The Sri Lankan Government has to fulfill its positive obligations under the right to freedom of religion…The right to freedom of religion or belief is a universal right enjoyed by all human beings and therefore by members of all religious communities, whether old or new and whether they have been established in a country for a long time or recently.

In her conclusions, the Special Rapporteur invoked a particular vision of religious freedom that has become dominant among human rights agencies, NGOs, foreign governments, and academics. According to this vision, religious freedom names an ideal social condition that may be reliably reproduced in differing national contexts through the elaboration and enforcement of particular regimes of legal rights—rights which, if properly administered, will protect minority religious communities against majoritarian politics and harmonize diverse religious interests. This vision—which can be seen with particular clarity in documents such as the US International Religious Freedom Act—treats religious rights as apolitical instruments and as legal standards that stand outside of struggles for power and the narrow interests of particular groups. In this vision, religious rights appear as the morals of historical stories, embodying the transcendence or settlement of social discord: they emerge after the Thirty Years’ War, after the American Revolution, after World War II.

However, as several contributors to this forum have pointed out, legal provisions regarding religious freedom do not emerge from history fully formed and self-interpreting. At their core, they are iterations of words and texts, (re)produced and (re)authorized by different persons or groups for different purposes. What they mean depends on local facts.

This contribution expands upon this observation by offering a different story about drafting religious rights in a particular place and time. I will show the ways in which religious rights, as rhetoric, serve not as apolitical instruments, but as indicia of political alliances; not as generic, universalizable norms, but as specific formulations of norms suited to particular moments and in service of particular political programs. In this version of the story, religious rights, rather than conclude conflict and harmonize societies, signpost disagreement.

To see this, one has to begin at the end: to begin with the text of religious freedom provisions and work back. To do so is to treat religious rights not as the solution to the problem of religious strife of persecution, but as a problem itself, or at least as an object to be explained: Why this rendering of rights and not another? Why religious rights at all? Why now?

I explore these questions through a brief illustration from my research on religion and law in twentieth-century Sri Lanka, or, as it was known during the period in question, Ceylon. The “freedom of religion” paragraph in the 1943 “Constitution for a Free Lanka” is similar to provisions for religious freedom contained in other human rights instruments. It reads:

Freedom of conscience and free profession and practice of religion, subject to public order and morality, are hereby guaranteed to every citizen. The [Free Lanka] Republic shall not prohibit the free exercise of any religion or give preference or impose any disability on account of religion, belief or status.

The paragraph was included originally as one of eight discrete paragraphs of “Fundamental Rights” compiled into a “Fundamental Rights Chapter.” Today this paragraph seems unremarkable, even vaguely familiar, a somewhat bland collection of legal guarantees similar to those found in other transnational religious freedom instruments. Yet, in 1943 Ceylon the paragraph was considered not ordinary, but controversial—a carefully crafted protest against empire.

The “Free Lanka” Constitution was a draft independence constitution prepared by a group of Ceylonese politicians who hoped that it might serve as a legal charter under which the British Crown would transfer powers of self-government to a local Ceylonese parliament. Unlike other drafts prepared at the time, it was not produced in consultation with British officials. It was the work of a cohort of young nationalists who rejected the idea that an outgoing British government should “give” to Ceylon the legal charter that announced its independence.

The inclusion of a section on fundamental rights indexed the drafters’ anti-colonialist nationalism. In the 1940s, fundamental rights were taboo for Crown constitution-makers. British legal advisors who participated in the drafting of independence constitutions followed a Colonial Office policy regarding “bills of rights”: they were not to be included. As one influential British constitution-maker of the period put it, “[A]n English lawyer is apt to shy away from [Fundamental Rights] like a horse from a ghost.” Officially, British legalists opposed justiciable bills of rights because they were not part of modern English law and because such rights might undercut parliamentary sovereignty by requiring that future legislators adhere to the political values of the present. Unofficially, the British recognized an inconvenient friction between “bills of rights” and the colonial project as a whole: if the Crown were to acknowledge and entrench fundamental rights as absolute and binding on governments, it would risk exposing the illegitimacy of colonialism more generally, insofar as colonial governments acted without consideration of such rights.

The drafters of the Sri Lankan religious freedom provision recognized this and framed religious freedom as a fundamental right, in part, to amplify its anti-colonialist tenor. In speeches, newspaper articles, and letters to overseas’ organizations such as the Indian National Congress, the drafters directly linked the push for fundamental constitutional rights with the campaign for independence from British rule. These advocates claimed that the British, as participants in the newly-formed allied “United Nations,” were bound by the “human rights” expressed in the “Declaration by the United Nations.” In a manifesto drafted slightly later, the drafters of the Sri Lankan religious freedom provision even outlined a program of “five freedoms” for Ceylon—deliberately echoing Roosevelt’s famous fourfold formulation—of which the first was “The Freedom from Foreign Rule.”

By articulating religious freedom through the idiom of fundamental rights, drafters gestured towards sources of legitimacy that were broader than (if not directly dominant over) the British Crown. They plotted religious rights, and their constitution as a whole, within a legal-philosophical terrain that treated rights not as benevolences extended by rulers, but as guarantees that conditioned the legitimacy of rule itself: governments did not authenticate rights; rights authenticated governments. This alternative approach to the legitimacy and the origin of rights had radical implications. On the one hand, drafters were able to (and did) criticize the colonial government’s legitimacy by accusing it of failing to grant adequate fundamental rights to those who lived in Ceylon. On the other hand, they simultaneously claimed as a fundamental right, “the right to independence and a free constitution.”

The inclusion of religious rights as fundamental rights also targeted a more immediate, local audience. The paragraph on religious freedom was designed in opposition to another paragraph on religious freedom—one framed under the guidance of Ivor Jennings, one of Britain’s leading constitutional scholars at the time and the author of the derisive assessment of fundamental rights quoted above. In a separate constitutional draft, Jennings had proposed to ensure religious freedom by placing certain minimal limits on the lawmaking powers of parliament. In his version, religious freedom was to be secured by preventing lawmakers from enacting bills that would confer advantages or disadvantages on particular religious communities, impinge upon the “free exercise” of religion, or “alter the constitution of any religious body.” When compared with Jennings’ formula, it wasn’t only the inclusion of “fundamental” religious rights that distinguished the nationalists’ draft, it was the nature of the rights chosen. Whereas Jennings rendered religious freedom through a series of negative legislative prohibitions, the nationalists framed religious freedom in terms of positive as well as negative liberties, prescribing not only limits on government’s powers, but guarantees of state protection for religious lives—limits and guarantees that applied not only to legislatures, but to all agents and actions of the Republic.

The politics of rights-writing extend even further. Jennings modeled his religious freedom paragraph on provisions contained in the Ireland Act of 1920, a law ratified by the British parliament, which, while permitting limited Irish “home rule,” maintained London’s claims to the island. In a contrasting move—which would have undoubtedly been recognized by Crown administrators at the time—the nationalists’ paragraph on religious freedom took its language from the 1937 Constitution of Ireland, a document that aimed to establish total Irish independence from the British. As one of the Ceylonese drafters put it, the “Free Lanka” Constitution drew from a text that effected in Ireland “a definitive break with the past” and “conduct[ed] what, in law, was a revolution.”

We can now view the nationalist’s construction of religious rights in a new light: as a polemic against Jennings’ and an invocation of alternate discourses from Europe, the U.S., and India; as a desire to mark particular distinctions and affinities (with Ireland in 1937 and not 1920, with the allied United Nations and not Britain alone); as an effort to treat constitutions not as something given to a nation by colonial governments, but as something claimed by its citizens. The legal syntax of religious rights, read against the grain, historicized, reveals the very thing that rights-discourse obscures: the fragile, contingent, interested, political nature of religious rights, and the embeddedness of rights discourse in larger local, regional, and global struggles for power and control.

The nationalists’ paragraph of religious rights was not included in Ceylon’s independence constitution. And this is part of the story too. What determined the shape of religious rights in 1940s Sri Lanka (and elsewhere in Southern Asia) was not simply a concern with the importance of resolving religious disputes or protecting religious communities, but a concern with making sure that the language chosen signaled the appropriate alliances and echoed the appropriate politics. In Ceylon, where the handover of power occurred exclusively by way of negation with the Crown, colonial politics prevailed over anti-colonial politics and Jennings’ draft, rather than the nationalists’ draft, served as template for the 1948 Ceylon Constitution. In India, where anti-colonial movements had much greater influence on the process of decolonization, a new, more nationalistic constitution (completed by a sovereign Constituent Assembly just after independence) cast religious freedoms in the idiom of fundamental rights. In each case, the rhetoric of religious freedom bears the marks of struggle, perhaps more than resolution. It imprints the politics of the 1940s: the politics of fundamental rights, the politics of colonial resistance, and the politics of constitution-making in the twilight of empire.

Given that my current research concerns the effects of Portuguese colonialism on Buddhist literature and culture in early modern Sri Lanka, I propose to structure my comments around, first, what Keane’s book teaches me and, second, what my research might, in turn, offer Keane. I will say here at the outset that I find Christian Moderns to be a stimulating and useful book. Its contributions toward theorizing the relationship between religion and colonialism are numerous and substantial. Since I lack the expertise to speak to Keane’s treatment of the exact semiotic nature of language and culture in Sumba, I will restrict my comments to his anthropology of Christianization. This book contains other subjects of significance, but I happen to find Keane’s discussions of morality and purification between and within religious communities to be particularly noteworthy.

One of the aspects of Christian Moderns that I find most interesting is the contested question of agency that resulted from the missionary encounter in Sumba. One often finds studies of missions that focus on the measures by which the missionaries themselves judged their efforts (i.e., the numbers of converts made). Less common are inquiries into the kinds of cultural conversions that take place alongside or in opposition to Christian proselytization. In other words, mission encounters do not simply result in the conversion of the faithful. They also spark debates over religious truth and cultural understandings. Keane astutely points out that one of the flashpoints in the Sumba missions concerned the question of agency. Who is responsible for action in the world? Whose will is made known? And where does agency lie? Such apparently philosophical questions assumed real-world relevance in the mission encounter, as Christians condemned the local ancestral ritualists for locating religious power in material objects—a practice often labeled fetishism by those who sought to replace such traditions with Dutch Calvinism. Keane analyzes how Christians employed the question of agency to condemn the fetishes of the unconverted Sumbanese. In this sense, Christian—specifically Protestant—conversion was thought to free the Sumbanese from their material entanglements to worldly objects. By mistakenly imputing power and agency to things, the so-called “fetishists” were seen as stricken by false understandings of where true religious power lies. Missionaries thus charged themselves with the task of getting the Sumbanese to locate true agency in the immaterial realm, through the power of God and the internal beliefs and piety of the individual Christian.

The issue of agency, in other words, becomes a point of contestation between missionaries and converts on one side, and the ancestral ritualists on the other. Keane’s insightful analysis points to how debates over religious truth may reside in cultural definitions of what makes us human and what humans are able or required to do. I have no doubt that concepts of freedom and fetishism are salient issues in the mission encounter in twentieth-century Sumba. But it is worth noting, and I’m sure Keane would concur, that mission encounters are not always structured around issues of human agency and the objectification of religious power. My work with Portuguese missionaries in sixteenth- and seventeenth-century Sri Lanka suggests that different dynamics could also be in play. The Franciscan and Jesuit missionaries sponsored by the Portuguese Crown tended to distinguish the “true faith” of Catholic Christianity from the “heathen” (infiel) traditions of Buddhism and Hinduism. While the latter worshipped images (imagens), such practices were condemned as repugnant not for objectifying religious powers per se, but rather for the fact that they were false images linked to the work of the Devil. Early modern Catholic missionaries were perfectly willing to recognize divine power operating through crosses, holy water, and other material objects. And given the work of Portuguese and Spanish missionaries throughout much of the globe, it may well be that “fetishism” was an exceptional problematic in mission encounters more generally.

Another rich area for reflecting upon religion in colonial and missionary encounters is the manner in which language ideologies produce social difference. Keane’s remark that language ideologies “play a crucial role in producing—in objectifying and making inhabitable—the categories by which social difference is understood and evaluated” strikes me as a very fruitful line of inquiry, according to which the capacity that an individual or group possesses to express and describe what is “true” and “correct” can be used to distinguish and privilege some people over others. Keane goes on to point out how Christian missionaries and reformers in Sumba have often utilized acts of purification in order to make separations and distinctions between persons and things. For Dutch Calvinists and their Christian converts, purification entailed teaching people to abstract the immaterial meanings from material objects, to look beyond the fetishism of ancestral rituals, and to find power in a non-physical God and the interiority of individual faith. In short, acts of religious purification entailed denying material mediations of divine agency. And yet, Keane argues that the aim of complete purification always falls short, since the reliance on semiotic forms always entails some degree of material instantiation, whether it be a creed, a scriptural text, or something else.

Once again, I suspect that this analysis is more effective in the context of Protestant mission encounters than Catholic ones. Portuguese missionaries rejected the objects of so-called “heathen” traditions, but they rarely rejected material mediations as a whole. If the idea of purification is to retain broad currency across the colonial landscape, it may need to be defined differently, more in terms of separating out truth from falsehood, or the divine from the diabolical, than of fixing boundaries between the spiritual and the material. While questions of ontological difference could be salient in Sumba and certain other mission fields, the distinctions drawn between persons and things in acts of purification fail to account for other important distinctions drawn between persons themselves. In other words, it would seem that we should also attend to the creation of hierarchies in the context of missions. In Chapter 8, Keane does address how the Christians and the ancestral ritualists cast aspersions against each other—the Christians being seen as arrogant while the ritualists are cast as superstitious. But, in my view, these charges and exchanges also represent broader efforts to purify the religious field, that is, attempts at purification that are not simply or even primarily made with regard to fetishism and material objects. Other aspects of religious practice and expression that are either immaterial or not susceptible to charges of fetishism can become the source of contention and dispute.

Moreover, while the notions of difference constituted between Christians and “fetishists” may have precluded little, if any, similarity or commonality in Sumba, other colonial settings witnessed moments where efforts to construct difference for the sake of purifying and eradicating it became undermined by shared features and characteristics between groups. For instance, early modern Portuguese writers in Sri Lanka noted similarities as well as differences, and these similarities between Christians and Buddhists clearly gave them pause. One Franciscan missionary recounted how Buddhist monks wear robes, preach, give blessing, and receive alms in ways much like that of his fellow Franciscan brothers. And another colonial writer noted in the seventh century that the Buddha left a code of laws that were similar to Moses’s. But when such writers found similarities between Christianity and Buddhism, they quickly tried to reassert other differences in order to snuff out the threat posed by such likenesses of an erosion of the boundary between “true religion” and “superstition.” As such, the negotiation of similarities seems to be just as important to the missionary encounter as the negotiation of differences. So too is the somewhat ambiguous position of the native convert, an individual who appears both like and unlike the missionary, and whose religious and cultural identities can give rise to conflicts as they attempt to mediate between the colonial and local orders.

It is not my intention to find fault with Keane’s book for not addressing, or not addressing enough, the variety of religious and cultural conflicts in mission encounters around the globe. Rather, I find that it is his provocative analysis of what it means to be both “Christian” and “modern” in Sumba that leads me to want to interrogate further the conditions through which colonial and missionary encounters often transform religious practice and cultural understandings in various places and times. Clearly, we will need to use different lenses to examine how colonial agents worked with—and against—local religious practitioners to produce new identities and ideologies that reshaped cultural worlds over the last five hundred years. Keane’s book, however, shows that such scholarly work is both necessary and fruitful.