As Martti Koskenniemi has recently argued, the perspective of the political moralist is one of strategic action and rational/managerial control. The ends are not called into question having already been received from natural law—the normative framework guiding and limiting sovereign action is in place. Rather, the only question is one of means: how most effectively and accurately to reach the targeted audience; whether compliance is best achieved with sticks or carrots, hard coercion or soft power; which techniques of governance or “engagement” to employ in order to achieve the necessary ends (self-preservation, security, social peace)? Accordingly, if force is to be used, it must be compatible with and in the service of future peace and security. This turns political judgment into an exercise of technical skill (politics as technē), assuming full knowledge of what there is to comply with.

The degree of instrumentalism of this kind in the report is breathtaking. On the basis that “[r]eligion—though its motivating ideas and the mobilizing power of its institutions—is a driver of politics in its own right,” we are told that today’s challenge is to “isolate those that invoke the sacred to sow violence and confusion,” while at the same time to “better understand and respond to religiously inspired actors and events in a way that supports those doing good.” The United States should “avoid trying to change religious societies through direct action or to promote an uncompromising secular alternative,” as these approaches would “likely backfire with dangerous consequences” (presumably because they will be, or have already been, ineffective, or come at too high a cost, or both). Rather, the U.S. should adopt “an indirect approach that builds, cultivates, and relies upon large networks and partnerships—which will vary by degree—with religious communities.” This new effort to engage religious communities “must be broad and deep” and should be directed by the National Security Council, an ambassador to the Organization of the Islamic Conference (preferably a “distinguished American Muslim”), and “ambassadors to countries where religion plays a significant role.”

From such a policy perspective, the problem with international law—the system of formal rules and customs existing between sovereign states—is that it is unable to achieve peace and security under the conditions of globalization. This critique has had two main strands since the end of the Cold War in 1989 and has become more starkly apparent in post-September 11 debates concerning the role of law in international relations. First, the disaggregating forces of globalization and the burgeoning role of subjects apart from states (individuals; peoples; nations; minorities; religious, ethnic, and linguistic communities; non-state terrorist groups) put in question the state-centrism of the Westphalian international system. The anachronism of the old law of nations must therefore give way to a new Natural Law of global justice. Second, traditional notions of state sovereignty seem at once too broad and too narrow: too broad because they fail to encompass the claims of, and prevent outside engagement with, non-state actors—both good (religious and ethnic communities, as well as civil society actors more broadly) and bad (terrorist organizations and their sponsors); and too narrow because they fail to respond to global threats (terrorist groups and ideologies operating within and beyond territorially defined nation-states) and opportunities (religious and other communities existing within and beyond traditional nation-state boundaries).

What is needed then is a managerial vocabulary, not about sovereignty or formal rules, but rather above sovereignty and about the objectives, values, and interests presumed to lie behind and override the formal validity of sovereignty and existing international legal rules. The challenge for the political moralist is how most effectively to use coercion and other forms of state power to achieve compliance. This is best done through the language of legitimacy deployed skillfully in the name of natural social ends (peace, security, human rights) in a way that neither relies on moral principle nor is frustrated by formal legal rules. By avoiding the twin perils of moralism and formalism, the policy analyst can in this way both avoid marginalization and sound convincing to those in power. The Prince will thus be told: the effectiveness of “hard force” (military action, drone strikes, indefinite detention) might be undermined if he does not also use “soft power” (informal pressure and persuasion through discussion, assistance, reporting, engagement) to achieve a degree of consensus in target communities to give his actions legitimacy.

The two critiques mentioned above define the analytical logic of the Chicago Report. The legitimacy of the use of force (and presumably its legality as well, although this is not expressly stated) by the U.S. and its allies against terrorist and insurgent groups is simply assumed. A “more serious and thoughtful engagement with religion across a host of issues and actors” is thus necessary because, otherwise, “U.S. foreign policy will miss important opportunities,” will be “less capable of waging successful counterinsurgency campaigns in Iraq and Afghanistan,” and will “undermine our ability to protect citizens from violence perpetrated by religious extremists.” The real challenge is “to marginalize religious extremists, not religion.” The strategy proposed in the report is thus to continue to kill religious extremists while simultaneously engaging Muslim communities through all possible bilateral and multilateral means—through, e.g., the machinery brought into existence by the International Religious Freedom Act of 1998 (IRFA) or international organizations such as the UN and its specialized agencies. The aim of this “more serious and thoughtful” engagement is accordingly to articulate religious freedom “in a way that is not viewed as imperialism, but as a means to support religious agency to undermine religion-based terrorism and promote stable democracy” (my emphasis).

There are two latent and interrelated assumptions underpinning this proposed strategy. The first is that terrorism is “religion-based,” i.e., that there is a necessary (although unexplained) causal link between Islam and Islamic extremism. But as Winni Sullivan points out in her companion piece, “for a report about religion there is not much religion in this report.” Rather, the report opens with a dramatic retelling of Al Qaeda’s bombing in 2006 of the Golden Mosque in Samarra, apparently in an effort to foment civil war between Shia and Sunni groups, who, it was hoped, would “rally around their extremist elements” in the wake of the destruction of one of the two holiest sites in Shia Islam. The report tells us that in this moment, “AQI had spectacularly thrust a religiously laced dagger into the heart of Iraq,” but that the U.S. government “completely missed its significance” because it had a “blind spot.” And what was this blind spot exactly?

It would not be the first time that ignorance about the role of religion in world affairs has inhibited smart strategic thinking, whether in the deployment of foreign aid, relationship building with other nations, or the tackling of transnational challenges.

I shall return to this point shortly.

The second latent assumption, as Mahmood Mamdani has argued in a different context, is that the world can be divided roughly in two. There are the moderns and the premoderns: the former are creative makers of their own culture, who can rationally distinguish and separate the good from the bad in their culture and religion; whereas the latter are born into, and are thus prisoners of, their culture and religion, which inescapably determine their identity and politics. The aim of much post-9/11 U.S. foreign policy has been to identify with the former group and to encourage them to confront and contain the latter group in the hope of fomenting a civil war within the Islamic world. This war is to be fought by good Muslims, who accept the basic precepts of modernity (e.g., secular liberal notions of religion as belonging in the “private sphere,” and religious texts as to be understood only metaphorically or figuratively), against bad Muslims, who habitually obey founding religious texts, which thus dictate all aspects of their politics and behavior, and who irrationally bring religion into the public sphere.

Something like this, I believe, is the pretext for the Chicago Report’s call for a renewed, smarter strategy. The only way to deal with the bad Muslims, and the serious security threat that they pose, is to continue with external military intervention (the foreign policy objective of a “global war on terrorism,” adopted by Republican and Democratic administrations alike). At the same time, American security crucially depends on more effective engagement with, and support for, the good Muslims, not only to save them from the extremists but also to create stable, peaceful, and cooperative partners in a strategically and geopolitically vital part of the world.

Both of these assumptions are open to serious question; in my subsequent two posts, I will consider each in turn.

Read Part II of “‘Sorry comforters’ and the new Natural Law” here, and Part III, here.