Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). Apostasy is necessarily comprised of material acts that have an external being. Such acts must make manifest, in a manner undeniable and without dissent, that one has called God Most High a liar, and the Prophet, peace be upon him, a liar by denying what he has brought to Islam….Belief, however, differs clearly from apostasy. For apostasy is a crime whose basic material elements are presented before a judge to decide whether it exists or not….But belief concerns what is in the interior of a human being’s self, belonging to his domain of secrecy. It is neither a matter of judicial probing, nor of investigation by people, but is to do with the relationship between the human being and his Creator. Apostasy is a breach of the Islamic order, at its highest degree and most valued foundations, through manifest, material actions. In positive law, it comes close to a breach of the order of the state or high treason. Apostasy is investigated by the judge or the mufti. However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of belief. But a breach of Islam can only be due to corruption in thought or the lure of material, sexual, or other worldly purposes. To combat this category [of desire] is not considered combat against freedom of belief, but rather the protection of belief from such vain, corrupt passions.

In distinguishing between apostasy as an “outer” material act and belief which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right to believe what one wants. It also includes maintaining the conditions under which religious belief can be sustained and cultivated. For the Court, this entails that belief be protected from the motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books to university students.) In other words, outer act and inner belief, though initially divided, come to be reconnected through a suspicion of motives of material interest or worldly power. In the context of the freedom of religious belief, it becomes imperative to determine whether acts or expressions of belief are genuinely religiously motivated. This presumes the power to pronounce upon and, if necessary, probe into the character of one’s private convictions. Here the defense of religious freedom promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious claims that should not count as spiritual are schemes cloaked in religious language in which the incentive to participate is financial self-interest and not spiritual development. … A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person’s engaging in the behavior she asserts is part of her religious exercise.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, the veil was deemed an obligation mandated by religious authorities, then it could be construed as potentially coercive and an impingement of religious freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’s investigation, Talal Asad notes that,

…not only [do] government officials decide what sartorial signs mean, but …they do so by privileged access to the wearer’s motives and will—to her subjectivity—and this is facilitated by resort to a certain kind of semiotics. A governmental commission of inquiry claims to bring private concerns, commitments and sentiments to the public sphere in order to assess their validity for the secular Republic, but it does much more than that. It constitutes meanings by drawing on internal (psychological) signs or external (social) signs, encourages certain desires and emotions at the expense of others.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior motives is a practice of suspicion becomes fully evident when it comes to Muslims in Europe and the U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure it takes. And this is the constant attempt to unmask ulterior motives of material interest and worldly power behind a range of otherwise ordinary (in this case, Muslim) practices and expressions of belief, in order to defend those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal a distinctive structure of legalized suspicion. On the one hand, private belief and public act/expression are made separate, but on the other, they are brought together in order to define and defend religious freedoms. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. It also shows how such religious freedom will never appear to be fully achieved, being entangled in its entirety within the dynamics of law’s suspicion and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

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I want to argue that one of the deep reasons for the commonality between religion and the secular is not only historical—that the values that prevailed in a dominantly religious world were not lost during the secularization processes—but philosophical: whether the beliefs that people hold are religious or secular, they are beliefs. As Steve Bruce wrote, “Although it is possible to conceptualize it in other ways, secularization primarily refers to the beliefs of people.” At the extreme edges of secular and religious thought, people deny that they hold beliefs—propositions that they embrace about what is true—and say instead that they have truth. This can obtain in any religious thinker who claims that God or scripture or the church hierarchy has given them the truth and they have ready access to it—or in secular thought, where trust in empiricism, in scientific methods, or indeed in secular reason can be so extreme that the notion that we live with beliefs and hypotheses becomes supplanted by the certainty of truth. It seems to me that in the public sphere certainty is especially dangerous. You can hear the difference between my saying “I believe this is true and you believe that is true and let’s discuss that,” and “I know the truth, I am right and you are wrong, end of discussion.” The reason plurality is a good—and I think it is a good, and not just an historical and sociological fact—is that it promotes multiples views, and the reason it is good to protect multiple views is that they offer dissent to any orthodoxy; without them we are at risk of being coerced by those promoting certain truth. Furthermore, the open debates of opposing beliefs strengthen them all and enable the beliefs on the table to become, well, better beliefs.

There is so much to admire in Akeel Bilgami’s thoughtful paper: it argues for the importance of contextual historical specificity when we talk about secularism, as any characterization of it has to come to terms with vast cultural and political differences—for example a liberal secularism (like  that of the US) vs an authoritarian secularism (like that of Ataturk’s Turkey), and how the case of India in the early 20^th century led to certain concessions by the government to Muslim law and practices for specific historical reasons. He is sensitive to the contextual political reasons why, so often, a devout majority can remain silent about the small numbers of extremists and fundamentalists in their community who, because the media pay more attention to them, end up mischaracterizing the goals of the whole community.

But my engagement with questions about the secular, to date, has been to question the reification of a secularism/religion or secular/sacred divide, and hence, I am uncomfortable when Bilgrami defines secularism over against religion. In Sacramental Poetics at the Dawn of Secularism, I zoned in on the early modern period, when the sacraments were under full scale attack by Christian Reformers, and discovered that even then, the logic of sacramentality was not erased, but transferred into the wider sphere of secular culture. The poet David Jones noted that the primary meaning of the sacramental is sign-making, and he said “not only are the arts characterized by the activity of sign-making, ultimately the very work of the sign implies the sacred.” This is because it evokes something beyond itself, something that transcends the sign and thereby participates in transcendence, and transcendence—whether vertical or horizontal, above or beyond—is the sphere of the sacred, of mystery, that is, what is beyond our comprehension, control, and use.

I argued that it would be helpful to shift our categories from sacred vs. secular to instrumentality, wherein all is subjected to use for our ends (and in religious history, that can and has included the divine, which has been regularly hijacked for political ends) vs. mystery (or respect). Surely, religion has been the domain not only of mystery but also of instrumentality, as has the secular, and something tragic happens when the sacred is instrumentalized as it has been in religious history, while something salutary takes place when the secular invites mystery or sacramentality into its purview. Now, reading Akeel Bilgrami and Charles Taylor has forced me to turn my attention from the arts to politics. I shudder to think of how woosie it sounds to bring concepts like mystery or sacramentality to our political life, and I won’t do that explicitly, but I do want to say that if nothing is sacred—and I think this is a very rich expression in our language, that even this debased use of the term ‘sacred’ has nonetheless come to signify that nothing would have any value—and the world is simply material and mechanistic, everything can be bought and sold and used. So if we do need a secularism, and I am persuaded that we do, I am more comfortable when its boundaries are not hard and fixed antagonistically against religion.

I agree with Akeel Bilgrami that if secularism carries weight, it is from internal grounds—appealing to the specific and substantive values that figure in specific moral psychological economies—not on universal grounds. And I admire his saying this because it is far more difficult for his position than just the easy route of a universal. But I worry about his confidence in the secular sphere’s beliefs, and the way that confidence makes him create a lexical ordering in which the secular is understood over against the sacred so that when they conflict in the political sphere, secular goals must be given priority. What if, under liberal secularism, we believe that each person has a right to own property, but then another group—whether religious, like the Diggers in the 17^th century, or secular, like socialists in the 20^th—comes along and argues that property must be held in common. According to Bilgrami’s logic, this difference would not be settled in a dialogue of equally legitimate positions; rather, under a secular liberal regime, the private ownership position would have to obtain in his lexical ordering. Under Charles Taylor’s model of a neutral secularism that includes diverse beliefs that are adjudicated on an equal playing field, something else might emerge from the discussion of disparate beliefs, but it would not be obvious from the beginning what that would be. It might include ideas, for instance, about regulating ownership of property, that none held prior to the discussion.

Conversely, while I am more comfortable with Charles Taylor’s secular sphere because it is not set over against religion, but includes diverse beliefs, including non-religious ones that have equal legitimacy and equal voice in a political debate, I have a worry about the neutrality of a secular sphere as a container for strong beliefs, a neutral container that is devoid of beliefs itself. I worry that it is too weak to respond when any of the beliefs that it contains becomes so strong that they want to hijack the neutral territory where they are allowed to dwell. What happened to the secular state when Hitler took control?  Why did the beliefs about rights and law crumble? Weak secularism—the container theory—does not protect us from incivility or hatred, from the violence of purity-thinking that leads some to think that those who hold different beliefs are infidels. While European wars of religion left the public sphere so shaken that they wanted to separate church from state, it was, needless to say, the secular wars of nationalisms and ideologies that devastated the 20^th century. If weak secularism is just a container for diverse beliefs, attractive for a neutrality that doesn’t take sides, I wonder if we need a more robust concept of secularism to protect the goals sought by it. By the way, in  his embrace of liberty, equality, and fraternity as characterizing secularism, I don’t think that Charles Taylor has posited such an empty container.

So, what would a strong secularism be? It would neither coerce religious or non-religious belief, nor would it privilege one belief, as Taylor has noted. But it would also do more: guarantee that differences of belief—or opinions—are heard, as Taylor modestly puts it, “that we try as much as possible to maintain relations of harmony and comity between the supporters of different religions and Weltanschauung.” Now, this last proposal strikes me as an urgent agenda for secularism, for where it has failed, secularism has failed—failed, not in the sense of failing to be  neutral or non-religious, but in the sense of failing to protect its positive goals of genuinely respecting diversity of belief, of values, of practices, and among the people who hold them. In a strong secularism, these respects would be protected—protected against the idolizations of human or divine power, that is, protected against various secular voices or religious voices who claim to authorize the only truth.

Like Taylor, I sense that we have arrived at a crisis in American secularism, due to a conflict between the goals of protecting free expression and protecting respect for diversity. While our First Amendment robustly protects citizens from having their beliefs coerced by the state, and offers protection to express diversity of opinion, when these opinions include disrespect for the beliefs of others, even disrespect of others themselves, that too, is protected. Our courts resolutely do not want to interfere with the content of speech, or to begin the vexed business of sorting what is all right to say and what is not. So, when a fringe group picketed a marine’s funeral with hateful slogans that said God was punishing Americans because of its Gays, Jews, and Catholics, the courts protected their free expression to do that. They have interpreted the free speech amendment broadly, to protect speech despised by the majority of citizens. This includes the right to proselytize on behalf of a minority religion and also the right to criticize another religion. But how does this square with the goal of secularism to respect diversity, indeed that values more, fraternity. The solution cannot be blasphemy laws, which Bilgrami, it seems to me rightly understands as  interfering with freedom of speech. I think of the recent notorious case of a Christian woman in Pakistan who was convicted of insulting Islam and was tried and sentenced to death. Since 1999 the United Nations has passed a resolution every year that asks countries to take measure to prevent criticism of religion, This began as defamation of Islam, became defamation of religion, and is now vilification of religion. This gives international justification to blasphemy laws. But as spokesmen for the Becket Fund for Religious Liberty have argued in an op-ed,  “the time has come for the international community not only to reject the UN resolution protecting blasphemy laws, but to directly condemn blasphemy laws as profound violations of freedom of religion and speech. Protecting such values is the reason the UN was founded in the first place.” So how do we steer a course between the potentially conflicting values of mutual respect and open expression of critique?

At stake is a way of understanding how we arrive at our best beliefs about how to live together with dignity. I would say this project has three distinctive features: this quest is ongoing, it is marked by multiple voices, and it is achieved by ceaseless debate. To reiterate, in a strong secularism, the search for the most just way to live together is understood as an ongoing process that requires debate between the searchers. The more opposing positions that are tested against one another, the more vigorously these positions are defended, the better the search proceeds. According to this hypothesis, “we never know…what man or even what manner of man will, by striking out on a new path which everyone else regards as not worth exploring, make the next significant contribution to the search.” Hence “all would-be participants must be welcomed, encouraged, and above all, listened to.” This three-fold way of thinking about the quest for the best beliefs is not mine, but John Milton’s. Like the liberty, equality, and fraternity that Charles Taylor embraces for his secularism, it is time-tested.

Milton’s Areopagitica begins as a tract against prior censorship and necessarily becomes a tract on liberty and in turn a rumination on the best process of truth-seeking. It did not change the licensing laws in his time; but its far reach extends to the pages of virtually every First Amendment textbook in US law schools. It is full of stunning extended metaphors for truth that always suggest that our access to it is partial, our formulations of it are incomplete, and hence we must engage in endless debate: in one, truth is compared to a light, “but if we look not wisely on the Sun itself it smites us into darkness. The light which we have gained was given us, not to be ever staring on, but by it to discover onward things more remote from our knowledge.” Thinking that truth is already achieved is dangerous:  “truth is compared in scripture to a streaming fountain, if her waters flow not in a perpetual progression, they sick’n into a muddy pool of conformity and tradition.” Diversity and debate must be encouraged: “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions, for opinion in good men is but knowledge in the making. …What some lament of [the vigorous differences in opinion] we rather should rejoice…[for it enables them] to reassume the ill deputed care of their Religion in to their own hands again.”  And he imagines, amidst this diversity, fraternity: “A little generous prudence, a little forbearance of one another, and some grain of charity might win all of these diligences to join and unite into one general and brotherly search—but we must forgo the crowding of free consciences into canons and precepts…” There must be “many Schisms and dissections made in the quarry and the timber ere the House of God (for him, England, but for us, ironically, “secularism”), can be built.” I need not remind you that this eloquent spokesman for liberty of conscience, diversity, and free speech was a deeply religious thinker. (And of course, Bilgrami is right that historical contexts matter: Milton in his time was only talking about Protestant sects disagreeing, as Catholics in 17^th century England were perceived to be too dangerous to come to the table).

His metaphor for the search for truth is particularly stunning:  while the body of Truth may have once been whole, “that lovely form has been hewed into a thousand peeces and scattered to the four winds. From that time ever since, the sad friends of Truth, such as durst appear, imitating the careful search that Isis made for the mangled boy of Osiris, went up and down gathering up limb by limb still as they could find them. We have not yet found them all, Lord and Commons, nor ever shall do, til her Master’s second coming. Suffer not these licensing prohibitions to stand at every place of opportunity forbidding and disturbing them that continue seeking.”  Far from dissent and diversity of belief being problems to overcome, they are embraced as  explicit goods that enable progress toward success: none must be able to forbid the search for truth, especially not those who “think it a calamity that any man dissent from their maxims,” for the ongoing search requires testing by opposing beliefs.

I agree with Charles Taylor that at this point in history, unlike at the founding of the US, we need secularism, not to protect the individual from the state, so much as to protect the contemporary climate of diversity—this means protecting two things which are not always compatible: protecting the right to express different beliefs, but also protecting the very process of dialogue and the equal respect that grounds such dialogue. Bilgrami suggests that we must say, “you are my brother and I think you are mistaken.” But that process is endangered when beliefs—religious or secular—are taken to be inviolable and hence nonnegotiable truths, or lexical priorities. Having truth by the beard ultimately harbors the danger of incivility toward those who don’t see the truth as we do—the axis of evil, the infidels. This is why a strong secularism must give institutional expression to the ethos that all are welcome in the search for the best beliefs about how to live together. And it is also why anything that hints at a normative secular solution—whether contract theory, utilitarianism, or human rights founded on negative liberty—is going to be partial at best.

It is because that Truth of how best to live together is a mystery, not fully graspable, knowable, manipulable, after all, that we need to approach the dialogue with the other with full respect—to listen, learn, and evaluate. So I guess mystery turns out not to be so woosie for politics, after all.

Another way to say this is that I agree with Taylor’s assessment that we are in an era of reflexivity regarding religion in which belief is always questionable and there are many different positions, that this is a good, the outcome of the Enlightenment and the romantic Counter-Enlightenment, and surely, we need that same reflexivity in our secular beliefs.