The Problem of Religious Diversity: European Challenges, Asian Approaches 9781474419109

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The Problem of Religious Diversity

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THE PROBLEM OF RELIGIOUS DIVERSITY European Challenges, Asian Approaches

Edited by Anna Triandafyllidou and Tariq Modood

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Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © editorial matter and organisation Anna Triandafyllidou and Tariq Modood, 2017 © the chapters their several authors, 2017 Edinburgh University Press Ltd The Tun – Holyrood Road, 12(2f) Jackson’s Entry, Edinburgh EH8 8PJ Typeset in 11/13 Adobe Sabon by IDSUK (DataConnection) Ltd, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP record for this book is available from the British Library ISBN 978 1 4744 1908 6 (hardback) ISBN 978 1 4744 1909 3 (paperback) ISBN 978 1 4744 1910 9 (webready PDF) ISBN 978 1 4744 1911 6 (epub) The right of Anna Triandafyllidou and Tariq Modood to be identified as the editors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988, and the Copyright and Related Rights Regulations 2003 (SI No. 2498).

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Contents

Notes on Editors Notes on Contributors 1. Religion and Religious Diversity Challenges Today Anna Triandafyllidou and Tariq Modood

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Part I The Governance of Religious Diversity: Freedom of Religion or Freedom from Religion 2. Nation and Religion: Dangerous Liaisons Anna Triandafyllidou

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3. Multiculturalism and Moderate Secularism Tariq Modood

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4. Living with Religious Diversity: The Limits of the Secular Paradigm Gurpreet Mahajan 5. Secularism: Public Space and Visible Diversity Tariq Ramadan 6. Freedom of Religion in Europe: Finding the Golden Mean between Too Little and Too Much Protection Marie-Claire Foblets

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Part II The Governance of Religious Diversity in the Public Space: Perspectives from Asia and the Middle East 7. The Governance of Religious Diversity in the Public Space: Indonesia in Comparative Perspective Alfred Stepan

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contents 8. The Governance of Religious Diversity in Malaysia: Islam in a Secular State or Secularism in an Islamic State? Ahmad Fauzi Abdul Hamid and Zawawi Ibrahim 9. Secularism and Multiculturalism in India: Some Reflections Rochana Bajpai

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10. Secularism as Proto-Multiculturalism: The Case of Australia Geoffrey Brahm Levey

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11. The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity Raphael Cohen-Almagor

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12. Secularism as a Double-Edged Sword? State Regulation of Religion in Turkey Haldun Gülalp

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Part III Afterword Four Dogmas or Heresies in the Discussion of Secularism and Religion Joseph H. H. Weiler Rethinking Secularism Bhikhu Parekh

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Index

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Notes on Editors

Professor Anna Triandafyllidou heads the Research Area on Cultural Pluralism at the Global Governance Programme of the European University Institute (Robert Schuman Centre for Advanced Studies). Before joining the Global Governance Programme in October 2012, she was part-time professor at the Robert Schuman Centre for Advanced Studies specialising on migration issues (2010–12). A Senior Fellow at the Hellenic Foundation for European and Foreign Policy (ELIAMEP) in Athens in the period 2004–12, she headed a successful migration research team coordinating a dozen international externally funded research projects on various migration management and migrant integration topics. She is Visiting Professor at the College of Europe in Bruges since 2002 and the Editor-in-Chief of the Journal of Immigrant and Refugee Studies. Her recent books include: Muslims in 21st Century Europe (ed., Routledge, 2010), Irregular Migration in Europe: Myths and Realities (ed., Ashgate, 2010), European Multiculturalism(s) (with T. Modood and N. Meer, eds, Edinburgh University Press, 2011), Migrant Smuggling. Irregular Migration from Africa and Asia to Europe (co-authored with T. Maroukis, Palgrave, 2012), Irregular Migrant Domestic Workers in Europe: Who Cares? (ed., Ashgate, 2013), Circular Migration between Europe and its Neighbourhood: Choice or Necessity? (ed., Oxford University Press, 2013), The Greek Crisis and Modernity in Europe (with R. Gropas and H. Kouki, eds, Palgrave, 2013; also in Greek, by Kritiki Publishing), European Immigration: A Sourcebook (with R. Gropas, eds, 2nd edn, Ashgate, 2014); Employers, Agencies and Migration: Paying vii

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notes on editors for Care (with S. Marchetti, eds, Ashgate, 2014), High Skill Migration and Recession: Gendered Perspectives (with I. Isaaakyan, eds, Palgrave, 2016), What Is Europe? (co-authored with R. Gropas, Palgrave, 2015), The Routledge Handbook on Immigration and Refugee Studies (ed., Routledge, 2015) and After the Financial Crisis (with R. Gropas and P. Iglesias, eds, 2016). Tariq Modood is Professor of Sociology, Politics and Public Policy at the University of Bristol and is also the founding Director of the Centre for the Study of Ethnicity and Citizenship. He was recently a Visiting Fellow at the Robert Schuman Centre for Advanced Studies at the European University Institute (2013–15). He has led many research projects on ethnic minorities and Muslims, having held over forty grants and consultancies, and has over thirty (co-)authored and (co-)edited books and reports and over 250 articles or chapters in political philosophy, sociology and public policy. He is the co-editor of the international academic journal, Ethnicities (Sage), and of the Palgrave Politics of Identity and Citizenship series (twenty-five books published in the series to date). His latest books include Multiculturalism: A Civic Idea (2nd edn, 2013), Still Not Easy Being British (2010); and as co-editor Secularism, Religion and Multicultural Citizenship (2009), Global Migration, Ethnicity and Britishness (2011), European Multiculturalisms (2012), Tolerance, Intolerance and Respect (2013), Religion in a Liberal State (2013), Multiculturalism Rethought (2015) and Multiculturalism and Interculturalism: Debating the Dividing Lines (2016). He is a regular contributor to the media and policy debates in Britain. He was awarded an MBE for services to social sciences and ethnic relations in 2001 and was elected a member of the Academy of Social Sciences in 2004. He served on the Commission on the Future of Multi-Ethnic Britain, the IPPR Commission on National Security and on the National Equality Panel, which reported to the UK Deputy Prime Minister in 2010, and was a Steering Group Member of the Commission on Religion and Belief in British Public Life. His website is www.tariqmodood.com

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Notes on Contributors

Rochana Bajpai is Senior Lecturer (Associate Professor) in the Department of Politics at SOAS University of London. She received her graduate degrees from Jawaharlal Nehru University, New Delhi and the University of Oxford and has held research positions at Oxford. Her work has largely centred on India, and examined the politics of religion and caste with reference to constitutional and policy debates. Her first book Debating Difference: Group Rights and Liberal Democracy in India (2011; 3rd impression, 2014), demonstrated the importance of the practice of argument and debate in the context of demands of group equality and national unity. Her current research, funded by a Leverhulme Research Fellowship (2013–15), explores the theory and practice of political representation with particular reference to minority representation in Indian Parliament. She has also written on comparative affirmative action, with a focus on policy debates in India and Malaysia, as well as approaches to comparative political thought. Geoffrey Brahm Levey is an Associate Professor and Australian Research Council Future Fellow in Political Science at the University of New South Wales, Sydney. He was the foundation Director of the UNSW Program in Jewish Studies. His recent publications include, as editor, Authenticity, Autonomy and Multiculturalism (Routledge, 2015) and The Politics of Citizenship in Immigrant Democracies: The Experience of the United States, Canada and Australia (with Ayelet Shachar, Routledge, 2015). The author of numerous journal articles and book chapters, he is also editor of Political Theory and Australian Multiculturalism (Berghahn Books, ix

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notes on contributors 2012, 2008), and co-editor of Secularism, Religion and Multicultural Citizenship (with Tariq Modood, Cambridge University Press, 2008) and Jews and Australian Politics (with Philip Mendes, Sussex Academic, 2004). Raphael Cohen-Almagor received his DPhil in political theory from Oxford University (1991). He is Professor and Chair in Politics, University of Hull. He has founded and served in various organisations, including ‘The Second Generation to the Holocaust and Heroism Remembrance’ Organization in Israel (1982–7); The Van Leer Think-tank on Medical Ethics (1995–8); The Center for Democratic Studies, University of Haifa (2003–7); and The Hull Middle East Study Group (2008–), Prof. CohenAlmagor was a member of The Israel Press Council, Chairperson of Library and Information Studies, University of Haifa, and (Acting) Deputy Dean for Research, University of Hull. He was also Fulbright-Yitzhak Rabin Visiting Professor at UCLA School of Law, Visiting Professor at Johns Hopkins University, and Fellow at the Woodrow Wilson International Center for Scholars. He published extensively in the fields of political science, philosophy, law and ethics and two books of poetry. Among his more recent books are The Right to Die with Dignity (2001), Speech, Media and Ethics (2001, 2005), Euthanasia in the Netherlands (2004), The Scope of Tolerance (2006, 2007), The Democratic Catch (2007, Hebrew), Voyages (2007, poetry, Hebrew), Public Responsibility in Israel (co-edited with Ori Arbel-Ganz and Asa Kasher, 2012, Hebrew) and Confronting the Internet’s Dark Side (2015). Professor Cohen-Almagor is now writing a book on the failed peace process between Israel and the PLO, and Between Love and Death (poetry). Ahmad Fauzi Abdul Hamid is Professor of Political Science, School of Distance Education, and consultant researcher, Centre for Policy Research and International Studies (CenPRIS), Universiti Sains Malaysia (USM), Penang, Malaysia. From 1 September 2015 until 31 May 2016, he was Visiting Senior Fellow, ISEAS-Yusof Ishak Institute, Singapore. Trained as a political scientist and political economist at the universities of Oxford, Leeds and Newcastle, UK, his research interests lie within the field of political Islam

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notes on contributors in Southeast Asia. Ahmad Fauzi has published over forty scholarly articles in leading journals such as Indonesia and the Malay World, Islamic Studies, Asian Studies Review, Southeast Asian Studies, Asian Journal of Political Science, Japanese Journal of Political Science, Asian Survey, Pacific Affairs, Sojourn, Islam and Christian-Muslim Relations and Contemporary Southeast Asia. He regularly contributes book chapters to edited volumes, the most recent being ‘Sociopolitical Developments in West Asia and Their Impact on Christian Minorities in the Region’, in Felix Wilfred (ed.), The Oxford Handbook of Christianity in Asia (Oxford University Press, 2014); ‘The Hudud Controversy in Malaysia: Religious Probity or Political Expediency?’, in Daljit Singh (ed.), Southeast Asian Affairs 2015 (ISEAS, 2015); and ‘Globalization of Islamic Education in Southeast Asia’, in Ken Miichi and Omar Farouk (eds), Southeast Asian Muslims in the Era of Globalization (Palgrave Macmillan, 2015). He has also published four research monographs, namely Islamic Education in Malaysia (RSIS, 2010), Political Islam and Islamist Politics in Malaysia (ISEAS, 2013), Middle Eastern Influences on Islamist Organizations in Malaysia: The Cases of ISMA, IRF and HTM (co-authored with Che Hamdan Che Mohd. Razali, ISEAS, 2016) and most recently The Extensive Salafization of Malaysian Islam (ISEAS, 2016). In 2016, Ahmad Fauzi’s latest research was featured over mainstream English language media in Singapore and Malaysia. Marie-Claire Foblets, Lic. Iur., Lic. Phil., Ph.D. Anthrop. (Belgium) is professor of Law at the Universities of Leuven (Louvain in Belgium) and since 2012 also Director of the Department of ‘Law & Anthropology’ at the Max Planck Institute for Social Anthropology in Halle/Saale (Germany). She has held various visiting professorships both within and outside Europe. She has conducted extensive research and published widely on issues of migration law, including the elaboration of European migration law after the Treaty of Amsterdam, citizenship/nationality laws, compulsory integration, anti-racism and non-discrimination, etc. In the field of anthropology of law, her research focuses on cultural diversity and legal practice, with a particular interest in the application of Islamic family law in Europe, and more recently in the accommodation of cultural and religious diversity under State law.

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notes on contributors Haldun Gülalp taught sociology at Hamilton College (NY) and Boğaziçi University (Istanbul) and held visiting positions at George Washington University, Northwestern University, Oxford University, UCLA, Woodrow Wilson International Center for Scholars, and others. He recently retired as professor of political science from Yıldız Technical University (Istanbul) and currently chairs the Global Studies and Class Strategies (GSCS) Research Group in Istanbul, Turkey. He has published widely in the fields of political sociology, sociology of religion, secularism and citizenship. Zawawi Ibrahim received his PhD in social anthropology from Monash University, Melbourne. His current position is a joint appointment as Professor in the Institute of Asian Studies (IAS) and the Faculty of Arts and Social Sciences at Universiti Brunei Darussalam. He researches and writes on new Malaysian cinema and contemporary popular music, indigenous communities and their storytelling, peasantry and rural labour, the new media, and multiculturalism in Malaysia. He is the leader for IAS Popular Culture research track. His current research is on popular culture in Brunei and Islamic cinema in Indonesia and Malaysia. His books include The Malay Labourer: By the Window of Capitalism (1998), Cultural Contestations: Mediating Identities in a Changing Malaysian Society (1998), Representation, Identity and Multiculturalism in Sarawak (2008), Blogging and Democratization in Malaysia (with Jun-E Tan, 2008), Social Science and Knowledge in a Globalizing World (2012), Penan Society and Imagined Development (with NoorShah M.S., 2012), Borneo Studies in History, Society and Culture (with Victor King and Norsharina Hassan, eds, 2016) and Human Insecurities in Southeast Asia (with Paul Carnegie and Victor King, eds, 2016). He has contributed articles to international journals, including Inter-Asia Cultural Studies, Critical Asian Studies, Modern Asian Studies, Journal of Contemporary Asia, Asian Studies Review, Asian Journal of Social Sciences, Southeast Asian Studies (Kyoto), Seoumen Antropologi, Spectator, Situations, Positions and American Anthropologist. Gurpreet Mahajan is Professor at the Centre for Political Studies, School of Social Sciences, Jawaharlal Nehru University. She teaches courses in Philosophy of Social Sciences, Political Thought and Theory, Hermeneutics and Multiculturalism, and has written xii

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notes on contributors extensively on issues relating to minorities, cultural diversity, religion and state, secularism, civil society, and notions of public and private. Her publications include Explanation and Understanding in the Human Sciences (Oxford University Press, 1992, 1997, 2011), Identities and Rights: Aspects of Liberal Democracy in India (Oxford University Press, 1998), Accommodating Diversity: Ideas and Institutional Practices (ed., Oxford University Press, 2011) and India: Political Ideas and the Making of a Democratic Discourse (Zed Books, 2013). Bhikhu Parekh is an eminent political theorist in Britain and an active member in the House of Lords. Educated at the Universities of Bombay and London, he taught at the London School of Economics and the University of Glasgow before taking up a longterm position at the University of Hull. Between 1981 and 1984 he was Vice-Chancellor at the Maharaja Sayajirao University of Baroda in India. He also held the Centennial Professorship in the Centre for the Study of Global Governance at the London School of Economics and a professorship of political philosophy at the University of Westminster. In 2002, he served as president of the Academy of Learned Societies in the Social Sciences. Parekh has also served on the Commission for Racial Equality (including a spell as Vice-Chairman) and has held membership of a number of bodies concerned with issues of racial equality and multiculturalism – most notably as Chairman of the Commission on the Future of Multi-Ethnic Britain from 1998 to 2000. Lord Parekh is the author of several books on political philosophy, the latest being A New Politics of Identity: Political Principles for an Interdependent World (2008). Professor Parekh has received many awards including the BBC’s Lifetime Achievement Award in 1999; the Sir Isaiah Berlin Prize for Lifetime Contribution to Political Philosophy by the Political Studies Association (2002); and the Padma Bhushan honours in the 2007 Indian Republic Day Honours list. Tariq Ramadan is Professor of Contemporary Islamic Studies teaching at Oxford University in two Faculties of Oriental Studies and Theology & Religion; Senior Research Fellow at St Antony’s College (Oxford) and Doshisha University (Kyoto, Japan); Visiting Professor at the Faculty of Islamic Studies (Qatar); Director of the Research Centre of Islamic Legislation and Ethics (CILE) xiii

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notes on contributors (Doha, Qatar); President of the think tank European Muslim Network (EMN) in Brussels; and a member of the International Union of Muslim Scholars. He holds an MA in Philosophy and French Literature and a PhD in Arabic and Islamic Studies from the University of Geneva. In Cairo, Egypt he received one-on-one intensive training in classic Islamic scholarship from Al-Azhar University scholars (ijazat teaching licence in seven disciplines). Through his writings and lectures Tariq has contributed to the debate on the issues of Muslims in the West and Islamic revival in the Muslim world. His research interests include the issues of Islamic legislation, politics, ethics, Sufism and the Islamic contemporary challenges in both the Muslim-majority countries and the West. He is active at both academic and grassroots levels, lecturing extensively throughout the world on theology, ethics, social justice, interfaith as well intercultural dialogue. He is author of Le Génie de l’Islam (English edn forthcoming: The Essential Introduction to Islam: Spirituality, Fundamentals, History); Être occidental et Musulman aujourd’hui; Introduction à l’éthique islamique (English edn forthcoming: Islamic Ethics: A Very Short Introduction); De l’Islam et des musulmans; Au péril des idées (with Edgar Morin); The Arab Awakening: Islam and the New Middle East; The Quest for Meaning: Developing a Philosophy of Pluralism; Radical Reform: Islamic Ethics and Liberation; In the Footsteps of the Prophet: Lessons from the Life of Muhammad; and Western Muslims and the Future of Islam. Alfred Stepan is the Wallace Sayre Professor of Government Emeritus and was the founding Director of the Center for the Study of Democracy, Toleration and Religion at Columbia University. He has been the Gladstone Professor of Government and a Fellow of All Souls College, The University of Oxford and was the first President and Rector of Central European University in Budapest. He is a Fellow of The British Academy and also a Fellow of the American Academy of Arts and Sciences. With Juan J. Linz he is the author of Problems of Democratic Transition and Consolidation: Southern Europe, South America and Post-Communist Europe. With Linz and Yogendra Yadav he wrote Crafting State-Nations: India and Other Multinational Democracies (2011). He co-edited with Charles Taylor The Boundaries of Toleration (2014) and with Mirjam Künkler, Democracy and Islam in Indonesia (2013). He is xiv

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notes on contributors the author of ‘The World’s Religions and Democracy: Crafting the “Twin Tolerations”’. Joseph H. H. Weiler served as President of the EUI 2013–16 and is currently chaired professor at NYU School of Law. Previously he served as Professor of Law and Jean Monnet Chair at Harvard Law School and subsequently as Director of the Jean Monnet Center at NYU School of Law. He is Editor-in-Chief of the European Journal of International Law (EJIL) and the International Journal of Constitutional Law (ICON). He is also an Honorary Professor at University College London and the University of Copenhagen, and Co-Director of the Academy of International Trade Law in Macao, China. He holds a PhD in European Law from the EUI, Florence and honorary degrees from numerous European universities.

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1

Religion and Religious Diversity Challenges Today Anna Triandafyllidou and Tariq Modood

Introduction Religion and religious diversity appears to be one of the toughest diversity challenges that European societies face today in their search for identity, equality and cohesion in an increasingly globalised world. Indeed religion often appears to be a stronger identity register than national or ethnic identity and belonging. It has as such joined previous concerns with racism and ethnic prejudice leading to the acceptance that religious diversity is perhaps one of the most important dimensions of discrimination today (Modood 2013). Old paradigms of republicanism or multiculturalism seem to be in crisis but a new ‘third way’ between laïcité and state religion, which combine national and religious identity into a plural mix (where several ethnic and religious minority identity registers can exist in multiple layers within the same state’s citizenship and system of institutions), is struggling to emerge. It is in this uncertain context, where international jihadist terrorism terrifies many European citizens but where also important grassroots initiatives of transnational solidarity arise, that scholars and policy makers reflect on the best ways to institutionalise religious diversity in European liberal democratic societies. Indeed the question is posed whether in accommodating religious diversity one ought better to equalise upwards (notably more religion in public life for both majorities and minorities) or equalise downwards (moving towards a more radical secularism). And if the former is the way to go, what are the obstacles that a more egalitarian religious pluralism would face in European liberal and moderately 1

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anna triandafyllidou and tariq modood Secular societies? Would such problems come from minority groups and their special requests for accommodation or from powerful majority churches that might find it difficult to accept such a pluralism or feel that their historically privileged position is threatened? Or, perhaps the difficulty in exploring equalising upwards lies with those who oppose the presence of religions in public life, let alone an increase of it? Are all minority religious groups equally easy or difficult to accommodate or is there today in Europe a special public antipathy or mistrust towards specific groups? While the question of accommodating religious diversity has been at the forefront of the public debate on immigration and immigrant and ethnic minority integration since the 1990s, it is posed today with renewed urgency. The reason for this urgency is to be found in the re-emergence of religiously inspired, jihadist terrorism in Europe and elsewhere, on the one hand, and the rise of populism and the Far Right on the other. It looks as if European societies have miserably failed to accommodate and incorporate some immigrants and their offspring, thus leading some marginalised youth that is both out of education and out of employment to seek in jihadist terrorism a new source of belonging and selfaffirmation. In addition, a rise of populist parties across Europe (Mudde 2007; Mudde and Kaltwasser 2012) and particularly of the Far Right is registered in many European countries. Such parties tend to blame migrants and minorities for the decline of the welfare state and the increase in unemployment, disregarding the lack of investment in growth and social services. This book seeks to break new ground by investigating what we can learn in Europe from policies and practices in the Middle East and Asia where religious plurality and the integration of religion in the public space is the norm rather than the exception. Contributions to this volume investigate the meaning of secularism or accommodation of religious diversity in these different European and ‘Eastern’ contexts and consider whether these norms and practices can offer useful insights and examples of policies to be adopted in Europe. This volume is organised into two parts. The first part – composed of five chapters – focuses on analytical and normative issues involved in the management of religious diversity, discussing the type and degree of secularism or the appropriate dose and form of religion in politics that is fit for addressing the challenges of religious diversity that contemporary Western societies face. The 2

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religion and religious diversity challenges today chapter by Triandafyllidou discusses what is the place of religion in today’s world, how it is intertwined or indeed distinct from national identity. The chapters by Modood and Mahajan investigate what can be the basis of a secularist accommodation of religion in politics, and for integrating religion in public life on the premise that religion (and religious diversity) is a quintessential part of social life and that it cannot be asked to retreat from politics or the public space. They offer alternative yet complementary views on whether we can build respect for diversity into existing forms of moderate secularism (Modood) or whether it is best to recognise that the sensibility and practice of living with difference, built from the ground upwards and evolving over time, as in India, cannot be captured by the principles and institutions of secularism (Mahajan). Ramadan and Foblets discuss critically the governance of religious diversity in Europe looking at how it is addressed in the public space, but also how domestic legal systems grant stronger protection to mainstream/majority religions leaving it up to courts to apply human rights standards when minority religious groups turn to them for protection and recognition. While Foblets points to the weaknesses in legal protection for minority faiths, she believes that judges can respond constructively and creatively but they are in some need of education on the nature of the religions and issues in question. Ramadan, however, insists that secularism as a legal framework is inadequate to institute true equality across diversity as legal equality is standardly undermined by problematising the presence of new groups with distinctive practices, such as Muslims, through prejudicial attitudes and discourses. Hence a genuinely egalitarian approach has to focus on these prejudices and the symbolic understandings of nationhood, which defines who ‘belongs’ and who does not, and also the socio-economic inequalities which support this ‘superstructure’. He thus argues for a holistic approach, focused on education, civil interactions and the national imagination as much as on the state or law, in order to achieve what he calls ‘inclusive neutrality’. If Part I identifies the key challenges in European contexts, the second part of this volume discusses the experiences of countries in the Middle East, Asia and Oceania in their governance and accommodation of diverse religious communities within a single state. Our contributors offer their analytical insights on the modes of governing religious diversity implemented in Southeast Asia 3

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anna triandafyllidou and tariq modood and Oceania, including in some of the world’s largest democracies (such as India or Indonesia) where religion is respected as an important dimension of social and political identity and as an institution. They also look at countries in the Middle East which have struggled with important religious divisions. These chapters seek to assess whether respect and acceptance of religion as one dimension of public and political life can provide for a more appropriate basis for the governance of religious diversity than European or North American models of moderate or complete separation of church and state. Thus, Alfred Stepan offers comparative insights from Indonesia and Senegal, Zawawi Ibrahim and Ahmad Fauzi Abdul Hamid analyse critically the case of Malaysia, Rochana Bajpai reflects on the Indian secularism model as represented in the constitutional debates at the time of its formulation, while Geoffrey Brahm Levey discusses the case of Australia. Turning to the wider area of the Middle East, Raphael Cohen-Almagor questions the exclusion of religious diversity in Israel from public life and state institutions, while Haldun Gülalp critically investigates the institutional structures of Turkish secularism from theoretical and historical perspectives. While some of these countries exhibit a normalcy about religious diversity and states that positively institutionalise diversity, they also reveal countries in which institutionalised religious majoritarianism is on the rise and minorities anxious and secularists in retreat. The book concludes with two afterwords by Joseph H. H. Weiler and Bhikhu Parekh who comment critically on what is the special contribution of non-Western perspectives to the governance of religious diversity in Europe and how we can make the most of them.

The European context Religion and religious diversity appear to be one of the toughest diversity challenges that European societies face today. Muslims are the largest immigrant and post-immigrant (non-indigenous) group in Europe that is perceived to raise important challenges of cultural and religious diversity. European Muslims cannot of course be considered as a uniform group in any respect, as they come from different countries, live in different countries, speak different languages, adhere to different versions of Islam, and are more or less moderate in their beliefs and claims (Triandafyllidou 2012). 4

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religion and religious diversity challenges today Despite this multilevel difference within the Muslim communities of Europe, they are often portrayed in the media and policy discourses as a single community, as a population that shares common traits and that can be dealt with by the same type of policies – or indeed that cannot be integrated or assimilated in several countries for the same type of reasons. Indeed since the 1990s there is a tendency across Europe amongst some Muslims and others to highlight their religious identity and for societies to label ethnic minorities and immigrants in religious terms rather than in relation to their ethno-cultural background or social roles in society. This tendency, whereby Muslims in particular now are seldom categorised as Turks, Moroccans or Pakistanis (or as students or workers), exists in several European countries, where debates over integration and toleration of differences invariably centre on Muslims, and where religion is often associated with potential conflict. Public discussions tend to take place in an ‘us– them’ framework: Islam is increasingly constructed in opposition to Western (British, Dutch, Swedish, Spanish, French, Italian, and so on) values of democracy and equality. Since the Arab Spring in 2011 but particularly so during the last couple of years Europe has been shaken by acts committed in the name of religious extremism. The Arab Spring appears to have imploded and together with it the promise of a new paradigm of religion in politics as professed by the youth protesting in Egypt, Tunisia and Syria in 2011–12. The quest of Arab Muslims for more democracy, more economic development and more religion in the public sphere had raised hopes that there is an alternative model for the governance of religious diversity and the management of religion in the public sphere to be developed in the Arab world (Ramadan 2012), that would go beyond secularism as practised in Europe and North America. However, these hopes, if not abandoned, are relegated to a distant future as the region has gone up in flames and as jihadist terrorism and intra-Islamic fighting have taken the lead, over any sense of democratic and peaceful reform. In addition to these negative developments in the Middle East and North Africa, Europe has been shaken by the extremist violence of the Charlie Hebdo killings in Paris in January 2015 and by the recruitment of young European Muslims in the lines of the so-called Islamic State (ISIS). Indeed this tiny albeit dramatically visible part of European Muslims (some 5

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anna triandafyllidou and tariq modood of whom are second generation migrant youth of Muslim origin and others are young converts) who have joined the ISIS forces in Syria and Libya to fight a jihadist war (estimated at 3,500 by recent reports) are seen to testify to not only a failed socio-economic integration of second generation youth but also to a failure in governing religious diversity in Europe. The extreme choices of these young people are seen by some to support earlier allegations that Muslims are not fit (sic) for Western liberal secular democracies. They also seem to suggest that national and ethnic identity has lost its power of providing a sense of belonging for some young Muslims. Those recruited by ISIS do not feel attached to their parents’ country of origin or even their parents’ religious traditions and norms (Roy 2003, 2015). Majorities appear unable to understand what has gone wrong and why this marginalised youth turns to religious extremism and violence. This book offers both an analytical reflection on what is the normative basis for governing religious diversity and a sociological reflection on what can be viable forms of religious diversity governance that build rather than erode social cohesion. Thus, while our analytical and theoretical reflection is imbued by Western norms of liberal democracy for instance, our inquiry goes beyond Europe, looking into Southeast Asia, Australia and the Middle East for alternative forms and rules of governing religious diversity. We first explore whether religious diversity challenges can be best addressed through a stronger or weaker role for religion in public life. We thus challenge the dogma of secularism (more or less moderate?) as a quintessential ingredient of a liberal democratic society (see also Stepan 2000). We seek to think creatively and outside the box in what can be forms of moderate political secularism that allow for majority and minority religions to coexist in reciprocal autonomy with the state, and with an active participation of religious institutions in the governance of welfare and in public life. In probing this version of moderate secularism we take advantage of different legal, religious, theoretical and political science perspectives. We question whether secularism should be seen as a complete (or less complete) form of separation of church and state or a form of twin toleration and mutual autonomy. We seek to distinguish secularism from atheism and consider how European societies can forge a sense of multi-religious legitimacy that allows for a participatory 6

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religion and religious diversity challenges today co-governance of religious diversity within liberal democracy. We also question how religion relates to national or ethnic identity and whether the two tend to function as substitutes, as mutually reinforcing, as overlapping but independent or as simply multiple layers of diversity that need to be governed through separate institutions. Taking stock of a critical inquiry of the experiences of different countries in Europe, Asia and Oceania, we aim thus to provide answers to the sociological, political and normative challenge on how to govern religious diversity in Europe today.

Secularism: Old models and new challenges Historically, at least in the West, religion and politics, church and state have enjoyed various linkages. These began to be reduced in the nineteenth and twentieth centuries. The long-term origins of this movement can be traced back to the Reformation. Initially, the linkages between religion and politics became more intense as religion became the basis for rebellion, civil war and international conflict for more than a century. The Treaty of Westphalia (1648) is marked as the moment when it was recognised that peace in Western Europe was only possible if each country was allowed to have an official state religion while at the same time desisting from persecuting dissenters and minorities. The normalising of state religions was the opposite of secularism but it established that states had a right to regulate religion within their borders. Secularism proper emerges with the American Revolution (1776), which led to the disestablishment of a state religion in the name of religious freedom; and the French Revolution (1789) and the ideal of freedom from religion, at least in the public sphere. The latter idea became part of socialism, especially revolutionary Marxism– Leninism, which legitimised the suppression of religion, and of the Turkish state founded in 1922. The latter’s approach to modernisation involved control and utilising of Islam rather than a Communist eradication of religion. Most of Western Europe, however, followed a gentler path, neither the strict state–religion separation of the US, nor the denuding of the public sphere in the manner of laïcité, let alone the Soviets. In Western Europe, state–religion connections persisted but they were gradually lessened as on the one hand churches had less influence on political affairs and, on 7

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anna triandafyllidou and tariq modood the other hand, disabilities against Christians of the non-dominant denomination and against Jews were relaxed and finally abolished. European powers took these secularist ideas and practices with them as they instituted global empires. Anti-colonial movements included the radically secularist, as in the case of Mao in Communist China, but also resistance to secularism. Gandhi, for instance, infused Indian nationalism, especially at the level of the masses, with an ethical or spiritual Hinduism or religious pluralism. Mohammed Ali Jinnah responded with a nationalism specifically designed for Indian Muslims, which led to the creation of Pakistan in 1947, the first modern state based on a religious identity. A year later, the second such state, Israel, was founded. This counter-secularist trend of the oppressed could be said to reach its apogee in the Iranian Revolution of 1979. Led by a cleric, the Ayatollah Khomeini, it was the complete repudiation of the Westphalian idea that the state should assert its authority by choosing and regulating an official religion. Khomeini instituted the doctrine of the vilayat-i-faqih, that the supreme religious authority (himself) should be the supreme state authority, with a veto over the decisions of parliament and government. This was a religious revolution based on Shi’a Islam which was the mirror opposite of the Western progressivism which assumed that modernity meant the fading away of religion from human affairs and emancipation meant the overthrow of religious authority. From there on it has seemed to some Western observers that there has been a ‘return of God’ or a ‘worldwide rise of religious nationalism’ (Juergensmeyer 1996). At the same time scholars in the West started pointing out that religion in the West had not ceased to be ‘public’ or political but was actively to be found in, for example, the institution of the welfare state (Anglican Archbishop William Temple having invented the term ‘welfare state’), especially through the influence of Catholic social doctrine in Christian Democratic parties and anti-war movements, in particular in relation to nuclear weapons (Casanova 1994). From the 1970s organised Christian movements became powerful in the American Right and more recently Muslim identity politics has become a concern for many in Western Europe (Joppke 2015). Theorists have reflected these developments. A post-colonial anti-secularism in India has characterised secularism as a Western, not universal, idea arising from Western problems (such as the pre-Westphalian wars of religion) and imposed globally through 8

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religion and religious diversity challenges today colonial states and Western cultural imperialism (Nandy 1998). Talal Asad – who can perhaps claim to be the founder of the new secularism studies in the Western academy – has taken this even further. He argues that the very concept of religion as a bounded, legally tolerated and regulated activity is an invention of Western elites, first imposed on Western societies and then imposed on the rest of the world (Asad 1993, 2003). Indeed, there does seem to be a point here. While philosophers, scientists and artists define what is and is not philosophy, science and art respectively (even where that is internally contested within these activities and changes over time), yet, at least in the modern West, the state and political movements are involved in defining and regulating what is and is not religion. If relations between the state and the economy are a defining question of high modernity in the West, its predecessor question – the question of early modernity – is that of the relation between the state and organised religion. It is a question which by the third quarter of the twentieth century seemed more or less settled in the West but which re-emerged towards the end of the twentieth century. Liberal theorists have at least in part accepted this charge of secularist domination and that such domination is not merely a political ambition but built into the very concepts of liberalism. John Rawls, the leading liberal philosopher of the last half century, had in his early work expounded a purely rational conception of justice but towards the end of his life felt it necessary to revisit the concept of public reason to show that it was not ideologically secularist and accommodated religious voices in the public square (Rawls 1997). Jürgen Habermas has engaged in similar revisionary accommodation and has described the current epoch as ‘post-secular’ (Habermas 2006). By ‘post’ he does not mean it as in ‘post-feminism’ or ‘post-racial’, something that we have gone beyond and left behind. Rather, his ‘post’ is ambiguously suggestive of a new phase of the secular (here the ‘post’ is as in ‘postmodern’ and as in ‘post-colonial’), which emphatically means we have not gone beyond the epoch marked by the suffix. Charles Taylor disavows the vocabulary of ‘post-secular’, preferring to describe the relevant period of revision as one of rethinking secularism as he is clear that ours is ‘a secular age’ (Taylor 2007). Europe, especially Western Europe, the original home of secularism, secular polities and decline in belief in and scope of religion, 9

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anna triandafyllidou and tariq modood shows no sign of reversing the long-term fading away of Christianity. Many Europeans are happy to think of their countries and their continent as post-Christian. The rethinking of secularism in Europe is largely due to the fact of religious diversity in a context of pro-diversity sensibilities and ethics rather than a reversal of previous declines. Europe has a number of church–state models: state religions in the form of weak establishments as in England, Denmark, Norway and Finland; churches as legal corporations working with the state as publicly funded partners, most evident in Germany; a French regime of laïcité in which organised religion is regarded as an interloper in public affairs; a powerful and influential Catholic church, albeit distinct from state structures as in Italy, Ireland and Poland (for alternative typologies, see Koenig 2009; Madeley 2009; Ferrari 2012). Yet, from their different starting points and in their own ways they face the same broad question: how to adapt existing church–state relations and norms of secularism to an extra-Christian religious diversity that the continent has not known before. This is the question that this book addresses and it asks if our thinking on this European question can benefit from learning about the experience elsewhere.

Contents of this book The first part of the volume starts with Anna Triandafyllidou who points to the emergence of religious affiliation as the main fault line along which people are divided in Europe. She points out that unlike the 1980s and 1990s that were shaken by ethnic and nationalist claims (including the Basque and Northern Irish terrorism, the war in Yugoslavia, concerns about the protection of ethnic minorities in the then newly independent Central and Eastern European countries) the twenty-first century has seen the emergence of religion as a politically and culturally important affiliation that needs to be accommodated in European, moderately secular and liberal societies. Thus, while ethnic and national minority claims for more political space and independence are channelled through national institutions, for example the process of devolution in Britain and the Scottish referendum, or through international arbitration (e.g. the EU Roma Strategy, or the OSCE Ljubljana principles), the religious claims of minorities are seen to pose the most difficult challenge because they are perceived to be against the very nature 10

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religion and religious diversity challenges today of secular and liberal European democracies. This is paradoxical as religious minority claims do not challenge national sovereignty nor territorial integration and actually could be accommodated in line with the path followed in each country in earlier times, to make space for native religious minorities. Indeed European societies are much less secular than they often portray themselves to be (several countries have recognised official religions, most countries have religious education integrated in their national education system, and many allow or support religious schools, as well as offer support to religious organisations). Triandafyllidou argues that actually religious and ethnicnational divisions are to be read within the same wider framework of post-1989 Europe, globalisation, regional integration and the liquidity of late modernity. Thus the two divisions operate in parallel and often intersecting lines (when national (majority) or ethnic (minority) identity includes a strong religious element). Their main function is actually the necessity to create a political and cultural Other that would make European identity meaningful at the global level and at the same time would provide for some national political and cultural anchoring in an uncertain and fluid world. In other words, both national and religious divisions are old forms of ‘solidity’ that are re-emerging. While religion and particularly Islam is more ‘appealing’ as a Significant Other that creates unity within Europe (and the West writ large), nationalist politics offer more tangible and secure answers of political control and stability. At the end of the day, Muslims are functional to both as they provide the necessary internal and external Other. Just like Communists in the 1950s and 1960s were both an internal and external threat, today Muslims are the fifth column within and a threat to the world stability and prosperity at the international level. Fighting Al Qaeda or ISIS gives NATO a mission and the USA a role in the world while discussing how Islam is detached from modern reality and ethical dilemmas that people face today, and detracts attention from similar dilemmas that dominant Christian denominations also face. In Chapter 3, Tariq Modood focuses on multiculturalism and moderate secularism and starts by explicating the relationship between a multiculturalist approach to diversity and moderate secularism in Europe. Modood argues that what is often talked about as a ‘crisis of secularism’ is, in Western Europe, quite 11

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anna triandafyllidou and tariq modood crucially to do with the reality of multiculturalism, notably of a multiculturalist approach to religious and cultural diversity, which entails that equality must be extended from uniformity of treatment to include respect for difference; recognition of public/ private interdependence rather than dichotomised as in classical liberalism; the public recognition and institutional accommodation of minorities; the reversal of marginalisation and a remaking of national citizenship so that all can have a sense of belonging to it. Modood suggests that equality requires that this ethno-cultural multiculturalism should be extended to include state–religion connections in Western Europe, which he characterises as ‘moderate secularism’, based on the idea that political authority should not be subordinated to religious authority yet religion can be a public good which the state should assist in realising or utilising. The chapter goes on to discuss three multiculturalist approaches that contend that the multiculturalising of moderate secularism is not the way forward. One excludes religious groups and secularism from the scope of multiculturalism (Will Kymlicka); another largely limits itself to opposing the ‘othering’ of groups such as Jews and Muslims (Yolande Jansen); and the third argues that moderate secularism is the problem not the solution (Rajeev Bhargava). Responding to the perplexities raised by the ways in which religious diversity is framed in Europe today, Gurpreet Mahajan offers an alternative perspective based on the Indian experience. Mahajan argues that examining what kind of moderate secularism can provide the best framework for managing cultural and religious diversity can be misleading, as moderate secularism is a necessary but not a sufficient condition for the task at hand. Reflecting on aspects of the Indian experience the chapter first of all suggests that we might at best work towards creating an environment in which observance of religious differences and diversity are more likely to be accommodated, for the question of accommodating religious practices can never be settled entirely. An understanding of the other, along with a more historicised picture of community and its practices, are enabling conditions towards which we must aspire if we wish to accommodate differences. At the end of the day one needs to inculcate an ethic of responsibility that has the possibility of factoring in the other while determining what is appropriate and desirable. 12

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religion and religious diversity challenges today Against this backdrop, the chapter by Mahajan develops three inter-related arguments: (1) the framework of secularism by itself cannot address the different kinds of claims that are coming from religious communities in Western democracies today; (2) a moderate form of secularism is certainly preferable, and it can co-exist with a commitment to diversity. Unlike the more rigid form of secularism that insists on complete separation of religion and state, moderate secularism can make some space for religion in the public domain; however, it too is not enough by itself for accommodating and valuing religious and cultural diversity; (3) accommodating demands that come from religious minorities requires that we go beyond the framework of secularism and value religious diversity. It requires us to approach matters of religion differently and recognise that the language of choice misunderstands the nature of commitment invoked by religious practitioners. Reflecting on the case of India, the chapter argues that it is the recognition of religious diversity and the priority accorded to protecting that diversity which has made a crucial difference; without the latter, moderate Indian secularism would not have yielded the observed results. Modood, then, drawing on an Anglophone understanding of political multiculturalism, and Mahajan drawing on the established ways that Indians have accommodated and normalised a respect for religious diversity, point to different ways of centring diversity in contemporary political modes of secularism. In the next chapter, Tariq Ramadan argues that today’s secular and pluralistic Western society must go back to the basics of what secularism is or was intended to be. Secularisation is a wideranging dynamic that has assumed a diversity of institutional forms depending on individual countries and societies, their respective histories, cultures and collective psychologies. Secularism influences how power is distributed at the state level, as well as between and within the public services and the social institutions of a given country or society. Given the emerging Muslim presence in the West, however, secularism has developed an ideological edge, maintaining some features of organised religion while redefining itself and even adding new aspects that can be likened to dogmatism. Thus secularism no longer refers simply to the separation of powers or to established legal frameworks binding on all citizens, but to informal perceptions, and – in some cases – non-verbalised understandings. Seen from the standpoint of these non-codified 13

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anna triandafyllidou and tariq modood parameters, Muslim visibility has emerged as a ‘threat’, as a sign of ‘non-integration’ or of ‘not-belonging’. Ramadan argues that if our pluralistic societies are to achieve a viable secularism, we need to agree objectively on some common denominators, and set aside ideological considerations, subjective perceptions and informal representations or misrepresentations. Open public space, which is the essence of any secular society, requires a normative set of notions and an agreed-upon legal framework to establish rules that do not grant privileges to any specific religion. Its basic principle is to secure the same rights and duties for all of that society’s religious communities. Thus Ramadan argues we need a clear legal and institutional framework that protects diversity, including visible diversity with regard, for example, to the presence of churches, synagogues and mosques; or with regard to dress and religious practices. Several factors, ranging from the role of the state, the nation and public education, as well as to the management of ‘neutrality’ and the exercise of proactivity, will prove essential in the consolidation of a secular and pluralistic society. In Chapter 6, Foblets addresses the meaning of equality today in relation to identity, specifically how religious identity can best be conceptualised in the space between justifiable differential treatment and discrimination. Historically, freedom of religion and belief has been among the best protected human rights in Europe. In practice, however, the form this protection takes is at least as varied as the histories of the various countries: a surprising diversity runs through the regulations and policies that legislatures and judiciaries have produced over time. But it is not only history that influences the approach to religion and belief and their protection under state law. More recently, new developments that seriously question the relationship between (state) law and religious identity are playing a role across Europe: on the one hand, there is the continuing secularisation of societies, which diminishes the authority of traditional churches; on the other hand, new religions and convictions bear witness to the resurgence of belief. Strikingly, law in most European countries today – both the legislative frameworks in place and the case law – has an ambivalent relationship to this dual development: policies and lawmakers are very reluctant to develop a new understanding of religious identity and its protection, with the effect that mainstream/traditional/majority religions in many cases continue enjoying a protection – rooted in 14

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religion and religious diversity challenges today history – that is either being denied or is not as easily granted to new religions and non-faith-based convictions. This ambivalence, Foblets suggests, produces a number of thought-provoking effects. One such effect is that, in practice, religious discrimination is more easily perceived and acknowledged as impermissible within the context of disputes involving mainstream/traditional/majority religions than is the case for other religions or beliefs. Another effect is, paradoxically, overprotection of religion. This in turn invites strategic litigation: religion is turned into an instrument that provides legal grounds for claims that would otherwise not be granted. One could speak of the ‘religionisation’ (giving religious meaning) of claims that are brought before courts. The concluding part of this chapter explores the conditions that are necessary to take account of religious diversity in a spirit of reasonable accommodation, thus requesting adjustments in specific contexts without the involvement of the judiciary when it comes to governing religious diversity in situ. Foblets discusses a number of paths that may serve as a source of inspiration for judges, lawyers and other interested parties in their search for appropriate solutions to claims relating to the protection of freedom of religion. Having thus explored the quest for religious accommodation along conceptual, legal and sociological perspectives and the nature and role of moderate secularism as a principle and as a practice, the second part of the book focuses on case studies from Asia and the Middle East with a view to exploring alternative models for accommodating religious diversity. The chapter by Alfred Stepan focuses on Indonesia, the world’s most populous Muslim majority country. He argues that Indonesia’s comparatively successful democratic transition was helped by its pattern of governance of religious diversity in the public space. This pattern is characterised by five main features. First, there is no provision for sharia law nor hard secularism in the constitution. Indeed democracy requires ‘twin tolerations’ rather than hard secularism. The term ‘twin tolerations’ refers to the relative autonomy of democratically elected officials to rule, but also the relative freedom of religiously active citizens to participate in public life as long as they do not violate other citizens’ rights (Stepan 2000). The recognition of the sociological facts of diversity, and the utilisation of the Qur’anic injunction against ‘compulsion’ in religion, led to the political choice in 1945, 1955 and 1990 against sharia in the constitution. 15

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anna triandafyllidou and tariq modood Second, this model requires rejecting Rawls’s injunction that in order to get an ‘overlapping consensus’ religion should be ‘kept off the political agenda’. In Indonesia, when non-democratic or pro-violence arguments were put on the agenda by some Muslim militants, they needed to be, and they normally were, confronted by knowledgeable and influential Muslims who time and again put on the public agenda their counter-arguments against such extremists, and won the day. A third element concerns the positive accommodation of religions. Unlike France, Turkey or even the USA, but like Germany, Belgium, Switzerland and India, Indonesia practises a ‘positive accommodation’ towards religions that allows the state to give financial support and other types of aid to a broad variety of religious institutions. A fourth ingredient of this model concerns policy cooperation: on some issues where the state could not get high compliance from some religious groups (for instance, girls’ education) it has proven useful to have a degree of joint policy discussion and implementation with religious organisations. Last but not least, Indonesia adopts a public co-celebratory approach to religious diversity. There are six mandatory and paid religious holidays for the majority religion, Islam, but also another seven for the minority non-Muslim religions. Indeed this comes into stark contrast with several European countries, including Scandinavia, the Low Countries and the UK, which have many paid and compulsory religious holidays but all for the majority Christian religion. What is analytically and politically worth more reflection is that all five of these features are present in one way or another in the most long-standing Muslim majority democracy in Africa, Senegal, and in India, which is a long-standing Hindu majority democracy that until independence had the world’s largest Muslim population, so that India’s democracy had to be imagined and planned keeping in context its large Muslim population. Following up from the chapter on Indonesia, Ahmad Fauzi Abdul Hamid and Zawawi Ibrahim investigate the governance of religious diversity in Malaysia, another Muslim majority country. The chapter offers a critical analysis of the evolving development and contestations of Malaysian ‘plural society’, from its inception as an independent nation-state to the current era of post-Mahathirism and globalisation. A crucial element in this discourse of Malaysian 16

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religion and religious diversity challenges today pluralism engages with the legal framework of the Malaysian Constitution, including some of its most recent amendments. The Malaysian Constitution endorses Islam as the country’s official religion while, however, also protecting the rights of non-Muslims to practise their faith. For a long time, Malaysia has taken pride in being a melting pot of different cultures, ethnicities and religions, co-existing under a secular public sphere. Traditionally, the contestation over Islam normally occurred in the arena of political parties, that is, between the ruling Malay party, UMNO, and the Islamic party, PAS. But of late, in the post-Mahathir era contestation has emerged in the political-legal landscape of Malaysian society, concerning the constitutional right to religious freedom, raising questions about the boundaries of religious freedom for both Muslims and non-Muslims. Underlying these tensions are the alleged ‘ambiguity’ of the Federal Constitution, the ‘reluctance’ of the judiciary (civil courts) ‘to protect the religious freedom of minorities’, giving way to the ‘ostensibly overzealous arbitrary approach by the Sharia courts’. The chapter seeks to disentangle these contestations by analysing certain constitutional amendments and sharia reforms under Mahathir’s long leadership which have unwittingly led to the bureaucratisation and centralisation of Islam in Malaysia. In time, this has strengthened the legal reach of certain religious institutions and their roles, both at state and national levels, such as JAKIM, the sharia courts and Fatwa Councils, the Muftis and the Monarchy. This chapter provides detailed examples and case studies to illustrate how in recent times the social space available for accommodating religious diversity is narrowing down. Indeed the current political landscape is destabilised by the emergence in Malaysian civil society of Muslim Malay extremist NGOs which seek to dominate the country’s public discourse. To counter the political inaction of the ruling polity and the domination in civil society by the Malay extremists, for the first time, a group of eminent Malays have also begun to vocalise their critique as ‘moderate Malays’, with a petition, among others, that parts of the sharia laws need to be reviewed to ensure that they do not intrude on the civil liberties enshrined in the Federal Constitution, which they advocate should remain as the supreme law of the Malaysian nation-state. Rochana Bajpai turns to the Indian case, with a view of investigating how the governance of religious diversity in India as 17

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anna triandafyllidou and tariq modood regulated in the constitution has evolved since the late 1940s at the time of independence, through the late 1980s and to this day. Indeed, in the areas of religious freedom and personal law, India’s constitutional framework is broadly multicultural in character, sanctioning the public expression of religious difference. With regard to the electoral system and reservations, however, Indian constitution makers de-recognised religious diversity and sought the eradication of difference, argues Bajpai. Institutional and normative heterogeneity in India’s constitutional framework has often been an asset, allowing for flexibility, negotiation and change over time in the state’s stance towards religious diversity. At different times, legislatures and courts have articulated both more and less accommodationist positions towards religious diversity. Nevertheless, she argues, in contrast to Mahajan’s understanding of Indian practice as according a recognition to religious diversity, that India’s constitutional vision is characterised by a normative deficit with regard to the protection of religious difference. This has been politically influential, with the rights of religious minorities remaining under-supported by liberal democratic and nationalist principles, a line of critique exploited skilfully by a resurgent Hindu right. Turning to Oceania, Geoffrey Brahm Levey offers a critical overview of the Australian model for accommodating religious diversity. Australia is in Asia but not of Asia. Institutionally and culturally, Australia instead bridges Britain and the United States, the Old and New Worlds. Its federal parliamentary democracy borrowed aspects from both Westminster and Washington. Yet, Australia rejected both England’s established church and the US’s ‘high wall of separation’ between church and state. Australia is often compared with the US and Canada as one of the great immigrant democracies. Like Canada, it adopted multiculturalism as state policy in the 1970s. Yet, it more closely resembles many European countries and perhaps even Quebec in the precedence it grants to the established (Anglo-Australian) majority culture. Australia thus combines Old and New World patterns and concerns, offering a unique vantage point on the governance of religious diversity in relation to secularism. Levey notes that we are accustomed to thinking that political secularism and multiculturalism – as two liberal responses to religious-cum-cultural diversity – press in opposite directions. 18

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religion and religious diversity challenges today Whereas secularism separates state and religion, multiculturalism involves the state affirmation of cultural identity. Australia presents a case where these two models genuinely complement and indeed begin to merge into each other. He argues that Australian multiculturalism, indeed, extended the approach to diversity already established by Australia’s version of secularism. However, secularism and multiculturalism in Australia face a common challenge from attempts to reassert national identity. Perhaps unexpectedly for the twenty-first century, religion has become the favoured vehicle for this reassertion. The chapter begins with some remarks on the constitutional context and the operative political culture. The second section discusses the place of religion in multicultural Australia, and the third section canvasses how religion has been reasserted in recent years as a trope for reinforcing Anglo-Australian institutions and culture as the core of Australian national identity. In the concluding section, Levey identifies some of the key challenges these dynamics pose for Australians. Returning to the geographical neighbourhood of Europe, this volume includes Israel and Turkey. In relation to the first case, Raphael Cohen-Almagor discusses the principles underpinning the nature of liberal democracy and then critically reviews the nature of Israeli State Judaism. Cohen-Almagor argues that State Judaism in Israel is orthodox, and that the orthodox do their best to protect and promote their monopoly on religious concerns. Jewish Orthodoxy does not promote pluralism and diversity; it limits freedom of choice citizens have in leading their lives. Thus the question has to be posed whether Israel can be described as a liberal democracy. It is argued that Israel is an ethnic democracy, and that it is difficult to reconcile between Orthodox Judaism and the values of liberal democracy. There is a widespread institutional discrimination against other forms of Judaism, whether reformist or conservative. It is further argued that if Israel aspires to be an egalitarian-liberal democracy, it should respect secularism and other forms of religion (Jewish and non-Jewish), pluralism and diversity, and that separation between state and religion is desired. Last but not least Haldun Gülalp critically reviews the state regulation of religion in Turkey. Indeed Turkey is often seen as an exception in the Muslim world for its secularism, which, scholars agree, has been introduced from above, in an effort to bring religion under state domination and control. Talal Asad and others further contend 19

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anna triandafyllidou and tariq modood that at any rate religion’s public and political role is ultimately determined by the sovereign modern state, implying that this situation is not unique to Turkey. Through an examination of the ways in which Turkish secularism has been debated and through a historical analysis of the political fluctuations that widen or narrow the room for religious expression in the public sphere, Gülalp aims to show that the institutional structures of secularism in Turkey serve as a doubleedged sword that can cut both ways. While it is true that the Turkish ‘secular’ state regulates religious affairs through a number of instruments, these instruments may be used not only to marginalise the public and political role of religion, but also to create a state whose power is religiously legitimised. This chapter goes on to critically review recent developments in Turkey and warns against the use of moderate secularism against its own objectives. It concludes a series of cases which suggest that while there is indeed more experiencing of institutional religious diversity in most of those countries, in nearly of all of them – Indonesia being an exception – the existing or recent accommodation of diversity is under threat and the phenomenon of new religio-nationalist majoritarianism is more advanced outside Europe than within it. It seems then that parts of the developing world are flashing a red alert about the maintenance of forms of governance of religious diversity that are respectful of minorities and do not offer ‘off-the-peg’ solutions for Europe, but rather a set of experiences instructive about how diversity can be normal yet vulnerable to majoritarianism, even in democracies, if not restrained by liberal constitutions and practices. The volume concludes with two short afterwords by Joseph H. H. Weiler and Bhikhu Parekh which offer some general reflection in their own way. Weiler is particularly keen to bring out the religious basis for some positions which to many, and especially to the Protestant mind, look like secular rationalisations. He begins with bringing out an argument which he finds present in some of the former Pope Benedict’s speeches. He puts in his own words a contrast between Christianity, Judaism and Islam that he believes Benedict to be making. While there is more than one aspect to this contrast, the most important point Weiler wants to make here is that the reason that Christianity accepts that state law should not be based exclusively on religious reasons is not as a concession to secularism. Rather, it is a recognition amongst modern Christians that religious reasons for action must be accepted willingly and so should never 20

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religion and religious diversity challenges today aspire to have the force of positive law. His second example of the elusive nature of religious reasoning is to do with the definition of a Jew. Recently the UK Supreme Court heard the case of a rejection by a Jewish school of a place to a boy on the grounds that his mother was not born a Jew nor converted to Judaism by criteria approved by the Chief Rabbi, even though the boy is known to be in good standing with his synagogue. The majority decision of the court was that given that the boy is clearly a practising Jew, to reject him in terms of whether his mother is of Jewish descent is to exercise racial prejudice and so the school was guilty of an act of racial discrimination. Weiler thinks that the case does not hang on issues of bloodline but on criteria for conversion and thus the mother’s status is a genuinely religious question and not about her ‘race’. A practising Jew can still fail to be a Jew if his mother was not born a Jew or converted in a manner approved by the Chief Rabbi, relative to a boy who is not religious but was born to a Jewish mother (or a mother who converted correctly). The matrilineal line is not just about ethnic descent but is about religious duties that fall on those who are born Jewish, whether they carry them out or not. If so, then a secular court has no business telling Jews the criteria for religious membership, and so cannot rule that these criteria cannot be about descent. Weiler concludes his piece by joining some of the other authors in the book in questioning the possibility of liberal secular neutrality and assuming that a radical laic position is more neutral than the moderate secularism which gives some recognition of the religion, better still, religions, that give meaning to many citizens and an anchor to a changing national identity. Bhikhu Parekh offers an afterword which in a short space covers the whole waterfront from fundamental principles, acceptable secular states, multiculturalism and the difficult mono-religious Christian legacy of European states that makes accommodation of religious diversity a problem. He sketches an outline of the key analytical distinctions which constitute a secular state which pursues its own autonomous purposes exercising its own authority. It, however, does not privilege the non-religious over the religious and supports religions where it deems they contribute a public good. It emphasises that religions are not all alike: some are more belief and others more practice based; some more individualist, others more collective. Seeing secularism as involving a wall of separation between the state and religion makes sense in relation to the individualistically 21

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anna triandafyllidou and tariq modood oriented Protestantism but not many other religions. He acknowledges that this diversity leads to problems in interpreting when religions are and are not being treated equally. For example, if Christians are not required to wear anything special to display their faith, not even a cross, but Muslims and Jews are, is to grant the latter the right to do so an example of equality or privilege or a respect for difference? He also acknowledges that while the growth of newly present religions in Western Europe such as Islam means that existing national identities should be adapted to include them, this cannot be on equal terms with Christianity, which continues to much more profoundly shape European nations even as those countries become less religious. Nevertheless, he concludes, the problem of accommodating religious diversity is a particularly acute one in Europe because it is a new problem for what for over a millennium has been a mono-religious continent. Europe’s predicament is that it confronts a new and deepening religious diversity that is most unusual for European states, certainly since the emergence of political secularism. That predicament is far more common in the Middle East and Asia, where the experience of dealing with it, especially in the contemporary period, is mixed and on the whole tending to move away from religious pluralism and/or secularism to institutionalised religious majoritarianism. Europe has therefore to learn both positive and negative lessons from these other parts of the world, while it adapts its own legacy of Westphalian confessionalism, radical secularism, anti-Semitism and Islamophobia and accommodates the new ethno-religious pluralism – a pluralism which has become central to majority–minority cohesion, to remaking national citizenship and indeed to the European project itself. When the stakes are so high we must be willing to rethink narrow secularist assumptions, negative perceptions of Islam, which ahistorically portray it as an intrusion into Europe, and learn what we can from the experiences of the rest of the world.

References Asad, T. (1993), Genealogies of Religion, Baltimore: Johns Hopkins University Press. Asad, T. (2003), Formations of the Secular: Christianity, Islam, Modernity, Stanford, CA: Stanford University Press. Casanova, J. (1994), Public Religions in the Modern World, Chicago: University of Chicago Press.

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religion and religious diversity challenges today Ferrari, S. (2012), ‘Law and Religion in a Secular World: A European Perspective’, Ecclesiastical Law Journal, 14: 3, 355–70. Habermas, J. (2006), ‘Religion in the Public Sphere’, European Journal of Philosophy, 14: 1, 1–25. Joppke, C. (2015), The Secular State under Siege: Religion and Politics in Europe and America, Cambridge: Polity Press. Juergensmeyer, M. (1996), ‘The Worldwide Rise of Religious Nationalism’, Journal of International Affairs, Religion: Politics, Power and Symbolism, 50: 1, 1–20. Koenig, M. (2009), ‘How Nation-States Respond to Diversity’, in P. Bramadat and M. Koenig (eds), International Migration and the Governance of Religious Diversity, Ontario: School of Policy Studies, Queens University, pp. 293–322. Madeley, J. T. S. (2009), ‘Unequally Yoked: The Antinomies of Church–State Separation in Europe and the USA’, European Political Science, 8, 273–88. Modood, T. (2013), Multiculturalism, Cambridge: Polity Press. Mudde, C. (2007), Populist Radical Right Parties in Europe, Cambridge: Cambridge University Press. Mudde, C. and C. R. Kaltwasser (eds) (2012), Populism in Europe and the Americas, Cambridge: Cambridge University Press. Nandy, A. (1998), ‘The Politics of Secularism and the Recovery of Religious Toleration’, in R. Bhargava (ed.), Secularism and its Critics, New Delhi: Oxford University Press. Ramadan, T. (2012), Islam and the Arab Awakening, Oxford: Oxford University Press. Rawls, J. (1997), ‘The Idea of Public Reason Revisited’, The University of Chicago Law Review, 64: 3, 765–807. Roy, O. (2003), ‘EuroIslam: The Jihad Within?’, The National Interest, Spring, (last accessed 25 January 2017). Roy, O. (2015), ‘There Are More French Muslims Working for French Security than for Al Qaeda’, The World Post, 1 September, (last accessed 25 January 2017). Stepan, A. (2000), ‘Religion, Democracy, and the “Twin Tolerations”’, Journal of Democracy, 11: 4, 37–57. Taylor, C. (2007), A Secular Age, Cambridge, MA: Harvard University Press. Triandafyllidou, A. (ed.) (2012), Muslims in 21st Century Europe: Structural and Cultural Perspectives, London: Routledge.

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Part I The Governance of Religious Diversity: Freedom of Religion or Freedom from Religion

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2

Nation and Religion: Dangerous Liaisons Anna Triandafyllidou

Introduction While the 1980s and 1990s have been characterised by tensions and even terrorist violence or war along ethnic/national lines in Europe, during the last fifteen years religion has emerged as the main fault line along which people are divided. After decades of Basque or Northern Irish terrorism, the war in Yugoslavia and its partition, and the related concerns that the situation of ethnic minorities in Central Eastern Europe could become an unmanageable challenge, we are witnessing today an appeasing of ethnic tensions. Ethnic and national minority claims for more political space and independence are channelled through national institutions, for example the process of devolution in Britain and the Scottish referendum, or through international arbitration (e.g. the EU Roma Strategy, or the OSCE Ljubljana principles). It is the religious claims of minorities that are seen to pose the most difficult challenge because they, it is argued, are against the very nature of secular and liberal European democracies. This is paradoxical as religious minority claims do not challenge national sovereignty nor territorial integration and actually could be accommodated in line with the path followed in each country in earlier times to make space for native religious minorities. Indeed European societies are much less secular than what they often portray themselves to be (several countries have recognised official religions, most countries have religious education integrated in their national education system, and many allow or support religious schools, as well as offer support to religious organisations). How are we then to explain this paradox that ethnic and national 27

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anna triandafyllidou minority challenges are seen as less problematic than those of religious minorities? Fears and suspicion towards religious minority claims are coupled with a renewed emphasis on the nation state as the most important geopolitical and socio-economic unit. As the intensification of globalisation and the erosion of national sovereignty (particularly in Europe through the European integration process), along with the recent global financial and the Eurozone crisis, send alarm signals to citizens, the nation-state re-emerges as a safe haven in an uncertain even if closely integrated international environment. The nationstate, to paraphrase Alan Milward (1992), is being rescued by these regional and global crises. Citizens suddenly become diffident of global governance processes like the G8 and G20, of EU policies whether towards public finance or migration management, and they turn to their national governments and their national institutions to seek socio-economic security. This chapter discusses these contrasted processes of, on the one hand, the perception of religion as a main dimension that organises social and political life at the global level, and, on the other hand, the re-emergence of national identity and the nation-state as the main community of allegiance and belonging in a post-industrial society. I am arguing that actually both processes find their roots in the reorganisation of the political and symbolic world order that took place in 1989 with the collapse of Communism. They are of course conveniently supported and fuelled by the recent socioeconomic crisis in Europe, which has intensified inequalities both within and between countries making citizens increasingly worried about their future. This chapter starts with a brief discussion of the current European context, the challenges that globalisation brings and the ways in which national identity and religion provide responses to these challenges. The next section turns to discuss in some more detail how the deepening and widening of global and regional integration processes stimulate a return to the safety and solidity of the nation-state and of national belonging. The subsequent section, on the other hand, looks at how religion plays out in this context, and how alongside a re-emergence of nationalism we witness a certain retreat of secularism not in terms of norms or laws but in terms of actual practices and public attitudes which target religious minorities and more specifically Muslims. Thus, I contend, religion emerges 28

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nation and religion as a second axis of solidity which brings together the moderately secular European societies, without attacking their national cultural specificities. As I argue in the concluding section, nation and religion are entangled in a dangerous liaison in Europe: nation provides for solidity and safety in a globalised world while religion provides for a convenient Significant Other at the global level against whom to ascertain cultural and political superiority.

The current European context The societal transformation that Bauman (1998, 2000) and Sennett (1998) have been describing and analysing already in the late 1990s has acquired a particular configuration and intensity in Europe in the post-1989 period. The defeat of Communism as a political and economic system has brought with it the reconnection of Europe (Spohn and Triandafyllidou 2003) but has also led to the dominance (if not outright hegemony) of the consumer culture and of the free market economy that Bauman and Sennett among others have critically analysed (Baumann 2000). Differences between left-wing and right-wing ideologies have thus become rather vague and the citizen has been left to wonder what the alternative is. The European Union has come in this context to offer an institutional framework for the reconnection of Europe overcoming the World War II legacy and Cold War divisions. A notion of European identity and European culture has brought together the different nations of Europe and their minorities even if this has not happened on a level playing field, nor have cultural hierarchies and closures towards specific minority identities been avoided (Triandafyllidou and Gropas 2015). Despite the important economic and political challenges posed by the reconnection of Europe, the 1990s were characterised by a certain ideological enthusiasm that the reconnection of the continent ended a past of wars and division, and that the European Union would offer a platform for both economic and geopolitical integration while European identity would become intertwined with national identities, enriching and not replacing them. Not only were the 1990s a decade of European enthusiasm and drive for unification, they were also characterised by increased attention to cultural and religious diversity in Europe. Multiculturalism was celebrated in many countries (e.g. the UK, the Netherlands or 29

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anna triandafyllidou Sweden) as the most appropriate way for accommodating cultural and religious diversity and building an inclusive citizenship. This pro-diversity policy extended also to the then newly independent states in Central and Eastern Europe which were strongly encouraged to recognise their national minorities and provide appropriate guarantees for their rights as foreseen in relevant European and international legal instruments (Triandafyllidou and Ulasiuk 2014). Indeed the end of the Cold War and the implosion of the Communist Other were celebrated in the 1990s as a liberation from Europe’s past tragedies as well as the start of a new era globally, what then Fukuyama called the End of History in his well-known book (Fukuyama 1992). The new millennium started, however, with a profound geopolitical, cultural and existential crisis for Europe and the West. The terrorist attacks of 9/11 signalled the end of the post-1989 euphoria. While the US government was proclaiming the War on Terror and attacking Afghanistan and later again Iraq, Europe was facing important internal and external challenges. Urban violence erupted in northern English cities in the summer of 2001, while the French cities followed suit in 2005. National grievances of second generation children that were failing in both school and the labour market were then coupled by global cultural crises like that surrounding the Danish cartoons of Prophet Muhammad in 2006. While jihadist, extremist forms of Islam were emerging as a global terrorist threat, more moderate versions of Islam and European Muslims started being portrayed as unfit for European liberal and secular societies. The Madrid (2004) and London (2005) bombs did nothing but reinforce this view: certainly not all Muslims are terrorists, but there is something fundamentally wrong (sic) with Islam as a religion that makes it inappropriate for European democratic societies and impossible to accommodate in a secular system. Islam emerged forcefully as an important dividing ‘civilisational’ line within Europe during the same period in which the post-1989 European reunification enthusiasm started declining. Indeed the magnitude of the economic and political challenges of the transition of Central Eastern European countries from Communism to free market Capitalism and liberal democracy became increasingly felt in Europe in the late 1990s when several of the former Communist countries experienced a second round of economic and political decline. Discussions about their integration into the 30

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nation and religion European Union seemed to come to a dead end when the Helsinki summit of 1999 reaffirmed the political will of the EU15 to integrate the new countries possibly in one big enlargement wave by 2004. Thus economic objectives were subsumed to the overarching political goal of reuniting Europe, provided the new member states would be fully-fledged democracies and would subscribe to the European values which included the accommodation of national minorities and the abandonment of irredentist claims or border disputes. Thus the Conclusions issued after the European Council’s Summit in Helsinki on 10–11 December 1999 stated: The European Council reaffirms the inclusive nature of the accession process, which now comprises 13 candidate States within a single framework. The candidate States are participating in the accession process on an equal footing. They must share the values and objectives of the European Union as set out in the Treaties. In this respect the European Council stresses the principle of peaceful settlement of disputes in accordance with the United Nations Charter and urges candidate States to make every effort to resolve any outstanding border disputes and other related issues. [. . .] Moreover, the European Council recalls that compliance with the political criteria laid down at the Copenhagen European Council is a prerequisite for the opening of accession negotiations and that compliance with all the Copenhagen criteria is the basis for accession to the Union.1

In a way it was the very success of Eastern Enlargement, along with the emergence of international jihadist terrorism and urban tensions among post-migration minorities and native majorities, that paved the way for Islam to become the necessary European Other. Not only had Communism collapsed and with it the overall Cold War geopolitical and symbolic framework, but the Central Eastern European countries were fully subscribing to the by then hegemonic Western European model. The Communists had been successfully ‘reformed’ – there was a need for a new Other at the European and global level towards whom a united Europe and the Western/European values would be reaffirmed. Muslims emerged as a convenient Other, both internally and externally – they were accused of creating ‘parallel societies’ within European countries, while they also posed a threat to European security through terrorism. Indeed a number of thinkers and politicians were advancing the claim that Muslims were impossible to 31

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anna triandafyllidou accommodate in European countries because their cultural traditions and religious faith were incompatible with secular democratic governance. While for a good part of the 2000s this debate gained momentum and actually led to the public repudiation of multiculturalism by a number of European leaders (Angela Merkel in October 2010, David Cameron in February 2011), there were other important developments in Europe which changed the course of things and shifted the focus from religion and Muslims to other ‘Others’. Indeed the debate on migration and diversity was further complicated by the intensification of intra-EU mobility after the 2004 enlargement and the 2007 accession of Bulgaria and Romania and the progressive lifting of restrictions in terms of the new member state citizens’ access to the labour markets of the old member states. There has been rising concern that intra-EU migration includes welfare tourism and while it was Nicolas Sarkozy’s government in France in 2009 that caused wide condemnation in relation to its (Romanian) Roma expulsion practices, such debates gained high currency in Britain in the 2010s. While such debates were initially to be found only among extremist and populist parties like UKIP (United Kingdom Independence Party) or Front National (in France) or the party of Geert Wilders in the Netherlands, they gradually expanded to the mainstream political discourse. Thus, what was initially seen as mainly an issue of second generation migrant youth and of Muslim communities has become a wider anxiety that national governments and national majority groups are losing control over their territory, labour market and national identity. The European integration process thus shifted from being the epitome of Western cultural, economic and political dominance over Communism – the victory of democracy over authoritarian rule – to posing a threat of losing national control over important social and economic issues. The result of the Brexit referendum in June 2016 can certainly be read through this lens too. Thus we are faced today with a complex socio-political reality where Muslims and Islam continue to be stigmatised as unfit for secular and liberal democracy, while at the same time fear is mounting among public opinion that the European integration process is stripping states of their power, leaving their national populations unprotected from the cultural and economic invasion of the newcomers. These newcomers, if Muslims, are seen as 32

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nation and religion culturally dangerous, eroding our way of life; if by contrast they are white, Christian and European (like Poles or Romanians, for instance), they are seen as welfare scroungers, stealing our welfare and our jobs. This leads to a divisive debate that is organised along cross-cutting religious and national lines. In a post-1989, post-9/11 era but also post-Enlargement era, religion and the nation compete with one another to provide ontological and socio-economic security to European citizens, offering as an anchor a Manichean view of the world as divided between Us and Them. Indeed extreme events like the Charlie Hebdo attack in Paris in January 2016, the shootings and explosions again in Paris in November 2015 and in Brussels in March 2016 do nothing but confirm these discourses of fear (to use Ruth Wodak’s expression; Wodak 2016). In the section that follows I seek to offer a reflection on how we can sociologically explain the re-emergence of nationalism today, when the world is becoming increasingly interdependent and interconnected (not least thanks to technology developments) while in the fourth section I discuss why Islam is a suitable Other for Europe.

Globalisation and the re-emergence of nationalism Nations are faced today with a new set of social and economic challenges: economic globalisation has intensified, bringing with it a more intense phase of cultural interconnectedness and political interdependence. Globalisation has also further driven and multiplied international flows not only of capitals, goods and services but also of people. National2 states have seen their capacity to govern undermined by these processes. In Europe the process of pooling sovereignty at the EU level has been particularly pronounced while, however, the nation has also continued to be a powerful (rivalled only occasionally by religious allegiance) source of identity and legitimacy. Globalisation is essentially about interconnectedness. More specifically, it ‘refers to the widening, deepening and speeding up of global interconnectedness’, and can be described and understood in terms of four socio-spatial dimensions (Held et al. 2003: 67–8): density, referring to the stretching of social, political and economic activities across borders; intensity, the intensification of interconnectedness and of patterns of interaction and flows; velocity, the speeding up 33

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anna triandafyllidou of global interactions and processes; and impact, deepening enmeshment of the local and global in ways that local events may affect distant lands. Globalisation entails numerous political implications, for it brings a series of challenges to the national state as a politicoterritorial form of social organisation. The national state appears to surrender to supranational institutions or private actors while its borders are transcended by multiple flows and networks. Sassen (1996) identified a partial de-nationalisation of national territories and a partial shift of some dimensions of sovereignty, while others remain intact. Especially when it comes to immigration, argues Sassen, ‘the national state claims all its old splendour in asserting its sovereign right to control its borders’ (1996: 59). While early accounts overstressed the powerful tendency of globalisation to undermine state sovereignty and erode national borders, more recent approaches underline the (re-)bordering processes advancing hand in hand with globalisation forces (Andrijasevic and Walters 2010). Indeed today in Europe, with the refugee and the Brexit crises in full swing, we are witnessing a very strong re-bordering process which is putting into question the very European integration process and one of its main achievements, namely the Schengen no-internal-border zone. Despite political decisions shaping globalisation, the de facto transfer of the control of national economic policy instruments (monetary policy, interest rates, fiscal policy, etc.) to supranational institutions and the domination of market forces over politics have severe implications for democracy and the legitimacy of governments by popular mandate (Castells 2010a, 2010b). At the same time, policies at the national level and beyond are being challenged by transnational social movements such as indeed the recent protest movements of Indignados and Occupy that swept several European countries in 2012–13. Exposure to global forces at a time of generalised cuts in public spending deprive states of their earlier function of providing social protection for their citizens, thus further undermining their legitimacy and the appeal of the nation as a main community of belonging. The cultural dimensions of globalisation are complex and multidimensional. Already in the 1960s, McLuhan coined the term ‘global village’ to describe the social implications of transformations in the media from an individualistic print culture to interactive electronic 34

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nation and religion interdependence. The proliferation of electronic digital media and communication tools radically transforms the patterns of human interaction and experience of time, space and place (Appadurai 1996; Castells 2010a). It crucially contributes to the instant spread of media images and information across the globe, which does not simply bring closer distant places or cultures, but irreversibly distorts distinct cultural forms and conduces to increasing homogenisation under the prevalence and worldwide diffusion of ‘Western’ lifestyles and a global culture of consumerism. Globalisation involves contrasted dynamics in the sphere of culture, however. On the one hand, it creates cultural homogenisation through the increased flows of cultural goods, capitals, media images and technological applications, rendering culture a fluid, fragmented, de-nationalised and de-territorialised category (Bauman 2011). On the other hand, globalisation provokes increased flows of people and hence diversity within societies which then may stimulate identity-related conflicts connected to racism, nationalism and religious fundamentalism (Appadurai 1996; Castells 2010b). It has been nearly twenty years since Zygmunt Bauman first theorised on the increased freedom and mobility that characterises late modern and post-industrial, post-Fordist societies, together with pointing to the accelerated anxiety, the existential uncertainty and angst that globalisation brings to citizens (Bauman 1998, 2000, 2011). Bauman argued that the present time of ‘liquid modernity’ has melted ‘the bonds which interlock individual choices in collective projects and actions – the patterns of communication and co-ordination between individually conducted life policies on the one hand and political actions of human collectivities on the other’ (2000: 6). The very emancipation of the individual from the forces of nature or religious belief achieved in modernity has gone into a new phase, a stage B of modernity, argued Bauman. Thus while free individuals in modernity were to use their freedom to find the appropriate niche in which to settle and adopt the rules and modes of conduct identified as appropriate for that location, free individuals today have lost their stable orientation points. We have moved from a national to a post-national or a-national mode of being. While individuals are still dependent effectively on both their subjective freedom (their own imagination and their setting of their own limits) and their objective freedom (their actual capacity to act), they no longer 35

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anna triandafyllidou have pre-allocated reference groups (such as those provided by class, kinship, ethnicity, religion, locality). Their point of reference is universal comparison, argues Bauman, generating too many patterns and configurations available to the individual. The responsibility of the pattern-weaving is left entirely on the individual’s shoulders, while patterns of dependency, interaction, cooperation or solidarity have become too volatile for one to rely on them. Indeed globalisation and its socio-economic consequences leave individuals free of communal ties albeit with an ‘unbearable lightness of being’ – to use Milan Kundera’s words. The more systemic perspectives on globalisation and late modernity that point to its cultural and political consequences for the national state and the closer focus of Bauman on the consequences of globalisation for the individual that becomes uprooted and disengaged seem to suggest an overall retreat of both the national community and religious affiliation – forces that traditionally tied down individuals to their communities in symbolic affective and ultimately also political and economic ways. It is my contention, however, that if we look more closely, we shall see that this intensified and diversified mobility (and liquidity) situation that globalisation creates bears with it the seeds of new solidities, the revival of rootedness. While the re-emergence of nationalism can be read as an unavoidable consequence of the intensification of globalisation, we are witnessing this revival of nationalism today in Europe in rather unexpected forms. While the European integration process was seen to provide a buffer zone between the forces of globalisation and the nation-state both at the socio-economic level and at the political-identity level, it is now increasingly experienced by European citizens as a more aggressive and intensive form of globalisation. While such dissident voices had been heard in the past, among the well-known group of Eurosceptics in different countries, in the aftermath of the global financial and the Eurozone crises, such voices have been strengthened. And so has the appeal of populist parties both at the right and left wing of the political spectrum (including, for instance, on one hand the UKIP, the Front National, the True Finns, the Freedom Party in Austria, but also on the other hand the Podemos movement in Spain, Syriza in Greece and Movimento Cinque Stelle in Italy). Thus while before European integration and the European Union were seen to offer a higher level of governance, more appropriate for facing the 36

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nation and religion challenges of globalisation today and a wider even if less demanding level of political community, today they are experienced as inimical forces that are stripping citizens of their welfare protection (through austerity cuts), jobs (through intra-EU migrant competition in the labour market), political security (the refugee crisis and the Schengen no-internal-border zone) and even identity (through too much (sic) protection of refugees, migrants and overall minorities). In this context of insecurity the nation-state and national identity re-emerge as poles of stability and solidity. This re-emergence of nationalism has nonetheless gone hand in hand with an increasing diffidence towards Muslims and Islam as, while the European integration process was playing out internally with regard to welfare and employment, international terrorism was completing the job by seeding a feeling of insecurity among European citizens. Indeed international terrorism offered the ultimate proof that we need a return to the national borders both geopolitically and symbolically to protect us from international terrorists and to offer solid ‘muscular liberalism’ rules (as David Cameron put it in his speech of February 20113) to guide our democracies away from too much lenience to cultural diversity.

Religion and Islamophobia in Europe The brief analysis of the social, political and economic dynamics of globalisation and the revival of nationalism would seem to suggest that wider forms of identification like religion which unite many nations and countries, predicate universal religious values, and do not require necessarily political autonomy or power, would have lost their currency today. Indeed the re-emergence of a muscular liberal nationalism would seem to suggest that religion is losing its symbolic and political power, as it becomes subsumed to national identity and the nation-state. And as long as this re-emerging nationalism remains moderately secular, including in most countries a special relationship between the state and the historical majority religion and church, it would leave sufficient room, in line also with European traditions and values in this domain, for religious freedom and protection from religious discrimination. This does not seem to be the case, however. While the principles of moderate secularism remain strong in Europe, there is also a concomitant, competing Islamophobia that is creeping in, threatening to erode the very principles it stands for and leading 37

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anna triandafyllidou to forms of nationalist or civic intolerance (see Triandafyllidou and Kouki 2013; Mouritsen and Olsen 2013). In the sub-sections that follow I survey briefly the composition of European Muslims and the institutionalisation of Islam in different European countries with a view to showing how these populations and communities are culturally and politically diverse, integrated within different institutional models, and largely belonging to Europe by now. However, as I argue at the end of this section, these details of Muslim citizens’ lives in Europe are neglected while issues like the foreign fighters or the burqa are being used as symbolic expressions of the Muslims’ failure to adapt to secular societies. Indeed there is a strong contradiction between what is really happening on the ground and what is debated at the public and political level. Muslims as europe’s others Muslims are the largest immigrant (non-indigenous) group in Europe that is perceived to raise important challenges of ethnic, cultural and religious diversity. European Muslims cannot of course be considered as a uniform group in any respect, as they come from different countries, live in different countries, speak different languages, adhere to different versions of Islam, and are more or less moderate in their beliefs and claims. Despite this multilevel difference within the Muslim communities of Europe, they are often portrayed in the media and policy discourses as a single community, as a population that shares common traits and that can be dealt with by the same type of policies – or indeed that cannot be integrated or assimilated in several countries for the same types of reason. Indeed since the 1990s there has been a tendency across Europe to label immigrants in religious terms rather than in light of their ethno-cultural background or social roles in society. This tendency, whereby Muslims in particular are seldom categorised as Turks, Moroccans or Pakistanis (or as students or workers), exists in all the countries studied, where debates over integration and toleration of differences invariably centre on Muslims, and where religion is often associated with potential conflict. Public discussions tend to take place in an ‘us–them’ framework: Islam is increasingly constructed in opposition to Western (British, Dutch, Swedish, Spanish, French, and so on) values of democracy and equality. 38

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nation and religion The countries with the largest Muslim populations in Europe4 are Germany (4.76 million), France (4.7 million), the UK (2.96 million), Italy (2.2 million), the Netherlands (1 million), Bulgaria (1 million), Spain (0.98 million), Belgium (0.63 million), Greece (0.6 million), Austria (0.45 million) and Sweden (0.43 million). These numbers are estimates (for 2010) produced by the Pew Research Center based on a combination of sources including national census data but also information on the countries of origin of both first and second generation migrants, as there are no official religious statistics in Europe. In Bulgaria Muslims are a native historical minority. The first Muslim communities settled in Bulgaria in the fourteenth century. Apart from Turks and Tatars, who are almost exclusively Muslim, numerous ethnic Bulgarians and Roma also belong to the Bulgarian Muslim community. Similarly, the estimated 85,000 Muslims that live in the north-eastern part of Greece in the region of Western Thrace are mainly of Turkish and Roma ethnicity (Triandafyllidou 2012). The other European Muslim populations are of immigrant origin. In the UK and France they are linked to pre-existing colonial ties and the de-colonisation process of North Africa and Southeast Asia, while in the case of Germany, the Netherlands, Italy, Spain, Greece and Sweden, Muslims came as economic migrants without any previous special relationship between the country of origin and the country of destination. In terms of nationality the vast majority of Germany’s Muslims are Turks (or of Turkish origin). French and Belgian Muslims are mainly of Moroccan, Algerian and Tunisian origin. British Muslims are South Asians for the most part, in particular Pakistanis and Bangladeshis. In the Netherlands the largest Muslim populations are Turkish and Moroccan. In Italy and Spain the vast majority of Muslim residents are of North African origin (Moroccans predominantly). In Greece, and also to some extent in Italy (in addition to the Moroccans), Muslims are mainly Southeast Asians (Pakistani, Bangladeshi, Afghani and Somali citizens). In Sweden Muslims are mainly Somalis, Iranians, Iraqis and Bosnians. Despite this internal ethnic and cultural diversity of European Muslims, they are often portrayed in public discourse as a uniform group, ‘the Muslims’, which challenges the liberal and secular character of European societies. This challenge, however, is each time shaped by the institutional model and philosophy of 39

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anna triandafyllidou migrant integration of each country. Thus in France, for instance, where religion is seen as a private matter and where public space is thought of as absolutely secular, Muslims are constructed as ‘different’ from other native French because of their religion and ethnicity, including even their physical features (darker skin). However, in the French context, the term ‘French Muslim’ tends to refer mainly to the community of believers. In a situation where religious belonging is seldom used as a basis for political mobilisation, it is more common to hear of ‘maghrebins’ to refer to the members of minorities who trace their ancestry to North Africa. Islam in France is thus constructed as an ethnic marker that encompasses a religious dimension as well. Muslims in France can be considered a ‘visible’ minority and are discriminated against in employment, housing and social services, much as people of colour are in general. However, since ethnic statistics are a contentious issue in France, there are no official statistics that can appropriately document these phenomena (Simon 2008). Muslims in France pose a specific challenge to the dominant concept of laïcité. Concretely, laïcité is the complete separation of church and state and represents an institutional arrangement that sets the conditions for the exercise of religion and the limits of religious forms of expression. This is a specific feature of the French case, even though in most countries Europe’s Muslims, and their claims, challenge the limits of the moderately secular democratic national and European institutions. In Germany Muslims were previously generally referred to as Turks, that is, by reference to their nationality or ethnicity. It was only in the 1990s, and increasingly in the 2000s, that Turks became ‘Muslims’ and that the public debate on immigrant integration centred on the notion of a common German ‘leading culture’ (Leitkultur). Proposed by a conservative politician, Friedrich Merz, the idea of the German Leitkultur demanded that immigrants adapt to this leading culture, if they wanted to stay in Germany for good. Thus, the socioeconomic dimension of the problems of Turkish/Muslim migrant integration in German society was set aside, and integration challenges were increasingly seen as issues of culture and religion – especially after 9/11 (Yurdakul 2009). This culturalising of social problems (which attributed all contested issues such as arranged/forced marriages or homophobia to the religious beliefs and identity of the group) contributed to the 40

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nation and religion stigmatisation of all Muslims in Germany, regardless of their personal beliefs, and to the politicisation of these issues. Especially since the relaxation of the naturalisation provisions in Germany in 2000, there has been a simultaneous reactionary turn towards scrutinising whether Turkish citizens, even those established in Germany for decades, espouse the main German values, or constitute some kind of suspect and dangerous ‘Others’ in the midst of the German nation. In this context, the term ‘tolerance’ became particularly relevant, as Muslims were seen as asking for tolerance of their difference, while they were themselves supposedly intolerant of the German national majority and/or their own members who held dissenting views. In Germany there was a clear shift from the 1990s, when it was mainly right-wing extremists who were considered intolerant in society, to the post-2001 years when it is the Muslims who are the ‘intolerant’ ones (Schiffauer 2006). This public discourse in Germany, which also flourishes widely in Denmark and the Netherlands, ignores the fact that in Germany, for instance, Turks and people with Turkish background are not the only Muslim groups – and many of them are not practising Muslims or not Muslims at all. Other European countries have Muslim communities that are highly diverse in terms of ethnic origin. For instance, Sweden has one of the most heterogeneous Muslim populations of all Western European countries. They have different ethnic, political, linguistic and/or educational backgrounds and come from over forty different countries in North and sub-Saharan Africa; from Arabic, Turkish or Persian parts of Asia; and from Europe. They come from secularised states such as Turkey, religious states such as Iran, and from former socialist states such as Bosnia-Herzegovina and several of the new states that formerly belonged to the Soviet Union. The same is true for Ireland, where Muslims come from Malaysia, Somalia, South Africa, Nigeria, Algeria, Libya, Bosnia and Pakistan. Greece has a moderately diverse Muslim population: while native Muslims are of Turkish, Roma and Pomak ethnicity, immigrant Muslims are of Pakistani, Bangladeshi, Afghani and Somali origin. The definition of the ‘Muslim problem’ as essentially one of a radical (fundamentalist) religion and a culture incompatible with Western values also obscures in Germany (but also in Denmark, Sweden, the Netherlands, the UK and France) the socio-economic 41

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anna triandafyllidou dimension of Muslim stigmatisation, exclusion and indeed inability to integrate successfully. The poor educational attainment of Turkish and Moroccan children in France, the Netherlands, Germany and Denmark, or of Bangladeshi and Pakistani children in Britain (documented in numerous studies) has a lot to do with their socio-economic background (profession and schooling of parents, socio-economic level, area of residence) but also with the discrimination that they face at schools and later in the labour market. Indeed several studies (such as, for instance, Heath and Cheung 2007) find it hard to explain why inequalities persist and which are the factors that matter most: socio-economic background, discrimination, unequal opportunities, religion, specific ethnic background, structure of the educational system, or indeed a variable combination of all these factors. In Denmark, Germany, Britain, the Netherlands, Sweden and France, Muslims have been treated with increasing suspicion in the last fifteen years. Indeed the rise of a fundamentalist international terrorism, and during the last couple of years the issue of foreign fighters – even if they are only a few hundred – has contributed to the stigmatisation of both Islam and Muslims. Social scientists have coined the terms ‘Islamophobia’ and ‘Muslimophobia’ to analyse these phenomena (Klug 2012). Islamophobia is the irrational fear of and prejudice against Islam as a faith and a culture without any discrimination between different Islamic religious currents. Muslimophobia is the irrational fear of and prejudice against Muslims as individuals, assuming that all people who are nominally Muslims experience their identity and faith in a fanatical and absolutist way that involves, among other things, the fusion of religious and political power, the subjugation of women to men, and certain other customs that are indeed incompatible with dominant Western values such as forced and under-age marriages, homophobia and anti-Semitism. This post-2001 discourse overlooks the fact that some of the issues seen as emblematic of Muslim incompatibility with European secular and liberal democracies, notably homophobia or anti-Semitism, are persisting issues of tension among Christian or secular majorities in these countries. Muslimophobia and Islamophobia were initially phenomena noted in the countries with large Muslim immigrant populations, that is, the ‘old host’ countries. However, such prejudice and irrational fear exists also in ‘new host’ countries. The case of Greece 42

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nation and religion with respect to recent irregular migrants arriving in the country is an interesting case in point, which shows how a fundamentally socio-economic or humanitarian problem can be framed as a question of culture and religion. Indeed Greece has an increasing Muslim immigrant population, which was, however, largely invisible until the last six or seven years. The vast majority of Muslim immigrants in Greece were in fact of Albanian origin and hence not practising Muslims, raising no claims for mosques, headscarves or religious education. For Albanian Muslims, faith was a personal and private manner and had little to do with their integration in Greek, predominantly Christian Orthodox society. The South Asian immigrants who have arrived in Greece during the last two decades were also mainly male workers who had left their families back home in Pakistan or Bangladesh. Hence there were no challenges of integration of Muslim children in schools, nor any women wearing the veil in public places. Islam was, however, instrumentalised in the late 2000s as part of the irregular migration discourse. Most irregular migrants/asylum seekers arriving through Turkey to Greece without documents, crossing the Greek–Turkish border illegally, were and still are Afghani, Somali, Pakistani and Bangladeshi. While the challenges these people face have more to do with their legal status (as irregular migrants or asylum seekers) and eventually their socio-economic integration, religion has come to the fore particularly in the late 2000s largely through the discourse of extreme right-wing groups portraying them as a threat to the cultural and economic survival of Greece (Triandafyllidou and Kouki 2014). The institutionalisation of Islam in European societies Despite the polarisation of public discourse about Muslims in the last fifteen years, this has not stopped the gradual process of institutionalisation of Islam in European societies. Certainly such a process varies depending on the length of the Muslim presence in each country. Thus in the countries that experienced post-war labour migration in the 1960s and 1970s, such as France, Germany and Britain, Islam has been institutionalised to a significant extent. For instance, France and Sweden have statefunded schools for educating imams. Denmark, the Netherlands and Britain allow for (semi-)state-funded Muslim faith schools, 43

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anna triandafyllidou while religious (Muslim) education is making its inroads in some federal states in Germany (e.g. Berlin). In Britain, the Netherlands, Denmark, Sweden and France Islam is a recognised religion and enjoys specific privileges such as tax exemption, the right to construct its places of worship (provided certain requirements are fulfilled) and to have its own burial grounds. This is not, however, the case in most of the new host countries that have important Muslim populations. Thus there are no Muslim cemeteries and there are no provisions for Muslim faith schools, state-aided or not, in Greece, Spain or Italy. In Greece there is a special set of religious and educational rights for the native Muslim minority of Western Thrace which include bilingual (Greek–Turkish) schools, religious high schools and sharia law for family and inheritance matters, but these are part of an international treaty signed in Lausanne in 1923 to settle the conflict between Greece and Turkey and to guarantee the rights of the Turkish Muslim populations in Greece and the Greek Christian populations in Istanbul. This treaty has been both a blessing and a curse for the native Muslim community in Greece. While it has allowed the community to live its cultural and religious life to the full, the treaty is not subject to change. It does not follow socioeconomic developments in the region, and provides a set of rights that is fossilised and cut off from the rest of Greek society and/ or developments in other Muslim countries where sharia law, for instance, is in force. Bulgaria’s Muslims suffered persecution under the Communist regime, but their rights were restored after 1989. This did not occur smoothly, however. Significant opposition to the reversal of the assimilation policies that they had experienced under Communism appeared, especially among Bulgarians living in ethnically mixed areas and among the members of the security sector (the Ministry of Interior, secret services, army), who were directly involved in the implementation of the ‘regeneration process’. In their opinion, the process had achieved certain results and brought Bulgaria into a position from which there should be no retreat – otherwise the national interests of the country could be threatened. On the other hand, the Turkish community, encouraged by the restoration of their names, raised other demands. Some, such as the study of the Turkish language and Islamic religion in schools in regions with a predominantly Turkish population, were eventually recognised. 44

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nation and religion Although ethnic and religious parties are not allowed in Bulgaria, the Movement for Rights and Freedoms is effectively the Turkish party of Bulgaria. This party has been a partner in several coalition governments since the transition to democracy and has generally proven to be a factor of political and social stability in the country. The precise form of Islamic institutional recognition varies among countries with large Muslim immigrant populations. In Denmark there are twenty-three Islamic communities recognised separately. In France the government created (in 2004) the Conseil Français du Culte Musulman (CFCM) with a view to organising a central institutional presence of this religion. In Britain the Muslim Council of Britain (MCB) was established in 1997, representing over 500 affiliated organisations, mosques, charities and schools, and functioned for some time as a privileged interlocutor with the state. It later (in the late 2000s) experienced a shaky relationship with central government and was, for some time, cut off from consultation for allegedly radical views among some of its members. In Sweden the institutionalisation of Islam is mainly at the local level. Several ‘umbrella’ organisations, however, emerged as early as 1974 (United Islamic Communities in Sweden) or in 1982 (United Muslim Communities of Sweden). The emergence of these organisations has been spontaneous, coming from below, to serve the needs of Muslims in Sweden, but was also motivated from above, since these organisations can compete for state grants for religious organisations. The largest umbrella organisation today (formed in 1988) is Islamiska Samarbetsrådet (Islamic Cooperation Council), whose principal function is to coordinate collaboration with the Commission for State Grants to Religious Communities. The Islamic Cooperation Council brings together 120 local organisations with approximately 110,000 members. In the Netherlands most Muslim institutions operate at the local level but in 2004 a coordinating national Muslim organisation was recognised by the Dutch government. This Committee for the Relations between Muslim Organisations and Government (Contactorgaan Moslims en Overheid) is a partner for discussion and consultation with the government. In Italy, while most associations operate at the local level, there was an attempt to institutionalise Italian Islam and give it a national voice through the creation of the Assembly for Italian Islam in 2005. However, the Assembly has so far had little impact 45

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anna triandafyllidou on the way in which Italian Muslims and their claims are handled by the state. After an abortive attempt to establish a Charter of Values that would form the basis of Muslim integration in Italian society, the Assembly resumed its meetings in 2008. However, it has not produced any significant results in addressing Muslim claims and generally resolving tensions between Muslims and non-Muslims in local contexts. In Spain, the Islamic Commission of Spain is the representative body which negotiated the 1992 national agreements on state– Islam relations and remains the only representative organisation at state level. It results from the association of the two major federations of Islamic associations in the country: Unión de Comunidades Islámicas de España (UCIDE) and Federación Española de Entidades Religiosas Islámicas (FEERI). Of course, most of the Muslim institutions are self-funded by the communities rather than state supported. However, this institutional presence is an important factor of normalisation and integration of Muslim claims in European democracies. Controversies about Muslims and Islam Mosque building has been a particularly controversial issue in most European countries and there is a rich bibliography on the subject which it goes beyond the scope of this chapter to survey (see, among others, Allievi 2009; Cesari 2005). A similarly thorny issue has been the so-called headscarf issue, l’affaire du foulard. While in France this issue was eventually concluded by the law that prohibits the wearing of ostentatious religious symbols in public places and schools in particular (voted in 2004), in other countries such tensions have been resolved in a softer, decentralised manner. France and Belgium voted also for laws banning the burqa – the full face cover – in 2010 and 2011 respectively, while there have been subnational laws (in canton Ticino in Switzerland, in Barcelona in Spain and in Novara in Italy) banning the burqa. Such laws had a symbolic value as the number of women wearing the full face cover was extremely small in these countries. However, such debates about gender (in)equality, headscarves and burqas have been quite instrumental in their scope, shifting attention away from the internal diversity of European Muslims and from the 46

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nation and religion level of institutionalisation of their presence in European societies to their presumed inability to integrate and accept liberal secular European values and norms. There is indeed an apparent contradiction between what happens at the ground level of institutions and everyday practices and the kinds of debate that exist today in Europe about Islam. Certainly international jihadist terrorism helps make such debates particularly emotional and shifts them away from more elaborate sociological explanations (Roy 2003, 2015). However, such debates have had less to do with sociological realities of failed integration and more to do with a necessity to reaffirm European supremacy at the global value level. While European integration is no longer convincing as a political and cultural project for the reasons outlined in the previous section, and the nation-state is too small to create cultural superiority at the global level, religion and the construction of Islam and Muslims as Europe’s Other can do the job. Thus, while retreating to the security of the national state and of national culture and identity in the face of increased interdependence and insecurity, European citizens can still claim their cultural superiority at the global level by stigmatising Muslims as not fitting in and as unable to share liberal democratic and secular values. The issues that attract the most attention are actually those that are symbolically most important while the ground-level work that is done by civil society actors or local authorities (see, for instance, O’Toole et al. 2013) (secular, Muslim or otherwise) is ignored.

Concluding remarks It was at the turn of the millennium that Zygmunt Bauman warned of the pitfalls of the increased freedom and intensified mobility of the late modern and post-industrial societies. Bauman pointed out that freedom and mobility was leading to losing one’s stable reference points such as class, kinship, ethnicity, religion and even locality. The emancipation of the individual from the forces of nature was coming to a new level that was actually eroding this very emancipation as the economic logic was taking precedence over non-economic challenges (Bauman 2000). The new world order, argued Bauman, was, however, characterised by excessive de-regulation, liberalisation and flexibilisation leading to estrangement and uprootedness (see also Sennett 1998). 47

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anna triandafyllidou While Bauman’s analysis certainly holds true in presenting the most important challenges that late modernity and globalisation pose to citizens, what he did not foresee is that old solidities had not gone away but were rather remaining under the surface and could be activated, despite the changing circumstances of production, life, mobility and communication today (Atkinson 2008; Lee 2011; Levitt 2007). Indeed, as Castells (2010a, 2010b) has foreseen, very few people in the world can afford to be and feel cosmopolitan. Most others transport their local community to their urban milieu while others rediscover their anchoring in religion. Collective identifications do not disappear but are rather transformed and reinvented in this fragmented yet networked society. Indeed what this chapter has shown is that in this very moment in Europe, old solidities like nationalism and religion are re-emerging with an unexpected strength. This process has to do with the ways in which the European integration has moved from being a political and ideological project to one that is dictated by economic logic and felt as detached from local and national realities. This process is, however, also related to the overall not only socioeconomic but existential challenges that globalisation raises for citizens. Thus while national identity and the nation-state are seen to better respond to the socio-economic vulnerability of the European citizen today, religions and particularly Islamophobia – indeed inimicality towards Europe’s major minority religion – respond to the necessity for a higher level of community that affirms European values and superiority in the world. This analysis of the re-emergence of nationalism and religion is not of course deterministic nor teleological. Even if people are in search of solidity in a liquid world, such solidity is not necessarily to be found in closure, discrimination and prejudice. Indeed we should not lose sight today of the largely successful integration of Muslims in different European countries, as well as of new forms of transnational solidarity. Through the power of information and communication technology we feel now much more related to (and are actually more informed about) what is happening in other regions of the world (e.g. the Middle East, but not only there) and how this affects our own lives (whether through a refugee surge or through a decrease in oil prices). International terrorism and foreign fighters from European countries joining ISIS in the last two years are one side of this coin, showing how cultural and 48

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nation and religion political globalisation can transform local integration problems and grievances to link up with international geopolitics, breeding transnational extremism. At the same time, the various Indignados and Occupy movements across Europe, youth mobilisation in support of the Arab Spring and Gezi Park movements, or transnational commemorations of the victims of international terrorism in Paris testify to how globalisation can also reinforce transnational solidarity and mobilisation for common transnational causes like peace, equality or democracy.

Notes 1. Helsinki European Council 10 and 11 December 1999: Presidency Conclusions, available at (last accessed 24 January 2017). 2. The term ‘national states’ is used instead of ‘nation states’ to denote that most states are usually characterised by a dominant (numerically and politically) national community that thinks of itself as the owner of the state and several minority or migrant groups. 3. ‘State Multiculturalism Has Failed, Says David Cameron’, BBC News, 5 February 2011, available at (last accessed 24 January 2017). 4. Data taken from the Pew Research Center, data published in November 2015. See Conrad Hackett, ‘5 Facts about the Muslim Population in Europe’, Pew Research Center, 19 July 2016, available at (last accessed 24 January 2017).

References Allievi, S. (2009), Conflicts over Mosques in Europe: Policy Issues and Trends, NEF Initiative on Religions and Democracy in Europe, London: Alliance Publishing Trust. Andrijasevic, R. and W. Walters (2010), ‘The International Organization of Migration and the International Government of Borders’, Environment and Planning D: Society and Space, 28, 977–99. Appadurai, A. (1996), Modernity at Large: Cultural Dimensions of Globalization, Minneapolis: University of Minnesota Press. Atkinson, W. (2008), ‘All that Was Solid Has Not Melted into the Air (Liquid): A Critique on Bauman on Individualization and Class in Liquid Modernity’, The Sociological Review, 56: 1, 1–17. Bauman, Z. (1998), Globalization: The Human Consequences, Cambridge: Polity Press. Bauman, Z. (2000), Liquid Modernity, Cambridge: Polity Press.

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anna triandafyllidou Bauman, Z. (2011), Collateral Damage: Social Inequalities in a Global Age, Cambridge: Polity Press. Castells, M. (2010a), The Information Age: Economy, Society and Culture. Vol. 1. The Rise of the Network Society, 2nd edn, Chichester: Wiley-Blackwell. Castells, M. (2010b), The Information Age: Economy, Society and Culture. Vol. 2. The Power of Identity, Oxford: Blackwell Publishers. Cesari, J. (ed.) (2005), ‘Mosque Conflicts in European Cities’, Special Issue, Journal of Ethnic and Migration Issues, 31: 6. Fukuyama, F. (1992), The End of History and the Last Man, New York: Free Press. Heath, A. F. and S.-Y. Cheung (eds) (2007), Unequal Chances: Ethnic Minorities in Western Labour Markets, Oxford: Oxford University Press/British Academy. Held, D., A. McGrew, D. Goldblatt and J. Perraton (2003), ‘Rethinking Globalization’, in D. Held and A. MacGrew (eds), The Global Transformations Reader: An Introduction to the Globalization Debate, 2nd edn, Cambridge: Polity Press, pp. 67–74. Klug, B. (2012), ‘Islamophobia: A Concept Comes of Age’, Ethnicities, 12: 5, 665–81. Lee, R. (2011), ‘Modernity, Solidity and Agency: Liquidity Reconsidered’, Sociology, 45: 4, 650–64. Levitt, P. (2007), God Needs No Passport: Immigrants and the Changing American Religious Landscape, New York: The New Press. Milward, A. (1992), The European Rescue of the Nation State, London: Routledge. Mouritsen, P. and T. Olsen (2013), ‘Liberalism and the Diminishing Space of Tolerance’, in J. Dobbernack and T. Modood (eds), Hard to Accept, London: Palgrave, pp. 127–56. O’Toole, T., D. N. DeHanas, T. Modood, N. Meer and S. Jones (2013), ‘Taking Part: Muslim Participation in Contemporary Governance’, Bristol: University of Bristol, (last accessed 25 January 2017). Roy, O. (2003), ‘EuroIslam: The Jihad Within?’, The National Interest, Spring, (last accessed 25 January 2017). Roy, O. (2015), ‘There Are More French Muslims Working for French Security than for Al Qaeda’, The World Post, 1 September, (last accessed 25 January 2017). Sassen, S. (1996), Losing Control? Sovereignty in an Age of Globalization, New York: Columbia University Press. Schiffauer, W. (2006), ‘Enemies within the Gates: The Debate about the Citizenship of Muslims in Germany’, in T. Modood, A. Triandafyllidou and R. Zapata Barrero (eds), Multiculturalism, Muslims and Citizenship: A European Approach, London: Routledge, pp. 94–116. Sennett, R. (1998), The Corrosion of Character: The Personal Consequences of Work in the New Capitalism, Boston: W. W. Norton. Simon, P. (2008), ‘The Choice of Ignorance: The Debate on Ethnic and Racial Statistics in France’, French Politics, Culture and Society, 26: 1, 7–31, DOI: 10.3167/fpcs.2007.260102.

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nation and religion Spohn, W. and A. Triandafyllidou (eds) (2003), Europeanization, National Identities and Migration: Changes in Boundary Constructions between Western and Eastern Europe, London: Routledge. Triandafyllidou, A. (2012), Muslims in 21st Century Europe: Structural and Cultural Perspectives, London: Routledge. Triandafyllidou, A. and R. Gropas (2015), What Is Europe?, London: Palgrave. Triandafyllidou, A. and H. Kouki (2013), ‘Muslim Immigrants and the Greek Nation: The Emergence of Nationalist Intolerance’, Ethnicities, 13: 6, 709–28, online first 22 April 2013, DOI: 10.1177/1468796813483287. Triandafyllidou, A. and H. Kouki (2014), ‘Naturalizing Racism in the Center of Athens in May 2011: Lessons from Greece’, Journal of Immigrant and Refugee Studies, 12: 4, 418–36, DOI: 10.1080/15562948.2014.932477. Triandafyllidou, A. and I. Ulasiuk (2014), ‘Diversity Partnerships. Towards a Common Framework for Migrants and Minorities’, Green Paper, Global Governance Programme, Policy Workshop, March. Wodak, R. (2016), The Politics of Fear, London: Sage. Yurdakul, G. (2009), From Guest Workers into Muslims: The Transformation of Turkish Immigrant Associations in Germany, Cambridge: Cambridge Scholars.

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3

Multiculturalism and Moderate Secularism1 Tariq Modood

What is political secularism? Most people will agree the USA and the USSR (when it existed) are secular states.2 They are of course very different states; one was a Communist Party dictatorship, the other a liberal democratic container for capitalism. They have, moreover, very different relations with religion. The USSR had a self-declared atheist philosophy and actively suppressed religion, whilst the USA, a country with vigorous and publicly active Christian churches, has a constitutional ‘wall of separation’ which is actively, if variably, enforced by its Supreme Court. What is it that makes these two states exemplars of political secularism? It clearly cannot be the separation of religion and state (the USSR was active in controlling and persecuting churches, mosques, etc.), and for the same reason it cannot be about freedom of conscience; and nor can it be the idea that religion is a matter of personal, private belief (religion in the USA is a very public matter). I suggest that the core idea of political secularism is the idea of political autonomy, namely that politics or the state has a raison d’être of its own and should not be subordinated to religious authority, religious purposes or religious reasons. This is a one-way type of autonomy, where secularism can be supportive of autonomy of organised religion and freedom of religion too, as in the USA, but it does not have to be. Autonomy does not mean strict separation of the USA type. It is consistent with some government control of religion, some interference in religion, some support for religion and some cooperation with (selected) religious organisations and religious purposes. This is the case, as will be seen below, in every single Western European state, which after all 52

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multiculturalism and moderate secularism is the seed-bed for modern, Western political secularisms. Nevertheless, state control and support of religion must not compromise the autonomy of politics and statecraft: it must be largely justifiable in political terms, not just religious reasons, and it must not restrict (but may support) political authority and state action. Political secularism is then a value in itself. It is not some kind of ‘neutrality’, nor is its place above the fray of politics. It is something that one can be for or against, or for it under certain conditions, or for certain variations of it. It has no special connection with democracy, which it predates. In the West it has mainly been conjoined with liberal democracy (but not necessarily, as the USSR illustrates),3 when, amongst other features, it becomes two-way mutual autonomy: the autonomy of both the state and religion is valued and protected in constitutional arrangements. This is a mutual autonomy that Stepan (2000) calls ‘twin tolerations’. Mutual autonomy – but not strict separation – has historically emerged as the liberal democratic version and the one that is most widespread today. For such secularists, religious freedom is one of the most essential and cherished political values. This commitment sometimes blinds them to the fact that religious freedom is not an unlimited good within all versions of secularism – as the examples of how the French and Turkish states control aspects of Islam vividly reminds us (in relation to conflicting currents within the history of secularism in Turkey, see Gülalp, this volume). New thinking about political secularism has suggested that secularism is, in its essentials, really about ‘managing diversity’ (Taylor 2010; also Taylor 2014; discussed by Bilgrami 2014). This has a contemporary pertinence, indeed it emphasises what is central yet underappreciated today, but it cannot be right as a definition of political secularism. If there was no religious diversity in a country or in the world, if only one religion was present, there would still be a question about the relationship between religion and politics and ‘political autonomy’ would still be a suitable answer.4 Moreover, secularism is not an answer to questions about any kind of diversity (such as linguistic diversity). It arises specifically in relation to religion, to the power and authority of religion, and the challenge it may pose to political rule or, say, equality amongst citizens (Bilgrami 2014). Indeed, one can go further and say that the secular and religion are correlative concepts. If there was no religion in the world, not merely that it had passed away, but if it had never 53

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tariq modood existed in the first place, so that there was no concept of religion, then secularism would have no reference point and there would be no concept of political secularism. In that sense, secularism is a secondary concept, dependent on the concept of religion. However, once there is a concept of secularism – with advocates, promoters, supportive monarch, armed militants, and so on – then it has a dialectical relationship with religion. Secularism is not merely being defined by engagement with religion. Secularism also intellectually and politically redefines religion to suit secularist values and purposes (Asad 2003). In this way, in secularist countries what we regard as religion today (an ‘inner life’, a ‘belief’, a private matter) is a much more socially restricted set of activities, relationships and forms of authority than was the case before secularism’s rise to power, or than what prevails in non-secularist countries today. Once an outgrowth of religious arrangements (‘secular’ orders of monks were those unconfined to monasteries), secularism has come to define or redefine religion and its proper place in many countries in the world. This chapter is confined to Western Europe (west of what used to be called the Iron Curtain). This region is not typical, and perhaps even exceptional (Berger 1999; Berger et al. 2008). It is the one region in the world in which participation in religious activities (even private prayer) is a minority pursuit as a result not of state ideology or state action but of social change, education, political argument and the working of liberal democracy (Casanova 1994). Throughout the twentieth century there has been a process of ‘secularisation’, including a decline in religious worship and belief. This process has accelerated over time and across generations, and has spread outwards from urban centres to rural areas, from Protestant countries to Catholic countries, and from North-Western Europe to Southern Europe. Moreover, the present century has seen no reversal of this trend; indeed, in many places there has been a quickening (Davie 2005). Yet, political secularism and its relation to religion has become a vibrant topic, and some scholars and public intellectuals even speak of a ‘crisis of secularism’ (Bhargava 2011). What is the character and cause of this agitation and alarm? I contend that it is a product of a concatenation of three independent factors that have contingently come together. The three factors are the presence of moderate secularism, an emergence of multiculturalism, or at least a new acceptance of diversity, and third, a new ethno-religious diversity. 54

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multiculturalism and moderate secularism

Western European moderate secularism For many intellectuals, especially political theorists, secularism or Western secularism is understood in terms of the religious-liberty secularism of the USA and/or the equality of citizenship secularism or laïcité of France. An example of this approach is Bhargava (2009), where these two secularisms are described as ‘the most dominant and defensible western versions of secularism’ and taken jointly are designated ‘as the mainstream conception of secularism’ (2009: 93). As a matter of fact, neither of these models approximates particularly closely to church–state relations amongst Western European countries beyond France. In Germany, the Catholic and Protestant Churches are constitutionally recognised corporations, for which the federal government collects voluntary taxes and grants large amounts of additional public monies so that they between them have a larger public welfare budget than the federal state. In Belgium, a number of religions have constitutional entitlements and a national Council of Religions enjoys the support of the monarch. Norway, Denmark and England each have an ‘established’ Church, Sweden had one till 2000 and Finland has two (Stepan 2011; cf. Koenig 2009). (The UK too has two state-recognised national Churches, the Church of England and the Church of Scotland, but the latter is independent of the UK state, including of the Scottish state in which it plays no formal role.) Yet, it would be difficult to dispute that these states are not amongst the leading secular states in the world – more precisely, one could only dispute that if one had some narrow, abstract model of secularism that one insisted on applying to the varieties of empirical cases. So, the question is: how are we to characterise the secularisms of Western Europe? I have argued that despite their distinctive histories and institutional diversity that I have referred to, these states can be understood as having evolved what I have called ‘moderate secularism’ (Modood 2007, 2010). I sketch this conception in terms of five features: 1. Mutual autonomy, not mutual exclusion or one-sided control. This is not distinctive to ‘moderate secularism’, as it is central to US liberal secularism too, and to some extent in France as well, although it leans more towards one-sided control than in the US or other Western European countries. 2. Religion is a public good, not just a private good. Organised religion can play a significant role in relation to ethical voice,5 55

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tariq modood general social well-being, cultural heritage, national ceremonies and national identity. This can take various forms, such as: having input into a legislative forum, such as the House of Lords in the UK, or on moral and welfare issues; being social partners with the state in the delivery of education, health and caring services; or more intangibly, in building social capital and the production of attitudes that create, for example, family stability, a compassionate civil society or economic hope. Of course, the public good that religion contributes is contextual; religion can, in other contexts, be socially divisive and can lead to civil and international wars. Hence religion can also be a public harm. The point is that religion’s contributions are not confined to private lives; they are socially and politically significant in many different ways. 3. The national Church, or churches (organisers of this public good), belongs to the people and the country, not just to its religious members and clergy. All citizens, regardless of membership, can feel that the national Church should meet certain national standards not expected of religious organisations in general. For example, when the Church of England’s ruling body, the Synod, failed in 2012 to achieve the two-thirds majority necessary to permit female bishops, many secular commentators felt that the Church of England had let the country down, while the absence of female Catholic priests or female imams is not part of a national conversation. The loud criticism by those who are not active Anglicans did play a part in the Church’s reversal of its decision in 2014. The Lutheran Church in Denmark, as another example, is almost universally thought by Danes to be an element, perhaps a central element, of Danish national identity, even though only a minority say they believe in its doctrines and even fewer worship in the Church (Jenkins 2011). In these and other ‘moderate secular’ countries, even atheists feel that they have a right to use the national Church for weddings and funerals. 4. It is legitimate for the state to be involved in eliciting the public good that comes from organised religion, and not just to protect the public good from dangers posed by organised religion. If recognised as public goods, then, depending on the circumstances, it may be decided that they are best achieved through some state–religion connections rather than strict separation. This is a 56

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multiculturalism and moderate secularism contingent matter, but the experience of Western Europe is that some connections are better than none. Of course, as has been said, religion can also be a ‘public harm’, since it may serve as a basis for prejudice, discrimination, intolerance, sectarianism, social conflict, violence, and so on, so the state has a responsibility to prevent harm as well as enhance the good (Modood 2010). As with public goods, so with public harms, the interest of the state will not be primarily theological, or taking preferential sides for or against one religion regardless of consequences; the state will be motivated by fostering and maintaining tangible and intangible public – or ‘secular’ – goods. The key consideration for the state will not be secular ‘purity’. Instead, the state shall ensure that the means and ends are consistent with, and effectively serve, secular rationales, without constraint by a fetish for ‘separation’ (in my opinion, Bhargava 2009 partly builds this fetish for separation into his definition of political secularism). In recent years, concerns about Islamist terrorism and ‘radicalisation’ have led states to extol and condemn certain kinds of Islam, to co-opt certain Muslim groups into governance, and to engage in matters of imam training and the schooling of Muslim children.6 Moreover, if religious organisations are supported with public funds, or tasked by the state to carry out some educational or welfare duties, then the state will want to ensure that they do not compromise key policy goals. That is why religious organisations are increasingly subject to certain legal requirements such as equal access or non-discrimination – at least in some European states, such as Britain, more so than in others such as Germany (Lewicki 2014). 5. Moderate secularism can take different forms in different times and places, and not all forms of religious establishment should be ruled out without attending to specific cases. State–religion connections take different forms in different Western European countries depending on their histories, traditions, political cultures and religious composition, which all may change over time.7 One of the forms they may take is ‘establishment’. Formal establishment is only found in a minority of countries, yet nevertheless it is one of the forms that moderate secularism takes.8 Even when it does so, I call this complex of norms and practices ‘moderate secularism’ rather than ‘moderate establishment’ (as Dworkin 2006 labels Britain; see also ‘modest establishment’ of 57

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tariq modood Laborde 2013) because it is secularism not establishment that is in charge: the place for religion and establishment is dependent on secularist institutions and decision makers referring to secularist values and principles. It is clear that this is what exists in practice. Both in relation to the church–state relations narrowly conceived, or in terms of an expansive sociological analysis, governing power lies with secularist institutions, networks and individuals employing secular identities, interests and goals. Moderate secularism is not something to contrast with religion; religion is already a component of it. Moderate secularism is a particular way of relating religion with state power and politics. So, moderate secularism is not an abstract political theory model but is a conceptualisation of a historically evolved set of arrangements and practices, formal and informal. It should be added that moderate secularism, as a distinctive form of state–religion connections, exists within liberal democratic constitutionalism (on the latter, see Bader 2007), where religious authority does not dominate political authority, where when religious organisations are publicly funded to deliver social services, citizens have options to receive the same services from non-religious organisations, and where religion is not privileged in any uniquely special way. Not uniquely special because in such countries a large range of non-religious activities such as sport, opera and banking may also be privileged, albeit each in a different way (Modood 2016). Hence, while to some readers it may seem that I am describing some illiberal or archaic privileging of religion, I must stress that I am describing the normative character of aspects of the most liberal democratic states of contemporary Europe.

Multiculturalism The second contingency I have in mind in explaining the so-called crisis of secularism is that in a number of countries since the 1960s, a new way of thinking and organising minority–majority relations has emerged. Initially associated with the new social movements and identity politics of gender, race and sexuality, in Western Europe it is identified with the institutional accommodation of post-immigration ethno-religious minorities, which I call ‘multiculturalism’ (Modood 2007). It marks a new conception of equality. Multiculturalism is 58

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multiculturalism and moderate secularism not just anti-discrimination, the sameness of treatment and the toleration of ‘difference’, but also a respect for difference. This respect is not simply about equal rights despite differences, but about equality as the accommodation of difference in the public space, which can be shared rather than dominated by the majority (Parekh 2000). Instead of creating a sharp distinction between the public sphere of rights and civic relations and a private sphere (of male–female relations, sexual orientation or religious belief), the public sphere reflects various norms and interests of all. This genuine equality requires dropping the pretence of ‘difference blindness’, and allows marginalised minorities to also be visible and explicitly accommodated in the public sphere (Young 1990). This equality will sometimes require enforcing uniformity of treatment and eliminating discrimination against (for example) religious affiliation, and it may also require the recognition of distinctive disadvantages (such as measures to increase the number of women in a legislature) or special needs (such as the provision of halal meat in state schools). Finally, multiculturalism as a mode of post-immigration integration involves not just the reversal of marginalisation but also a remaking of national citizenship, so that all can enjoy a sense of belonging. In the case of France, there could be a way of being French that Jews and Muslims, as well as Catholics and secularists, can possess (Modood 2007). The new ethno-religious diversity presented by Muslims, the postWorld War II groups settling in Western Europe, must be mentioned here as the third contingency in relation to current interest in secularism. This is not just about demography, but about claims made concerning shared public spaces, keeping in mind that initial claims were made within newly instituted discourses and policy frameworks of race (Britain), ethnicity (Netherlands) and guest workers (Germany). The majority of this post-immigration ethno-religious population is Muslim, although the shift towards Muslimness was partly facilitated by an evolving and expansive set of identity politics and equality discourses in several countries, and multiculturalism in particular, along with the way that Muslim populations are growing and settling down in their countries of migration (and birth, for the second generation). These trends could be said to be part of a more or less global rise in Muslim consciousness, in relation both to religiosity (including public religiosity) and the rise of Muslim identity or Islamist politics. In Western Europe, events of 1988–9 were particularly pivotal (Modood 2012). 59

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tariq modood This is an all too brief account of a complex set of concepts. Moreover, across the world but especially in Western Europe, particularly since the emergence of international Islamist networks of terrorism and increasing attacks in the West, multiculturalism has become an unpopular idea with politicians and publics. Nevertheless, there is good evidence that multiculturalist policies and accommodations are not being reversed (Kymlicka 2012). Also, a ‘multiculturalist sensibility’ (Kivisto 2012) is growing, as an approach extended from what we might call ethno-racial diversity to ethno-religious pluralism. The important point is that despite the unpopularity of the term ‘multiculturalism’, as doubts about certain policies and anxieties about certain minorities continue, mainstream public discourses are also conceiving of this diversity not merely in terms of toleration (putting up with something negative), but in terms of the positive inclusion of minorities who do not have to assimilate or conform to the norms and attitudes of the majority. This multiculturalist sensibility did not arise in the context of religious difference, where various regimes of governance, including moderate secularism, have accommodated religious pluralism in limited ways and with limited reference to a concept of equality. Yet this multiculturalist sensibility, the idea that ‘difference’ is not an unfortunate fact to be put up with, but a difference worthy of equality and respect, has travelled in different directions from its origins, so that many, not excepting Muslim minorities, now view the field of religious diversity differently. My argument, then, in relation to the three contingencies I have brought together, is that current debates about the accommodation of Muslims and Islam in Western Europe must be viewed in terms of two conceptual–political complexes: moderate secularism and multiculturalism. Of course, my argument is not that this is the only relevant way in which Muslims’ claims upon the public sphere are being responded to (Modood 2012). One way forward, particularly favoured by liberal political theorists and commentators, would be to move towards the ‘separation’ of religion and the state on the grounds that the state should be neutral in relation to ‘conceptions of the good’ (Rawls 1971, 1993). This position would be a departure from, rather than a continuity with, traditions of European moderate secularism, yet it can be seen as an extension of trends within European countries in the twentieth century.9 Another option would be to reassert that Europe is a Christian continent 60

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multiculturalism and moderate secularism (as Pope Benedict affirmed), or to claim that specific countries such as Germany or Britain are ‘Christian countries’. Interestingly, some religious minorities prefer those options to what has come to be called ‘aggressive secularism’,10 but they are not necessarily the first choice of groups agitating for accommodation. My interest is in the third option, one based on the multiculturalist sensibility of taking difference seriously. This, however, is a sensibility that is open to a number of interpretations. This chapter next considers three alternative interpretations and points out some of their shortcomings. The common problem turns out to be that they have an unsatisfactory conception of multiculturalism and/or moderate secularism.

Religion is not part of multiculturalism? Will Kymlicka rightly argues that the ‘state unavoidably promotes certain cultural identities, and thereby disadvantages others’ (Kymlicka 1995: 108), but he excludes religion and ethno-religious groups from ‘cultural identities’ (see also Werbner 2012; Wieviorka 2012). While his interpretation of multicultural citizenship is primarily directed towards justifying special support or differential rights in relation to language and indigenous people, meeting needs of religious minorities seems to fall within the ambit of the traditional freedoms of worship, association and conscience.11 The only additional questions that his political multiculturalism considers in relation to religious minorities are exemptions (such as allowing Sikh men to wear turbans when others have to wear motorcycle helmets), rather than, as in the case of other cultural groups, minority demands for democratic participation, for public resources or for greater institutional representation. Kymlicka thinks that the integration of religious migrants such as Muslims has been best achieved in the US, where no religion enjoys state support, but all denominations are allowed to flourish in equality with the rest (Kymlicka 2009: 548). This last point has also been said by some sociologists to be generally historically true: ‘Without the separation of church and state, we believe, the religions imported by past immigration streams could not have achieved parity with Protestant versions of Christianity’ (Foner and Alba 2008: 379). Whether this separation of church and state is more accommodating of Muslims in the US than moderate secularism in Western Europe is not obvious. On the one hand, anti-Muslim hostility is comparable in both regions – for example, in 2011 the Pew Research Center found 61

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tariq modood that only 57 per cent of Americans have a favourable view of Muslims compared with 64 per cent of Britons and French12 (Putnam and Campbell 2010). On the other hand, the levels of national identification and patriotism amongst immigrants and the second generation in Western Europe are far higher than often assumed (Reeskens and Wright 2014). Interestingly, national identification and patriotism among Muslims in Britain are higher than among the population as a whole, despite the fact that Britain has a state Church (Wind-Cowie and Gregory 2011). It is certainly the case that anti-Muslim populist movements and parties have sprung up across Western Europe and some, like the Freedom Party in the Netherlands and Le Front National in France, are electorally prominent, but on the other hand, no mainstream party in Western Europe has expressed the kind of anti-Muslim discourse that some candidates in the Republican presidential primaries have. The latter includes but is not confined to the eventual winner of those primaries, and indeed the presidential election, Donald Trump, who on assuming office immediately issued travel bans from some Muslim-majority countries that the courts have ruled are discriminatory. Regardless of whether US denominationalism or European moderate secularism is better at integrating religious groups, the more fundamental question remains: why should language be appropriate for multiculturalism but not for religion? Is there some categorical difference between religion and language? A state must use at least one language and so choices must be made. Which language(s)? How many languages? Complete state neutrality about language is impossible. Fairness therefore dictates that the state does not pretend to be neutral, so it should pursue an alternative strategy. Religion, on the other hand, is optional. It is not necessary to the functioning of the state, and this critique of neutrality does not extend to it. Moreover, citizens can learn several languages, but one cannot be a member of several religions at the same time, so a multilingual state is an option while a multi-religious state is not. That supplies a further reason why state neutrality in relation to language implies the addition of linguistic options, but state neutrality concerning religion only implies disestablishment (Bauböck 2003: 43–4). These arguments fail to save Kymlicka’s theory from the charge of an anti-religion bias, nor do they make practical sense. First, although Kymlicka’s theory does centre on language, it extends well beyond language to cover ‘cultural identities’. His 62

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multiculturalism and moderate secularism theory is meant to protect and empower ethno-cultural groups and not merely languages; all cultures contain elements that are no more necessary than religion, and some cultures are centred around religion. Moreover, the idea that a multi-religious state is impossible is a misunderstanding. Countries as diverse as Germany and India could be described as being quasi-multi-establishment states. The German state has various institutional and fiscal ways of supporting and working corporately with the Roman Catholic Church and the Lutheran Churches. The Indian state regulates several organised religions and incorporates their principles into law. This state recognition of faith communities is a granting of political or legal status, without meaning that state officials or citizens have to believe in all or even any of these faiths. Indeed, consider an even more fundamental case of an either–or exclusivity than the case of religion as presented by Bauböck. One cannot be of more than one sex (extreme exceptions prove the rule), but it does not follow that a state in all its laws and policies must be gender-blind. Rather, the state should promote the interests of both sexes, ensuring that differential treatment, where appropriate, can be justified by reference to differential needs while staying consistent with a suitably differentiated concept of equality. States do support much that is not essential to the state’s existence, and a multiculturalist state surely is no exception.

Is multiculturalism about anti-‘secularisation’, not accommodation? In contrast to Kymlicka’s satisfaction with a largely pre-multiculturalist position on religious diversity, Yolande Jansen explicitly defends a multiculturalist secularism (Jansen 2014). Religion here clearly does not just mean belief or even practice but rightly includes religion as community membership, affiliation or group identity. With a focus on French laïcité, she shows how even in a context of republican universalism, the process of incorporating Jews led French society and the French state to demand that the Jews surrender their communal lives, an extraordinary pressure not experienced by most other French people in the nineteenth or early twentieth century – but again faced by Muslims today. On her interpretation, Jansen’s solution is a multiculturalism opposing the ascriptive and stereotypical images that French society creates for 63

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tariq modood groups such as Jews and Muslims, while demanding of individual Jews and Muslims that they publicly distance themselves from these imagined undesirable groups by distancing themselves from their communities.13 Opposition to such demands upon minorities about how they should live is the multiculturalist opposition to what Jansen calls ‘secularisation’. I endorse Jansen’s conclusion that such ‘secularisation’ is a form of coercive assimilation incompatible with multiculturalism, but I doubt that laïcité can be made compatible with multiculturalism. The pressure to secularise ethno-religious identities, takes an extreme form in republican secularism as in addition to suspicions of specific minorities there is an underlying hostility to accommodating religion as such. Hence remedies against de-religionising assimilationism run against, not with, the grain of laïcité. Moreover, there may be no remedies to it within that form of secularism. Moderate secularism, however, even where it may be susceptible to similar stereotypings of Jews and Muslims, is not intrinsically fearful of religious communities and religion in public life, so it can endorse state support for religious plurality, and for resisting assimilation in favour of accommodating minorities. In any case, a multiculturalism consisting of anti-ascription and anti-assimilation is too modest; a positive, institutional accommodation is crucial to multiculturalism – in just the same way that accommodation is a defining feature of moderate secularism. So, a project of multiculturalising secularism cannot take its lead from what is possible within republican secularism, and the scope and ambitions of multiculturalism cannot be confined within even a reformed version of this unaccommodating secularism (Modood 2015). Unlike those who think that European secularism is inadequately dealing with multiculturalism because it is not similar enough to the US and/or France, Rajeev Bhargava believes that Europe is not sufficiently like India. He argues that religious diversity has been central to Indian secularism, unlike Europe’s tradition. Now that Europe is compelled to adjust to religious diversity, it can learn much from India. While this is a useful recommendation (see also Mahajan, this volume; Bajpai, this volume), his analysis of European secularism is somewhat problematic. One of his long-standing positions has been that the mainstream conception of political secularism in the West consists of two, and only two, opposed models: the US model and the French model (Bhargava 2009). However, 64

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multiculturalism and moderate secularism this position is inaccurate since most of Western Europe consists of secular states that do not resemble either of those models, because they display their own distinctive model. Bhargava now accepts this view (Bhargava 2013: 77; 2014b), while continuing to hold the view that European secularism is not sufficiently secular (Bhargava 2014b; also 2014a: 44).

Is moderate secularism part of the problem, not part of the solution? Bhargava’s interpretation of a multiculturalist sensibility has judged that what I have labelled as moderate secularism is ‘irretrievably flawed’ – while it has accommodated Christians, it will not be able to accommodate Muslims.14 For Bhargava, moderate secularism is part of the problem, not the solution, since it cannot be reformed; specifically, it cannot be multiculturalised (Bhargava 2013: 78), and he adds that this marks a profound disagreement between us (Bhargava 2014a: 45). He offers several arguments, but only one can be discussed here. Bhargava claims that the Christian bias inherent to any established religion, something akin to the Anglican Church’s establishment in Britain, indicates that even a reformed version will alienate British Muslims. Cécile Laborde makes a similar argument. She recognises how the Anglican establishment has relatively little power and holds a largely symbolic significance. Nevertheless, she argues that even when ‘establishment is mostly symbolic and cannot be said to put anyone at a serious disadvantage, symbols do matter when the basic identification of citizens with their institutions is concerned’ (Laborde 2008: 90). An example she gives assumes that ‘Muslims are likely to be alienated by the distinctively Christian religiosity permeating public institutions’ (Laborde 2008: 90–1). She evokes a conception of citizenship which I share, namely that ‘all citizens should be able not to feel alienated by their political institutions in light of their deepest beliefs, and that institutions should consequently be framed with that aim in mind’ (Laborde 2013: 84). I actually hold a stronger version of this duty of symbolic recognition: not only must the state not alienate it, the state must make positive efforts to ensure that all citizens are able to feel a sense of belonging. Leaving that aside, and acknowledging that Laborde may be making a normative point only, I want to stress that 65

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tariq modood Bhargava at least (and perhaps Laborde) is not simply making a conceptual point about civic status, as their positions are also about how citizens feel about citizenship. That is a valid concern, but both of them claim that British Muslim citizens feel alienated by the Anglican establishment and yet no evidence is offered. Indeed, they ignore evidence about the strong sense of British identification and national pride amongst Muslims in Britain. An analysis of two Citizenship Surveys has concluded: ‘We find no evidence that Muslims or people of Pakistani heritage were in general less attached to Britain than were other religions or ethnic groups’ (Heath and Roberts 2008). This has in fact been the finding of many surveys, with one concluding that ‘overall British Muslims are more likely to be both patriotic and optimistic about Britain than are the white British community’ (Wind-Cowie and Gregory 2011). In late February 2015, 95 per cent of Muslims in a BBC survey said they felt loyal to Britain.15 British Muslims do include many vociferous political groups, and they have mounted many arguments, not to mention campaigns, in relation to socio-economic deprivation, religious discrimination, incitement to religious hatred, various foreign policies, anti-terrorist policies, and so on (Peucker and Adbarzadeh 2014). So it is the case that Muslims in Britain do seem to feel excluded and alienated by certain aspects of British society, and indeed European society – and this is a critically important datum for multiculturalism to engage with. Yet there is no record of any criticism by a Muslim group against the Anglican Church’s establishment. On the other hand, many Muslims complain that Britain is too unreligious and anti-religious, too hedonistic, too consumerist, too materialist, and so on. Muslims protest far more vigorously about secularist bans on modest female clothing, such as the headscarf (banned in French state schools since 2004) and the face veil (banned in public places in France and elsewhere in Europe), than they do about ‘establishment’ or Christian privileges. Muslims and other religious minorities appreciate that establishment is a recognition by the state of the public and national significance of religion. That recognition holds out the prospect of extending state– religion connections. Disestablishment, by contrast, would foreclose that prospect without conferring any benefits to religious minorities. This appreciation of establishment by religious minorities is partly the result of the fact that the Church of England takes its mission to serve the country quite seriously, including the goal of incorporating 66

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multiculturalism and moderate secularism new minority faith communities into its vision for the country and for the Church’s own sense of its responsibilities (Modood 1997). When Prime Minister David Cameron, during the 2011 Christmas season, said that it should be asserted that Britain is ‘a Christian country’16 – the first time a British prime minister had spoken like that in a long time – it was welcomed by Ibrahim Mogra, then the Chairman of the Mosque Committee of the MCB, and later the Assistant Secretary General.17 These matters do not argue for the mistaken view that Islamophobia is not an issue in Britain, or that Muslims do not feel alienated in Britain, but only point to the way that these concerns make very little reference to Christianity, let alone the Anglican establishment. My own suspicion is that religious minorities such as Muslims are more likely to be alienated by the kind of secular state that Laborde argues for, one which she thinks is unavoidably more suited to non-religious citizens than religious citizens (Laborde 2008: 88), and equally alienated by the kind of secular state that actively seeks to reform aspects of Islam as Bhargava advocates (Bhargava 2014a). Bhargava thinks that moderate secularism, which is supposedly unreformable, should be replaced by the diversity-friendly secularism that developed in India. Given that he does not discuss how the Indian state has failed to eradicate the high levels of religious violence in India, and failed to protect Muslims from massacres and systematic discrimination, this recommendation must be treated with caution (Sutton 2014; Black et al. 2014: 2). To better support the interpretation undergoing criticism in this section, an alternative understanding of alienation may try to appeal not simply to the experiences of religious minorities, but to ‘objective alienation’.18 This objective alienation would be something that can be said to exist even if the sufferers of the alienation were not themselves aware of it. I suppose that this idea parallels something that Karl Marx had claimed about alienation, that it is not simply an experience, but a degraded condition of humanity in which the labouring class has no possibility of creativity or self-expression (Marx 1988). The danger – not at all hypothetical – in resorting to a concept of objective alienation involves how it could be used. For example, it could be raised (by French republicans or other secularists) in order to deny the need for confirming evidence that women wearing the Muslim headscarf are oppressed and dominated even when they themselves insist they are not, and where no evidence shows that coercion or intimidation is taking 67

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tariq modood place. In practice, that kind of denial can serve as the basis for the civic domination of Muslims through ‘state paternalism’ or at least ‘educational paternalism’ (de Latour 2013). A satisfactory account of objective alienation must explain how to properly handle evidence (and counter-evidence), yet those explanations have not been provided by any interpretations I have examined. Those who argue for US or French types of disestablishment by claiming that contemporary Christian state–religion connections only alienate groups such as Muslims are relying heavily on certain secularist assumptions, and not enough on evidence. Secularists concerned with minimising alienation would do well to first focus on how their secularism results in alienation. Moreover, if I am correct to suggest that Muslims and other religious minorities are seeking equality through their accommodation within something resembling a multiculturalised version of the status quo in Europe, rather than a disestablishment of Christian churches, then we are talking about an additive view of inclusivity, not a subtractive view. Typically, recognition or accommodation for minorities implies that particular social dimensions important to those minorities become more, not less, politically significant. Equality movements do not usually pursue diminished political importance for their social subgroups. This is the case with regard to equality movements about race, gender, nationality, sexual orientation, class, and so forth. It is difficult to see why equality concerning religion has to be treated differently. Therefore, the multicultural challenge for secularism is not how to de-Christianise Western states, but how to appropriately include newly arriving faiths alongside older faiths.

Conclusion Multicultural equality requires some type of public multi-faithism, where some of the minorities seeking recognition are religious or ethno-religious. That means that state–religion connections become a feature of multiculturalism. In Western Europe this means a moderate secularism within a liberal democratic constitutionalism and equal citizenship. Such equality is not simply a product of moderate secularism but it can be located in a moderate secularism, which therefore should not be thought of as a problem but as part of the solution, a solution that requires the multiculturalising of moderate secularisms. This does not require, for example, supporting the 68

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multiculturalism and moderate secularism Anglican establishment, nor its equivalent in other countries; but establishment, suitably pluralised, can offer one way forward. It deserves consideration as a practical option, especially if it would be the least disruptive, and the least threatening to those for whom establishment is important, or those who are uncomfortable with multiculturalism. This chapter has supported this viable option by raising this challenge: how will ethno-religious groups receive appropriate recognition unless existing state–religion connections are sufficiently pluralised? I have argued that it is not good enough to say religion is not suitable for multiculturalism; or that the central task for multiculturalism is to oppose the de-religionising of minorities and omit to discuss the institutional accommodation of those minorities; or to argue that a moderate secularism alienates Muslims while suggesting that radical secularism does not. One answer to my challenge is the pursuit of a multiculturalism in which religion is one of a number of valued identities and forms of social organisation and recognised as such in a public and political way, including through state support and the remaking of national and civic identities. Insofar as this ‘privileges’ religion it does not do so uniquely but in a multiculturalist way consistent with the egalitarian inclusivity of all newly citizenised or previously marginalised ethno-cultural and racialised minorities in a society which privileges and supports many kinds of activities (Modood 2016).

Notes 1. This is a modified version of my ‘Multiculturalizing Secularism’, in Phil Zuckerman and John R. Shook (eds), The Oxford Handbook of Secularism, Oxford: Oxford University Press, 2017, pp. 354–68. 2. For the rather Eurocentric view that the Soviet Union was not a secular but only a quasi-secular state because it did not implement religious freedom, see Berman et al. 2013: 8. 3. In Muslim majority countries such as Turkey, Algeria or Egypt secularism often has an anti-democratic, anti-popular character but may be more accommodating of minorities. 4. I owe this point to Bhikhu Parekh. 5. Habermas (2006) suggests that this is imperative in the twenty-first century. He is, however, mistaken in suggesting that the perception that this is desirable is new to European publics and thus marks a ‘post-secular’ turn. It may, however, be a relatively new idea for some secularist intellectuals, who, like Habermas himself, are qualifying their earlier more radical secularism, in the direction of a more moderate secularism.

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tariq modood 6. For a study of various aspects of this in England, see O’Toole et al. 2013. 7. Despite this statement I have been criticised by Bader and others for lumping together different models of religious governance into one conception of moderate secularism. He, however, is close to my approach when he says ‘the most important dividing line may be between religious institutional pluralism’s recognition of some forms of selective cooperation between state and organized religions . . . and strict separationism’ (Bader 2017: 338). See also Ferrari’s argument that despite some formal-legal differences there is a ‘common pattern of church–state relations in Western Europe’ (1995: 421). 8. The Western European countries that I say can be characterised in terms of ‘moderate secularism’ are in constitutional-political terms characterised as ‘selective co-operation’ by Ferrari 1995 but are separated by Stepan into the ‘Established Religion’ and ‘Positive Accommodation’ models (2011; Stepan, this volume). 9. It should be clear that ‘neutrality’, even a ‘hands-on neutrality’ (Carens 2000) or ‘principled distance’ (Bhargava 2009) is not part of my understanding of moderate secularism or multiculturalism (Modood 2016). 10. Baroness Warsi’s speech at The Vatican, video in ‘Baroness Warsi Decries Europe’s “Aggressive Secularism”’, The Telegraph, available at (last accessed 25 January 2017). Cf. Modood 1997. 11. Interestingly, a similar contrast between differential rights and religious freedoms can be found by contrasting Taylor 1994 with Maclure and Taylor 2011. The latter’s focus on conscience and protection of negative liberty, of exemptions from the state, seems to supplant the ideas of Recognition and the harms of misrecognition, of alienation and symbolic equality, which are central to Taylor’s famous earlier work. 12. ‘Muslim–Western Tensions Persist’, 21 July 2011, (last accessed 25 January 2017). 13. Even more radically, see Laborde 2008: ‘What defines a minority is precisely its vulnerability to “identity assignation” by the majority’ (2008: 10; see also 24). Like Jansen, Laborde too thinks that undoing this domination does not require a programme of accommodation but unlike Jansen, she thinks what is involved is not a critical multiculturalism but a ‘critical republicanism’. 14. For a fuller discussion of why I think Bhargava misunderstands Western European secularisms, see Modood 2010 and 2011, though I note that in Bhargava 2013 and 2016 he now accepts that Western European moderate secularisms are distinct from and additional to his contention that the American and the French models are the mainstream Western models. 15. ‘Most British Muslims “Oppose Muhammad Cartoons Reprisals”’, BBC News, 25 February, (last accessed 25 January 2017). 16. ‘Prime Minister’s King James Bible Speech’, 16 December 2011, available at (last accessed 25 January 2017).

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multiculturalism and moderate secularism 17. ‘David Cameron on Christianity – Views’, BBC News, 18 December 2011, available at (last accessed 25 January 2017). 18. Laegaard (2012/forthcoming 2017) has usefully made a distinction between alienation and symbolic inequality and argued that it is the latter that is at stake.

References Asad, T. (2003), Formations of the Secular: Christianity, Islam, Modernity, Stanford, CA: Stanford University Press. Bader, Veit (2007), Secularism or Democracy? Associational Governance of Religious Diversity, Amsterdam: Amsterdam University Press. Bader, Veit (2017), ‘Secularisms or Liberal-Democratic Constitutionalism?’, in Phil Zuckerman and John R. Shook (eds), The Oxford Handbook of Secularism, Oxford: Oxford University Press, pp. 333–53. Bauböck, Rainer (2003), ‘Public Culture in Societies of Immigration’, in Rosemarie Sackmann, Bernhard Peters and Thomas Faist (eds), Identity and Integration: Migrants in Western Europe, Aldershot: Ashgate, pp. 37–57. Berger, Peter L. (1999), The Desecularization of the World: Resurgent Religion and World Politics, Washington DC: Ethics and Public Policy Center. Berger, Peter, Grace Davie and Effie Fokas (2008), ‘Religious America, Secular Europe?’, in Religious America, Secular Europe? A Theme and Variations, Aldershot: Ashgate, pp. 9–21. Berman, Bruce. J., Rajeev Bhargava and André Laliberté (eds) (2013), Secular States and Religious Diversity, Vancouver: University of British Columbia Press. Bhargava, Rajeev (2009), ‘Political Secularism: Why It Is Needed and What Can Be Learnt from Its Indian Version’, in Geoffrey Brahm Levey and Tariq Modood (eds), Secularism, Religion and Multicultural Citizenship, Cambridge: Cambridge University Press, pp. 82–110. Bhargava, Rajeev (2011), ‘States, Religious Diversity, and the Crisis of Secularism’, Open Democracy, 22 March, (last accessed 25 January 2017). Bhargava, Rajeev (2013), ‘Can Secularism Be Rehabilitated?’, in Bruce J. Berman, Rajeev Bhargava and André Laliberté (eds), Secular States and Religious Diversity, Vancouver: University of British Columbia Press, pp. 69–97. Bhargava, Rajeev (2014a), ‘Should Europe Learn from Indian Secularism?’, in Brian Black, Gavin Hyman and Graham M. Smith (eds), Confronting Secularism in Europe and India, London: Bloomsbury, pp. 39–58. Bhargava, Rajeev (2014b), ‘How Secular Is European Secularism?’, European Societies, 16: 3, 329–36. Bhargava, Rajeev (2016), ‘Is European Secularism Secular Enough?’, in Jean L. Cohen and Cécile Laborde (eds), Religion, Secularism, and Constitutional Democracy, New York: Columbia University Press, pp. 157–81.

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tariq modood Bilgrami, Akeel (2014), ‘Secularism: Its Content and Context’, in Alfred Stepan and Charles Taylor (eds), Boundaries of Toleration, New York: Columbia University Press, pp. 79–129. Black, Brian, Gavin Hyman and Graham M. Smith (eds) (2014), Confronting Secularism in Europe and India, London: Bloomsbury. Carens, Joseph H. (2000), Culture, Citizenship, and Community: A Contextual Exploration of Justice as Evenhandedness, Oxford: Oxford University Press on Demand. Casanova, J. (1994), Public Religions in the Modern World, Chicago: University of Chicago Press. Davie, Grace (2005), ‘Europe: The Exception that Proves the Rule?’, in Peter L. Berger (ed.), The Desecularization of the World – Resurgent Religion and World Politics, Washington DC: Ethics and Public Policy Center, pp. 65–84. de Latour, Sophie Guérard (2013), ‘Is Multiculturalism Un-French? Towards a Neo-Republican Model of Multiculturalism’, in Peter Balint and Sophie Guérard de Latour (eds), Liberal Multiculturalism and the Fair Terms of Integration, Basingstoke: Palgrave, pp. 139–59. Dworkin, Ronald (2006), Is Democracy Possible Here? Principles for a New Political Debate, Princeton, NJ: Princeton University Press. Ferrari, Silvio (1995), ‘Emerging Pattern of Church and State in Western Europe: The Italian Model’, The Brigham Young University Law Review, 421–37. Foner, Nancy and Richard Alba (2008), ‘Immigrant Religion in the U.S. and Western Europe: Bridge or Barrier to Inclusion?’, International Migration Review, 42: 2, 360–92. Habermas, Jürgen (2006), ‘Religion in the Public Sphere’, European Journal of Philosophy, 14: 1, 1–25. Heath, Anthony and Jane Roberts (2008), British Identity: Its Sources and Possible Implications for Civic Attitudes and Behaviour, London: Ministry of Justice. Jansen, Yolande (2014), Secularism, Assimilation and the Crisis of Multiculturalism: French Modernist Legacies, Chicago: University of Chicago Press. Jenkins, Richard (2011), Being Danish: Paradoxes of Identity in Everyday Life, Copenhagen: Museum Tusculanum Press. Kivisto, Peter (2012), ‘We Really Are All Multiculturalists Now’, Sociological Quarterly, 53: 1, 1–24. Koenig, Matthias (2009), ‘How Nations-States Respond to Religious Diversity’, in Paul Bramadat and Matthias Koenig (eds), International Migration and the Governance of Religious Diversity, Montreal: McGill-Queen’s University Press, pp. 293–322. Kymlicka, Will (1995), Multicultural Citizenship, Oxford: Oxford University Press. Kymlicka, Will (2009), ‘Historic Settlements and New Challenges: Review Symposium’, Ethnicities, 9: 4, 546–52. Kymlicka, Will (2012), Multiculturalism: Success, Failure, and the Future, Washington DC: Migration Policy Institute. Laborde, Cécile (2008), Critical Republicanism, Oxford: Oxford University Press. Laborde, Cécile (2013), ‘Political Liberalism and Religion: On Separation and Establishment’, Journal of Political Philosophy, 21: 1, 67–86.

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multiculturalism and moderate secularism Laegaard, Sune (2012/forthcoming 2017), ‘What’s (Un)problematic about Religious Establishment? The Alienation and Symbolic Equality Accounts’, paper presented at the Centre for the Study of Equality and Multiculturalism, University of Copenhagen, 21 September, (last accessed 2016); to be reprinted in Cécile Laborde and Aurélia Bardon (eds), Religion in Liberal Political Philosophy, Oxford: Oxford University Press (forthcoming 2017), ch. 8. Lewicki, Aleksandra (2014), Social Justice through Citizenship? The Politics of Muslim Integration in Germany and Great Britain, Basingstoke: Palgrave Macmillan. Maclure, Jocelyn and Charles Taylor (2011), Secularism and Freedom of Conscience, trans. Jane Marie Todd, Cambridge, MA: Harvard University Press. Marx, Karl (1988), The Economic and Philosophic Manuscripts of 1844 and the Communist Manifesto, Buffalo, NY: Prometheus Books. Modood, Tariq (1997), Church, State and Religious Minorities, London: Policy Studies Institute. Modood, Tariq (2007), Multiculturalism: A Civic Idea; 2nd edn, 2013, Cambridge: Polity Press. Modood, Tariq (2010), ‘Moderate Secularism, Religion as Identity and Respect for Religion’, Political Quarterly, 81: 1, 4–14. Modood, Tariq (2011), ‘Moderate Secularism: A European Conception’, Open Democracy, 7 April, (last accessed 25 January 2017). Modood, Tariq (2012), ‘Is There a Crisis of Secularism in Western Europe?’, Sociology of Religion, 73: 2, 130–49. Modood, Tariq (2015), ‘Multiculturalise Secularism – but Avoid a Narrow Understanding of Multiculturalism and Secularism’, Review Symposium of Yolande Jansen, Secularism, Assimilation and the Crisis of Multiculturalism: French Modernist Legacies (Amsterdam University Press and University of Chicago Press, 2014), Ethnicities, 15: 6, 848–52. Modood, Tariq (2016), ‘State–Religion Connections and Multicultural Citizenship’, in Jean L. Cohen and Cécile Laborde (eds), Religion, Secularism, and Constitutional Democracy, New York: Columbia University Press, pp. 182–203. O’Toole, Therese, Daniel N. DeHanas, Tariq Modood, Nasar Meer and Stephen Jones (2013), Taking Part: Muslim Participation in Contemporary Governance, Bristol: University of Bristol, (last accessed 25 January 2017). Parekh, Bhikhu (2000), Rethinking Multiculturalism: Cultural Diversity and Political Theory, Basingstoke: Macmillan. Peucker, Mario and Shahram Akbarzadeh (2014), Muslim Active Citizenship in the West, Abingdon: Routledge. Putnam, Robert, D. and David E. Campbell (2010), American Grace: How Religion Divides and Unites Us, New York: Simon & Schuster. Rawls, John (1971), A Theory of Justice, Oxford: Oxford University Press. Rawls, John (1993), Political Liberalism, New York: Columbia University Press. Reeskens, Tim and Matthew Wright (2014), ‘Host-Country Patriotism among European Immigrants: A Comparative Study of Its Individual and Societal Roots’, Ethnic and Racial Studies, 37: 14, 2439–3511.

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tariq modood Stepan, Alfred (2000), ‘Religion, Democracy, and the “Twin Tolerations”’, Journal of Democracy, 11: 4, 37–57. Stepan, Alfred (2011), ‘The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes’, in Craig Calhoun, Mark Juergensmeyer and Jonathan VanAntwerpen (eds), Rethinking Secularism, Oxford: Oxford University Press, pp. 114–44. Sutton, Deborah (2014), ‘Secularism, History and Violence in India’, in Brian Black, Gavin Hyman and Graham M. Smith (eds), Confronting Secularism in Europe and India, London: Bloomsbury, pp. 113–28. Taylor, Charles (1994), ‘The Politics of Recognition’, in Amy Gutmann (ed.), Multiculturalism, 2nd edn, Princeton, NJ: Princeton University Press, pp. 25–75. Taylor, Charles (2010), ‘The Meaning of Secularism’, The Hedgehog Review, 12: 3, 23–34. Taylor, Charles (2014), ‘How to Define Secularism’, in Alfred Stepan and Charles Taylor (eds), Boundaries of Toleration, New York: Columbia University Press, pp. 79–129. Werbner, Pnina (2012), ‘Multiculturalism from Above and Below: Analysing a Political Discourse’, Journal of Intercultural Studies, 33: 2, 197–209. Wieviorka, Michel (2012), ‘Multiculturalism: A Concept to Be Redefined and Certainly Not Replaced by the Extremely Vague Term of Interculturalism’, Journal of Intercultural Studies, 33: 2, 225–31. Wind-Cowie, Max and Thomas Gregory (2011), A Place for Pride, London: Demos. Young, Iris M. (1990), Justice and the Politics of Difference, Princeton, NJ: Princeton University Press.

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4

Living with Religious Diversity: The Limits of the Secular Paradigm Gurpreet Mahajan

Introduction In April 2016, Air France sent an email to the women crewmembers instructing them to ‘wear trousers during flights to Iran and to don a “loose-fitting jacket and headscarf” before leaving the plane in Tehran’ (Willsher 2016). Many people were outraged by this announcement. While some people saw this as a sign of France yielding, if not being subservient, to the demands of the Muslim culture, others complained that women were being compelled to wear ‘ostentatious religious signs’ – something that France prohibits explicitly in its own territory. Eventually the matter was settled as the airline gave the staff a choice: they could opt out of flying to Tehran. Air France notified that ‘If, for personal reasons, they [crewmembers] don’t want to wear the headscarf when they leave the plane they would be reassigned to another destination’ (Hickford 2016). This decision took care of the immediate concerns of the women employees but the question that remains is: why did the national carrier issue such instructions? When France prohibits the donning of a full burqa or a veil that completely covers the face in the public domain, can it justifiably ask crewmembers flying into Tehran to wear a headscarf? Even when children (and they are not public officials) are not allowed to wear any religious signs, like the headscarf, turban or yarmulke, to school, could Air France tell the women crew to put on an ostentatious religious symbol on its flights to Iran? There appeared to be a contradiction between what the French law prescribes and what the women were being asked to do when 75

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gurpreet mahajan travelling to Tehran, and it is this that has been talked about the most. But, what has been overlooked is that these seemingly different decisions about dress codes were prompted by the same logic. Air France felt that it was appropriate for its crewmembers to abide by the Iranian law when they were in Tehran; it could argue further that it was acting to protect the women crewmembers. Since strict punishment (including imprisonment) is given to women who do not follow the prescribed dress codes in Iran, Air France was acting in the interest of women. Whatever the motivation for the instructions given, Air France was essentially asking the women crewmembers to comply with the law of the land. It was in effect applying the same reasoning used at home to tell immigrants, for instance Muslim women who wear the burqa, to conform to French laws while living in that country. Travelling into Tehran, France was asking its citizens to act in accordance with the Iranian law, and at home it was asking immigrant populations to accept the French way of life and the principle of laïcité, and not wear any ostentatious religious signs in the public domain. I have referred to this case primarily to argue that liberal secularism only speaks and understands the language of choice. The French authorities accepted that the choices of women crewmembers flying into Tehran were being unduly constrained, so it gave them the alternative of opting out and being reassigned to another flight. But in asking the people living in France to similarly make a choice and not observe a religious practice that violates the civil laws, they misunderstand the nature of religion – its beliefs or practices. Being instructed to wear a headscarf was, for the crewmembers, an infringement of the right to choose, but for the Sikh men who are asked to remove their turban at the airport security checkpoint or the Muslim women who are told not to wear a headscarf while teaching in a public school, it is likely to appear as a form of insult or disrespect towards the concerned person and group (and not merely a restriction of the right to choose). Matters of religion are qualitatively different and need to be approached with a different sensitivity. Frameworks of secularism, both ‘rigid’ secularism (Bouchard and Taylor 2008) as well as ‘moderate’ secularism (Modood 2010), remain inadequate for addressing the issues raised by religious minorities in Western democracies because they continue to function with the liberal language of choice. While they help to secure freedom of belief and conscience 76

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living with religious diversity for all, their attitude towards religious practices is, at best, ambiguous. Most of the time secular states are reluctant to change existing public norms to accommodate diversity of practices, and even when they do make room for them, they consider them to be like any other lifestyle preference or set of freely chosen beliefs, ignoring that religious observances are closely tied to a person’s sense of dignity and respect, and hence appear to be something more than an infringement of one’s basic freedom. To underscore this point I will take an example from India. In Jawaharlal Nehru University (like many other public institutions) there are no separate prayer rooms. This does not mean that there are no devout religious believers in the university. During the holy month of Ramzaan, religious believers who wish to offer prayers during the day assemble (among other places) on the sixth floor of the university library. Administrations have changed and so have librarians but the practice of keeping a little space clear and clean for offering prayers has continued. There is of course no formal notification for this but the concerned authorities understand that several Muslim students will fast during this month, and will need to offer prayers at specific periods of time. They also recognise that not accommodating this need for religious worship is likely to be read, both by those wishing to offer prayers and those who do not observe the fast, as hostility to the community as a whole. For this reason practice-related needs are often accommodated. The fact that this is a practice involving, by and large, worship in accordance with religious norms means an extra effort is made to accommodate the concerns of the devout. Similar accommodation is not made, however, for ‘choice-driven’ activities. It is highly unlikely that space would be provided in the library for, say, table tennis players who have no other place to practise and are committed strongly to winning the upcoming tournament. The point is that matters of religion are often treated differently from other kinds of action in India. To some extent this is because religion continues to play an important role in individual and social life, but in large measure it is because the constitution recognises and values religious and cultural diversity. The framers of the Indian Constitution did not merely envision a ‘secular’ polity, where the state would not be aligned with any religion and everyone would enjoy freedom of conscience and belief; rather, they conceived of a state where different religious and cultural communities would, 77

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gurpreet mahajan to a considerable extent, be able to live in accordance with their beliefs and practices. It is this commitment to diversity that has made the crucial difference and encouraged greater willingness to accommodate religious practices of the minorities as well as the majority. Against the backdrop of this distinction between a secular state and one that pursues religious and cultural diversity, the following pages make three interrelated arguments: (1) the framework of secularism by itself cannot address the different kinds of claim that are coming from religious communities in Western democracies today; (2) a moderate form of secularism is certainly preferable, and it can co-exist with a commitment to diversity. Unlike the more rigid form of secularism that insists on complete separation of religion and state, moderate secularism can make some space for religion in the public domain; however, it too is not enough by itself for accommodating and valuing religious and cultural diversity; and (3) accommodating demands that come from religious minorities requires that we go beyond the framework of secularism and value religious diversity. It requires us to approach matters of religion differently and recognise that the language of choice misunderstands the nature of commitment invoked by religious practitioners. I will attempt to explicate these arguments by reflecting upon the Indian experience. Against those who cite India as an example of moderate secularism that has successfully accommodated religious diversity, I hope the next section will show that it is recognition of religious diversity and the priority accorded to protecting that diversity which has made a crucial difference; without the latter, moderate secularism would not have yielded the observed results.

Prioritising religion and diversity: Nature of accommodation in India Western democracies of Europe, North America and Canada are today confronted with a wide range of demands from religious minorities living there. More and more groups are steadily asking the state to recognise and accommodate their religious practices – from food habits and modes of dress to observance of specific religious practices. While religious groups have long demanded a place for collective worship, today it is practices that are the focus of attention. They want, for instance, halal and kosher food in hospitals and other public places, exemption for Muslim girls from 78

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living with religious diversity swimming classes, the freedom to wear the headscarf or chador or turban in public institutions, and time off for prayers and religious festivals. Paradoxically enough, in India where the society is avowedly more religious, demands of this kind hardly ever surface. Officially the state recognises different religions and accommodates their festivals in its list of public holidays, but that is about all. Public institutions, be they state offices or schools and colleges, do not have any designated prayer room and there is no organised demand for such spaces either. This difference is striking and it can be understood only by referring to three different kinds of process that are at work here: (1) a long history of living with religious differences and the absence of a homogeneous public sphere; (2) a weak and incomplete process of secularisation; and (3) a positive evaluation of religion and diversity. Collectively they have yielded an inclination to accommodate religious practices, sometimes formally but most of the time informally, and sustained community institutions that attend to the concerns of the more devout members who wish to observe these practices more strictly. First, the emergence of nation-states in Western Europe was accompanied by, and at times preceded by, a process of religious and cultural homogenisation. The declaration of an official state religion at first and a national language subsequently created a homogeneous public. As such many of the norms that prevail in the public domain today reflect the culture and orientation of the majority in these societies. Whether it is the accepted dress code or food served in public cafeterias, each reflects the preferences of the dominant community. Immigrant communities have, in these societies, brought with them sharp differences and they are now asking for their accommodation. Differences that appear to the host country to be at times incomprehensible or, worse still, threatening and unacceptable. Wearing of the hijab is read as a form of women’s subordination and enslavement; the turban appears threatening and the insistence on certain kinds of food simply strange and incomprehensible. If the latter was on account of allergies or other health risks, it would be understood quite easily; but as a sign of religious belief it makes little sense, and unlike matters of choice it receives even less consideration. One could be tolerant or simply indifferent to these stark differences if they did not require adjustment or change in the way things were in the public arena. It would be fine if women from these minority communities were to wear 79

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gurpreet mahajan long dresses or cover their hair or face in ghettoised areas but to be served by persons dressed in this manner in department stores in malls, or to have one’s children taught by them in schools is an altogether different matter. It seems simply unacceptable. In sharp contrast to this, people in India have been accustomed to seeing visible differences. They have lived with such differences for a very long time and have come to associate them with a specific religious identity. Whether they are at a railway station or a college, a shopping mall or a government office, they are likely to see, or be standing beside, people who dress and appear markedly different. Some may be wearing a turban, others a skullcap; a few may have three white lines on their forehead, yet others might have a touch of red colour just above the forehead; some may have facial hair, others not. Differences of this kind are very visible and people are accustomed to seeing them all the time. Even more importantly, they are able to read these differences so as to associate them with a specific religious or cultural identity. People have also learned to differentiate between what appear to be close resemblances. They can tell the difference between the turban worn by Sikhs and other forms of saffas (turbans); between a karha, that is a sign of Sikh identity, and other metallic bracelets; between the headscarf worn by a Muslim girl and the ghunghat (covering of the face) of a Hindu woman. People may not know much about the religion and culture of the other but, from a young age, they develop the capacity to decode these symbols and relate them to specific identities. Living with visible differences has built this ability; so differences do not appear immediately as strange or threatening, requiring a deliberate act of understanding the other. Second, in the absence of a systematic process of state-led cultural homogenisation, cultural differences have been actively present in the public domain for centuries. That is, they are not restricted to the private arena or to specific areas where the presence of that community is more pronounced. They are everywhere. During the colonial period, the British did not firmly interfere in the practices of religious communities; nor did they attempt to create a homogeneous subject. If anything, internal differences served them well. Religion remained the basis of political mobilisation and representation, and eventually, it led to the partition of the country and the creation of a separate homeland for the largest minority – Muslims – in the country. On the other side, to keep members of 80

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living with religious diversity different communities together in the struggle for independence, the Indian National Congress made a special effort to include different communities: it consciously pluralised the public domain. This legacy continued for several decades after independence. As a consequence the public domain reflects the presence of religious diversity; and questions of appropriate dress code, food habits, observed rituals and practices have not been settled in favour of any one community. Third, India did not opt for a formal separation of religion and state. Religion was already present in the public domain in the form of highly mobilised religious communities, some with their own political party. Religious signs and symbols were also present in the public arena. Hence when India gained independence, a rigid separation between religion and state was simply not possible, and more importantly, it was not even considered desirable. India settled for a more moderate form of secularism: one where the state would not be aligned with any one religion. Non-alignment of this kind could have taken many different forms: the state could have been neutral between religions or equidistant from all religions. Both these responses would have been compatible with the moderate form of secularism. But India took a slightly different route. Instead of simply affirming the state’s non-alignment with any religion, it chose to be inclusive and made a conscious effort to recognise and accommodate its religious diversity. For instance, while taking decisions about national symbols, such as the flag and national anthem, the leadership carefully avoided colours and songs that were closely associated with any one community; in its place they chose symbols that were either deliberately ambiguous so as to be acceptable to the Hindus and the Muslims, or else opted for signs that were ‘non-sectarian’ (Parekh 2015: 58) and reflected positively the religious and cultural diversity of the country. A moderate secularism, by itself, would have allowed religious concerns and symbols to enter the public domain, but that was not considered to be enough. The framers of the Indian Constitution, as well as most of the political leadership, attempted to create a more plural and inclusive public domain such that the different communities living here have a sense of comfort in the public arena and can see this country as their home. Secularism, even one anchored in the notion of ‘principled distance’ (Bhargava 1998: 493–4),1 could have moved in the direction of neutrality. It could have opted for 81

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gurpreet mahajan public holidays for national occasions, such as Independence Day, Republic Day, Quit India day and Martyrs Day, to commemorate certain landmarks in the national history such as the Jallianwallah Bagh massacre or the execution of Bhagat Singh. Instead the Indian state identified and accommodated festivals of all major religions – the majority and the minorities. It followed, in other words, a policy of accommodating different religions and dealing with them in an ‘evenhanded’ (Carens 2000) manner. It recognised that the citizens belonged to different religions and acted in the belief that India was a land where different religions had co-existed for centuries, if not millennia, and they could, despite the odds, continue to live together in a harmonious and peaceful way. Obviously the state has not always been neutral in its effort to accommodate. In naming central ministries and departments it leaned towards the Hindi-speaking majority, but on other occasions, particularly while mourning the death of the head of state, it chose to include all major religious groups by inviting their members to offer prayers in accordance with their group practices. Besides pushing for a public domain where the culture of the majority is not unambiguously privileged, India also continued with the practice of community personal laws. In a moderate form of secularism, or secularism guided by the ideal of principled distance, the state would be expected to intervene in religious matters for the sake of promoting equality and justice for women. The wall of separation should have been breached to create either a uniform civil code or gender-just community personal laws; however, this did not happen. The Indian state, committed to the ideal of religious diversity, refrained from intervening in the personal laws of the minority communities. While it legislated to reform the Hindu personal law (affecting the majority community), it consciously steered away from similar interventions in the personal laws of minority communities. It was the priority accorded to the multicultural outlook that validated the decision to treat minorities differently, giving them the space to define their own cultural and social norms. Over the decades some minority communities have made substantial reforms in their personal laws but women are still trying to change the Muslim personal laws. The absence of genderjust laws remains a secular lament and some feel that at the time of independence, when the minorities reposed greater trust in the government and the political leadership, a uniform civil code could 82

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living with religious diversity have been enacted, but this did not happen. Multiculturalism acted as a restraint, as it respected the autonomy of communities and waited for them to take the initiative themselves to change their personal laws. Above all, the pursuit of religious diversity translated into the right to conserve their language, script and culture and the right to establish ‘educational institutions of one’s choice’ (Article 30). Secularism stepped in to stipulate that no religious instruction be given in any state-run educational institution and even in minority educational institutions supported by funds from the state there would be no mandatory religious education. In other words, secularism ensured that the state would not be aligned with any one religion. But it was the concern for religious diversity that supported a community’s right to establish and run its own religious institutions as well as educational institutions with support from the state. What has been helpful is that the majority community also wants its practices to be accommodated in the public domain. Unlike many Western democracies where the demand for accommodation of religious practices comes from the minorities, in India both the majority as well as the minorities want to bring their difference into the public domain. The Hindu community, for instance, wants to hold processions to mark such festivals as Ganesh Chaturthi or the completion of Durga Puja; the Muslims seek to observe their rituals publicly on the occasion of Muharram, and other religious groups too wish to hold processions to celebrate their festivals and religious events. They set up temporary pandals (covered spaces) and create parking spaces on public property for a specific event. Practices of this kind are accommodated frequently as the majority and the minorities want to observe their religious practices. Indeed this was expressed by all the communities at the time of the making of the constitution; hence individuals and communities received the right to observe their religious practices. Secularism, irrespective of the form it takes, advocates policies to ensure that no one is discriminated against on grounds of religion. To this end it supports freedom of belief and conscience, and the right to religious worship. In India this secular concern was supplemented by the right to religious practice. The Constitution of India gave all persons not only the right to profess their religion but also the right to observe their religious practices. Even though the latter raised concerns about the fate of women in these communities, equality for 83

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gurpreet mahajan women remained a second order of priority for the framers. Since their primary concern was due recognition and accommodation of religious diversity, all communities were given the right to continue with their distinct way of life. Whether the practices conformed to liberal norms of autonomy and equality was a question that was, in a way, shelved. Instead, as a matter of right, religious practices could be observed; and this placed some obligation upon the state, and public officials, to act in a way that facilitates the performance of specific practices without undue hindrance. There were, even then, disputes about the desirability of particular practices; even today some of these are challenged legally and socially. However, as and when matters have gone up to the Supreme Court of India it is not the concerns of autonomy or equal liberty that have been critical to the debate or the decision. In fact, rarely, if ever, has the Court ruled against a religious practice on grounds of infringing individual liberty. All along, the right to religious practice and the priority accorded to maintaining India’s religious diversity have trumped liberal and secular concerns. Needless to say, this has yielded greater readiness to accommodate religious practices – far more than one is likely to find in other states that endorse moderate secularism.

The limits of secularism I have drawn upon the Indian experience only to argue that it is the positive evaluation of religious diversity along with the absence of a homogenised public sphere that has helped to pluralise the public domain. If we do not find demands for accommodation, specifically of the kind that are heard so frequently in many Western liberal democracies, it is primarily on account of this commitment to diversity and not a moderate form of secularism. Secularists in India remain uncomfortable when key public officials, like the president, prime minister or other ministers, visit places of worship before elections or perform pujas (religious ceremonies) to seek the blessings of a deity before taking over an office or for mitigating the effects of a natural disaster, like drought. Similarly, secularists are uncomfortable when the state provides funds for the upkeep or rebuilding of places of worship; and when the observance of some religious practices results in unnecessary traffic jams and inconvenience to the ordinary citizens, moderate secularists are inclined 84

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living with religious diversity to ask for some regulation of religion and religious practices. And when it comes to community personal laws, they certainly plead for more gender-just laws. In other words, it is not secularism but the priority accorded to religion and religious diversity that has provided a fertile ground for accommodating differences in India. It is not my contention that India offers a model for accommodation of religious diversity that may be followed elsewhere. India had a different historical trajectory, hence the path it embarked upon is not available to others. Even if it were, it is important to recognise that the Indian framework has yielded its own set of challenges and problems. When society as well as political leaders recognise that religion is an important anchor of personal identity, they are in a position to act in a way that can maintain peace or spark conflict. That is, they may be more willing to accommodate different practices but equally they know that if a practice is not accommodated it will create tension between communities. They know that it will provoke in the affected community a sense of hurt and alienation, and if that remains unaddressed it could polarise communities, pushing each of them closer to parties that claim to represent their religious community. In other words, religion can be used instrumentally and in this form it has the potential to generate an aggressive form of majoritarianism and minoritarianism, neither of which is desirable either for nurturing a well-integrated society or for protecting space for internal dissent within a community. India is not, therefore, an exemplary case. Nevertheless, looking at it closely is helpful to understand the possibilities and the limits of the path that many Western liberal democracies are opting for. More specifically, it allows us to understand that moderate secularism, while being preferable to rigid secularism, is still insufficient by itself to deal with the challenges thrown up by sharp religious differences. Moderate secularism is at best an enabling condition; it does not decide claims that come before it on the basis of whether they bring religion or religious symbols into the public domain. Instead it is willing to consider a given practice and see if it violates the principles of equal liberty and equality for all. If the demand for adopting a particular dress code or for consuming specific kinds of food or observing particular rituals does not conflict with these basic liberal considerations then they may be accommodated, even if they bring religion into the public domain. But that is about all. Moderate secularism by itself does not push for accommodating 85

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gurpreet mahajan religious differences. Even in the case of following a particular dress code, for example wearing a veil, the practice may be looked at and judged differently. It may be seen as an infringement of the principle of gender equality and therefore disallowed. But if the turban or the skullcap are not viewed as a threat to the liberal principles then they may be accommodated. Moderate secularism works with this kind of thinking. It is always battling with its suspicion of religion and religion-directed beliefs. It is perhaps for this reason that Bouchard and Taylor in their recommendations suggest that key public officials, judges, policeman, and so on must not don any visible religious signs (2008: 152). They must appear neutral. But in the case of ordinary citizens it seems that moderate secularism is willing to be more accommodative. Moderate secularism may be comfortable with schoolchildren wearing some religious signs but it is doubtful whether it would feel the same when we speak of a teacher in public school. Likewise, practices such as polygamy or female circumcision might still meet with resistance in a moderate secularism, or even secularism based on the idea of principled distance. Publication of cartoons that members of the community find objectionable or offensive may well be permitted as part of freedom of expression. One does not know how Tazia processions would fare within moderate secularism. Whether the public flaying/hitting oneself with a whip to the point of bleeding and injuring oneself would be acceptable or not in a moderate secularism remains an open question. If space is made more readily for many of these kinds of practices in India it is on account of valuing religious diversity and protecting the space to practise one’s religion. Secularism, of every hue, is less accommodative. As it privileges individual liberty it scrutinises each and every practice before even considering the possibility of accommodating it. Each case has to be considered individually and negotiated. Even if dress codes are accommodated for a particular community it does not imply that other cases involving dress codes would be readily accepted; and even if some practices of a given community are accommodated it does not mean that other practices of that community would also be recognised or accommodated. Moderate secularism has more space, and therefore greater possibility, for considering the demands that come from religious minorities but it too is hampered by its suspicion of religion and its commitment to prioritising individual autonomy and liberty.2 86

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living with religious diversity

Living with differences: Abandoning the search for a universal principle In a plural society, marked by deep diversity, we have to learn to live with and approach religious practices differently from the way we deal with expressions of individual choice. On the one hand, we have to create an environment in which the anxieties generated by stark differences – for instance, a certain kind of appearance, dress, habits, and so on – are systematically minimised and laid to rest; and, on the other hand, make an effort to understand the point of view of the other. In the case of religious communities we need to realise that members are initially reluctant to give up their practices because they see them as articles of their faith rather than objects of choice that can be freely abandoned. This does not imply that we must endorse and accommodate all the practices that are followed by different communities, but it is necessary to recognise that imposing a blanket ban on things that we consider undesirable is not eventually helpful; in fact, it is likely to breed a sense of hurt and alienation, and this would probably help those who want community members to stick together and resist change. Max Weber made a distinction between an ethic of conviction and an ethic of responsibility, and argued that in politics we need the latter. Instead of following a principle dogmatically we need to act with the awareness of the consequences that our actions are likely to generate, and choose a desirable course of action keeping the latter in mind. It is with this idea of the ethic of responsibility that we need to address the question of religious differences and deep diversity in our society. To take an example: based on a commitment to the principle of gender equality one might decide to disallow the headscarf and all other symbols of women’s subordination in schools and other public institutions. But this unwavering adherence to a principle, without any consideration of the logic of power that operates in the community, might only make women worse off. Our actions might push women back into the fold of the community, and deny them the possibility of acquiring skills necessary for occupying prestigious positions and developing their individual critical capacities. Keeping an eye on the consequences that are likely to be engendered by our actions, it might be preferable to pursue the goal of gender equality differently, drawing up policies that will neither alienate the community nor suppress internal voices of dissent. 87

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gurpreet mahajan Most of the time we tend to look for a universal principle, or a principle that can be made universalisable, and decide on that basis what is the right thing to do, for us, as moral individuals. Living together with the other requires that we nurture an ethical perspective which considers not only what is good for the self (or an unencumbered self) but also what is good for the other. Accommodation is never a one-time thing: it cannot be settled and secured once and for all. Even long-standing traditions of accommodation can be undermined so one needs to make an effort continuously. As a step in that direction one has to prepare oneself to take the position of the other seriously. That is, to view it as a reasonable point of view. Whether we value religion or not personally, it is essential to recognise that for some persons the symbols of their religious identity are closely linked to their sense of dignity and respect. Hence one has to act with this awareness. There is no doubt that religious communities often endorse social and cultural practices that stifle dissent and individual autonomy. Practices of this kind are a matter of concern not only for the larger liberal society but for some members of the community as well. The way we represent the community, stereotyping and negatively representing it, has implications for internal dissenters. Often hostility to the other limits the space available for individuals within to manoeuvre for change in community practices. Consequently, neither the imposition of a universally binding rule by an external authority nor complete indifference towards the other serves the interest of changing existing practices and integrating the community within the larger whole. The latter requires the will to understand the other3 and to overcome the fear that stark differences present, whether they are embodied in practice, thought or appearance. In every society differences tend to generate apprehensions and adverse judgements about the other. An important condition for accommodation of differences is to find ways in which the anxieties generated in such face-offs are minimised. Many different kinds of policies and actions may be necessary for this: from dialogue between communities, avenues of greater interaction between communities in joint social ventures, positive representation of the culture and religion of the other through exhibitions, cultural events, and so on, to systematic exposure to the other from a young age. Differences are less likely to engender misapprehensions when people interact with others routinely in everyday life, whether it is in 88

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living with religious diversity schools, the workplace, market or other public spaces. Instead of keeping differences out of the public arena and public institutions it may indeed be necessary to bring them in: when public officials do their job well, the religious symbol they don may become steadily irrelevant. Positive interactions of this kind may in fact provide a firm basis for reassessing one’s initial prejudices about the other and overcoming the fear that differences tend to engender. Understanding the other is a complex process and an ongoing process. The many different kinds of policies and actions that it may require are unrelated to the principle of secularism, be it rigid or moderate. Further, political leaders, governments and prominent community members can all play a crucial role in sustaining or undermining the process of understanding. If there is one thing that we can take with us from the Indian experience it is that living together with differences is never easy. Even an old tradition of azaan (that is, giving the early morning call for prayers to the believers of Islam) can become a point of rivalry and competitive identity assertion, with each community trying to drown the voice of the other. One has to find ways of negotiating and making space for diverse practices at various levels: the neighbourhood, the community and the state. While actions of the state and political leaders can send out positive signals to members of different communities, one has also to nurture avenues of discussion across groups at local levels. The task of accommodation is a challenging one. Reliance on moderate secularism or any other principle is unlikely to be enough by itself. Since the claims for accommodation of differences are coming primarily from minorities in Western democracies we have emphasised the kind of policies and actions that the society – particularly the dominant majority – needs to consider. However, understanding is not a one-way street. In some of his early writings, Bhikhu Parekh spoke of the need for the majority and the minorities to make some adjustments (Parekh 1994). Talking about the Salman Rushdie affair, he argued that the minorities had to recognise that freedom of speech and expression is an important public value in Britain; hence they (the minority community) cannot issue or endorse a fatwa to kill a person. On the other side, the majority also needs to recognise that freedom of speech is not an unlimited right and understand why certain utterances are considered to be offensive by the community. Both 89

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gurpreet mahajan the majority and the minorities have to act in a way that is cognisant of the other, and informed by an understanding of the other. Understanding requires, on the side of the majority, gestures of going beyond one’s worldview and opening oneself to the other, listening to them; and, on the side of the minorities, efforts to find ways of being true to one’s beliefs while contributing simultaneously to the activities which the society as a whole (and the majority in particular) regards as important and morally desirable. It seems to me that this is what the Sikh community did recently in England when they observed the ‘sewa day’: the community members used the idea of sewa or service performed for others/community, which is central to their religious beliefs, and interpreted in a way that made sense to, and reached out to the larger society. Instead of offering services within the precincts of the gurudwara (place of worship), they offered services, such as organising an open kitchen, for everyone in a public space. This was a mode of social service that made easy sense to most people in the neighbourhood and it also helped the latter to understand the religious ideals of the community and assess them positively. The ethic of responsibility calls upon the minorities to also remember that it is through their collective actions that they present themselves to others and create space for engaging with them in the public domain. To conclude, one needs to address the question of accommodating religious diversity differently from the way we deal with moral disputes. Instead of searching for a single universalisable principle on the basis of which we can settle all disputes involving religious practices, it may be preferable to strengthen practices that are likely to nurture our capacity to understand the other, overcome the fear generated by sharp differences and approach the question of changing community practices in a way that empowers, and protects the space for dissent within the community. Since accommodation, and the space for it, has to be nurtured at different levels, one requires a framework of thought that emphasises not just the moral (of what is good and desirable for me as an individual) but also the ethical (action in relation to what is desirable in terms of living with the other); at the level of government, one needs a commitment to valuing religious diversity; and, at the level of the individual, a willingness to open oneself to the other, and find ways of being true to one’s ideals in a manner that connects with the values affirmed by others. Unless we understand the other, it is only fear and anxiety, and at times ‘fear and trembling’, that is likely to prevail. 90

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living with religious diversity

Notes 1. Rajeev Bhargava describes Indian secularism as being governed by ‘principled distance’; that is, principled distance between religion and state rather than absolute distance between the two. Although it is not clear what the measures of principled distance are, ostensibly it is the concerns of equality and justice that allow for breaching the wall of separation. But again, is it equality for the group or the individual that is privileged here? These are matters that remain unclear. 2. In a way, Tariq Modood recognises this limitation when he makes a case for multiculturalising secularism. Since secularism has been a founding principle of liberal democracies in Europe, it cannot be jettisoned entirely; hence, one can understand his plea to go beyond what is simply prescribed in and through moderate secularism and be open to endorsing cultural diversity as a value. As India was starting afresh and thinking of a framework that would suit its history and society, it began by valuing religious and cultural diversity. On the one hand, it pluralised the public domain and, on the other, it avoided the constraints that frameworks of secularism operate with; namely, some degree of separation of religion and state and priority to individual liberty and freedom of conscience. The Indian Constitution did make room for the latter but it was trumped by the concern for diversity. 3. Understanding the other is significantly different from tolerating the other. Tolerance allows us to put up with difference but in a plural society it reaches its limits rather quickly. One may tolerate some women wearing a veil in the shopping mall but it is difficult to remain indifferent to, or be tolerant of, a teacher or a town councillor wearing a veil. In other words, tolerance makes room for the presence of differences in society; it asks us to suspend judgement momentarily but its logic pushes us to lead a separate and discrete existence. It invariably puts some distance between us and them and operates on the assumption that the latter does not affect or concern us directly. Living with differences in a situation of equality involves something more. For one, it requires that we do not feel threatened by difference when we confront it in public offices and other arenas of life with which we deal routinely. Understanding offers a better starting point for that; it allows us to have a conversation with the other; to appreciate the rationality of its point of view so that we approach the other, and express our disagreements, from a site that extends respect to the other.

References Bhargava, Rajeev (1998), ‘What Is Secularism For?’, in Rajeev Bhargava (ed.), Secularism and its Critics, Themes in Politics, New Delhi: Oxford University Press, pp. 486–542. Bouchard, Gérard and Charles Taylor (2008), Building the Future: A Time for Reconciliation, Quebec: Consultation Commission on Accommodation Practices Related to Cultural Differences, Government of Quebec.

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gurpreet mahajan Carens, Joseph (2000), Culture, Citizenship and Community: A Contextual Exploration of Justice as Evenhandedness, Oxford: Oxford University Press. Hickford, Michele (2016), ‘Just Weeks after Brussels, France Caves to Muslims’, Politically Off Target, 5 April, (last accessed 27 January 2017). Modood, Tariq (2010), ‘Moderate Secularism, Religion as Identity and Respect for Religion’, The Political Quarterly, 81: 1, 4–14. Parekh, Bhikhu (1994), ‘Cultural Diversity and Liberal Democracy’, in David Beetham (ed.), Defining and Measuring Democracy, London: Sage, pp. 199–221. Parekh, Bhikhu (2015), Debating India: Essays on Indian Political Discourse, New Delhi: Oxford University Press. Willsher, Kim (2016), ‘Air France Faces Staff Mutiny in Headscarf Row’, The Guardian, 3 April, (last accessed 27 January 2017).

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5

Secularism: Public Space and Visible Diversity Tariq Ramadan

Introduction Secularism is in crisis, or at least it has been ‘destabilised’, to put it in Tariq Modood’s words (Modood 2012: 145). At least, we should acknowledge there is a profound tension stemming from our diverse and contradictory understandings of the ultimate objectives of the ‘secular project’. We are no longer clear about what we mean when we speak of ‘secularism’ or, in French, laïcité. Many studies with equally numerous interpretations and even contradictory conclusions have been produced over the last two generations. The outstanding contributions of scholars such as John Rawls (1971), Jürgen Habermas (1997), Charles Taylor (2007), Bhikhu Parekh (2000), Tariq Modood (2011) and, in the French tradition, Jean Baubérot (2004) or Olivier Roy (2007) to name but a few, have been contested at several levels: philosophical, legal and religious. Secularism, from the outset, has been a disputed notion but the passionate debate about its very meaning and significance has become more and more polarised as Muslims have settled in the West and have become increasingly visible. It is as if their presence has laid down a challenge not only to secularism but also to the identity of Western societies themselves. The question is not a purely legal or institutional one: having a conversation about secularism today means dealing not only with the state and the legal framework but also with self-perception, the meaning of ‘nation’ from which emerges ‘a sense of belonging’. It is hardly surprising that confusion is rampant. It is therefore of crucial importance that we begin with the clearest possible definition of ‘secularism’ or laïcité, seeking out the lowest common denominator upon which, in Western societies, it is possible 93

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tariq ramadan to agree. Such a definition would allow us to establish a framework within which we can clarify normative definitions. Should we fail to do so, we are at risk of falling into ideological projections with regard to some of the disputed notions – identity, citizenship, the nation, and so on – that confront us. The presence of Muslims is challenging the way secularism is understood, and sometimes exploited, which in turn reveals the nature of the misconceptions and the prejudices widespread in Western societies. Islam and Muslims have been perceived as ‘the other’ for many centuries (through European self-definition, colonisation, etc.). The new and disturbing factor is that this once distant ‘other’ now resides among us, and even claims to be ‘one of us’. Her presence has modified and even disturbed the traditional notions by which Western societies have historically defined themselves. Over the last two generations we have witnessed critical shifts in the way these notions have been redefined and reinterpreted. Secularism is more than the normative regulation within a pluralistic society, citizenship is no longer an objective status but, as we will see, has now an informal feature: identity is becoming a narrow reference to determine boundaries and otherness. It is of vital importance that we study these shifts and attempt to take full measure of what they may hold in store for us. What should be the way forward? What must citizens coming from different religious and cultural backgrounds do in order to live and work together? Is it enough to invoke both the common legal framework and obligation of allegiance to the state in order to surmount the obstacles we face today? The answer is ‘no’. Those obstacles far outweigh a simple commitment to the state structure and the law. The common national narrative is one way in which the citizens can share a sense of belonging that links and connects memories, promotes loyalty and acknowledges an already accepted diversity. Strictly legal considerations aside, the questions that must be faced are those of education, knowledge of one another and day-to-day proactivity.

Secularism and its discontents Secularism is today a hotly contested notion; there are as many models as societies. We can, however, draw up a short list of principles shared by most models: 94

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public space and visible diversity • Separation of authority (of ‘church and state’). • The rule of law in determining the equal status of all citizens (whatever their faith or absence of faith). • Individual freedom of conscience. • Collective freedom of association and worship. Every religious community has the right to organise itself without any interference from the state (Ramadan 2000). These are the basic characteristics of any democratic secular society. The West has witnessed intense debate over different models: the Anglo-Saxon tradition of multiculturalism is perceived as inimical to the French model based on the ‘unity of the Republic’, which does not acknowledge the legal existence of ‘religious communities’. Between these two ‘polarised’ models, we find a variety of political and social institutions designed to manage a society’s internal religious diversity. We may engage in endless argument over terminology and models (multiculturalism and community, unity and individual integration, etc.), yet there is one overarching reality that must be addressed: our societies are culturally and religiously pluralistic; the equal rights of the citizens and their acknowledged and very visible diversity must be respected and protected. The reality of pluralism obliges us, above and beyond ideological disputation (or in opposition to some national models) to agree upon a lowest common denominator in defining what constitutes a pluralistic and secularised society. The four principles listed above are useful in that they set down a workable structure. Some sociologists (Baubérot 2004; Cesari 2010), following Olivier Roy, believe that these basic principles are amply sufficient for managing a pluralistic society. But it has become apparent that differing views of the neutrality of the state, and of the interpretation of established laws, are eminently philosophical and political and, as such, turn on issues of self-perception far more than they do upon the normative instruments that are supposed to regulate different perceptions of belonging. A given society defines itself by one or several majority cultures, by its ancestral religious traditions, and by a conception of the self that goes well beyond the state and its legal structure. As such, reaching an agreement on our four principles would only be half the battle. The question of the neutrality of the state and of a legal framework applicable to all may well have been settled, but the issue of 95

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tariq ramadan belonging to the nation, and that of participation in the national narrative, remains whole and complex. Conflicting views on the ‘neutrality of the public sphere’ offer clear evidence: for the man on the street, ‘neutrality of the public sphere’ is what has always been practised in terms of cultural and religious visibility. Debates over headscarves, minarets, mosques and prayer halls reveal that, over and above the law, the presence of the ‘other’ among ‘us’ is primarily a function of visibility. His or her presence as ‘other’ disturbs the ‘neutrality’ of our space, our collective identity, up to and including the meaning of the ‘nation’ itself. It is precisely here, at the level of belonging to the nation, that the most substantial challenges arise. We may well have believed that by resolving legal issues and defining a clear role for the state the question would have been laid to rest. However, this first step will prove fruitless if the matter of belonging to the nation is not dealt with simultaneously. The opposite is, in fact, true. This latter challenge may well undermine the very nature of the legal framework outlined above. The law, its interpretation and application are directly influenced by the manner in which a society defines itself and understands its identity, its idea of the ‘nation’ and its reading of the national narrative. The latter is always reshaped either by the way religions are integrated (or not) into it, or by the way it can exclude a perceived alien religion. This process can be observed in crisis situations such as those experienced in the UK, France or the Netherlands in the wake of attacks perpetrated by violent extremists, raising the question of whether some individuals truly belong to the nation at all. Though the perpetrators of such acts may have been British, French or Dutch nationals, they are suspected of not being citizens in the fullest sense of the word (Parekh 2008). The eventuality of stripping dual citizens of their nationality has even been mooted. That the question has even been discussed demonstrates that legal safeguards can prove insufficient, that there exists an informal component, a ‘virtual’ citizenship, as sociologist Willem Schinkel (2008) describes it, or the requirement of an ‘active citizenship’, to use Yuval-Davis’s (2006) term. This means, in short, that the nature of citizenship has changed, and that its constitutional and legal content has been challenged by the claim that some citizens do not, in fact, belong to the nation. Not only are immigrants expected to demonstrate their 96

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public space and visible diversity acceptance of the country’s values; that country’s Muslim citizens are expected to go to extraordinary lengths to demonstrate their loyalty. The ‘moralisation of citizenship’, as Schinkel puts it, adds an informal dressing to legal status and makes it in turn more difficult to view the problem in any other way than through the negative perceptions seen as the original cause. How is it possible to confute a perception or a feeling that might define the otherness of the Muslim citizen, when one ‘feels’ or ‘prejudges’ that such a citizen does not entirely accept our values or our concept of the patriotic ideal? The visibility of the Muslim presence in all its visible diversity adds a feeling of difference, of otherness, and those who are different are seen to perturb or even undermine the supposed neutrality of public space. Political authority, especially in a democracy, pays utmost attention to such feelings, to the fears that are awakened by the rhetoric of populist parties and by the mass media that promote and promulgate mistrust. We can observe a visible trend across Europe (from Hungary or Poland, to England and France) leading to the normalisation of a discourse that foments misgivings about the very nature of Islam and the capacity of Muslims to become ‘true Europeans’. So-called traditional parties rapidly follow in the footsteps of the populist and/or xenophobe parties, and without overtly stigmatising, encourage mistrust and put forward security-based policies designed to cater to feelings of insecurity. In electoral periods, the political climate becomes polarised and questions of identity and immigration, and even of threat, are implicitly or explicitly associated with Muslims. Islam is not perceived as a Western or European religion, and Muslims are not seen as ordinary citizens: within a given country, they represent the ‘other’, thus producing – informally, of course – a category of ‘still-foreign’ citizens. In discussing the interaction of the world’s civilisations, with particular reference of the West and to Islam (though not only these), Huntington (1996) described a ‘clash’ at the heart of which lay opposing values and systems of reference. At the time I responded that what we were witnessing was a ‘clash of perceptions’ (Ramadan 2003) articulated around a reconstruction of the self and a reduction of the other to a strictly limited number of attributes. The manner in which the past and the European heritage are reconstructed (the most striking example being Pope Benedict XVI’s 2006 lecture 97

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tariq ramadan at Regensburg) and public space is defined (based on an ideological definition of collective identity) is fraught with significance. The newfound presence of Muslims and their natural visibility has placed them in a position of otherness, historical (as foreign to European roots) and spatial (as upsetting the markers that once defined the neutrality of public space). This perception is deep-rooted, and its impact has consequences as multiple as they are tangible in both the political and the legislative spheres. The socio-economic factors that Muslim citizens and residents must deal with are minimised. In almost all European countries, one hears the refrain that Muslim integration has failed, and that greater firmness in matters of values and lifestyles is called for. The question thus becomes one of defining Britishness, Germanness, Dutchness or Frenchness, and to expect of Muslims that they integrate in accordance with these definitions. The idea that the heart of the problem might well be the failure of socioeconomic integration is barely paid lip service. Opposition on real philosophical visions among political parties and social policies has all but vanished, especially where citizens and workers of the Muslim faith are concerned. Problems are systematically redefined in cultural and religious terms. We encounter the same redefinition when we attempt to broach the question of the legal and objective conditions of citizenship. The latter are minimised as a matter of course, opening the door to debate, in the media and in civil society, over the values and loyalty of said citizens. The effect of the dual shift in the socio-economic and legal spheres towards cultural and religious projections has been to render nearly inoperable the objective and/or normative parameters that make it possible to regulate a pluralistic society. The legal framework, the institutions of civil society (schools, social centres, etc.), the labour market, housing, all of which can be statistically quantified, are reduced to secondary considerations in the ongoing argument over pluralism and the multicultural society, as though they were never really an issue. The problem lies with the ‘other’, with his beliefs, his values, his way of life and his practices. Perceptions, projections and the informal have gained the upper hand in the public debate over secularism, living together and national belonging. We thus find ourselves enmeshed in a state of terminological and ideological confusion that is cultivated by some and suffered by others. It becomes increasingly difficult to 98

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public space and visible diversity construct an appropriate framework, and to establish priorities for concretely improving the situation. When, moreover, extremist violence is added to the equation (many of the young people involved in such acts are Western-born and educated), it is all but impossible to gain a clear focus: the most insignificant event remotely connected with a cultural or even a culinary trait, or the most spectacular terrorist attack, calls into question and reconfirms the ‘impossibility of integration’. The notion of reaching an agreement on what Tariq Modood describes as ‘moderate secularism’ is a seductive one, but it seems unequal to the task of solving the problem. The ‘moderation’ that Modood calls for has little hope unless we are able to deal with the question of perceptions and projections with regard to Islam, to Muslims, to their values and to their ways of belonging to Western societies. Without a thoroughgoing effort – both preceding and in parallel – to define shared values, the sense of belonging and a national narrative, discussion of the various models of secularism (or of the application of the law) seem not only vain but also ineffective.

Challenges The discussion is disorderly, and the terminology employed approximate at best. It follows that we must begin by clarifying our terms of reference. The contributions of the thinkers, philosophers, sociologists and political scientists quoted above are of capital importance in establishing a clear framework and in properly identifying problems. First, by defining the fundamental principles of secularism, and its objectives with regard to freedom of conscience and religious diversity; then, with regard to the legal framework that, alone, can ensure just and equitable treatment of the citizens in the full diversity of their religious affiliations; and finally, accompanying the categorisation of problems that make it possible to focus on that which is truly religious in nature (requiring flexibility), what is social (requiring appropriate measures) and, finally, that which belongs to the order of projection and perception, which can only be accomplished through a process of deconstruction, then contextualisation. The greatest challenge will certainly be to carry these three approaches forward simultaneously, taking care that each one be thorough, complementary to and supportive of the others. 99

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tariq ramadan We have enumerated above the elements that should constitute the lowest common denominator for the different definitions of secularism. The four principles (‘separation of church and state’, the rule of law, freedom of conscience and freedom of worship) must be considered in the light of the founding objectives of secularism. The existence of religion (or of religions) cannot be rejected, but must be given a framework within which pluralistic coexistence will be possible. The views of anti-religion militants aside, secularism has never sought either to eliminate religions or to make them invisible, but to regulate their presence in the individual and collective lives of citizens. It is essential, therefore, that we return to the principles and the founding objectives of secularism and demand equal treatment of all religions and expressions of spirituality not only before the law but also in the spirit of the law. A normative definition of this kind is an essential step, as the philosopher Charles Taylor (2007) has demonstrated, in clarifying both the terminology and the legal framework that make it possible to manage religious and cultural pluralism. This effort must be undertaken concomitantly with clarifying problems and issues. No one can deny the existence of religious questions related to the interpretation of scriptural sources, rituals, obligations and prohibitions. In the light of the framework mentioned above, religious representatives have always been called upon (as they continue to be) to suggest detailed responses to the questions raised by authorities and institutions. There is a wide diversity of trends and currents in Islam in the West, ranging from literalists to reformers (Ramadan 2003) and answers can and do differ widely on such matters as dress, food and ritual obligation. Nonetheless, the production of legal opinions (fatāwā) has evolved significantly in the West, and there now exists a broad consensus among the diverse currents of Muslim thought regarding respect for the legal framework of secularism. Deep disagreements remain, of course, over social participation and citizen involvement, but respect for the normative framework has now been broadly acquired. The task of adaptation and of theological and legal renewal is under way, and will continue uninterrupted in the years to come. The very public emergence, in recent years, of violent extremism (which is often described, unsatisfactorily, as ‘radicalisation’ of the young) represents a new and major challenge: we are dealing with marginal cases of individuals who often 100

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public space and visible diversity had evidenced little or no religious practice, but whose acts have forced Muslim authorities to think deeply about respect for the law and about violence. Here, too, we witness a broad consensus, and an increasingly clear discourse of explanation, condemnation and contextualisation. From one crisis to another (Salman Rushdie, the Danish cartoons, Charlie Hebdo, etc.) responses have become more refined and sophisticated (Buruma 2007: 103–40; Klausen 2009; Kabir 2016: 168–83). Furthermore, though what has been acquired – as we have often repeated – is substantial, not enough has been made of it: Western Muslim thought, in its overwhelming majority, has no problem with the principles and the founding objectives of secularism, which we will be examining below. Integration, in this particular field, is now well behind us; we must now turn our attention to the ‘post-integration’ phase, as I wrote several years ago (Ramadan 2010), and which corresponds with the efforts that now must be brought to bear on the ‘sense of belonging’. It is a task that must be accompanied by reflection on the historical and socio-economic causes of the tensions now wracking our societies. The colonial past of certain countries, such as the UK and France, weigh heavily in the shaping of representations, and continues to have an impact on the administration of the state, as it does on manifestations of racism, and even xenophobia among their populations. The urban planning policies that accompanied the settlement of the first immigrants in the early inter-war years of the twentieth century produced a physical segregation that can still be observed in most Western societies, whether as a consequence of ethnic belonging or low social status. The quality of public services – schools, social services, institutional support, and so on – available to these populations was either severely limited or extremely poor, and proved to be an essential factor in social marginalisation, unemployment and delinquency. To consider pluralism in strictly religious, cultural and legal terms is a futile exercise if the socio-economic realities discussed in numerous studies are not taken into account. The negative visibility of certain groups – as manifested in unemployment, violence, drug addiction, and so on – is occasionally presented as a confirmation of the otherness of Islam, totally confounding cause and effect. Numerous intellectuals, researchers and even religious authorities (like the former Archbishop of Canterbury, Dr Rowan Williams) 101

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tariq ramadan have invoked the law, calling for its full application, either as currently formulated or by adapting it to the presence of Muslims. In the light of the four principles of secularism, the legal systems of several countries would appear to be equal to the task of dealing with the ‘Muslim question’. In Canada there has been discussion of ‘reasonable accommodation’ (Bouchard and Taylor 2008); in other jurisdictions, of ‘moderation’ and flexibility in applying the law (Modood 2011; Parekh 2000). But as we have noted, applying the law depends on other factors proper to the realm of collective psychology, and to the perception of what defines ‘us’ and the ‘other’. Certainly, it cannot be denied that the clarity of the normative and regulatory reference in the legal framework must be affirmed and defined with regard to the ‘Muslim question’ in Europe (Roy 2007). Respect for public law and recognition of it as a normative reference have laid down the underlying terms for all discussion of the possibility of living and acting together. They have created the conditions for fashioning a common narrative that will determine the contours of belonging, loyalty and of our common future. Taking this clarification process as a starting point, we can begin to grapple with the perceptions and fears that underlie the idea that Muslims’ only loyalty is to an international ‘Islamic Ummah’, and that their loyalty to the country is relative, or merely circumstantial. The notion of the ‘Three “L”s’, of which I have written (Ramadan 2010) – ‘law, language and loyalty’ – clearly establishes the priority of the law of the land as the basic framework of reference. The effort to acquire a sense of belonging, like that of the common narrative, positive visibility and loyalty can yield results only through acceptance of the legal framework of the country. In return, such an effort cannot but have an impact on the application of the law, which will tend to be far more confident and inclusive than were it understood as an instrument of protection against the presence of Muslims perceived as a threat. This is why it is critical to reconsider our definition of ‘neutrality’ within the liberal democratic frame of reference. It cannot be a kind of neutrality based on the religious symbols of our past and/or the invisibility of the new citizens, especially the Muslims. It is not only an ‘inclusive neutrality’, as discussed by Pierik and van der Burg (2014), but rather a redefinition of neutrality based on both the egalitarian legal framework and the accepted pluralistic nature of the society. In a pluralistic society, neutrality should be defined by the very diversity, which defines it from within. It is not a question of 102

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public space and visible diversity including the other but of redefining the self. A neutrality of diversity refers to the way this diversity is shaping and constructing together the common social space and national narrative altogether in a two-way process.

The way forward We have arrived at a historic moment at which the intellectual contribution of Europe’s Muslim citizens must expand and multiply. Not simply in relation to questions related to Islam, to the matter of religion itself, and to the problems of coexistence in a pluralist society, but in a much deeper sense, to the history of Western civilisation, and to its construction and its self-definition. Edward Said’s (1978) critique of orientalism examines only one side of the equation: certainly, there exists a Western interpretation of the Orient but it is likewise clear that this interpretation is the mirror of the representation of itself that the West has constructed. There remains a vast and challenging field of research and investigation of Europe’s relationship with its own history, its collective memory and the shifting parameters of its identity down through the ages. This work of exploration and criticism has already been undertaken from within, more often than not in relation to colonialism and to the way the ‘other’ is perceived. An interesting example was Denis de Rougemont’s investigation in Love in the Western World (1983) into the influence of Arabo-Muslim thought on the Italian-French, and later, more broadly European literature of courtly love. The contribution and intimate connection of Islam with the construction of the West and of Europe in such fields as philosophy, science, the arts, law and architecture – with the exception of several golden ages, particularly in Andalusia – is a neglected and marginalised field (de Libera 2001: 9–122; Cardini 2001: 67–86). Much more effort is needed. European citizens, irrespective of their origins, must not only contribute to the continent’s future, but also participate in rethinking its historic and cultural identity. In a globalising era, and in its relations with the world around it, the West must undertake a dialogue with itself in full recognition of the reality of the cultural and religious pluralism that have come to characterise it today. The newfound visibility of the Muslims in the West must lend greater visibility to the neglected – and consequently invisible – historical contribution of Islam. 103

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tariq ramadan Doing so will attenuate or lay to rest the perception that Islam is the quintessential expression of otherness that today perturbs the ‘neutral’ pluralistic space that heretofore defined the Western and European secular tradition. The construction of a national or cultural narrative, if it is to have a normative basis in the present day (acceptance of a legal structure that applies equally to all; equality of citizens before the law), will require a substantial effort attending to memory, to a common history, and to the philosophical and religious traditions that make up that narrative’s foundations. Education and training are thus essential elements in the production of a more open and more incisive self-knowledge as a society, and above all, in providing greater opportunity for nurturing a sense of belonging. This, of course, is the exact opposite of the reflex that seeks refuge in notions of identity, which we see being expressed today in Europe: everywhere, identity is being reduced to selective, subjective and often negative markers (that determine who we are as opposed to that which we are not). It has become all but impossible to design a moderate, flexible or open form of secularism in these days of inward-turning identities. Application of the law, as we have noted, will necessarily be influenced by such perceptions, reductions and fears. The institutions, be they public or private, that ensure the acquisition and transmission of knowledge, as well as those that emanate from cultural, spiritual or religious communities, will all have a significant role to play in ensuring open-mindedness among the citizens of tomorrow. Pluralism requires more, not less, knowledge, a more balanced perspective, and acknowledgement of the complexity of social organisation. Globalisation has contributed to the hypertrophy of the exclusive and negative identities shaped by fear; it follows that the construction of pluralist societies will require that open and inclusive mindsets draw their sustenance from a knowledge based on confidence. The West, which has traditionally defined itself against the Orient, must return to its curriculum, and reconstruct its self-image by drawing upon the contributions of the Orient, past and present. The Western civilisational narrative carries a part of the Orient within it. While this is nothing new, it must now be rediscovered and exploited to the fullest. The authority of the state in applying the law and ensuring equal treatment for all its citizens must not be called into question in the 104

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public space and visible diversity management of public affairs, either on the national or the local level. The role of the institutions charged with public instruction is a critical one, as we have seen. Likewise, the role of cultural and religious communities is central to the crafting of any social and cultural policy worthy of the name. Political discourse at the national level (with the notable exception of the United States during the administration of George W. Bush and his faith-based initiative in 2001; Firoz and Matthews 2003) has shown scant recognition of this role. But local dynamics, at the municipal or provincial level, have demonstrated their readiness to collaborate with citizens’ organisations of a cultural or religious nature. Such organisations have a role to play, particularly in the positive visibility of religion as an overt presence in public, and fundamentally pluralistic, public space. Whether it take the form of initiatives in education, social solidarity, the environment, or art and culture, it is at this level that the sense of belonging is shaped, and where natural loyalty to the fate of one’s neighbours – and to one’s country – is developed. The process is a lengthy one, and expressions of fear tend to be more frequent, more immediate and more pressing than the slow formation of spaces given over to dialogue, to knowing one another, to confidence and thus to the sense of belonging. If a portion of the national and social narrative arises from a rethinking of history and of memory, its most telling outcome will be the fruit of this slow process, one beginning with everyday activity, with communication, with living and working together. The authority of the state cannot nurture a sense of belonging; the authority of day-to-day activity and of proactivity alone can give it a tangible form, and make it possible to accede, from within, to the experience of mutual loyalty among citizens, of human and even of spiritual loyalty. The community of destiny demands of us that we experience community at the everyday level, with its accomplishments, its challenges and its aspirations. There is no such thing as neutral public space, as Modood (2011) and Parekh (2000) have demonstrated. All societies body forth the markers of their millennial cultural and religious identity. Nothing could be more normal than the historical phenomenon that forges nations, and their respective collective psychologies. The newfound visibility of Muslims has been perceived as a threat to the self-assumed neutrality of public space – or what is experienced as 105

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tariq ramadan such. Muslims have been offered a choice: either adapt their religion (headscarves, minarets, mosques, etc.) and render themselves invisible, or face repeated controversies, each one leading to the adoption of increasingly restrictive legislation. The law and its application have thus been systematically misinterpreted as protective of the new and problematic presence of Muslims, who have often been suspected of desiring to change the law and to obtain special treatment. In fact, quite the opposite is taking place, as states and legislatures modify constitutions and legislation to prevent changes in the culture and the identity of a given society (which the presence of Muslims would, they claim, inevitably bring about). Increasingly restrictive laws governing immigration, refugees, religious practices, the construction of places of worship, and the like, have the same overall intent, and are driven by the same apprehensions, their ultimate aim being to limit the number of Muslims and the modes of expression of Islamic practice in order that they do not irremediably transform (or threaten, in the case of violent extremism) the very nature of Western societies. Once again fear is directly linked to visible difference. A new form of visibility in action must become key in responding to fears and to populist policies. To become invisible is impossible; it would be, above all, counterproductive. A strictly legal response, which would consist of defending the rights of Muslims or combatting Islamophobia, is certainly necessary but would also be unequal to the task. The reactive mode, which posits itself as a defence of Muslim rights and dignity in secularised societies, can be but a way station. Only a new form of visibility can reverse the trend towards turning inwards, or towards an exclusivist interpretation of the theme of identity. This is what I have termed ‘an ethic of citizenship’, which would determine the meaning of positive action at the heart of Western societies in the name of and for the national community, above and beyond communitarian religious or cultural attachments. It resembles, in terms of positive action and proactivity, the notion of ‘active citizenship’ described by Yuval-Davis (2011), but without the injunction of the authorities or the media. It would also be an added value for the citizen, be he or she Muslim or of any other religious or political affiliation. In the name of common values seen as a fundamental human responsibility, or as that of citizens, 106

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public space and visible diversity society will be made up of participants who refuse to be defensive or to present themselves as victims. Such a new active, positive visibility is the answer to the restrictive and restricting visibility of symbols perceived as threatening or foreign. In this way the process of acculturation – in both directions – can be accelerated, and a renewed and revitalised sense of belonging will make it possible to formulate, together, a common narrative of national destiny. Living and working together do not mean the disappearance of religions, but, on the contrary, should clarify the respective roles of the state and of religious institutions, and apprehend positively the presence of the latter in contemporary society. Secularised societies – no matter what those who hoped for the disappearance of religion may have thought – must take religion seriously. This in turn implies that both state and nation must, as a matter of necessity, produce both equitable legislation and an inclusive national narrative leading to the creation of a pluralist society that respects equality, rights and liberties. We are definitely referring here to the attribution of an active role for religions, and not only for cultures of origin or for languages. After all, we are dealing with a philosophy of life and death, of worship, of specific ritual practices, obligations or prohibitions. The holistic approach that we have developed places on the same level the consideration and examination of history, the law, social dynamics and the construction of the national narrative: unlike the timidity of the debate over the drafting of a European constitution, where people were fearful of uttering the word ‘God’ (Murray 2003), it seems unthinkable that we can view ourselves clearly without integrating the notion of religion as one of the constituent elements of the identity of pluralist Western societies. Ours is an inclusive approach that rejects the kind of neutrality that would impose uniformity or invisibility; instead, it promotes neutrality in the open and equal manifestation of all that constitutes a nation: a neutrality of diversity. Ultimately, it would lead to reconciliation with the initial goal of institutionalised secularism. The ongoing redefinition of notions (citizenship, identity, neutrality, national narrative, etc.) through the practical participation of all the citizens, from the educational institutions to the political engagement, all the way through the cultural and artistic contributions, is the path on which we will witness intellectual and psychological shifts in the way the West and Westerners 107

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tariq ramadan are defining themselves. Nothing very new indeed, it happened before with new migrants and cultures, it will happen again with new citizens and religions.

Conclusion The debate over secularism may well be of vital importance, but it can also function as a cover, or even as a pretext, to mask the deeper problems that afflict Western societies. The discussion has become one of form (the role of the state and the legal framework) while sidestepping the underlying issue (self-definition and the narrative that sets out the boundaries of belonging). In this essay, we have defended the idea that only a holistic approach that includes the role of the state, the legal system, historical relations, social questions and national destiny would make it possible for us to move beyond the fears and tensions of the present. Of course, it is necessary to bring clarity to conflicting views on terminology, on the subjects to be dealt with and the objectives of the process. Separating and identifying these questions without divorcing approaches is the complex method that must be activated simultaneously within all the fields under consideration. We must refer as much to history as to socio-economic dynamics, to the nation as well as to values and ultimate goals. Despite what bitter national controversies might lead one to believe, a slow, general historical movement is under way in the West. At the local level, the new visibility of Muslim citizens is not simply one of dress, but a function of their increasing intellectual and civic contribution. Their contribution and their participation will determine the contours of the pluralist societies in which we live; we encounter them more and more frequently in the entrepreneurial realm and often in the fields of education and research. This deep, gradual, peaceful and thoroughgoing movement is quite likely to shift the nature of debate in coming years. Without fail, the presence of Muslims that respects the secularised structure of society and its legal ‘infrastructure’ will give way to a debate over, to use the Marxist term, the ‘superstructure’ by rethinking Western self-definition, the construction of its history and the narrative that lends it meaning. This is the level at which intellectual and psychological upheavals will be most fundamental, and as such, the harbingers of a 108

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public space and visible diversity new age. Over time, and with the increasing presence and contribution of Western Muslims, today’s controversies over secularism will soon appear quaint and outdated. Given the rapidity of the changes taking place around us, we can predict that new questions will be formulated and raised within as few as two or three generations. There can be little doubt that these questions will take it for granted that Islam is a Western religion that has no problem with secularism, and that, henceforth, will contribute to the inclusive reformulation of the common narrative of the nations of Europe, North America and Australia. Such a shift is already under way and seems, with all its tensions and its accomplishments, irreversible.

References Baubérot, J. (2004), Laïcité 1905–2005, entre passion et raison, Paris: Seuil. Bouchard, G. and C. Taylor (2008), Building the Future: A Time for Reconciliation, Quebec: Consultation Commission on Accommodation Practices Related to Cultural Differences, Government of Quebec. Buruma, I. (2007), Murder in Amsterdam, London: Penguin. Cardini, F. (2001), Europe and Islam: The Making of Europe, Oxford: WileyBlackwell. Cesari, J. (2010), Muslims in the West after 9/11: Religion, Politics and Law, Abingdon: Routledge. de Libera, A. (2001), La Philosophie médiévale, Que sais-je?, no. 1044, 5th edn, Paris: Presses Universitaires de France. de Rougemont, D. (1983), Love in the Western World, Princeton: Princeton University Press Firoz, N. and W. E. Matthews (2003), ‘President George W. Bush and His FaithBased Initiative: Creative Solution or Political Minefield?’, International Journal of Nonprofit and Voluntary Sector Marketing, 8: 1, 43–58. Habermas, J. (1997), Between Facts and Norms: Contributions to a Discourse Theory on Law and Democracy, Cambridge: Polity Press. Huntington, S. P. (1996), The Clash of Civilizations and the Remaking of World Order, New York: Simon & Schuster. Kabir, N. A. (2016), ‘Free Speech: Creating the “Us and Them” Debate’, in E. Kolig (ed.), Freedom of Speech and Islam, Abingdon: Routledge, pp. 163–86. Klausen, J. (2009), The Cartoons that Shook the World, New Haven, CT: Yale University Press. Modood, T. (2011), ‘Multiculturalism and Integration: Struggling with Confusions’, in H. Mahamdallie (ed.), Defending Multiculturalism: A Guide for the Movement, London: Bookmarks, pp. 61–76. Modood, T. (2012), ‘Is There a Crisis of Secularism in Western Europe?’, 2011 Paul Hanly Furfey Lecture, Sociology of Religion, 73: 2, 130–49.

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tariq ramadan Murray, T. (2003), ‘Europe Debates God’s Place in New Constitution’, The Christian Science Monitor, 10 April, (last accessed 26 January 2017). Parekh, B. (2000), Rethinking Multiculturalism: Cultural Diversity and Political Theory, Cambridge, MA: Harvard University Press. Parkeh, B. (2008), European Liberalism and ‘The Muslim Question’: Does Intercultural Dialogue Make Sense?, ISIM Papers, no. 9, Amsterdam: Amsterdam University Press. Pierik, R. and W. van der Burg (2014), ‘What Is Neutrality?’, Ratio Juris, 27: 4, 496–515. Ramadan, T. (2000), Les Musulmans dans la Laïcité, responsabilités et droits des musulmans dans les sociétés occidentales [Muslims in Secular Societies, Responsibilities and Rights of Muslim People in Western Societies], 3rd edn, Lyons: Tawhid. Ramadan, T. (2003), Western Muslims and the Future of Islam, New York: Oxford University Press. Ramadan, T. (2010), What I Believe, New York: Oxford University Press. Rawls, J. (1971), The Theory of Justice, Cambridge, MA: Belknap Press of Harvard University Press. Roy, O. (2007), Secularism Confronts Islam, New York: Columbia University Press. Said, E. (1978), Orientalism: Western Representations of the Orient, London: Penguin. Schinkel, W. (2008), ‘The Moralisation of Citizenship in Dutch Integration Discourse’, Amsterdam Law Forum, 1: 1, 15–26. Taylor, C. (2007), A Secular Age, Cambridge, MA: Belknap Press of Harvard University Press. Yuval-Davis, N. (2006), ‘Belonging and the Politics of Belonging’, Patterns of Prejudice, 40: 3, 197–214. Yuval-Davis, N. (2011), The Politics of Belonging: Intersectional Contestations, London: Sage.

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6

Freedom of Religion in Europe: Finding the Golden Mean between Too Little and Too Much Protection Marie-Claire Foblets1

Introduction Over the course of the past two decades, countless articles, monographs and collective volumes have been devoted to the return of religion to the forefront in contemporary secular democracies. Religion is ‘back in town’, so to speak. This ‘return’ raises the question, among others, of how to govern this new religious diversity, and more particularly whether the existing normative frameworks put into place – whether international, constitutional/domestic or otherwise – are still capable of appropriately addressing some of the intricacies that come with increasing religious diversity and with the unavoidable risk of clashes it entails. The inspiration for this chapter comes from some insights I gained from two recent research projects, in particular from some of the empirical data collected through these projects and that concern the governance of religious diversity in a number of European countries. My aim is not to offer a new model of governance of religious identity, nor to intervene in ongoing conceptual and theoretical discussions on whether there is a need to revise the meaning of secular(ity) and secularism (Mancini and Rosenfeld 2014). Rather, I wish to focus on two findings in particular that come from these two projects and that are directly linked with the core question raised in this collective volume – more or less secularism? – and that deserve to be addressed since they present, in my view, a problem of governance of religious diversity in contemporary Europe. The first finding concerns the stronger protection granted in many domestic legal orders in Europe to 111

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marie-claire foblets mainstream/majority religions, that is, the belief systems that are perceived as ‘home-grown’. The problem is not in itself the protection, but its potential discriminatory effects against other minority religions and belief systems. The second finding concerns the role of courts in the protection of religion and belief, with a focus on some of the difficulties that accompany the application, on a case-by-case basis, of human rights standards to very different situations and contexts. As I will attempt to show below, human rights allow for at least three different reactions to religious claim for protection of the freedom of religion and belief. One of these is, paradoxically, overprotection of religion. This in turn invites strategic litigation: religion is turned into an instrument that provides legal grounds for claims that would otherwise not be granted. One could speak of the ‘religionisation’ (giving religious meaning) of claims that are brought before courts. In the penultimate part of this chapter, titled ‘Creating the conditions necessary to take account of religious diversity: a plea for reasonable accommodation’), I argue for the right to request accommodation in specific contexts but without the involvement of the judiciary when it comes to governing religious diversity in situ. In the conclusion I list a number of paths that may serve as a source of inspiration for judges, lawyers and other interested parties in their search for appropriate solutions to claims relating to the protection of freedom of religion. But first, I briefly situate the two research projects mentioned above.

Two sources of inspiration For the purposes of this chapter I draw upon two bodies of data: the first consists of data collected for the purposes of the comparative European research project RELIGARE (Foblets and Alidadi 2014). RELIGARE – an acronym for ‘Religious Diversity and Secular Models in Europe: Innovative Approaches to Law and Policy’ – was a project which ran from February 2010 to January 2013 and was funded under Framework Programme 7 (Socio-economic Sciences and Humanities–Area 8.3. ‘Major trends in society and their implications’). Ten countries (nine EU member states – Belgium, Bulgaria, Denmark, Germany, Great Britain, France, Italy, the Netherlands, Spain – and Turkey) (Foblets and Alidadi 2014) and thirteen research teams from these countries were involved. In the context of Europe’s growing religious diversity, RELIGARE focused on the challenges 112

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freedom of religion in europe faced by state law in four domains of social life: the family, the labour market, public space and state support to religions. The project investigated and analysed which legal frameworks and instruments are best suited to guaranteeing respect for the rights of all individuals to freedom of thought, conscience and religion and to non-discrimination on the grounds of religion or belief. The project mapped the often divergent approaches in the target countries in these areas. More specifically, drawing on the various national experiences, the goal was to identify responses – whether legislative, judicial or elaborated through best practices – that allow for an adequate balance of the principles of equality and non-discrimination with the protected fundamental rights of freedom of thought, conscience and religion. The second body of data comes from an ongoing project called ‘Cultural Diversity and Judiciary Practice in Europe’, which is a collaborative effort between the European Network of Councils for the Judiciary (ENCJ) and the European Judicial Training Network (EJTN), in cooperation with the Law & Anthropology Department of the Max Planck Institute for Social Anthropology (Halle/Germany). The project aims to create a platform to address questions relating to cultural diversity and judicial practice in Europe. This joint initiative, which is still in the early stages, allowed me to conduct a survey among some 100 judges from fourteen European countries (January to November 2014). Below, I will draw from the survey to discuss the role of the judiciary in the protection of religion and belief, and some difficulties that come with the application of standards of protection grounded in human rights (Vetters and Foblets 2016).

First finding: Stronger constitutional protection granted to majority religions and traditional faith communities The RELIGARE project took as its starting point the secular nature of the state in European countries, which means that the governance of religious diversity is historically grounded in the reasoning that secularising the state and its institutions ultimately disconnects them from any specific religion and, by the same token, makes the democratic legal (state) order more inclusive of minorities, both religious and, more generally, philosophical. With a view to regulating the relationships between state institutions and religions, national legislatures in the vast majority of the countries in Europe thus made the historic choice to secularise state law (Dierkens and Schreiber 2006; Lambert 113

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marie-claire foblets 2000; Torfs 2004; Willaime 2008; D’Costa et al. 2013; Bader 2007; Berg-Soerensen 2013). In practice, one can distinguish three different models of secular states (Robbers 2005; European Consortium for Church and State Research 1992; Knights 2007: 14; MartínezTorrón and Durham 2015). The first involves countries where there is, in principle, a strict separation between religions and the state. In such systems, such as those of France and until recently Turkey as well, state policy can be implemented only by means of secular laws and is, therefore, to be kept strictly separate from religious beliefs. Such states relegate religion, in theory at least, to the private sphere and oppose its legal, administrative and political incorporation into state structures (although in reality the state does take account of religion and belief, whether by placing certain demands on religious organisations or in other ways). A second model, by contrast, accepts institutional links between the state and religion, such as the arrangement between the Church of England and the state in the UK. The third category combines non-establishment with conditional (limited) legal, administrative and/or political pluralism. The latter usually takes the form of the requirement that the state be neutral towards religion(s), namely, by treating all religions and denominations on an equal (non-discriminatory) footing. A neutral state may support religions, but should it decide to do so, it should be careful not to favour one religion over another. Countries like Belgium and the Netherlands fall into this third category. Strikingly, one of the findings of the cross-country comparative analysis carried out within the RELIGARE project is that, in practice, it is mainly the historical majority religions in the ten countries under scrutiny that are granted exceptions to the principle of state neutrality. In some cases these exceptions are constitutionally guaranteed; in other cases the law is demonstrably not neutral, for example as regards Sunday laws and holidays. These laws have for the most part developed over the course of the country’s history. Yet, it is not so much this strong protection granted to majority religions and beliefs that should make us retrospectively raise our eyebrows, nor that similar benefits are not put in place for minority religions and belief systems, thus giving rise to differential treatment – after all, history unavoidably leaves the marks of its own logic and rules (Fox 2015). Rather, what should be a concern are the situations where similar benefits are unjustifiably denied to minority religions and belief systems, thus giving rise in some cases 114

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freedom of religion in europe to outright discrimination (Fox 2015: 104–35). With the arrival of new religious groups and communities across Europe, some of the historically developed forms of protection of traditional religions have come under criticism, making it necessary to reshape to a certain extent the legal structures in place in order to accommodate these new groups (Bhamra 2011). One would expect that with the growing awareness of increasing religious diversity, legislatures throughout Europe would have started revising the normative (and in particular constitutional) frameworks that apply in their respective domestic legal orders. However, an assessment of what has been done thus far shows that, to date, the vast majority of legislatures have not considered it urgent to revise the laws in place; rather, they are leaving it up to the judiciary to offer, for the time being, provisional responses and ad hoc solutions to litigants who claim more robust recognition of the plurality of religions and beliefs in concrete cases. The questions of whether the judiciary is sufficiently prepared to take on this task and whether the courtroom is the right place to elaborate sustainable, more appropriate forms of governance of religious diversity remain, therefore, unaddressed. And for a number of reasons it is highly doubtful that these questions will be addressed – at least in the short run – as I will try to explain below.

Second finding: Judicial practice and religious diversity. Judicial activism? Throughout Europe, judges are increasingly called upon to handle situations that are often highly sensitive and to engage in a perilous exercise that consists of balancing individuals’ claims for protection of their religion against other interests, such as law and order, public health, gender equality, human dignity, children’s rights, and so on. In the best imaginable secular democracy, one would hold that contentious issues revolving around religion and the profoundly unfair treatment of some people, not to mention structural discrimination, should be a matter that is addressed primarily through legislation and a deliberative democratic process. Yet, in the current political climate in Europe and given the overall reluctance to engage in a radical reappraisal of the state–religion relationships, it is the national supreme courts, the European Court of Human Rights (ECtHR) and, recently, the Court of Justice of the 115

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marie-claire foblets European Union (CJEU) for issues concerning the EU, that have the last say. Their judgments are often extensively commented upon both in the literature and in the media, in particular when they touch upon highly political issues such as the display of religious symbols in the public space (Temperman 2012), the construction of places of worship (Frégosi 2015), religious dress codes (Ferrari and Pastorelli 2013; McGoldrick 2006; Longman and Coene 2015; Durham et al. 2012), and so on, and how to accommodate certain claims related to these issues. The difficulties lower courts face when addressing similar issues are, however, often overlooked; lower courts often do the preparatory work2 but they are rarely seen or heard. Should one fear the emergence of what in French is called a gouvernement des juges? Yes and no. Yes, if one sees the poor visibility of much of the work done these past years by the lower courts in governing religious diversity as a genuine problem, and yes again if one believes that the judiciary should not be burdened with filling the gaps in a legislative framework which fails to adequately protect members of religious minorities in a sustainable and transparent manner. However, when one takes the time to read carefully certain court decisions that make it very clear that some judges are doggedly committed to the search for fair solutions in even the most intricate cases involving the most burning issues, then one would be inclined to answer no. Instead of fearing judicial activity, one should probably be more concerned about what is undoubtedly at play and presents a higher risk: excessively high expectations regarding what the role of the judiciary can and should be in governing religious diversity. I see at least three reasons to avoid excessively burdening the judiciary with the search for newer forms of protection of the freedom of religion that adequately take into account the needs and claims of minorities (particularly, but not exclusively, new minorities). First, litigation is (and should remain) a rare ultimum remedium; second, in a secular state order, judges have no competence to get involved in religious issues; and third, the standard reference for judges in Europe when it comes to assessing claims for protection of freedom of religion is human rights. Yet human rights allow for divergent reactions and too often make the decision of the court unpredictable, as I make more concrete below. All three reasons would require further clarification, but I will limit myself here to one illustration in particular, borrowed from the 116

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freedom of religion in europe area of employment and based on data collected within the framework of the RELIGARE research project: religious conviction and exclusion from the workplace (Alidadi et al. 2012; Hendrickx 2016). The workplace is a key area in debates about the governance of religious diversity in contemporary society (see also Bielefeldt 2014). In Europe, very generally speaking, two legal frameworks permit one to assess religion in issues of employment, and the two are intertwined: the non-discrimination framework and the human rights framework. In the European Union, an important legal framework for non-discrimination on the grounds of religion and belief in the employment area has been established in Directive 2000/78 (the Employment Equality Directive).3 This Directive, which aims to realise the principle of equal treatment in EU member states as regards employment and occupation, prohibits direct discrimination, indirect discrimination (Council Directive 2000/78/EC of 27 November 2000), harassment and incitement to discriminate on the grounds of religion or belief, disability, age or sexual orientation. The Directive also protects against victimisation on the basis of the same grounds. Freedom of thought, conscience and religion is guaranteed by Article 9 of the European Convention on Human Rights and Article 10 of the EU Charter of Fundamental Rights, as well as national (constitutional) provisions. The Employment Equality Directive does not explicitly include a right for employees to request reasonable accommodation from their employers or labour unions on the basis of religion or belief in the workplace. The concept (which comes from the US religious discrimination context) was introduced into the Directive, but was limited to the grounds of disability. Some EU member states have included in their national legislation (limited) rights to reasonable accommodation for religious beliefs or practices or similar measures (Vickers 2012). RELIGARE data show, however, that, in practice, employers and other stakeholders such as labour union leaders do not necessarily recognise the right to express one’s religion in the workplace, arguing that religion or belief should remain confined to the private lives of individuals. From this point of view, people are free to have a religion, but should keep it to themselves when outside the comfort of their own home (or in any case when at work). What is to be done, then, when there is a conflict between workplace rules and religious obligation, potentially leading to significant employment exclusion, and thus social exclusion, of individuals who not 117

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marie-claire foblets only identify with minority religions but also wish to practise those religions publicly? Should those people make a claim? What has arisen thus far in case law is but the tip of the iceberg.4 In a labour market where rules and expectations are not designed with the needs of religious minorities in mind, empirical evidence shows that individuals only very rarely call upon a judge; instead, people experiment with a variety of ‘coping’ mechanisms to deal with exclusion (Le bureau de l’emploi de la communauté website 2016).5 Litigation is indeed a rare ultimum remedium. What occurs instead is self-exclusion, which is a widespread and underinvestigated phenomenon. Some forms of expressing one’s religion or belief, such as when a Muslim wears a headscarf or objects to certain types of task at work, are self-handicapping (Ghumman and Jackson 2010). That is, a person thereby excludes him- or herself from certain opportunities so as to avoid having to compromise their religious convictions. Such a decision can at times be very rational. To give just one example: when a company has a ‘neutrality policy’, it may appear futile for a woman, even if highly educated, to apply for a job if she wishes to wear a headscarf on the job (Alidadi 2010). RELIGARE data invalidate the general perception that religious minorities are very demanding, and show on the contrary a prevalent attitude of acceptance of their minority situation, as well as a refusal to see themselves as victims. Yet, exclusion from employment may push minorities into unemployment or poverty. Therefore, it should be the concern first and foremost of legislators, not of the courts, to combat this reality (Bielefeldt 2014).6 This is all the more so as courts are limited in their scope of action by the requirements of the two above-mentioned legal frameworks – the non-discrimination framework and the human rights framework – and both frameworks leave ample leeway for divergent approaches to assessing religion. National courts interpret the existing protections against religious or belief-related discrimination, including indirect discrimination, very differently (Alidadi 2016). Especially in cases involving indirect discrimination, courts have shown limited willingness to provide protection under the given frameworks. One illustration of this relates to the adoption by private companies of so-called neutrality policies that invoke the criterion of ‘neutrality’ as a ground for banning all religious, philosophical and often even political expressions in the workplace. Do such policies, which 118

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freedom of religion in europe in effect exclude employees who wear religious attire, amount to discrimination, whether direct or indirect?7 The case law offers no unequivocal answer.8 What is true for exclusion from employment also applies to other instances of protection of freedom of religion. The sharply divided nature of the case law is evidenced by daily practice at all levels of jurisdiction, an observation that applies to the vast majority of the European countries that were studied in the RELIGARE project. The case law sometimes displays relatively improbable about-turns. A decision that has received extensive commentary is the second judgment handed down by the ECtHR in Strasbourg, sitting as a Grand Chamber on 18 March 2011, in the case of Lautsi and Others v. Italy (ECtHR judgment of 18 March 2011).9 The judgment in question illustrates clearly the hesitation of the judicial authorities in the face of the question of the scope of protection that should be granted to religious freedom. In its second judgment, the Court states two things: on the one hand, it raises the issue of the degree to which states are (or should be) aware of the question of the protection of this freedom; on the other hand, the Court acknowledges the wide margin of appreciation that states enjoy for determining the balance between the rights involved. In sum, in the opinion of the Court, it is up to the states to regulate their relationships with religious groups in society. By throwing the ball back to the Italian authorities, the Court of Strasbourg took a position that remains in line with many of its previous decisions relating to freedom of religion, and which grants a wide margin of appreciation to the domestic authorities. This time, however, the decision came as a surprise because it was handed down soon after a previous decision by the Court in the same case that went in the opposite direction (ECtHR judgment of 3 November 2009). For some, the position that the Court took in its second judgment is very convenient: the status quo (that is, states continue to develop their own policies regarding the management of religious pluralism and maintain a considerable margin of appreciation10) suits the interests of the traditional religions. Assessing national traditions and practices throughout Europe and taking into account the reaffirmation by the ECtHR of the principle of the margin of appreciation as it did in its second Lautsi judgment, one cannot but conclude that for the time being – and no doubt for some time to come – the implementation of the 119

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marie-claire foblets provisions of the European Convention on Human Rights, and more recently also of the principles enshrined in the European Charter, concerning the protection of the freedom of religion varies widely from state to state, from jurisdiction to jurisdiction, and even from court to court, not to mention from judge to judge. The case law shows at least three types of reaction to questions relating to religious freedom and its protection: in some cases religion will be over-protected;11 in others, human rights are invoked in what amounts to a radically secular reaction that strives to rid the public space of any manifestations of religion whatsoever;12 finally, in some cases the position taken by the court and the way it handles a demand for protection appears to be an attempt to secure a favourable public opinion among the majority society.13 In each of these examples, we cannot help but see a certain degree of instrumentalisation of the protection of religious freedom for political purposes. Those purposes are defined in terms of the interests of the majority, not the minority. This observation gives cause for concern. The above-mentioned observation that the standard reference for judges in Europe when it comes to assessing claims to protection of freedom of religion are human rights, but that human rights allow for divergent reactions and too often make the decision of the court unpredictable, is corroborated by the findings of the survey conducted in cooperation with the ENCJ. The survey reveals that the vast majority of judges adopt a pragmatic approach to the sharply divided case law on freedom and religion: they see religious diversity in its new form as a societal issue in need of more appropriate legislative solutions and overarching policies, but with no expectation that ‘ideal’ solutions will become available in the short run, as the issue is simply too complex and sensitive (Scolnicov 2012). Hence they seek to acknowledge religious and cultural diversity within the existing normative framework (domestic/state), using the legal techniques at their disposal and of course taking account of the specific circumstances of the case at hand. This includes knowing the relevant case law, avoiding overturning precedent, being familiar with ECtHR decisions, and making the best use of general principles. They treat matters concerning religion or cultural diversity as questions of contextualisation in each individual case: in addition to religion, other factors such as cultural diversity, socio-economic status, gender, age and knowledge of language are also mentioned as influencing the 120

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freedom of religion in europe outcome of cases. Judges also emphasise the importance of procedural factors such as the availability of extra time, the use of specially trained translators or other mediators, and a basic attitude of respect towards parties with different religious and cultural backgrounds. All in all, the majority of the judges who responded to the survey show a high degree of motivation to better understand the impact of cultural/religious factors, even if they have no competence to intervene in religious affairs.14 In the words of a British High Court judge sitting in the Asylum and Immigration Chamber: Once primary data is gathered, the issue is assessed considering how important the [religious] practice is to the claimant. If important and there are no compelling public interests against it, whether it can be accommodated or, on the contrary, whether there is some norm against it; if so, is the interference with the practice justified and proportionate?

A German judge notes that in the field of labour law, ‘reasonable accommodation’ has gained prominence. He offers two illustrations of this: When an employee in a warehouse refuses to handle beer crates on grounds that it conflicts with his religious beliefs, he is no longer fit for the job and his contract may therefore be terminated. But if it is possible to reorganize the distribution of tasks in such a way that he no longer has to handle beer crates but can be entrusted with another task, it is not reasonable and therefore not justifiable to terminate his contract. In another case, a judge ruled that an employer cannot terminate the contract of a female sales clerk who converted to Islam and decided to wear a headscarf simply on the unsubstantiated grounds that this would have a negative impact on sales. The employer was required to wait and prove the expected negative impact on sales before making his decision.

A French judge in the field of family law is of the opinion that: If in a given case the conflict-of-laws rule refers to foreign law, and if this concerns a religious personal law, in principle this law is to be considered applicable in France. The effective application in France of such religiously inspired personal law, however, will be subject to the condition that it does not conflict either with the international public order or with principles that are considered paramount in the domestic French legal order. 121

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marie-claire foblets In criminal matters, an Italian prosecutor warns that: the idea that persons of different cultures or beliefs cannot be held fully accountable for conduct punishable under the criminal law of the state because [their actions were] in accordance with religious prescriptions is unacceptable. Nevertheless, the criminal court must investigate the (cultural or religious) background of the accused and the credibility of the witnesses and the victim’s understanding of his or her statement (e.g., lack of consent), and these background factors can be taken into account to determine the applicable sentence.

All four quotations are illustrative of an approach on the part of the courts that is dictated by considerations of the practical consequences. The differences in emphasis appearing in these four survey responses might well be explained at least in part by the requirements and specificities of the particular area of the law from which the judges speak.15 But what all four passages also make clear is that, in the end, pragmatism is a palliative measure, and that it is not without risks. One such risk is unpredictability, particularly when the existing legal standards are open to interpretation or when the number of existing legal solutions (either through supra- and international regulation or through case law) is small. The hallmarks of a trustworthy and well-functioning judicial system are consistency, transparency and accountability. Somewhat paradoxically, however, even as these three hallmarks become ever more important as European society diversifies, they also become ever harder to achieve. While several judges who participated in the ENCJ survey refer to a high degree of discretion or a large margin of appreciation, which allows them to find made-to-measure solutions, in particular in the fields of criminal law, family law and labour law, others would welcome clearer legislation. The challenge therefore is to develop not just an appropriate judicial system, but a consistent set of rules – supplemented by various other forms of regulation – that reconciles differences and can deal in a consistent, transparent and accountable way with the challenge of fair regulation of increasing social, cultural, religious and philosophical diversity in secular (democratic) contexts, including the blending of groups and communities. But how should that work?

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freedom of religion in europe

The way forward: Is there need for legislative intervention? Taking a closer look at the data collected within the framework of the two above-mentioned studies, one can take one of two positions. Either one perceives no serious problem with placing high (possibly even excessive) expectations on what the judiciary can effectively do to combat discrimination on religious grounds, and hence satisfies oneself with the pragmatic approach of judges as evidenced in the case law. One sees no problem with unpredictability and inconsistency, or chooses not to worry about them. Or, one argues in favour of legislative intervention. In that case, however, it remains to be determined how to proceed. It is easier said than done. While the results of the RELIGARE project suggest that some legal frameworks still in force are at least partly outdated, they also show that where in recent years amendments have been adopted, these have been eclectic, haphazard, at times driven by populist agendas and hence often received with mixed feelings by minority communities, with new restrictions most likely to be perceived as discriminatory. An illustration of such eclectic legislative intervention is the much-debated prohibition against women wearing full-face veils in the public space, the so-called ‘burqa bans’.16 This is a topic that has real-life implications for a small Muslim female minority, but it also has much more farreaching stigmatising effects (Brems 2014). The RELIGARE data show that each of the ten countries under scrutiny has to date followed a different route to regulating the question of religious dress codes. Regarding the full-face veil, in 2010 France and Belgium adopted laws that prohibit appearing in public with one’s face covered. In both cases the prohibition applies to the public space.17 At the opposite end of the spectrum is the UK, where there are no legislative or administrative provisions forbidding the burqa or the niqab18 at the national or local levels, nor are there any directives to this effect by professional organisations. In fact, banning the burqa or niqab has been considered ‘un-British’, and women can be seen wearing full-face veils in public spaces. A third route hinges on local law: the state abstains from outlawing the use of the fullface veil throughout its territory, but the ban may be introduced by mayors or other local authorities through administrative provisions. This is what happened in Spain and, for a certain period,

123

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marie-claire foblets also in Italy, where administrative courts have regularly declared such provisions illegal. A different approach is taken in Denmark, where, apart from a single piece of legislation prohibiting the wearing of religious or political symbols in court, there is no law forbidding the wearing of the full-face veil; nor are there any local administrative provisions outlawing its use. Instead, there is some case law and also a series of documents issued by professional bodies and government directives that serve as guidelines for dealing with the most controversial cases. By these means, for example, it has been established that women wearing the burqa or niqab can ride on public transport, but photo IDs require visual identification of the bearer in the form of an uncovered face, and that schools and universities may (but are not obliged to) prohibit the full-face veil where it hinders non-verbal communication between students and teachers. In these and other cases a pragmatic and functional approach has been adopted. The full-face veil as such is not perceived as a garment that violates fundamental human rights, and thus the general attempt has been to find a solution that guarantees, as far as possible, women’s right to wear the burqa or the niqab; only for functional reasons has the wearing of this garment been forbidden. RELIGARE data also indicate that current debates on the fullface veil are frequently driven by an ideological approach that focuses on values and principles (Vrielink 2014). Proponents of such approaches claim that certain values and principles are, in their view, universal and should therefore apply generally and in an undifferentiated manner. They fail, however, to examine case by case and within their own contexts those situations where the fullface veil ban might clash with the principle of the right to access and use the common public space without discrimination. The debate tends to be monopolised on the one hand by those who believe that the full-face veil – always and everywhere – offends women’s dignity, public order, security and gender equality, and on the other hand by those who consider it a manifestation of faith, personal self-determination, freedom of expression and practice of religion that must be guaranteed with the fewest possible restrictions. Based on the RELIGARE findings, which include some sociological data, it appears that a more careful assessment of the potential problems that the full-face veil can present to the orderly enjoyment of the public space permits a less radical or confrontational, and hence 124

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freedom of religion in europe more balanced, way to tackle this issue. The relevant question to assess here is whether the prohibition against wearing the full-face veil in public spaces as currently in force in France and Belgium constitutes a form of discrimination. A general ban on wearing a full-face veil affects the accessibility of the public space, for women in particular. Yet that space is within the territory of a state where the right to move freely is, in principle, guaranteed to everyone, and the scope for limitations is thus restricted (ECtHR judgment of 23 February 2010). Clearly, there are situations where seeing the face of a person is necessary (when checking identity documents, for example); there are also certain activities that can be hindered by a veil covering the whole face, such as driving a car, and occasions when appearing with one’s face covered can give rise to social alarm. In these and a limited number of other instances, the RELIGARE findings show that it may be legitimate to prohibit the wearing of the full-face veil in common areas, based on a pragmatic rather than an ideological approach. The decision is thus made on the basis of a concrete examination of the situation that takes account of the rights of others to the enjoyment of the (same) shared public space, and their right to free movement as well. In these cases it is not the symbolic meaning of the full-face veil (which varies from person to person and can never be ascertained with certainty) that is at stake, but rather the social difficulties it may cause. This functional approach allows for measures to be adopted that are proportionate to the practical problems raised by the wearing of the full-face veil and that also take account, as far as possible, of the individual’s freedom of religion and expression. If there is evidence that wearing the full-face veil is not a matter of free choice but the consequence of an imposition (by others), for example, public authorities may be expected to prioritise the protection of individual freedom. Once this freedom is safeguarded, however, wearing clothes that are part of a religious practice or manifest a religious and cultural conviction cannot be limited in the public space as long as there is no evidence of infringement upon the right of others to move freely within that same space.19 One could cite similar examples of recent haphazard legislative interventions throughout Europe in matters relating to religion: the ban on ritual slaughtering (Bergeaud-Blackler 2013), the criminalisation of unregistered religious marriages (Akhtar 2015; Moors 125

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marie-claire foblets 2013), the parliamentary debates in several countries concerning the physical integrity of infant boys (i.e. circumcision) (Denniston et al. 2016: 111–24; Foblets 2016), to mention but a few recent examples. In each of these cases, the discussions have at times been extremely emotional, nourished by arguments grounded in antagonistic views on the role of legislation when it comes to granting fundamental rights in Europe to Jewish and Muslim minorities in particular. Many of these legislative initiatives and the debates on them have driven a wedge between proponents of the two sides and have split public opinion, often with the support of the media, thereby obstructing the development of a culture of inclusive tolerance and respect towards religious minorities. When asked how they see the relevance of these various legislative interventions to their daily judicial practice, several lower court judges who participated in the ENCJ survey were unambiguous: they welcome clarity in the law, even if in practice that places new constraints on the individual freedom of religion and belief and considerably reduces one’s personal autonomy in deciding how to give concrete expression to it. In a sense, restrictive laws release the judge from having to determine where to draw the boundaries of claims for protection of freedom of religion (Conly 2013). By taking this position, a judge considerably reduces his or her role; the judge becomes no more than la bouche de la loi. The ENCJ survey is, of course, not representative; it reached some 100 judges. Nevertheless, it gives voice to the judiciary in a way that stimulates further reflection: for some practitioners, what matters is clarity in the law. Whether clarity means, in effect, less protection of religion and of some religions in particular, is a question they feel falls outside the scope of their professional responsibility. Some years ago Paul Bramadat observed: an effective model of State governance must now, in addition to pursuing other supposedly secular objectives, seek to create the context in which members of ethnoreligious minority communities can negotiate identities for themselves in relation to the dominant national cultures. Such integration is easier said than done, and in each of the jurisdictions . . . quite distinct challenges emerge. (Bramadat and Koenig 2009: 6)

The observation suggests that laws and court decisions are not the end of the story, and that the endeavour should be a multifaceted approach, rooted in long-term thinking about how to include religious 126

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freedom of religion in europe minorities in all areas of social life, including education (e.g., the topic of religious symbols worn by teachers or students at school), housing and law enforcement.

Creating the conditions necessary to take account of religious diversity: A plea for reasonable accommodation Paul Bramadat is no doubt right: at a time when tensions around religious issues appear constant rather than sporadic, ad hoc laws and court decisions are not the end of the story, but need to be supplemented by a much broader spectrum of policy initiatives in a number of fields, including education, social services, legal aid provision, and so on. But addressing issues of religious diversity not only through the lens of the judiciary but also through various other means, such as education and appropriate legislative measures whenever these can facilitate the search for balanced solutions compatible with a democratic understanding of the functioning of pluralist democracies, is a daunting task indeed. Religious diversity presents many challenges to the relationship between mainstream society and minorities or between individuals who need to find ways to get along with one another despite differences, stereotypes and biases. A shared workplace, a shared public space, education, various experiences of deliberative democracy, and so on, each in its own way may offer the opportunity to overcome these differences, stereotypes and biases along the path towards a good ‘living together’, but it requires work to achieve such positive outcomes. How do we get there? RELIGARE’s mapping exercise revealed a number of positive outcomes, and one of the recommendations has been to make examples of good practices more visible. One such good practice, for instance, is accommodation in cases of conflict between workplace standards, rules or practices and an employee’s religious practices, that is, via adjustments to the workplace rules or practices that can smooth over existing tensions. Certain accommodations may be without cost, while others may involve a high cost, so it is important to have standards that balance the interests of the different stakeholders. RELIGARE therefore developed a comparative case-law database with religious discrimination/ religious freedom cases and commentaries, as well as a comparative sociological study, including of good practices, which may prove 127

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marie-claire foblets helpful not just for researchers and policy makers, but also for opinion makers and various stakeholders such as employers, religious leaders, judges, lawyers, academics, politicians, NGOs and labour union leaders (Foblets and Alidadi 2014).20 The approach emphasises the desirability of managing workplace conflicts without recourse to litigation or disciplinary proceedings wherever possible. In this way, the approach acknowledges that what makes solutions successful – what works and what does not – is of course highly dependent upon the immediate context. But identifying cases and giving visibility to good practices is clearly not enough. Based on the main findings, the RELIGARE Final Summary Report (Mancini and Rosenfeld 2014; Alidadi 2012) also advances a number of recommendations that are directed to the EU level. These emphasise the need to strengthen protections under the available framework and to consider new tools in the fight against discrimination on the basis of religion or belief and the resulting social exclusion. One such recommendation that aims at strengthening protection in the workplace is to amend the Employment Equality Directive by adopting a right for employees in both public and private sectors to request reasonable accommodations on the basis of religious beliefs, practices and observances (Stein 2014). In practice, accommodation requests would, of course, have to be balanced against the interests of employers, other employees and customers, and could be refused if a disproportionate burden or cost on any of these other stakeholders could be demonstrated. In the background, there is the expectation that a more binding right to request reasonable accommodation would entail a shift in the mentality of employers with regard to the role of religion in the workplace and in the lives of employees. Even if this suggestion may sound far-fetched, it cannot be argued that a right to request accommodation would be incompatible with a democratic understanding of the functioning of pluralist democracies, because the request would have to be balanced and negotiated against other interests, the yardsticks being reasonableness and proportionality. It is also in line with Bramadat’s suggestion, quoted above, that members of minority communities be given the opportunity to negotiate their identities within the majority society. Those who oppose a more binding approach to accommodation will probably argue that emphasis on negotiation also involves the risk of indeterminacy and subjectivity and hence does not differ 128

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freedom of religion in europe very much from a case-by-case appreciation of proportionality by a judge. But in contrast to litigation in court, the right to request accommodation places the responsibility not on an external adjudicator, but on the parties involved, and encourages them to reach an agreement among themselves and in due time, that is, before a conflict arises, regarding the terms of the requested accommodation. Moreover, this approach presumes a predisposition towards accommodation; nevertheless, before such accommodation can be put in place, all interests at stake must be properly considered. In other words, the proposed approach does not lend itself to abstract determinations nor to a priori dictates before the actual facts surrounding the request for accommodation have been thoroughly reviewed and evaluated. A legal right to reasonable accommodation institutes a ‘shared project’ so to say between the legislature and the courts, which, in case a dispute comes before them, will then apply the general framework to the specific facts of the case, balancing different interest and interpreting the boundaries of the law. Of course, the right to request accommodation, for example in relation to religious dress or symbols, work schedules, dietary requirements or the provision of other facilities, presupposes a high degree of acceptance by members of the dominant culture of the desirability of accommodating manifestations of religion and belief. As noted earlier in this chapter, to presuppose such acceptance may sound far-fetched, just as advocating the necessity of a complete overhaul may also seem unrealistic. But is there a better alternative? In his monograph Law and Religion, Russell Sandberg identifies three forms of ‘juridification of religion’ in contemporary societies: (1) the expansion of law to regulate an increasing number of activities within what he calls the ‘religious marketplace’, to which I have referred above and which in my view has in recent years produced mainly punitive, restrictive and eclectic pieces of legislation; (2) a growing tendency for conflicts to be solved by or with reference to law; and (3) a process of ‘legal framing’ by which people increasingly think of themselves and others as legal subjects and holders of rights (Sandberg 2011: 193). The right to request accommodation resonates with the second, and even more with the third form of ‘juridification of religion’: pre-empting conflicts by negotiating, very concretely, differences in understanding of religion and belief, equality and human rights. A right to request accommodation is 129

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marie-claire foblets just one illustration of a measure that would make it possible to ‘govern’ religious diversity outside the realm of the judiciary and adversarial proceedings.

Conclusion Governance of religious diversity is very likely one of the questions, if not the question, that will determine the future of European societies. The models of governance inherited from the past – even if regularly and carefully re-examined in the light of the criteria for protection as defined in human rights instruments – suffer from not having been conceived for the needs of the situation we face today. Since the majority religions for which numerous arrangements were put in place have diminished considerably in importance, this disjunction between a past that is now well and truly over, and a future that has yet to be built with the consent of new, often very dynamic religious communities, represents a major challenge. In this chapter I have identified two observations, borrowed from research recently completed or still under way, each of which is symptomatic of the current situation in Europe: on the one hand, an undeniable legal sclerosis that explains why there is reluctance to call into question the legal privileges granted to the religions that historically constituted a majority and that are seen as still predominant even if actual practice among their members is declining. On the other hand, there is an almost blind recourse to the judicial authorities who, for lack of better alternatives, are called upon to assume the role of the legislators who are either absent or hesitant and whose actions in this regard remain fragmentary, or in some cases populist in nature. The judges who participated in the ENCJ survey are perfectly aware of the situation. Their testimonies are all the more valuable given that they are fully cognisant of the context to which they are expected nevertheless to seek – and if possible, find – the right balance between too little and too much protection of the freedom of religion and belief. In the absence of legislators who are well informed of the circumstances, these judges can think of other resources that in their view would be of great support to them and would help them fulfil to the best of their ability their tasks as adjudicators. In sum, they can see three possible measures that would prove helpful, each in its own way, for creating the conditions necessary to take account of 130

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freedom of religion in europe religious diversity in the search for justice, whether inside or outside the courtroom: (1) training in intercultural communication (not only of judges, but also of mediators and any person tasked with seeking concrete solutions to issues of protection of freedom of religion and belief); (2) making available the means that would allow judges to proceed to a more accurate assessment of evidence in order to determine what (if any) significance religion and belief may have in a given context; and (3) the requisite knowledge of religious/cultural norms and their applicability under state law. All this deserves more in-depth study. The testimonies offered by judges in a sense confirm some of the observations made in the course of the RELIGARE project. In this chapter I have taken a closer look at the case of the full-face veil. The findings of the RELIGARE project suggest that there is more to be gained from more nuanced ways of handling the issue than from French- and Belgian-style bans. Such approaches would preferably adopt and encourage practices that have proven successful at national and local levels, and disseminate widely the information about such practices that can aid the public authorities to address the issue in a way that is in compliance with the ECHR and with EU laws. Instead of introducing a general ban on the full-face veil in all public spaces, enforced via criminal law, legislators should consider whether it might be appropriate to limit the wearing of the fullface veil only in those places and situations where seeing the face of an individual is required for security purposes or where public or professional duties demand that civil servants wear religiously neutral attire or that their faces be visible. Moreover, if the aim is to protect women’s freedom of choice, legislators should also be concerned about the effectiveness of the legal frameworks that they put in place: increasing the level of protection of women against being forced to wear religious or other types of special clothing only makes sense where there is evidence of such compulsion. Such an intervention cannot be based merely on the assumption that women would only wear such attire if compelled to do so, and that they would never choose to do so. The example of the full-face veil may seem an extreme one, but it is nevertheless symptomatic of the way in which, where there is a legislative response, it is often reactive, or in some cases punitive, without opening up a more constructive or inclusive path to a new religious diversity that, come what may, will have to be governed in 131

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marie-claire foblets Europe in the decades to come. Alternatively, the last word is left to the judges; even though well-intentioned, the latter often lack the preparation necessary to address the matter adequately.

Notes 1. I would like to express my deepest gratitude to Dr Monica Sandor, freelance editor with the Department of Law and Anthropology, Max Planck Institute for Social Anthropology, for her careful work on the language editing of this chapter at its various stages, as well as to Dr Katayoun Alidadi who made a number of most useful comments to a previous version of the text. 2. The judges who participated in the survey all acknowledged that they frequently consult ECtHR case law. 3. The Employment Equality Directive defines indirect discrimination as ‘an apparently neutral provision, criterion or practice [which] would put persons having a particular religion or belief . . . at a particular disadvantage compared with other persons’. Such provision, criterion or practice can be justified if there is a legitimate aim and the means of achieving that aim are appropriate and necessary. Many member states have adopted this definition, sometimes verbatim. 4. For instance, on the issue of objection to physical contact (e.g. in the form of shaking hands) with members of the opposite sex there is only minimal case law, and only in some countries, such as the Netherlands. 5. For instance, in France the Bureau de Chabbath allows Jewish employees to search for and match up with job openings where accommodation for the Sabbath will not be a problem. See (last accessed 29 January 2017). 6. This was also the view of the Special UN Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, in his 2014 report on religious discrimination in the workplace. 7. Two referrals for preliminary rulings have been made, one by the French Cour de cassation and one by the Belgian Cour de cassation, relating to the question of wearing a Muslim headscarf in the workplace and involving the issue of ‘general neutrality bans’ on religious dress. Thus, CJEU will have opportunities to shape the law. See (BE) Cass. 9 March 2015, AR S.12.0062.N; (FR) Cass. (Chambre sociale), no. 630 of 9 April 2015 (13-19.855), ECLI:FR:CCASS:2015:SO00630. 8. This situation however is most likely to change after the Court of Justice of the EU ruled that dismissing a person who expresses his or her faith through clothing (in casu, an Islamic headscarf) does not necessarily constitute discrimination under EU law. It did so on March 14, 2017, in two cases (Samira Achbita & Anor vs. Secure Solutions NV, C-157/15 and Asma Bougnaoui vs. Micropole SA, C-188/15). In both cases, the employer (private enterprises) wanted to appear ‘neutral’ on the question of religion. The ruling will apply in all EU Member States. 9. See Temperman 2012; McGoldrick 2011; Weiler 2010; Mancini 2010; Panara 2011; Andreescu and Andreescu 2010; Annicchino 2011; Zucca 2011.

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freedom of religion in europe 10. A key factor in this is, understandably, the differing relationships between the state and religious and non-confessional groups across Europe. The European Union, for example, has expressly recognised the competence of its members states to have an established church (see Declaration on the Status of Churches and Non-Confessional Organisations to the Final Act of the Treaty of Amsterdam, signed 2 October 1997; Official Journal C 340, 10/11 1997, P. 0133). The ECtHR and the former European Commission of Human Rights have similarly held that the establishment of a state Church is not in itself a breach of the European Convention on Human Rights, but the legal system of a state must include specific safeguards for the individual’s freedom of religion. For an analysis of the legal competences of the EU in the sphere of religion and the management of relations between the state and religions, see, among others, Carrera and Parkin 2010. 11. As is illustrated in the case of Fernandez Martinez v. Spain (ECtHR judgment of 12 June 2014). The case concerned a ‘married priest’, who after having been relieved of his obligation of celibacy found employment as a teacher of religion and Catholic ethics in a public school. In 1996 the applicant’s name appeared (with picture) in a Spanish newspaper revealing his disagreement with the Catholic Church on critical issues like abortion, divorce, sexuality and contraception. Several months after the publication of the article, the local bishop informed the Spanish Ministry of Education that he would not approve the renewal of the applicant’s contract as a teacher of religion. In its judgment, the ECtHR gave precedence to the religious autonomy of the Catholic Church in Spain, protected under Articles 9 (freedom of religion) and 11 (freedom of association) of the ECHR, over the applicant’s right to respect for his private life. In his dissenting opinion, the ad hoc judge for Spain, Judge Saiz Arnaiz, noticed the absence of any real balancing between the applicant’s right to respect for private life and the collective dimension of the right to freedom of religion of the Catholic Church. By so doing, the Court excluded the applicant from protection against discrimination in employment, and it clearly prioritised respect for the collective dimension of the freedom of the majority religion in Spain. 12. The 2010 French law ‘[. . .] prohibiting the concealment of one’s face in public spaces’ – better known under the name the ‘burqa ban’ – offers a clear illustration of such radical reaction. The ban was submitted for examination to the ECtHR on the initiative of a practising Muslim woman living in France (ECtHR judgment of 1 July 2014). In a long-expected judgment the Court held that prohibiting the concealment of a person’s face in public does not violate the European Convention on Human Rights. With regard to the question whether the ban was proportionate to its aim, the Court (Grand Chamber) acknowledged that the blanket ban is broad, carries the possibility of criminal sanctions, primarily affects Muslim women, and could potentially result in the isolation and restriction of the autonomy of women who choose to wear a veil over their face. At the same time, however, it reasoned that the ban only restricts certain types of clothing, was not explicitly motivated by the religious significance of full-face veils, and that the penalty for a violation is relatively minor (paras 151–2). In the opinion of the judges,

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13.

14.

15.

16. 17. 18.

19. 20.

the blanket ban is ultimately not so blanket, and if in effect it turns out to restrict some individuals’ freedom to manifest their religion or belief, the ban being a choice of (French) society calls for a wide margin of appreciation (paras 153–5). The latter reasoning has raised serious concerns on the part of some critics, regarding precisely the kind of democratic process that has led to the ban. To Saïla Ouald Chaib and Lourdes Peroni ‘[. . .] Once the Court signalled a concern over Islamophobic remarks made during the preceding debates, it should have been more careful in its scrutiny or even followed its own approach in the group vulnerability case law – i.e., narrowing the margin of appreciation because the prohibition affects a group vulnerable to prejudice and stereotyping’ (Ouald Chaib and Peroni 2014). The second decision in the Lautsi case mentioned above offers an illustration of such attempts at appeasing public opinion by insisting on the need to take account of the specificities of the Italian context, deferring to the Italian authorities as to how, in such context, to balance the interests at stake, and to what extent the freedom not to believe as invoked by an individual applicant can effectively be granted the requested protection. In practice, the position taken by the Italian state, considering the issue at stake to be their prerogative, won the case; the Court, similarly to what it did in the above-mentioned Fernandez Martinez case (see above note 10), played the card of the (in this case Italian) majority religion, leaving it to the Italian authorities to determine how best to balance the interests at stake between mainstream society (and its Catholic electorate) and minority views (in this case, a non-believer). I would, however, wish to avoid generalising, given that most likely those who filled in the questionnaire are judges who are interested in the question of cultural and religious diversity and in how to do it justice within judicial practice. They understood the importance of sharing their experience, and so there is an inevitable pre-selection in the composition of the sample of testimonies received. This pre-selection skews the results, as the testimonies cannot be considered representative of the entire judiciary. Applying, to the extent possible, foreign law in the realm of personal status; upholding public order in criminal law; recourse to reasonable accommodation in labour law, and so on, are all mechanisms that are particular to a specific area of the law. See above note 11. There are some exceptions; for example, in the case of France, the ban does not apply to places of worship. Even if the terms have now become common currency in debates on religiously inspired dress, it may be useful to recall the difference, as it is essential to discussions on the legal permission to wear them. The burqa is a full-body covering that includes a mesh over the face; the niqab is a full-face veil with an opening for the eyes. See above note 11. The RELIGARE database is still accessible at (last accessed 29 January 2017).

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freedom of religion in europe

References Akhtar, R. C. (2015), ‘Unregistered Muslim Marriages: An Emerging Culture of Celebrating Rites and Conceding Rights’, in J. Miles, P. Mody and R. Probert (eds), Marriage Rites and Rights, Oxford: Hart, pp. 167–92. Alidadi, K. (2010), ‘Werkgever kan hoofddoek verbieden op basis van ongeschreven regels’ [Employer can ban headscarf based on unwritten rules], De Juristenkrant, 210, 1–2. Alidadi, K. (2012), ‘Reasonable Accommodations for Religion and Belief: Adding Value to Article 9 ECHR and the European Union’s Anti-Discrimination Approach to Employment?’, European Law Review, 37: 6, 693. Alidadi, K. (2016), ‘The “Integrative Function” of Labour Law in Ebb? Reasonable Accommodation for Religion or Belief and Company “Neutrality Policies” in Belgium’, in F. Hendrickx (ed.), Reasonable Accommodation in the Modern Workplace: Potential and Limits of the Integrative Logics of Labour Law, Bulletin for Comparative Labour Relations 93, Alphen a/d Rijn: Wolters Kluwer, pp. 119–43. Alidadi, K., M.-Cl. Foblets and J. Vrielink (eds) (2012), A Test of Faith? Religious Diversity and Accommodation in the European Workplace, Farnham: Ashgate. Andreescu, G. and L. Andreescu (2010), ‘The European Court of Human Rights’ Lautsi Decision: Context, Contents, Consequences’, Journal for the Study of Religions and Ideologies, 9, 47–74. Annicchino, P. (2011), ‘Winning the Battle and Losing the War: The Lautsi Case and the Holy Alliance between American Conservative Evangelicals, the Russian Orthodox Church and the Vatican to Reshape European Identity’, Religion and Human Rights, Special Issue, 6: 3, 213–19. Bader, V. (2007), Secularism or Democracy? Associational Governance of Religious Identity, Amsterdam: Amsterdam University Press. Bergeaud-Blackler, F. (2013), ‘Animal Rights Movements and Ritual Slaughtering: Autopsy of a Moribund Campaign’, in N. Gülifer (ed.), Islam and Public Controversy in Europe, Farnham: Ashgate, pp. 187–200. Berg-Soerensen, A. (ed.) (2013), Contesting Secularism: Comparative Perspectives, Farnham: Ashgate. Bhamra, M. K. (2011), The Challenges of Justice in Diverse Societies? Constitutionalism and Pluralism, Farnham: Ashgate. Bielefeldt, H. (2014), Interim Report A/69/261 (2014) of the Special UN Rapporteur on Freedom of Religion or Belief (Focus: Tackling Religious Intolerance and Discrimination in the Workplace), Geneva: United Nations. Bramadat, P. and M. Koenig (eds) (2009), International Migration and the Governance of Religious Diversity, Montreal and Kingston: McGillQueen’s University Press. Brems, E. (ed.) (2014), The Experiences of Face Veil Wearers in Europe and the Law, Cambridge: Cambridge University Press. Carrera, S. and J. Parkin (2010), ‘The Place of Religion in European Union Law and Policy: Competing Approaches and Actors inside the European

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marie-claire foblets Commission’, RELIGARE Working Paper, no. 1, September, (last accessed 29 January 2017). Conly, S. (2013), Against Autonomy: Justifying Coercive Paternalism, Cambridge: Cambridge University Press. Council Directive 2000/78/EC of 27 November 2000 establishing a General Framework for Equal Treatment in Employment and Occupation, OJ 303 L 02/12/2000, 16–22. D’Costa, G., M. D. Evans, T. Modood and J. Rivers (eds) (2013), Religion in a Liberal State, Cambridge: Cambridge University Press. Declaration on the Status of Churches and Non-Confessional Organisations to the Final Act of the Treaty of Amsterdam, signed 2 October 1997, Official Journal C 340, 10/11 1997, P. 0133. Denniston, G. C., F. M. Hodges and M. F. Milos (eds) (2009), Circumcision and Human Rights, Berlin: Springer. Dierkens, A. and J.-P. Schreiber (eds) (2006), Laïcité et sécularisation dans l’Union européenne, Brussels: Éditions de l’Université de Bruxelles. Durham, W. C., Jr, R. Torfs, D. M. Kirkham and C. Scott (eds) (2012), ‘Part II: European Approaches to the Islamic Headscarf Controversy’, Islam, Europe and Emerging Legal Issues, Farnham: Ashgate, pp. 89–208. European Consortium for Church and State Research (1992), Church and State in Europe. State Financial Support. Religion and the School, Milan: Giuffré. Ferrari, S. and S. Pastorelli (eds) (2013), The Burqa Affair across Europe: Between Public and Private Space, Farnham: Ashgate. Foblets, M.-Cl. (2016), ‘The Body as Identity Marker: Circumcision of Boys Caught between Contrasting Views on the Best Interest of the Child’, in M. Jänterä-Jareborg (ed.), The Child’s Interests in Conflict: The Intersections between Society, Family, Faith and Culture, Antwerp: Intersentia, pp. 125–62. Foblets, M.-Cl. and K. Alidadi (2014), Summary Report on the RELIGARE Project, Summer 2013; reprinted as ‘The RELIGARE Report: Religion in the Context of the European Union: Engaging the Interplay between Religious Diversity and Secular Models’, in M.-Cl. Foblets, K. Alidadi, J. S. Nielsen and Z. Yanasmayan (eds), Belief, Law and Politics: What Future for a Secular Europe?, Farnham: Ashgate, pp. 11–54. Fox, J. (2015), Political Secularism, Religion and the State: A Time Series Analysis of Worldwide Data, Cambridge: Cambridge University Press. Frégosi, F. (2015), ‘Issue of the Funding of Worship in Islam – Worship, Imams and Mosques, as Viewed through Texts and Practice’, in F. Messner (ed.), Public Funding of Religions in Europe, Farnham: Ashgate, pp. 273–300. Ghumman, S. and L. Jackson (2010), ‘The Downside of Religious Attire: The Muslim Headscarf and Expectations of Obtaining Employment’, Journal of Organizational Behavior, 31: 1, 4–23. Hendrickx, F. (ed.) (2016), Reasonable Accommodation in the Modern Workplace: Potential and Limits of the Integrative Logics of Labour Law, Bulletin for Comparative Labour Relations 93, Alphen a/d Rijn: Wolters Kluwer. Knights, S. (2007), Freedom of Religion, Minorities and the Law, Oxford: Oxford University Press.

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freedom of religion in europe Lambert, Y. (2000), ‘Le Rôle dévolu à la religion par les européens’, Sociétés contemporaines, 37, 11–33. Longman, C. and G. Coene (2015), ‘Harmful Cultural Practices and Minority Women in Europe: From Headscarf Bans to Forced Marriages and Honour Related Violence’, in C. Longman and T. Bradley (eds), Interrogating Harmful Cultural Practices: Gender, Culture and Coercion, Farnham: Ashgate, pp. 51–66. Mancini, S. (2010), ‘The Crucifix Rage: Supranational Constitutionalism and Counter-Majoritarian Difficulty’, EuConst, 6, 6–27. Mancini, S. and M. Rosenfeld (eds) (2014), Constitutional Secularism in an Age of Religious Revival, Oxford: Oxford University Press. Martínez-Torrón, J. and W. C. Durham (eds) (2015), Religion and the Secular State: National Reports/La Religion et l’État laïque: rapports nationaux, Madrid: Servicio de Publicaciones de la Facultad de Derecho de la Universidad Complutense de Madrid. McGoldrick, D. (2006), Human Rights and Religion: The Islamic Headscarf Debate in Europe, Oxford: Hart. McGoldrick, D. (2011), ‘Religion in the European Public Square and in European Public Life – Crucifixes in the Classroom?’, Human Rights Law Review, 11: 3, 451–502. Moors, A. (2013), ‘Unregistered Muslim Marriages: Anxieties about Sexuality and Islam in the Netherlands’, in M. Berger (ed.), Applying Shari’a in the West: Facts, Fears and the Future of Islamic Rules on Family Relations in the West, Leiden: Leiden University Press, pp. 141–64. Ouald Chaib, S. A. and L. Peroni (2014), ‘S.A.S. v. France: Missed Opportunity to do Full Justice to Women Wearing a Face Veil’, Strasbourg Observers, 3 July, (last accessed 29 January 2017). Panara, C. (2011), ‘Lautsi v. Italy: The Display of Religious Symbols by the State’, European Public Law, 17, 139–68. Robbers, G. (ed.) (2005), State and Church in the European Union, Baden-Baden: Nomos. Sandberg, R. (2011), Law and Religion, Cambridge: Cambridge University Press. Scolnicov, A. (2012), The Right to Religious Freedom in International Law: Between Group Rights and Individual Rights, London: Routledge. Stein, A. (2014), ‘Reasonable Accommodation for Religion and Belief: Can It Be Accommodated in EU Law without an Express Duty?’, in M.-Cl. Foblets, K. Alidadi, J. S. Nielsen and Z. Yanasmayan (eds), Belief, Law and Politics: What Future for a Secular Europe?, Farnham: Ashgate, pp. 171–80. Temperman, J. (ed.) (2012), The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public Classroom, Leiden and Boston: Martinus Nijhoff. Torfs, R. (2004) ‘Models of Freedom of Religion in the European Union and in the United States’, in Between Caesar and the Lord – Relation between Religion and the State in the Countries of Asia and Europe, Beijing: Kungcki Cultural Group, pp. 225–52. Vetters, L. and M.-Cl. Foblets (2016), ‘Culture All Around? Contextualising Anthropological Expertise in European Courtroom Settings’, International Journal of Law in Context, 12: 3, 272–92.

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marie-claire foblets Vickers, L. (2012), ‘Religious Interests in the European Workplace: Different Perspectives’, in K. Alidadi, M.-Cl. Foblets and J. Vrielink (eds), A Test of Faith? Religious Diversity and Accommodation in the European Workplace, Farnham: Ashgate, pp. 13–32. Vrielink, J. (2014), ‘Symptomatic Symbolism: Banning the Face Veil “As a Symbol”’, in E. Brems (ed.), The Experiences of Face Veil Wearers in Europe and the Law, Cambridge: Cambridge University Press, pp. 184–93. Weiler, J. (2010), ‘Lautsi: Crucifix in the Classroom Redux’, EJIL: Talk!, 1 June, (last accessed 29 January 2017). Willaime, J.-P. (2008), Le Retour du religieux dans la sphère publique. Vers une laïcité de reconnaissance et de dialogue, Lyons: Éditions Olivetan. Zucca, L. (2011), ‘A Comment on Lautsi’, EJIL: Talk!, 19 March, (last accessed 29 January 2017).

Judicial cases (BE) Cass. 9 March 2015, AR S.12.0062.N; (FR) Cass. (Chambre sociale), no. 630 of 9 April 2015 (13-19.855), ECLI:FR:CCASS:2015:SO00630 ECtHR judgment of 3 November 2009, Lautsi v. Italy, App. No. 30814/06. ECtHR judgment of 23 February 2010, Ahmet Arslan v. Turkey, App. No. 41135/98. ECtHR judgment of 18 March 2011, Lautsi and Others v. Italy, App. No. 30814/06, (last accessed 27 January 2017). ECtHR judgment of 12 June 2014, Fernandez Martinez v. Spain, App. No. 56030/07. ECtHR judgment of 1 July 2014, S.A.S. v. France, App. No. 43835/11.

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Part II The Governance of Religious Diversity in the Public Space: Perspectives from Asia and the Middle East

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7

The Governance of Religious Diversity in the Public Space: Indonesia in Comparative Perspective Alfred Stepan

Introduction This chapter investigates whether there should be more or less secularism in Indonesia and particularly, since religions can be neither wholly privatised nor allowed to dominate political life, what are the best ways of accommodating it in a democratic society, in line with this volume’s overall focus. Indeed, it should be pointed out that Indonesia lived under a military dictatorship from 1965 till 1998 so the question needs to be addressed first by asking if Indonesia is a democracy now; and if it is, what types of accommodations about religion Indonesians have made and why. I come at these questions as a specialist in subjects such as authoritarian regimes, military governments, the breakdown of democracies, failed and successful democratic transitions, and recently the role of religion and politics. My writing is normally comparative, and has often been based on field research in Brazil, Chile, Spain, India, Sri Lanka, Tunisia, Senegal and Indonesia. Making assessments about the relative quality of democracies is of course inherently subjective. However, I am helped in this task by the fact that four different organisations, each with different experts, slightly different definitions of democracy and somewhat different politics, attempt to rank annually all the countries in the world on a democracy index. These organisations are: from Germany, the Bertelsmann Democracy Status Index; from the United Kingdom, the Economist’s Democracy Index; and from the USA, ‘Polity IV’ 141

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alfred stepan and Freedom House’s Gastil Index. In 2014, and for every year for the last decade, of the ten countries in the Association of Southeast Asian Nations (ASEAN), the country awarded the highest average democracy score by these four organisations has not been Roman Catholic Philippines, Theravada Buddhist Thailand or the somewhat Confucian Singapore, but Indonesia, the world’s most populous Muslim majority country.1 Indeed, the Gastil Index includes a seven-point scale on ‘political rights’ ranging from the worst score of 7, to the best score of 1. For every year since 2005, Indonesia has received a 2 for political rights, whereas no other country in ASEAN has ever received a 2 or better for ‘political rights’ for even one year in the last ten years. To be sure, in world comparative terms, Indonesia is still a relatively low-quality democracy (compared, for example, with Chile or Uruguay), largely because the state does not use its full constitutional prerogatives to curtail illegal sharia laws some municipalities have created, or to stop some majority Muslim attacks against the Muslim minority sect, the Ahmadiyya. But the fact that Indonesia has the best quality of political rights of any ASEAN country, and is one of the only democracies in the world with a Muslim majority population, is worth study in itself.2 Many factors contributed to Indonesia’s good performance on ‘political rights’ concerning such issues as free and fair elections and alternation of parties in power. Some of the most important factors were: one of the world’s most extensive experiments with monetary and political devolution; an innovative, effective and non-confrontational reduction of the economic and political power of the military that had ruled the country, often brutally, from 1965 to 1998; and a constitution-making process that Donald Horowitz, in a recent book, calls one of the most consensual in the history of democratisation.3 None of this would have been possible, however, if the religious violence that marred the early post-military rule years had continued. In my judgement, Indonesia’s comparatively successful democratic transition was helped by the fact that major Islamic and secular leaders had become ‘democracy-friendly’ before the democratic transition started, and had helped develop a new pattern of relatively non-confrontational governance of religious diversity in the public space.4

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indonesia in comparative perspective I will develop four of the following major normative and policy features of this pattern in this chapter: • First, no sharia state, or hard, Turkish-type of laïcité secularism, either in the constitution or in political practice. • Second, a ‘public co-celebratory’ approach towards all major organised religions concerning religious holidays, a diversity of recognitions not practised in Western Europe. • Third, the normative and political rejection of any young Rawlslike injunction to keep religion ‘off the political agenda’ (see Rawls 1996: 151). • Fourth, ‘policy cooperation’ between state officials and religious officials. In some areas where the state could not get high compliance from many religious groups on some key human rights issues, such as girls’ education and family planning, it has proven useful to have a degree of joint policy discussion and implementation with religious organisations. Comparatively, what is analytically and politically worth more reflection than I have space to devote to in this chapter, is that all four of the features I discuss are present in one way or another in the longest-standing Muslim majority democracy in Africa, Senegal, as well as in India, which is a long-standing Hindu majority democracy that until independence had the world’s largest Muslim population, so that India’s democracy has had to be imagined and planned keeping in context its large Muslim population. (Let us hope Prime Minister Narendra Modi does not disrupt this inclusive democracy with exclusionary Hindu majoritarianism.) Finally, building on the Indonesian experience, I will conclude the chapter by raising some major conceptual and comparative questions concerning theories and counter-theories about the relationship between secularism and democracy in the modern world.

Why no sharia state in Indonesia? Indonesia, like India, has a degree of relative religious heterogeneity, coupled with high intensity of religious practice. It is thus a sign of respect, or at least accommodation, of this religious pluralism that neither Indonesia nor India, or somewhat more homogeneous

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alfred stepan Senegal, has an established religion. Indonesia has, again and again, considered an Islamic state, but has always decided not to establish one and thus avoided making all public law sharia-based law. The most influential actors and arguments against state sharia were Indonesian. The pattern of religion–state relations that has emerged is, to use a phrase of Isiah Berlin, ‘multivalued’; a positive value is attached to a successful and peaceful nationalism, a positive value – or at least the positive recognition – of Indonesia’s inherent diversity, and a positive interpretation of what Islam entails, and does not entail, concerning religious and public life. The Indonesia island of Bali has a Hindu-majority population, while many of the smaller outer islands have Catholic or Protestant majorities; Buddhist and Confucian Chinese businessmen are prominent in the capital, Jakarta; and of course there are some combinations of Buddhism, Sufism and in some rural communities, animists attached to no formal religion. In this context, the demand by some Islamist groups in Indonesia for a sharia state during the constitution-making moments of 1945 and 1955, and again after the recent democratic transition began in 1998, was defeated. Sharia as an obligatory state policy and public law for all citizens in Indonesia was defeated because it was perceived by religious minorities, as well as by many Muslims, secular or not, as a policy that would create threats to Indonesia’s territorial integrity, social peace and way of life. Some influential Muslims in Indonesia have also always argued that the forceful imposition of sharia on any groups who did not want it would be a violation of a key verse in the Qur’an (2:256), namely that ‘in matters of religion there can be no compulsion’. A key aspect of the 1945 Indonesian compromise version of state–society–religious relations was the doctrine of Pancasila (a Sanskrit word). The five principles of Pancasila that were included in the preamble to the Indonesian constitution of 1945 were: (1) belief in God, (2) a just and civilised humanitarianism, (3) national unity, (4) Indonesian democracy through consultation and consensus, and (5) social justice. Despite numerous challenges from Islamists who want an Islamic state, Pancasila has endured. The five principles were developed by Sukarno, the nationalist leader of the independence movement and the first president of independent Indonesia. He 144

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indonesia in comparative perspective developed the doctrine with the active collaboration of some military leaders – some secularist, some not – who were frightened by the threat of religious conflict and territorial fragmentation, and some Islamic leaders, including the father of Abdurrahman Wahid, the three times elected president of Indonesia’s largest Muslim organisation, Nahdlatul Ulama (NU),who also wanted to avoid such conflicts. Pancasila has some political virtues in Indonesia’s intensely religious and heterogeneous society. Pancasila facilitates the state recognition and granting of some financial and bureaucratic support to the five largest organised religions in addition to Islam: Buddhism, Hinduism, and Catholicism and Protestantism (which are treated as two separate religions in Indonesia) and, with the advent of democracy, Confucianism. Official state inclusion in the Pancasila system means that these five non-Islamic religions, with a total of twenty-seven million adherents, are all accorded rights within Indonesia. In my interviews with leaders of these five minority religions in Indonesia, it became clear that such official recognition is valued highly because it allows them to call upon, and demand as a right, protection by the state coercive apparatus if they are threatened, as well as to have some call on state financial resources.5 Who articulates public arguments in Indonesia for or against a sharia state in Indonesia? And why? And how? In my article on the ‘twin tolerations’, I argued that all religions are multivocal (Stepan 2000). What this means for Islam is that any officially implemented system of sharia law must necessarily have a strong element of ‘state sharia’, because one side of the multivocality would be state-privileged and have the coercive powers of the state behind it. Given the deep differences between ‘traditionalist’ democratic Muslims in NU and ‘modernist’ democratic Muslims in Muhammadiyah – and their political and cultural sensitivity to the existence and rights of Hindus, Buddhists, Christians and nonpractising Muslims – leaders of both NU (with up to forty million members) and Muhammadiyah, (with approximately thirty million members), are now pluralist and opposed to an Islamic state, which they argue would lead to the non-consensual imposition on a diverse polity of a single group’s vision of ‘state sharia’. Amien Rais, a former president of Muhammadiyah, speaker of the Consultative Assembly, and presidential candidate in 2004, has 145

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alfred stepan repeatedly advanced variants of the following argument against Indonesia becoming a sharia state: First of all, the Qur’an does not say anything about the formation of an Islamic state, or about the necessity and obligations on the part of Muslims, to establish a shari’a or Islamic state. Secondly, the Qur’an is not a book of law but a source of law. If the Qur’an is considered a book of law, Muslims will become the most wretched people in the world. . . . We should not establish Islamic justice as it will create controversy and conflict. Indonesia should be built on the principles of Pancasila to be a modern state, and to allow every citizen of Indonesia to pursue his or her aspiration. (Stepan and Künkler 2007: 206)

NU’s Abdurrahman Wahid (who died in December 2009) rejected, in particular, any Rawlsian idea of ‘keeping religion off the public agenda’. Precisely because he knew that in multivocal Indonesia there are religious advocates of an exclusionary approach to religion and politics, he articulated alternative public discourses. He was a constant participant in public arguments making the case why Indonesia, given its great social and religious diversity, which he saw as an empirical fact, should make the political and normative choice for a pluralist polity – a tolerant inclusive Islam in a tolerant inclusive Indonesia. He also worked to create religious schools and organisations that advance these religious and democratic goals, not only inside religious spaces, but also in civil society and in political society. He could not have carried out these public-sphere agendas in a context of Turkish secularism or, in the judgement of the leading specialist on Indonesian–French comparisons, John Bowen, of French secularism either.

Co-celebratory recognition for majority and minority religions Since religion is a part of life that some citizens value deeply, all Western European democracies, no matter how secular, and whichever one of the three ‘multiple secularisms’ is pre-eminent, still have some religious holidays where employers, both state and private, must give a paid public holiday to all their employees. ‘Separatist’ France has six such holidays; ‘established church’ Norway and Denmark, and once established church Sweden, now have a total of thirty-one such compulsory paid holidays; and ‘positive accommodation’ Germany, Netherlands and Switzerland have twenty-three. However, not one of these sixty 146

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indonesia in comparative perspective religious holidays in these Western European countries is for a nonChristian minority religion. All are for the Christian majority religion. How are paid religious holidays handled in Muslim majority Indonesia and Senegal, and in India with its 177 million Muslims? In all these deeply religious countries, religion is publicly acknowledged by the democratic state as being an important part of the private and public life of all citizens, and there is a great effort for state and society to ‘co-celebrate’, or in Charles Taylor’s sense, to ‘recognise’, the diverse and intense religious identities in the polity. Given the great religious diversity in Indonesia and in India, this means that there are actually more holidays for minority religions collectively than for the majority religion. In Indonesia, there are six mandatory Islamic holidays for the Muslim majority (87 per cent) of the population, but a total of seven for the minority religions: Hinduism, Christianity, Buddhism and Confucianism. India is federal, so there is some variation between states, but at the federal level, the majority Hindu religion only has five compulsory, paid religious holidays, and all together, Muslims, Sikhs, Christians, Jains and Buddhists get ten and the government gives subsidies for Muslims to take the hajj, the pilgrimage to Mecca. In Senegal, during the nineteenth century, Catholics were a major presence in the four major coastal cities of Senegal and elaborate ‘rituals of respect’ were developed to create and maintain good relations between Muslims and Catholics, between both religious leaders and laic state officials, and between the four Sufi Orders (see Stepan 2012a, 2013). In the twenty-first century, considerably less than 10 per cent of the population in Senegal is Catholic, but over 40 per cent of the state’s compulsory religious holidays celebrate Catholic feasts and the state grants some subsidies for Catholics to take a pilgrimage to Rome. Secular state officials are ‘co-celebrants’ at major Muslim and Catholic holidays, and the Sufi and Catholic leaders attend major state functions. Significantly, excluding laic Turkey, the other two most highly ranked Muslim majority countries on democracy indices, Albania and Mali, both have this same pattern of public religious holidays. Albania has large Roman Catholic and Orthodox Catholic religious minorities which together are accorded five national holidays, whereas the Muslim majority only has three official holidays. In Mali, the majority Muslim population receives four religious holidays and the very small Christian minority receives three (see Table 7.1). 147

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148

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N=0

N=0

N=2

Muslim

Christian

N=6

Turkey

France

N=0

N=1

Christian

USA

N=0

N = 11

Christian

Denmark

N=0

N = 10

Christian

Norway

N=0

N = 10

Christian

Sweden

Established Church

N=0

N = 8*

Christian

Germany

N=0

N=8

Christian

Netherlands

N=0

N = 7*

Christian

Switzerland

Positive Accommodation

N = 10

N=5

Hindu

India

N=7

N=6

Muslim

Indonesia

Co-celebratory

N=6

N=7

Muslim

Senegal

Source: (last accessed 1 February 2017).

* Individual Swiss Cantons and German Lieder have additional paid religious holidays, decided on by local governments. In Switzerland, 8 additional holidays are celebrated by between one and fourteen Swiss Cantons (Corpus Christi – 14, All Saints’ Day – 14, Saint Berchtold’s Day – 13, Assumption – 13, Immaculate Conception – 10, St Joseph’s Day – 6, Epiphany – 4, St Peter and Paul – 1). In Germany, 6 additional holidays are celebrated in between one and eight German Lieder (Corpus Christi – 8, Reformation Day – 5, All Saints’ Day – 5, Epiphany – 3, Assumption Day – 2, Repentance Day – 1).

Paid Religious Holidays for Minority Religion

Paid Religious Holidays for Majority Religion

Country and Majority Religion

Separatist

Table 7.1 Comparison of paid religious holidays in four state-religion- society models

indonesia in comparative perspective

Putting pluralism, democracy and Islam ‘on’ not ‘off’ the public agenda I have already made theoretical and historical arguments against the early Rawlsian injunction that religion should be taken ‘off’ the public agenda. In the case of Islam and democracy in the contemporary world, I believe the case for some major activists putting Islam and democracy ‘on’ the public agenda is strong in general, and particularly in four arenas: (1) core scholarship within Islam about religion and the state, (2) public intellectuals, (3) civil society, and (4) political society. In relationship to core scholarship, assume a political situation within a polity where arguments are fairly commonly disseminated in the public sphere by religious and scholarly actors who make the case that modern democracy is incompatible with one or more of the following requirements of a good Islamic society: the need for a worldwide Islamic Caliphate (and thus the illegitimacy of any democracy located in only one state); the requirement that God (not citizens or an electorate) governs and thus God-given sharia, not man-made laws, must be obligatory for all; or that the content of a Muslim state is spelled out in binding (and democratically restrictive) detail in the Qur’an. If a situation like this exists, and it does in many Muslim-majority polities, the chances of pluralism and tolerance becoming consensual sentiments in that polity is much greater if excellent Islamic scholarship is carried out and incorporated into public debates that confront these arguments and help citizens create an ‘imaginary’ of committed Muslims living, indeed in Taylor’s sense, flourishing, in a democracy. Regarding public intellectuals, the probability of democracy becoming a consensual value in the polity will become greater if some of the intellectuals who are engaged in core scholarly, or at least conceptual, development of a beneficial relationship between Islam and democracy are also public intellectuals. The task of such public intellectuals is to challenge anti-democratic arguments supposedly based on Islam as soon as they are articulated, and to offer credible and attractive pluralist alternatives in the public sphere via the creative and constant use of popular and elite press, radio, television and now the social media. The likelihood of winning Gramscian hegemony for pluralist values and practices, and protecting a possible democratic transition and 149

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alfred stepan consolidation with ‘moats’, will be vastly increased if some of these public intellectuals also are leaders of major civil society organisations active and influential in the public arena. This is so for two reasons. Leaders of such organisations have many followers. This raises the costs for the authoritarian regime of imprisoning, torturing, censoring, exiling or assassinating major visible civil society leaders. Such leaders, if they are doing their job, may also be in a position to create member networks engaged in activities that can become increasingly supportive of a more inclusive democratic politics and even available for resistance to the authoritarian regime. In addition, if some of these civil society leaders become active in political society, this might increase the impact of their ideas in public life, help legitimate the necessary formal institutions of democracy for their followers, and ideally give them incentives and opportunities for entering into pro-democratic alliances and coalitions with secular activists who share democratising goals with them. In my judgement, none of the activities by religious actors in these public arenas violate the twin tolerations or democratic practices; indeed, they advance them. Let us look at some actual examples of such activists drawn from the Indonesian case. Indonesia and four major Islamic and democratic actors in the public sphere Here I single out four such activists who participated in all four public arenas, and who played critical roles in transforming Indonesia into a pluralist, twin tolerations supportive, polity: Abdurrahman Wahid (popularly known as ‘Gus Dur’), Amien Rais, Nurcholish Madjid and Shaafi Maarif. Wahid came from a family of Islamic elites from East Java. Wahid’s grandfather, Hasyim Asy’ari, was one of the founders of Nahdlatul Ulama while Wahid’s father, Wahid Hasyim, was Indonesia’s first Minister of Religious Affairs. Wahid was educated in Indonesian Islamic boarding schools (pesantren), at Al Azhar University in Egypt and at the University of Baghdad in Iraq. His family and educational credentials gave him significant authority to speak on theological questions. He used that authority to promote religious pluralism on theological questions, to institutionalise that discourse within civil society and to mobilise the public behind democratic opposition to the authoritarian military regime of Suharto. 150

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indonesia in comparative perspective In the 1970s Wahid began promoting religious pluralism among Muslims on the grounds that such diversity was a blessing (ikhtilāf al-umma, raḥma) rather than an obstacle to developing a strong community. This vision put him in opposition to the more formal approach to sharia being put forward by advocates of an Islamic state (Feener 2007: 154, 157). Elected to the chairmanship of the forty million member NU in 1984, Wahid used his platform to modernise Islamic education, build civil society and train a new generation of public intellectuals. In doing so, he influenced young scholars who are today at the forefront of promoting religious pluralism and democracy.6 He gave these young intellectuals an institutional platform on which to speak by helping found NGOs: Lakpesdam (Institute for the Study and Development of Human Resources), LKiS (Institute for the Study of Social Knowledge) and P3M (Association for the Development of Pesantren and Society) (Barton 2007: 161–3). Wahid also mobilised civil society in order to promote political reform. The Forum Demokrasi (Forum for Democracy), which he created in 1991, made a point of having a broad base of interfaith and secular members and was important in mobilising a democratic opposition to Suharto. Wahid himself was one of the most visible voices of democratic reform in the 1997. Rather than contributing to political conflict or discord, the political power of Wahid came directly from his authority as an Islamic scholar and his leadership of an Islamic civil society organisation. A note on the NU. The NU has a network of at least 6,840 Islamic boarding schools, many health clinics, a labour union, two of the world’s largest women’s organisations, effective environmental organisations that are part of Indonesia’s green movement, a daily newspaper, a publishing empire, youth and college wings, and influential political parties. Given this base, the arrest or torture of Wahid would almost certainly have caused a grave crisis of the military regime and was virtually politically and sociologically impossible. Another advocate for Islamic pluralism and democracy is Shaafi Maarif. Maarif defended his dissertation at the University of Chicago under the tutelage of the famous Islamic reformer and scholar, Fazlur Rahman. Based on the inability of the Pakistani and Indonesian parliaments to incorporate Islamic law into governance, Maarif called for the reformation of sharia. He wrote: 151

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alfred stepan As has been stated repeatedly before, the entire edifice of the present sharia is already too outmoded to be implemented in the present age. Therefore, if the Muslim umma is really serious and sincere in its demand, a comprehensive and responsible ijtihād [independent reasoning] to reformulate the sharia becomes absolutely imperative. (Maarif 1983: 279–80)

The bulk of the dissertation is focused on Islamic reform and not on political reform. Yet in the conclusion Maarif links the two: This creative development is only possible when intellectual fear and laziness as evidenced in many Muslim counties, not excluding Indonesia, come to an end. Intimately related with this is the fact that the fresh spirit of ijtihād ought to be strongly encouraged; and this can only survive and bear fruit in a democratic environment. Indonesia at the present juncture is not a good instance for this, unfortunately. (Maarif 1983: 307)

Coming from one of the country’s most prominent reformers, Maarif’s arguments had significant implications for reformist thought and action. Maarif was appointed head of Muhammadiyah in 1998 without an election and later elected to the same position, which he held until 2005, thus heading Muhammadiyah throughout the most critical seven years of the democratic transition in Indonesia. In addition to supporting democratic reforms, he institutionalised his arguments for Islamic reform through his NGO, the Maarif Institute. Like Wahid’s work with P3M, the Maarif Institute has helped give young Muhammadiyah intellectuals a voice through the Young Muhammadiyah Intellectual Network (JIMM), which supports emerging activists (like Hilman Latief, Moeslim Abdurrahman and Tuti Alawiyah Surandi). In the coming years these intellectuals are likely to become the leaders of civil society and agents of democratic consolidation in Indonesia’s fledgling democracy. Maarif has also tried to combat the voices of uncivil movements. He signed a 2009 petition drawn up by activists urging the Constitutional Court to revoke a 1965 Blasphemy Law, deemed as discriminatory against certain religious groups. The 1965 law has been used to restrict the rights of the minority group, Ahmadiyya, and religions outside of the six recognised ones. 152

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indonesia in comparative perspective While Wahid’s and Maarif’s leadership in civil society and political society has been crucial to the success of Indonesia’s democratic transition, there is no intellectual voice that has been as influential as Nurcholish Madjid. One of the leaders of the intellectual ‘renewal’ (pembaharuan pimikiran) movement in Indonesian Islam beginning in 1970, the thinkers ‘embraced the demographic realities of the country through appeals to democracy and pluralism informed by both universalist ideas and the historical traditions of the region’ (Feener 2007: 131). The reform movement was sparked by frustration with the stagnation of the Islamic reform movement since the 1950s and compared with the changes that had occurred among other groups in Islamic civil society (Hassan 1978: 12–13, 18). Through letters, newspaper columns and speeches in 1970–2, Madjid called for the ‘de-sacralising’ of human institutions that were seen as divinely sanctioned, particularly political parties and the state. He became famous for his slogans, ‘Islam yes, Partai Islam no’ (Yes to Islam, No to Islamic Parties) and ‘Tidak ada Negara Islam’ (There is No Islamic State). In his writings, Madjid argued against those working for an Islamic state, particularly the followers of Muhammad Natsir in Dewan Dakwah Islam Indonesia (DDII). Madjid also developed the concept of masyarakat madani (civil society), which became influential in the 1980s within the burgeoning NGO community. Like Wahid and Maarif, Madjid has been supported by civil society organisations and in return created institutions to promote his views. When he began to espouse his idea of de-sacralising politics, he was the president of the influential Islamic Students’ Association. He went on to create the Paramadina Foundation: [whose] primary concern has been to preach and develop the notion of an inclusive and tolerant Islam. To serve this purpose, Paramadina offers a series of intensive courses on classical as well as contemporary Islam across different religious schools (madzhab), within both the sunni and shia traditions. (Effendy 2003: 143 fn. 19)

He has also engaged with public political debates: in the mid-1990s Madjid called for genuine multi-party democracy, and later used his platform as a moral voice to personally urge General Suharto to step down in May 1998, even as the president tried to rally Muslim support (Hefner 2000: 114, 208). In a country where Islam is already on 153

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alfred stepan the table, Madjid used his religious and political authority to push Suharto out of office. Another leading figure is Amien Rais who has also been crucially engaged in the political integration of Islam and democracy. Rais earned a PhD in political science from the University of Chicago with a thesis on ‘The Moslem Brotherhood in Egypt: Its Rise, Demise and Resurgence’. While Rais shares Maarif’s roots in the Muhammadiyah, he is also close to the Islamist DDII and was critical of the pembaharuan movement’s willingness to accommodate the Suharto regime (van Bruinessen 1990: 62). Instead, his focus has been on promoting social justice and economic equality though Islamic mechanisms such as the zakat. Rais’s activities in civil society include membership in Muhammadiyah’s Majelis Tabligh (Propagation Committee), to which he was elected vice chairman of the central board in 1990 and chair in 1995. Politically, Rais was active in the Muslim Scholars Association (ICMI), which was used to mobilise political support in the Islamic community for Suharto. Yet Rais was forced to resign from ICMI in 1997 after his outspoken criticism of the regime. Rais then went on to play a crucial role as one of the leaders and mobilisers of the student movement against Suharto, activities that played a crucial role in Suharto’s decision to resign. In 1998 Rais established the National Mandate Party (Partai Amanat Nasional, PAN) to mobilise Muhammadiyah and other plural Muslim voices in democratic politics. The fact that he participated in the creation of a party that competed in electoral politics and that he also became the chairman of the Constituent Assembly that debated and refused to accept sharia, was important for the normalisation of Islamic involvement in democratic politics in Indonesia. I could have mentioned many other prominent Indonesian activists who were involved in two, three or even four of these arenas.7 In contrast, according to Mirjam Künkler, who is preparing a book on the failed democratisation movement in Iran and the successful democratisation movement in Indonesia, she does not think that any person in Iran during the last thirty years has been able to sustain activity in more than one, or at the most two, of these arenas. There were in Iran, of course, some outstanding scholars who wrote on the need for more democracy in Islam in general and specifically in Iran, such as Abdolkarim Sorroush, but none have been able to 154

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indonesia in comparative perspective be as active in civil or political society in ways comparable to the Indonesians I have mentioned, because of credible threats of imprisonment, torture, exile and sometimes even death. I have discussed the role of Indonesian activists in these four arenas with a number of scholars who have carried out research in Egypt. To date, no one has made a convincing case that there was ever, since the military became dominant in 1952, a single person who was effective in all four arenas in Egypt. In fact, many of the people who became prominent have rapidly been silenced by censorship, imprisonment, exile and, under the current dictatorship of General, now President, Abdel Fattah el-Sisi, death sentences.

Reform policy cooperation between state actors and religious actors: girls’ education, family planning and female genital mutilation In Indonesia in particular, but also in Senegal, the combination of ‘positive accommodation’ towards religion of the sort followed by such democracies as Germany, the Netherlands, Belgium and Switzerland, with some financial aid to various religious groups, has opened the way to forms of active policy-making cooperation between the ‘co-celebratory’ state and religion.8 Such cooperation has been particularly salient in policies such as increasing the participation of girls in school, family planning and in campaigns against female genital mutilation – areas where many Muslim majority countries face such powerful opposition by Muslims that no progressive policies are possible. Mutual cooperation can be extremely significant in the area of human rights. Ideally, criticism against violations of human rights comes not only from abroad, in the name of ‘universal human rights’. The most effective criticisms are those by local authoritative figures, who, from within the core values of the religion and culture of the country, make a powerful, religiously based argument against the specific practice that violates human rights. In Indonesia, if a religious school wants official recognition, there has recently been a growing process of consensual co-design of books on the history of religion by state authorities from the Ministry of Education and religious leaders from major Muslim organisations. Robert W. Hefner and Muhammad Zaman have edited an invaluable book that reviews madrassas 155

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alfred stepan in eight different countries (Hefner and Zaman 2007). One of the most inclusive and tolerant systems described in the volume, and the one that now works most cooperatively with a democratic state, is in Indonesia. The chapter on Indonesia shows how NU and Muhammadiyah have made substantial contributions to this educationally high-quality, and politically pluralist, outcome (Azra et al. 2007).9 The positive engagement of both the state and religious organisations in providing education has resulted in the fact that basic literacy for boys and girls is now virtually universal by the time they reach the age of fifteen. Indeed, young women aged fifteen to twenty-five, and young men of the same age, have a literacy rate of 99 per cent. In contrast, in Pakistan, for the same age range only 79 per cent of young men are literate, while only 58 per cent of young women are – a virtual fortypoint difference to Indonesia’s literacy rate for young women.10 Unlike Indonesia, there is in Pakistan an often hostile relationship between religion and the state, and the cooperation between state educational authorities and religious authorities is so tenuous that there are 15,000 unregistered madrassas in the Northwest Frontier Province, with only 1,400 registered madrassas in the same province. In fact, the Provincial Secretary for Education in this Pakistani province stated that no one from his office has ever visited any of the unregistered madrassas.11 In this near-‘stateless’ territory, fundamentalist money, armed insurgents and teachers, many from outside Pakistan, fuel intolerant, anti-democratic hate factories in a way that is inconceivable in Indonesia or Senegal. For the last thirty years in Indonesia there has also been a growing cooperation between religious officials and secular state officials to provide more family planning opportunities for women. According to Jeremy Menchik, ‘this cooperation between Islamic organisations and the state helped the program to succeed across Indonesia’ (Menchik 2014: 371).12 Many of the most progressive workshops advocating family planning were originated by NU women’s groups. Eventually, many of the most widely distributed ‘how to’ type of publications bore the joint imprint of state medical agencies and the NU women’s group. Indeed, Indonesia is held up by many in the World Bank and the United Nations as having the most exemplary family planning programme of any country in the developing world.

156

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indonesia in comparative perspective Another policy area that demonstrates the importance of state– religion cooperation is campaigns against female genital mutilation (FGM). In Senegal, a variety of national and international feminist and human rights movements wanted to ban the practice of FGM but had been countered by powerful religious-based attacks. In the end, secular movements in the government, and some national and international NGOs, were greatly helped by religious leaders. The Secretary General, N’Diaye, of the National Association of Imams of Senegal (ANIOS), publicly argued that there is nothing in the Qur’an commanding the practice, and that there was no evidence that the Prophet had his own daughters circumcised.13 A law banning female circumcision was passed in 1999. To avoid the law being a dead letter, ANIOS enlisted the help of government health authorities to train imams how to speak authoritatively about the health problems circumcision presents and to help with anti-FGM talks by imams on radio and television. Despite this law banning FGM, it helps make such a law an increasing social reality if the most authoritative religious bodies in the country continue to campaign against the practice so that the practice is increasingly de-legitimated in both the religious norms and social practices of the country. To help advance this crucial goal, Professor Abdoul Aziz Kebe, coordinator for the Tivaouane-based, and largest Sufi order in Senegal, the Tijans, wrote a powerful fortyfive page attack on FGM (Kebe 2003). The report systematically argues that FGM is a violation of women’s rights, bodies and health, with absolutely no justification in the Qur’an or in approved Haddiths. Kebe argues that not only is there no Islamic justification for FGM, but that given current medical knowledge, and current Islamic scholarship, there is a moral obligation for communities and individuals to bring a halt to FGM. The report was distributed by Sufi networks, secular ministries and by the World Health Organization, and FGM was reduced in Senegal substantially.14

Concluding conceptual and comparative reflections I would like to conclude this chapter by exploring two general questions that relate to issues raised by Indonesia. What does democracy need and not need concerning secularism? And should we speak of ‘rights-expanding’ and ‘rights-inhibiting’ secularisms?

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alfred stepan ‘Secularism’? Or ‘twin tolerations’ and ‘multiple secularisms’? Works in the classic modernisation literature often used the ‘secularism–traditional’ binary, thereby implying that a proper appreciation of secularism is a prior requirement for achieving modern democracy. However, many countries, such as the Netherlands, Sweden and the United Kingdom, had made significant strides towards religiously friendly practices of democracy well before the word ‘secularism’ was coined in England in 1851 by George Jacob Holyoake, a free-thinking, working-class activist. Talal Asad and Nader Hashemi suggest that Holyoake invented the word ‘secularism’ to avoid the charge of atheism, which suggested immorality (Asad 2003: 23–4; Hashemi 2009: 104–10). What does classic democratic theory actually say, and not say, about religion and secularism? First, the modern political analysis of democracy, while it requires the use of concepts such as voting and relative freedom to organise, does not necessarily need the concept of secularism. Robert Dahl, Arend Lijphart and Juan L. Linz (the first three winners of the Johan Skytte Prize, often called the Nobel Prize of Political Science) did not feel the need to include any discussion of secularism in their definitions of modern democracies, much less to include secularism as a necessary condition for a democracy. Dahl, in his elaboration of the ‘institutional guarantees’ that must be created for the functioning of a democracy (Dahl 1971), nowhere mentions secularism. Neither does Lijphart in his analysis of long-standing democracies in the modern world (Lijphart 1999). Linz and I, in our analysis of what we considered the five major regime types in the modern world in Problems of Democratic Transitions and Consolidation (Linz and Stepan 1996: ch. 3), also decided not to use the concept of secularism in characterising any of our regime types, because each type includes some countries that call themselves secular. But democratic institutions do need sufficient political space from religion to function, just as citizens need to be given sufficient space by democratic institutions to exercise their religious freedom. I call this mutual giving of space the ‘twin tolerations’.15 Religious institutions should not have constitutionally privileged prerogatives that give them the authority to mandate public policy to democratically elected officials or to deny critical freedoms to 158

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indonesia in comparative perspective any citizens. The minimal degree of toleration that religion needs to receive from democracy, if a democracy respects Dahl’s eight institutional guarantees, is not only the complete right to worship, but also the freedom of religious individuals and groups to advance their values in civil society publicly and to sponsor organisations and movements in political society, as long as their public advancement of these beliefs does not impinge negatively on the liberties of other citizens or violate democracy and the law by violence or other means. After a period of ‘self-secularisation’, the Christian Democratic political parties of Europe, as Stathis N. Kalyvas (1996) has shown, became autonomous democratic parties in contexts where neither of the twin tolerations was violated. The historical influence of the American and the French Revolutions, and the fact that both France and the United States are close to the ‘separatist’ pole in democratic patterns of religion–state relations, makes many commentators assume that separatism is the normatively preferable and empirically predominant form of secularism in modern democracies. But, for comparative purposes, particularly for readers in the United States and France, it is important to be aware that many of the existing members of the European Union are strong democracies despite violating both US norms of a ‘wall of separation between the state and religion’ and the spirit of French laïcité in its 1905 version, as found in the Law Concerning the Separation of Churches and the State. For example, in 2007, of the twenty-seven European Union democracies, all of them funded religious education in some way; 89 per cent had religious education in state schools as a standard offering (in many, but not all, with the option not to attend); 44 per cent funded some of the clergy; and 19 per cent had established religions. Indeed, all of the Scandinavian states – Norway, Sweden, Denmark, Finland and Iceland – had at one time constitutionally embedded Evangelical Lutheranism as their established religion, with Evangelical Lutheranism having a series of specified prerogatives for most of the countries’ democratic histories (see Table 7.2). Given the varieties of secularisms that are implicitly contained within Table 7.2 alone, instead of employing the concept of ‘secularism’ (which connotes for many people, especially in France and the United States, a singular form of ‘correct secularism’ with a focus on the separation of church and state), we should use instead the conceptually reformulated phrase ‘multiple secularisms’ (for many of the 159

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alfred stepan Table 7.2 Percentage of European Union countries with state support policies for religion. Form of State Policies of Support (or monitoring) of Religion Government funding of religious schools or education

Percentage 100

Religious education standard (optional in schools) None in Czech Republic, France, Netherlands

89

Official government department for religious affairs Austria, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Latvia, Lithuania, Malta, Poland, Romania, Slovakia, Slovenia, Spain, UK

67

Government positions or funding for clergy Belgium, Czech Republic, Denmark, Finland, Greece, Hungary, Luxembourg, Portugal, Romania, Slovakia, Spain, UK

44

Government collects taxes for religious organisations Austria, Belgium, Denmark, Finland, Germany, Greece, Hungary, Malta, Spain, Sweden

37

Government funding of religious charitable organisations Belgium, Czech Republic, Denmark, Finland, France, Germany, Malta, Netherlands, UK

33

Some clerical positions made by government appointment Bulgaria, Finland, Greece, Hungary, Luxembourg, Portugal, UK

26

Established religion Denmark, Finland, Greece, Malta, UK

19

Note: When the Western European States, Norway, Iceland, Switzerland and Andorra are included, the numbers above increase significantly. All countries fund religious education and have a religious education standard. Andorra, Norway and Iceland all have established religions and fund clergy. Source: All data are collected from the ‘Religion and State Dataset’ gathered by Jonathan Fox, Department of Political Studies, Bar Ilan University. The data are reported in Jonathan Fox, A World Survey of Religion and State (Cambridge and New York: Cambridge University Press, 2008). Please contact Jonathan Fox directly for access to the dataset. The twenty-seven countries comprising the European Union at that date were the following (bold face denotes countries with official state religions): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom. Sweden began a process of disestablishment in 2000. Finland and the United Kingdom have two established religions.

same reasons that S. N. Eisenstadt and Sudipta Kaviraj reformulated and used the concept of ‘multiple modernities’16). The use of the concept of multiple secularisms draws attention to the many varieties of possible democratic secularisms that can craft the ‘twin tolerations’ between religion and the state.17 Certainly one of the greatest intellectual tasks facing the rethinking of such multiple democratic secularisms is to examine 160

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indonesia in comparative perspective how democracy might be, and has actually been, constructed in countries with large Muslim populations. In this chapter, with my remarks on Indonesia, but also on Senegal and India, I have tried to illustrate some of the specific policies that have been utilised to construct these democracies. When writing this chapter, I was asked by the volume editors to assess the following question: ‘Is the best way to deal with religious diversity to accept more religion in public life for both majorities and minorities or to move towards radical secularism?’ My answer to this question is that, given the deep intensity of commitment that many citizens of Indonesia, India and Senegal felt towards religion at independence, and feel now, it is extremely unlikely that these countries would be as pluralist, democratic and peaceful as they are if the state had moved towards policies of radical secularism.18 I was then asked whether there is ‘a principled, normative answer to this question or is it a matter of context and issues at hand?’ My answer rests heavily on the specific historical and cultural contexts of Indonesia, Senegal and India. However, my discussion as to why I disagree with the early Rawlsian injunction to ‘keep religion off the public agenda’ was a principled political as well as well as a principled normative argument. In answer to the question ‘What can we learn from policies and practices in other world religions, notably Asia?’, I think that Western European democracies, and the US, might consider ‘celebration’ not exclusively of majority religions as they currently do (as my data on official and mandatory religious holidays makes clear) but also some ‘co-celebration’ of minority religions. I also think that the exclusion of non-Christian religions from most of Europe’s ‘positive accommodation arrangements’ in Germany, Belgium, the Netherlands and Switzerland should be reconsidered. With globalisation and increased immigration, these Christian-only interfaith, positive accommodation historical arrangements (such as the German government’s collecting taxes for Roman Catholics and Lutherans but not for Muslims) are becoming more visibly exclusionary. ‘Rights-expanding’ and ‘rights-inhibiting’ secularisms Many practices towards religion of the world’s multiple secularisms such as freedom of religious belief and the right to exit or enter any 161

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alfred stepan religion, have historically been ‘rights expanding’ and have been appreciatively and amply studied. Some forms of much-praised modernising secularism, such as the versions of laïcité imposed by Mustafa Kemal Atatürk in Turkey and by Habib Bourguiba in Tunisia, are seen by many to this day as part of their progressive legacy. Attempts to alter aspects of this legacy are often attacked as a medieval ‘war of civilisation’ and social scientists and historians who criticise this legacy are few and often marginalised. This is so even though the legacy has ‘rights-restricting’ and indeed authoritarian dimensions. As an example, I look briefly at Turkey and Tunisia, the latter being the Arab Spring’s only democratic success. In Turkey, roughly half the women are headscarfed. In Atatürk’s version of laïcité and modernisation, and until quite recently, women who wore headscarves were forbidden to go to universities, to be employed by state institutions or, in many cases, even to enter a state-owned building to collect a pension. This meant that half the women in Turkey were victims of ‘rights-inhibiting’ legislation. The relative insensitivity of even human rights advocates to this ‘rights-inhibiting’ secularism is made clear when we reflect on the fact that the European Court of Human Rights in 2005 ‘ruled that secular advocates had the right to ban the wearing of headscarves at universities as long as the present constitution is in place’ (Lagendijk 2012: 172). It should be noted that the constitution in question was written by a body of legislators appointed by the military after the 1980 coup, one of whose rationales was to defend Atatürk’s secularism as an unamendable pillar of the constitution. From independence in 1954 until the Arab Spring in 2011, Tunisia was ruled by only two presidents, Habib Bourguiba (1954–88) and then by Ben Ali (1988–2011). Bourguiba to this day is widely admired as a modernist, an avant-garde secularist, even though Bourguiba, like Atatürk, never allowed one fully free and fair election. Bourguiba’s most admired legacy correctly concerns his ‘rights-expanding’ policies towards women. He passed the most progressive family code concerning women’s rights in the Muslim world, and at the time, one of the most advanced in the entire world. Polygamy was banned and polygamists subject to imprisonment, men’s right to divorce unilaterally their wives was abolished, and women’s right to initiate divorce, receive alimony and have greater child custody rights put into law. Abortion 162

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indonesia in comparative perspective was legalised under some conditions as early as 1965. Women’s access to higher education soon rivalled men’s (Charrad 2001). But there are some ‘rights-inhibiting’ aspects of his legacy. In 1956, in the name of modernism and laïcité, Bourguiba attempted to remove religion from the public square, from most programmes of higher education, in essence closed the progressive Zeitouna Mosque University (which had been founded in Tunis in 737 ce, more than two centuries before Cairo’s Al-Azhar University), and abolished the endowments that had supported Islamic education (see Stepan 2012b, especially 99–102). From Bourguiba’s day until now, Tunisia has never had an Islamic theological seminary or a serious television or radio programme on Islam. In 2013–14, in the last years of the coalition led by the pluralist and democratic Islamist Party, Ennadha, that party sought to re-legalise endowments so that Tunisia could rebuild doctoral training in Islam of the sort that were so critical to the modernisation and democratisation of Islamic thinking and practice in Indonesia. However, when the endowment project came up for consideration in parliament, the secular legacy of Bourguiba triumphed. So, if young people in Tunisia want to hear about Islam, they get their news and sermons not from Tunisian clerics and intellectuals trained in the most democratic country in the Arab world, but via satellite from fundamentalist stations in Saudi Arabia and the Gulf. Is this ‘rights-expanding’ or ‘rights-inhibiting’ secularism?

Notes 1. None of these four organisations has ranked any ASEAN country higher than Indonesia for a single year in the entire 2005–13 period, although the Philippines shares Indonesia’s Polity IV ranking of plus 8 for the entire period on Polity IV’s 21-point scale of minus 10 (say, for Saudi Arabia), zero, to plus 10 (say, for Sweden). 2. The Gastil Index not only ranks ‘political rights’ but also ‘civil liberties’. Two Latin American countries, Chile and Uruguay, that suffered under what Guillermo O’Donnell (1988) called ‘bureaucratic authoritarian’ regimes from the early 1970s to the mid-1980s, have received a ranking of 1 on political rights and 1 on civil liberties for the last few years. In contrast, Indonesia has never received a score of 3 or better on ‘civil liberties’ since it became a democracy. 3. For an overview of the history of authoritarianism and democratisation in Indonesia by a variety of Indonesian and foreign specialists, see Künkler

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4. 5.

6.

7.

8.

and Stepan 2013. For an excellent documented account of the reduction of military powers since their thirty-three-year dictatorship from 1965 to 1998, see Mietzner 2009. For the detailed analysis of how constitution making in Indonesia from 1998 to 2005 was extremely consensual, see the book Constitutional Change and Democracy in Indonesia by the award-winning theorist of ethnic conflict in the world and also comparative constitutional studies, Donald Horowitz (Horowitz 2013). See, for example, the argument to this effect developed in Künkler 2013, and the somewhat different but compatible set of arguments in Menchik 2016. However, there are some disadvantages to Pancasila’s specifications of the officially recognised religions that a more proactive democratic government should consider changing. These changes could include allowing citizens to have an identity card without it stating which ‘organised and recognised religion’ they are affiliated with, because they may not be a member of any such recognised religion (e.g. they may be animist, agnostic or atheist). This affects in particular the Ahmadiyya variant of Islam, which is not recognised in the Pancasila system because Ahmadiyya recognises as the founder of their religion a post-Muhammad prophet. Among them are Masdar Mas’udi, Ulil Abshar-Abdalla and Luthfi Assyaukanie. Luthfi Assyaukanie has written an important book on multivocality in Indonesia and makes a strong case for a religiously friendly democratic secularism in Indonesia. See Assyaukanie 2009. Some of the many who deserve mention by name include: Nassaruddin Umar, head of Islamic affairs in the Ministry of Religion, a prominent member of the NU executive board and the creator of the Dialogue Among Religious Communities; she is a self-proclaimed Islamic feminist whose writings on gender biases in Qur’anic exegesis have proved vital to the Islamic women’s movement in Indonesia; Maria Ulfah Anshor, the former chairwoman of one of the NU women’s organisations, Fatayat NU, who is a member of parliament with the National Awakening Party (PKB) and has had a significant impact on women’s rights through her organisation and her writings on the diversity of opinion within the sharia on women’s rights and abortion; and Azyumardi Azra, one of Indonesia’s most prominent Islamic intellectuals and a prolific author, who was an advisor to vice-president Yosef Kalla from 2004 to 2009, and was rector of the excellent State Islamic University Syarif Hidayatullah-Jakarta, which has a doctoral programme on Islamic Public Law open to women. In fact, Indonesian women may be the first women ever in a Muslim majority country to be appointed judges on Islamic Public Law with full interpretive capacity. I am indebted for this last point to a conversation with Mirjam Künkler and also to her excellent unpublished paper ‘Forgotten Histories and New State Initiatives for Female Religious Authority in Islam’ (Princeton, 2014), p. 28. A major scholar of church–state relations in Germany, Gerhard Robbers, asserts that the concept of ‘positive accommodation’ is embedded in much of German law. He interprets neutrality of the state towards religion to entail ‘positive neutrality’, and requires the state to ‘include religious needs

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indonesia in comparative perspective

9. 10.

11. 12. 13. 14.

15. 16. 17. 18.

in planning law’. See Robbers 2007: 112. In that same volume, Rik Torks, the author of the chapter on Belgium, which has many positive accommodationist features, makes very similar arguments: ‘The state positively promotes the free development of religious and institutional activities without interfering with their independence. In that sense, one might call this positive neutrality’ (Torks 2007: 58). For recent analogous processes in the educational system in Senegal, see Stepan 2012a. World Development Indicators, World Bank. Numbers for Indonesia are from 2004. Numbers for Pakistan are from 2006. See (last accessed 1 February 2017). For Pakistan, see Hefner and Zaman 2007: 85–6, which reviews madrassas in eight different countries. See Menchik 2014; see also chapter 5 in his excellent book Islam and Democracy in Indonesia: Tolerance without Liberalism (Menchik 2016). See Bangré 2004, a long feature article in one of Senegal’s leading newspapers. Female circumcision is still a problem in Senegal, with an estimated 28 per cent of women from the ages of fifteen to forty-nine having undergone FGM, according to UNICEF. However, the same source lists Egypt at 96 per cent. Senegal’s three contiguous Muslim majority countries have much higher rates: Mali, 92 per cent; Guinea 95 per cent; and Mauritania, 71 per cent. It should be acknowledged that ethnic traditions, as well as social policy, are important; the Wolofs traditionally have not practised FGM. However, it is worth noting that among ethnic groups that have a high rate of FGM, the rates inside Senegal are lower. For example, the Pular in neighbouring Mali have more than a 90 per cent rate and the Pular in Senegal have a 62 per cent rate. All FGM rates from UNICEF statistics (Multiple Indicator Cluster Servers, MICS 1995/2005). I define and discuss the ‘twin tolerations’ in much greater detail in Stepan 2001; a much shorter version is available in Stepan 2000. See Eisenstadt 2000a, 2000b; see also Kaviraj 2000 and his ground-breaking ‘An Outline of a Revisionist Theory of Modernity’ (Kaviraj 2005). For more details on these points, see Stepan 2011. For example, India for the last thirty years has had the second highest growth rate in the world and is more modernised in terms of literacy, urbanisation and access to communications such as the internet. But whereas modernisation theory would have predicted a secular decline of religion in the midst of such strong modernisation, a 2004 poll of 27,145 citizens in India found that 87 per cent of respondents said that they were ‘very’ or ‘somewhat’ religious, and four times as many respondents said that in the last ten years their ‘families’ engagement in religious activities’ had increased as said that they had decreased. See Stepan et al. 2011: 67. Indian election polls in 2014 found a roughly similar trend. In Indonesia, again and again the best polling organisation reports that the two most trusted organisations in the country are the two religious civil society groups, NU and Muhammadiyah. In my judgement, they and their seventy million members would resist ‘radical secularism’ intensely.

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References Asad, Talal (2003), Formations of the Secular: Christianity, Islam, Modernity, Palo Alto: Stanford University Press. Assyaukanie, Luthfi (2009), Islam and the Secular State in Indonesia, Singapore: ISEAS. Azra, Azyumardi, Dina Afrianty and Robert W. Hefner (2007), ‘Pesantren and Madrassa: Muslim Schools and National Ideals in Indonesia’, in Robert W. Hefner and Muhammad Zaman (eds), Schooling Islam: The Culture and Politics of Modern Muslim Education, Princeton: Princeton University Press, pp. 172–98. Bangré, Habibou (2004), ‘Croisade muselmane contre l’excision: les imams rétablissent la vérité sur cette tradition’, Walfadiri, 8 June. Barton, Greg (2007), Gus Dur: The Authorized Biography of Abdurrahman Wahid, Singapore: Equinox. Charrad, Mounira M. (2001), States and Women’s Rights in the Making of Postcolonial Tunisia, Algeria, and Morocco, Berkeley: University of California Press. Dahl, Robert (1971), Polyarchy: Participation and Opposition, New Haven, CT: Yale University Press. Effendy, Bahtier (2003), Islam and the State in Indonesia, Singapore: ISEAS. Eisenstadt, S. N. (2000a), ‘Multiple Modernities’, Daedalus, Winter, 1–30. Eisenstadt, S. N. (2000b), ‘The Reconstruction of Religious Arenas in the Framework of “Multiple Modernities”’, Millennium: Journal of International Studies, 29: 3, 591–611. Feener, Michael (2007), Muslim Legal Thought in Modern Indonesia, Cambridge: Cambridge University Press. Hashemi, Nader (2009), Islam, Secularism and Liberal Democracy: Toward a Democratic Theory for Muslim Societies, Oxford and New York: Oxford University Press. Hassan, Mohammad Kamal (1978), The Issues of Modernization and Its Impact on Indonesian Muslim Intellectuals: Nurcholish Majid’s Attempt at a Theology of Development, Plainfield, IN: Association of Muslim Social Scientists. Hefner, Robert W. (2000), Civil Islam: Muslims and Democratization in Indonesia, Princeton: Princeton University Press. Hefner, Robert W. and Muhammad Zaman (eds) (2007), Schooling Islam: The Culture and Politics of Modern Muslim Education, Princeton: Princeton University Press. Horowitz, Donald (2013), Constitutional Change and Democracy in Indonesia, New York and Cambridge: Cambridge University Press. Kalyvas, Stathis H. (1996), The Rise of Christian Democracy in Europe, Ithaca: Cornell University Press. Kaviraj, Sudipta (2000), ‘Modernity and Politics in India’, Daedalus, Winter, 137–62. Kaviraj, Sudipta (2005), ‘An Outline of a Revisionist Theory of Modernity’, European Journal of Sociology, 46: 3, 497–526. Kebe, Abdoul Aziz (2003), Argumentaire religieux musulman pour l’abandon des MGF’s, Dakar: World Health Organization.

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indonesia in comparative perspective Künkler, Mirjam (2013), ‘How Pluralist Democracy Became the Consensual Discourse among Secular and Non-Secular Muslims in Indonesia’, in Mirjam Künkler and Alfred Stepan (eds), Democracy and Islam in Indonesia, New York: Columbia University Press, pp. 53–72. Künkler, Mirjam and Alfred Stepan (eds) (2013), Democracy and Islam in Indonesia, New York: Columbia University Press. Lagendijk, Joost (2012), ‘Turkey’s Accession to the European Union and the Role of the Justice and Development Party’, in Ahmet T. Kuru and Alfred Stepan (eds), Democracy, Islam, and Secularism in Turkey, New York: Columbia University Press, pp. 166–88. Lijphart, Arend (1999), Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, New Haven, CT: Yale University Press. Linz, Juan J. and Alfred Stepan (1996), Problems of Democratic Transitions and Consolidation: Southern Europe, South America, and Post-Communist Europe, Baltimore and London: Johns Hopkins University Press. Maarif, Ahmad Syafi’i (1983), Islam as the Basis of State: A Study of the Islamic Political Ideas as Reflected in the Constituent Assembly Debates in Indonesia, PhD Thesis, Department of Near Eastern Languages and Civilizations, Chicago University. Menchik, Jeremy (2014), ‘The Co-evolution of Sacred and Secular: Islamic Law and Family Planning in Indonesia’, South East Asia Research, 22: 3, 359–78. Menchik, Jeremy (2016), Islam and Democracy in Indonesia: Tolerance without Liberalism, New York and Cambridge: Cambridge University Press. Mietzner, Marcus (2009), Military Politics, Islam, and the State in Indonesia: From Turbulent Transition to Democratic Consolidation, Singapore: ISEAS. O’Donnell, Guillermo (1988), Bureaucratic Authoritarianism. Argentina, 1966–1973, in Comparative Perspective, Berkeley: University of California Press. Rawls, John (1996), Political Liberalism, New York: Columbia University Press. Robbers, Gerhard (2007), ‘Religion in the European Union Countries: Constitutional Foundations, Legislations, Religious Institutions and Religious Education; Country Report on Germany’, in Ali Köse and Talip Küçükcan (eds), State and Religion in Europe, Istanbul: Center for Islamic Studies, unpublished manuscript. Stepan, Alfred (2000), ‘Religion, Democracy and the “Twin Tolerations”’, Journal of Democracy, 11: 4, 37–57. Stepan, Alfred (2001), ‘The World’s Religious Systems and Democracy: Crafting the “Twin Tolerations”’, in Arguing Comparative Politics, Oxford and New York: Oxford University Press, pp. 213–54. Stepan, Alfred (2011), ‘The Multiple Secularisms of Modern Democratic and Non- Democratic Regimes’, in Craig Calhoun, Mark Juergensmeyer and Jonathan VanAntwerpen (eds), Rethinking Secularism, New York: Oxford University Press, pp. 114–44. Stepan, Alfred (2012a), ‘Rituals of Respect: Sufis and Secularists in Senegal in Comparative Perspective’, Comparative Politics, 44: 4, 379–401. Stepan, Alfred (2012b), ‘Tunisia’s Transition and the Twin Tolerations’, Journal of Democracy, 23: 2, 89–103.

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alfred stepan Stepan, Alfred (2013), ‘Stateness, Democracy, and Respect: Senegal in Comparative Perspective’, in Mamadou Diouf (ed.), Tolerance, Democracy, and Sufis in Senegal, New York: Columbia University Press, pp. 205–38. Stepan, Alfred and Mirjam Künkler (2007), ‘Amien Rais: An Interview’, Journal of International Affairs, 61: 1, 205–16. Stepan, Alfred, Juan J. Linz and Yogendra Yadav (2011), Crafting State-Nations: India and Other Multinational Democracies, Baltimore and London: Johns Hopkins University Press. Torks, Rik (2007), [Untitled], in Ali Köse and Talip Küçükcan (eds), State and Religion in Europe, Istanbul: Center for Islamic Studies, unpublished manuscript. van Bruinessen, Martin (1990), ‘Indonesia’s Ulama and Politics: Caught Between Legitimising the Status Quo and Searching for Alternatives’, Prisma, 49, 52–69.

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8

The Governance of Religious Diversity in Malaysia: Islam in a Secular State or Secularism in an Islamic State? Ahmad Fauzi Abdul Hamid and Zawawi Ibrahim

Introduction The end of World War II in 1945 heralded a bipolar world order in which the United States of America (USA)-led Western and Soviet Union-led Eastern blocs became competing pivots for global political and economic power. Notwithstanding their ideological division, which had global ramifications as both blocs endeavoured to expand their spheres of influence directly or indirectly, they were epistemologically united in the belief that the progress of modern civilisation, as palpably manifested in scientific and technological advancements that exponentially raised humans’ standard of living, would be accompanied by a de-emphasis of religion in the formal decision making of the upper echelons of the power structure. Secularisation – the term most commonly used to explain such a phenomenon – was considered to be an essential component of the modernisation ethos, if not all the more desirable as a catalyst for development. The magnitude of such peripheralisation of religion differed across the West, but has been most pronounced in Europe for the past forty years or so. The global zeitgeist of the 1960s treated the processes of development, modernisation and secularisation as flip sides of the same coin. Modernity, as the end product of such processes, was held to be the natural corollary of the ascendancy of logical positivism in both the natural and social sciences. Academic discourse on modernisation constantly harped on the theme of the inevitability of 169

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ahmad fauzi abdul hamid and zawawi ibrahim such decline of not only religion but also all primordial phenomena (Geertz 1963). Gathering expertise from the various social sciences, works on modernisation emerged under the rubric of ‘development studies’. Invariably including rationalism and secularism as requisite attributes of modernisation, a lot of the studies, unfortunately, were authored by theorists who lacked experience in fieldwork and empirical study of religions (von der Mehden 1986: 2–16). Many of the social scientists who then dabbled in development studies were themselves self-confessed unbelievers, having been raised within households and an academic environment in which religious scepticism was the norm rather than the exception (Geertz 1968: 99; von der Mehden 1986: 16–17). It is unsurprising, therefore, that Almond and Powell, for example, define ‘political development’ as ‘the increased differentiation and specialization of political structures and the increased secularization of political culture’ (Almond and Powell 1966: 105). Left in charge of newly independent nation-states, Muslim ruling elites were ambivalent on which path to take. On the one hand, Muslim countries were delighted to be able to share the benefits of modernity as imported from their Western counterparts. On the other hand, they were wary of the collateral damage done to their societies by the prevalence of secular over Islamic norms in all spheres of life except religious rituals and worshipping norms. Political independence was not enough to prevent Muslim leaders from being enchanted with the intellectual trend of modelling society according to universal principles. Rostow’s (1960) theory of the stages of economic growth, for example, postulated five phases of growth, namely, traditional society, pre-conditions for take-off, the take-off stage, the drive to maturity stage and the age of high mass consumption. While Rostow’s theory was not immune from criticism for its overly mechanical nature and apparent bias towards the experiences of Western nation-states (see Itagaki 1963), with patronising implications for developing countries in terms of emphases placed on neo-liberal economic policies, critical assessment of the secular onslaught under the guise of modernisation was forthcoming from neither the intelligentsia nor leaders of the Muslim world. Stifled by intellectual barrenness, the Muslim-dominated Arab world, for instance, submitted meekly to the vagaries of secularisation (Sharabi 1965).

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governance of religious diversity in malaysia This chapter seeks to explore evolving views on Islam and secularism in Malaysia,1 a ‘plural society’ (Zawawi 2004) and a Muslim-majority state in Southeast Asia which gained independence from Britain on 31 August 1957 as the Federation of Malaya. Due to its fragile ethnic composition, where the majority Malay-Muslims consistently constitute between 50 and 60 per cent of the total population,2 ethno-religious demands in favour of greater Islamic input in governance have always faced challenges not only from non-Muslim minorities but also from some sections of the Malay-Muslim population. In colonial Malaya, secularisation, understood primarily in terms of enforced separation between religion and state in the British-administered body politic, acquired inexorable momentum with the signing of the Anglo-Perak Treaty in Pangkor in 1874. This Pangkor accord stipulated that Malay sultans seek and act upon a British Resident’s advice on all matters except Malay religion and custom. A succession of legal, administrative and educational reforms followed suit throughout Malaya as other Malay states concluded similar agreements with the colonial authorities, the net effect of which was to sideline the role of Islam in colonial governance (Ahmad Fauzi 2004: 22–30). Enunciation of a Federal Constitution in 1957, by crystallising such separation between religion and state, effectively established secularism as a governing principle despite an absence of reference to it in words (Rosenthal 1965: 288). Although nowhere in the Constitution is the word ‘secular’ mentioned, the secular basis of an independent Malaya was arguably affirmed by parties deliberating the drafting of the document. Tunku Abdul Rahman (1903–90), leader of the Alliance coalition and later first Prime Minister of independent Malaya, assured fellow members among the Working Party that reviewed the draft prepared by the British-appointed Reid Commission, that the whole exercise of framing the Constitution was undertaken on the understanding that the resultant federation would be a secular state (Fernando 2006: 259–60, 265–6). Article 3(1) of the Federal Constitution pronounces that ‘Islam is the religion of the Federation, but other religions may be practised in peace and harmony in any part of the Federation’ (Malaysia 1998: 1). As clarified by a legislative White Paper, however, such a declaration affected in no way Malaya’s position as a ‘secular state’. This status was later affirmed by serving chief justices’ statements

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ahmad fauzi abdul hamid and zawawi ibrahim and judgments qualifying the meaning of Islam’s formal status as pertaining to rituals and ceremonies on official occasions rather than as a trump over the primacy of the secular legislative framework (Suffian Hashim 1962: 8–11; Ahmad Ibrahim 1985: 213–16; Fernando 2006: 250, 262). Article 3(1), moreover, has to be read together with Article 3(4): ‘Nothing in this Article derogates from any other provision of this Constitution’ (Malaysia 1998: 1). Thus, freedom of religion is guaranteed by Article 11: that every individual has the right to profess, practise and propagate his or her own religion although the propagation of any religious doctrine or belief among Muslims may be legally controlled or restricted, and that all religious groups possess authority to manage their own religious affairs, to establish and maintain institutions for religious or charitable purposes, and to acquire, possess, hold and administer property in accordance with the law (Malaysia 1998: 6–7). Of late, critical ruptures have emerged in the political-legal scape of Malaysian society, involving cases which invoke the constitutional rights to religious freedom, raising pertinent questions as to the boundaries of religious freedom for both Muslims and nonMuslims alike. Underlying these tensions are the alleged ‘ambiguity’ of the Federal Constitution, the ‘reluctance’ of the civil courts ‘to protect the religious freedom of minorities’, giving way to a zealous arbitrary approach by the syariah courts. This chapter proceeds to discuss the narrowing down of the above social space in the practice of Malaysia’s religious diversity, focusing on political-legal changes since independence. It traces the ways and means of shifts in the understanding and practice of Islam and secularism in a more overtly politicised sense, with potentially devastating consequences for the socio-cultural fabric of Malaysia’s plural society. What follows in consecutive sections are explications of how the concepts of secularism and religion, with a distinctive emphasis on Islam as the dominant faith in Malaysia, are dissected and played out in the country’s public space by a diverse range of thinkers, politicians and civil society activists. The next two sections explore the issues from theoretical and practical perspectives respectively, from which it will be apparent that Malaysia’s application of governing principles with respect to Islam and secularism has been essentialised by political interests such as to harden boundaries between what are considered ‘Islamic’ and what are conversely viewed as ‘un-Islamic’. The increasingly rigid positions 172

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governance of religious diversity in malaysia adopted by Islamic stakeholders have arguably worsened both inter-religious and intra-Muslim relations, with progressive voices among Muslims increasingly finding themselves marginalised in the state-controlled political environment. The potential of such countervailing elements providing a counter-narrative against Malaysia’s state-driven Islamism – referring to matters pertaining to the Islamic state rather than Islam per se – is interrogated in the penultimate section. The chapter draws to a close with a rather hopeful scenario for the future, despite the prevailing sense of pessimism during this critical moment of Malaysia’s nationhood.

Secularism and secularisation: Western and Islamic epistemological discourse in Malaysia ‘Secularisation’ refers to a process whereby humankind is deterministically loosened from the metaphysical domain, divorcing them from religious or quasi-religious understandings of themselves, their destiny and eternal realities, its end product being moral universalism undergirded by scientific rationalism. Life in this world becomes an end in itself; solutions to worldly problems are to be found not in otherworldly scriptures or supernatural myths, but in a rational comprehension of tangible forces as determined by scientific principles of causality. ‘Secularism’ denotes the ideology along which the ‘secularisation’ process takes place, the consequences of which include ‘disenchantment of nature’ and ‘desacralization of politics’ (Al-Attas 1984: 15–17). Western social sciences possess a heritage which marginalises if not rejects altogether the role of religion as an explanatory factor for social phenomena, as can be discerned since the political ascendancy of secularism as a foundational dogma of Western conceptions of nationhood and statehood following the Westphalian treaty’s sealing an epoch of religious wars in 1648 (Fox 2001: 53–9; Sheikh and Waever 2012: 274). The basic idea behind secularisation is the decline of religion, with scholars variously explaining it as entailing, among other things, conformity of quotidian norms with ‘this world’, renunciation of ecclesiastical powers, de-clericalisation of structures and de-confessionalisation of social services (Shiner 1967; Fenn 1969; Bailey 2012). Dobbelaere (1981), in turn, puts forward a multi-dimensional analysis of secularisation that includes societal secularisation, organisational secularisation and individual 173

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ahmad fauzi abdul hamid and zawawi ibrahim secularisation. With such varied understandings, the practice of secularism and experience of secularisation have not been uniform even among Western countries that agree that secularism and secularisation are positive attributes of modern statecraft (Sheikh and Waever 2012). Responses from the Muslim world have ranged from outright rejection to qualified acceptance, if only for its practical unavoidability. Some have gone to great lengths in pitting Islam against secularism in antithetical positions, without any common ground between the two. Altaf Gauhar (1978: 303), for instance, outlines three fundamental separations that underline the ‘sacred versus profane’ duality of secular societies, namely, that of the church from the state, that of the public from the private domain, and that of the national from the international scene. To Indo-Pakistani Islamist3 ideologue Abul A’la Maududi (1903–79), whose thinking has been very influential in shaping the minds of generations of Malaysian Islamists (Kamal Hassan 2003: 430–40), secularism – understood as ‘religionless’ ideology or one embodying ‘irreligiousness’ – was merely another expression of infidelity (Arabic: kufr) (Adams 1983: 103, 113–14; Mazhari 2012: 66–7). So serious was the seemingly irreconcilable clash between Islam and secularism in the Muslim world that Egyptian philosopher Hassan Hanafi (1935–) has attempted to bridge the discursive gap between Islamism and secularism, albeit to no avail and earning him brickbats from conservative Islamists (Wahyudi 2006). Among Malaysian Muslim intellectuals, Syed Naquib al-Attas (1931–) and Muhammad Kamal Hassan (1942–) have been credited with championing the battle against secularism from an Islamic angle (Azhar 2016). Al-Attas is the author of Islam and Secularism – originally published in 1978 by the Muslim Youth Movement of Malaysia (Angkatan Belia Islam Malaysia, ABIM), which has reached iconic status in the worldview of Malaysia’s political Islamists, spurring them on towards clamouring for Islamisation during the height of Islamic resurgence in Malaysia in the 1980s (Norshahril 2012: 109–10). A former head of the Malay Studies department of Universiti Malaya (UM) and Dean of the Arts faculty of the National University of Malaysia (Universiti Kebangsaan Malaysia, UKM), in 1987 Al-Attas went on to become founder-director of the International Institute of Islamic Thought 174

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governance of religious diversity in malaysia and Civilization (ISTAC), a research centre for excellence affiliated to the International Islamic University of Malaysia (IIUM), whose founding in 1983 was itself purportedly conceived by Al-Attas in his seminal paper delivered at the First World Conference on Muslim Education in Mecca in 1977 (Al-Attas 1979a, 1979b, 1991). In the words of Muhammad Kamal Hassan, IIUM Rector from 1999 to 2006, the Meccan Conference represented the earnest hopes of the ummah (global Muslim community) for ‘a return to the concept of integrative Islamic education as an alternative to secular education’ that had beleaguered post-colonial Muslim societies (Kamal Hassan 1986: 40–1). To the coterie of his loyal students and enthusiasts, Al-Attas was the rightful pioneer of the ‘Islamisation of knowledge’ scheme, before the idea was taken up and further developed by Ismail Raji Al-Faruqi (1921–86) of Temple University, Philadephia, USA (Wan Mohd Nor 2005: 332–8). In what effectively amounted to an ambitious de-secularisation project, ‘Islamisation of knowledge’ endeavours to systematically synthesise the vast body of knowledge within the Islamic epistemological tradition with Western humanities, social sciences and natural sciences. In Al-Attas’ view, secularisation represents the foremost crisis of Western civilisation, attributable to the ‘Westernisation’ of Christianity which heralded the triumph of positive science over revealed religion (Al-Attas 1984: 1–26). In attempting to transplant Western civilisational entities onto Muslim society, Al-Attas argues that the West has failed to take cognisance of the Islamic concept of religion as rooted in the Arabic word deen, whose cognates include dana (being indebted), madinah (city), dayyan (ruler) and tamaddun (civilisation/refinement in social culture). Inherent in the concept of deen is the conception of a kingdom or cosmopolis in which a Muslim in both the individual and social sense submits to God as his appointed vicegerent on earth. Since commerce and trade form the lifeblood of any cosmopolis, a Muslim’s life is inexorably engaged with the community, with whom he wilfully participates in acts of submission to God (Al-Attas 1978: 33–45). In Al-Attas’ paradigm, such conceptual misunderstandings extend to the Western scholarship’s wide usage of the word ‘religion’, deriving from the Latin term religio, to describe Islam. Historically, religio was applied to designate beliefs other than Christianity, except during the Protestant Reformation (1517–1648), when religio was taken to refer 175

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ahmad fauzi abdul hamid and zawawi ibrahim to the various versions of Christianity separate from Catholicism as the established church (Alatas 2008: 46). In consequence, the application of ‘religion’ to non-Christian faiths assumes a comparative framework pitting the other faiths vis-à-vis Christianity, hence the tendency in oriental studies to transplant Christian terms and concepts such as ‘church’, ‘clergy’, ‘sect’, ‘cult’ and ‘denomination’ onto Muslim experiences and categories (Alatas 2008: 47). It is interesting to note that Al-Attas’ epistemological deconstruction of secularism and secularisation as they pertain to their historical evolution and positioning in the contemporary world has been appropriated by a legion of Islamists who argue, in their search for Islamic authenticity, for a dichotomous separation between the Islamic and secular realms. Despite hardly making any direct reference to the concept of an Islamic state, Al-Attas’ haranguing against secularism has been cited time and again by Islamists as the intellectual justification for the erection of an Islamic moral and political order that is uniquely derived from specifically Islamic, as opposed to secular, origins (Azhar 2016). Al-Attas’ discourse also became a tool to legitimise the Islamist initiatives of the Malaysian state under Mahathir Mohamad’s (1925–) Premiership (1981–2003), particularly during the years of Anwar Ibrahim (1947–) as Minister of Education (1987–91) and Deputy Prime Minister (1994–8). Among intellectual mentors who have exerted greatest influence upon Anwar Ibrahim’s Islamist outlook, Al-Attas and Ismail Al-Faruqi tower above others (Esposito and Voll 2001: 181; Allers 2013: 46–8). Carte blanche given to develop his brainchild, ISTAC, was reflective of the state’s warming to Al-Attas, laying him open to criticism of being an apologist for state-orchestrated Islamism (Farish 2009: 215–16). Al-Attas’ conceptions of knowledge and the teacher–pupil relationship have been criticised for giving undue priority to theological knowledge and a vertically unidirectional flow from the provider to the taker of the educational process (Noaparast 2012: 167–8). In their examination of Al-Attas’ and Al-Faruqi’s rival Islamisation of knowledge schemes, Rosnani and Imron conclude that both have been guilty of over-generalising ‘the West as though composing of a particular school of thought, in particular the logical positivist’ (Rosnani and Imron 2000: 37). While still bearing exclusive connotations, Al-Attas’ paradigm vis-à-vis Al-Faruqi’s is philosophically ‘more elaborate and convincing’ and his definition of Islamisation of knowledge ‘more coherent and more rooted in the theory of 176

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governance of religious diversity in malaysia Islamization in general’; not least due also to his incorporation of the Islamic mystical tradition or Sufism (Arabic: tasawwuf) in his methodology, in contrast with the antipathy towards such spirituality shown by Al-Faruqi and Maududi (Rosnani and Imron 2000: 33, 35–6). However, in practice, it was the educational principles of AlFaruqi and Maududi rather than those of Al-Attas that were brought to bear in accomplishing the aim of IIUM to become a model Islamic university which seeks to infuse all branches of knowledge with Islamic values and epistemology (Moten 2006: 190–1). Meanwhile, ISTAC, since Anwar Ibrahim’s unceremonious dismissals from the ruling United Malays National Organization (UMNO) party and government posts in September 1998, has struggled to survive. Its autonomous status within the IIUM structure was revoked in 2002, and in 2015 it effectively ceased operations in the manner envisioned by Al-Attas, all its programmes being subsumed fully under IIUM’s Faculty of Revealed Knowledge and Human Sciences (IRKHS). Even its name has now been changed to the Ibnu Khaldun International Institute of Advanced Research (ISLAH) (IIUM n.d.a, n.d.b).

Secularism and religion in practice in post-colonial Malaysia In post-colonial Muslim states, the triumph of secularism is embodied in the marginalisation of the syariah (Islamic law) within the broader context of national legal systems. A rump of the syariah, mainly consisting of family and personal laws, was reformulated into and codified as a set of Muslim laws which were tailored to suit particular national interests rather than all-encompassing Islamic requirements. The framework of reference for post-independence syariah-based Muslim lawyers was the nation-state, in which Islamic laws were subordinated to civil laws, rather than the ummah (Hooker 2004: 199). This is at variance with Islamic schemes such as Al-Attas’ (1978: 59, 1979b: 32–3, 1984: 79–80), which laments that in modern nationstates, as a result of secularisation, the fundamental purpose of seeking knowledge to produce a ‘good man’ has been subordinated to the secular role of producing no more than ‘good citizens’. Tacit collusion between the colonial masters and the ‘rightist’ stream of Malay nationalists, overwhelmingly consisting of Englisheducated bureaucratic elites whose religio-political outlook was solidified in a secular environment, eventually delivered independence to Malaya (Ahmad Fauzi 2007: 389). At the other end of the 177

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ahmad fauzi abdul hamid and zawawi ibrahim political spectrum was the ‘leftist’ stream of Malay nationalists who had absorbed many facets of Islamic modernist-reformist discourse and whose take on religion and secularism was more sophisticated and less rigid. One such example was consummate Malay politician-cum-thinker Dr Burhanuddin Al-Helmy (1911–69), who saw Islamic political aspirations as blending both theocratic and secular ideals; ‘secular’ insofar as they corresponded to Islamic doctrine that condones application of the rational faculty and democratic consultation known as syura (Kamarudin 1980: 209–10). In the ethnically segmented society of pre-independence Malaya, Burhanuddin also adopted a less racialist and more open policy of absorbing non-Malays into the ‘Malay’ category.4 This was vividly demonstrated in the 1947 People’s Constitutional Proposals, which he masterminded as leader of the Malay-dominated Pusat Tenaga Ra’ayat (Centre for People’s Power, PUTERA) in alliance with the non-Malay All-Malayan Council of Joint Action (AMCJA) (Ahmad Fauzi 2011: 82). Unfortunately, despite having engendered a kind of pre-nationalism in the 1930s, by the 1940s modernism-reformism had lost most of its appeal to the lay Malay populace, eclipsed by the pressing need for political freedom under the general impression of an enveloping non-Malay threat to Malay hegemony (Ahmad Fauzi 2007: 381). From 1956 until his death in 1969, Burhanuddin was to channel his energies as President of the Pan-Malayan Islamic Party (PMIP), later known as the Islamic Party of Malaysia (Parti Islam SeMalaysia, PAS). Insofar as the secular relates to ‘this world’ rather than ‘the next world’, the corporeal rather than the metaphysical realm, the Federal Constitution exhibits unabashedly secular characteristics. For instance, rather than being upheld for its intrinsic value as a faith which connects humans with God, Islam is foregrounded to serve a secular purpose, that is, that of ethno-culturally determining the identity of a ‘Malay’ as defined in Article 160(2): ‘a person who professes the Muslim religion, habitually speaks the Malay language, conforms to Malay custom’ (Malaysia 1998: 113). Through Article 153, Malays, together with natives of Sabah and Sarawak following the formation of Malaysia in 1963, are regarded as the indigenous Bumiputera (literally, sons of the soil) group, who qualify for secular benefits under the ‘special position’ clause (Means 1978: 393–4; Malaysia 1998: 107).

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governance of religious diversity in malaysia Under the so-called Bargain of 1957, the aforesaid privileges, together with provisions to ensure the positions of Islam as the official religion, of Malay sultans as heads of the various states and of Malay as the national language, were quid pro quos for non-Malay demands for relaxed conditions for citizenship, the continued use of the English language in official matters for ten years and the preservation of the free market economy (Milne and Mauzy 1986: 28–30). As with other temporal matters, the terms of the Bargain were understood by interested parties of the time to be temporary, that is, not binding beyond prevailing circumstances where socio-economic segmentation along ethnic lines was widespread. Buoyed, however, since the mid-1980s by UMNOcentric calls to defend ‘Malay supremacy’ (Ketuanan Melayu) – a notion which only appeared after the New Economic Policy (NEP) had institutionalised affirmative action to empower Bumiputera (Zawawi 2013) – the Bargain acquired a socio-psychological status of a ‘social contract’, a transgression of which was considered to have betrayed the terms and conditions on which the nation was supposed to have been founded (Puthucheary 2008: 12–23). This period when the NEP was nearing its end in 1990 coincided with the height of Islamic resurgence in Malaysia (Nagata 1984; Chandra 1987), so much so that Malay supremacy was often conflated as Islamic dominance, in spite of the concept’s religiously spurious basis (Muhammad Haniff 2007: 294, 306). In the immediate post-independence period, the position of Islam as amounting to no further than the country’s official religion was upheld by UMNO leaders such as Tunku Abdul Rahman, who once asserted, ‘this country is not an Islamic State as it is generally understood, we merely provide that Islam shall be the official religion of the State’ (quoted in Ahmad Ibrahim 1985: 217; cf. Tunku Abdul Rahman 1977: 246). Jurisdiction over Islam was left to the various states which form the federation, each of which instituted a Council of the Islamic Religion (Majlis Agama Islam) to aid and advise their Malay Rulers or sultans in their capacity as heads of the Islamic religion,5 a Department of Religious Affairs (Jabatan Agama Islam) to handle the daily affairs of Muslims and syariah courts to adjudicate in Muslim matters (Ahmad Ibrahim 1985: 216). Authority of the syariah courts covers only Muslim personal law – successor of the Muhammadan law of the colonial era – subsuming only family

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ahmad fauzi abdul hamid and zawawi ibrahim law, charitable property, religious revenue, places of worship and religious offences such as adultery and other forms of sexual misconduct, defamation, non-payment of alms and consumption of liquor (Abdul Majeed 1985). Even then, syariah courts can only mete out punishments that do not go beyond the stated maximum imprisonment or fine under federal law, making it impossible for them to impose the Qur’anic hudud6 code. The restrictions on syariah courts, collectively known as the 3-6-5 safeguards, mean that punishments they impose cannot exceed three years’ imprisonment, six strokes of the cane and RM5000 in fines (Abdul Hadi 2002: 30). On account of such limitations, Malaysia’s syariah doyen Professor Ahmad Ibrahim once held the view that ‘the provision that Islam is the religion of the Federation’ was of little consequence (Ahmad Ibrahim 1974: 6–7, 11–13). In fact, before the onset of Islamic resurgence, there prevailed a general consensus that Malaysia’s politico-legal make-up was secular in intent even if not fully secular in practice by virtue of the various ways in which the powers that be applied Article 3(1) to their political advantage (Norani et al. 2008: xvi–xvii). Nowhere in the Federal Constitution is it mentioned that law in Malaysia is interpreted by recourse to syariah; on the contrary, Article 160(2) defines law as including ‘written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof’ (Malaysia 1998: 113). What Malaysia operates is a hybrid system in which a grey line exists between secularity and Islamicity. While secularists would see the situation as one of ‘Islam in a secular state’, Islamists would argue that Malaysia tolerates ‘secularism in an Islamic state’. In his 2001 High Court ruling in Lina Joy v Majlis Agama Islam Wilayah & Anor, Justice Faiza Tamby Chik, despite acknowledging the existence of a previous case which establishes Malaysia as a secular state that allows the implementation of syariah laws which are not inconsistent with the Federal Constitution, adopts the trailblazing view that: Article 3(4) does not have the effect of reinforcing the status of the Federation as a secular state . . . Malaysia is not purely a secular state like India or Singapore but is a hybrid between the secular state and the theocratic state. The constitution of this hybrid model accord 180

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governance of religious diversity in malaysia [sic] official or preferential status to Islam but does not create a theocratic state like Saudi Arabia or Iran . . . Article 3(1) has a far wider and meaningful purpose than a mere fixation of the official religion. (Faiza Tamby Chik 2004: 128)

Faiza Tamby Chik’s verdict opened the floodgates for a flurry of rulings that broadened the interpretation of Article 3(1) such that serious doubts were thrown on Malaysia’s ‘secular state’ status. As the argument goes, although the Federal Constitution refrains from explicitly mentioning Malaysia as an Islamic state, the fact that it positively authorises the setting up and management of Islamic institutions and the enactment of Islamic by-laws by state assemblies is proof that Malaysia cannot be categorised as a secular state either (cf. Zainul Rijal and Nurhidayah 2007; Norizan 2007; Aidil 2014; Concerned Lawyers for Justice 2014). As legal expert Professor Shad Saleem Faruqi (2005: 270–5) notes, the existence of constitutional provisions that institutionally empower Islam such as those that legitimise the posts of mufti7 and kadi8 and enable the federal government to disburse preferential funds towards the advancement of Islam, would have been impossible in a secular state.9 Article 11(4) even mandates state legislatures and Parliament in the case of federal territories to ‘control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam’ (Malaysia 1998: 107). In 1988, a landmark decision was made by amending Article 121 so as to include clause (1A) which prevented federal courts from exercising any ‘jurisdiction in respect of any matter within the jurisdiction of the Syariah courts’ (Malaysia 1998: 79). Article 121(1A) effectively raised the status of syariah courts and judges to be on a par with their civil counterparts. However, within one decade it had caused disquiet among non-Muslims following a spate of highprofile court cases involving disputed conversions into and out of Islam and claims made by state Islamic authorities to bodies of the alleged converts upon their deaths, in which civil courts were reluctant to interfere, thus leaving non-Muslim litigants with no legal remedy (Ooi 2007: 184–6; Marzuki 2008: 162–9, 172–81). The shift in legal thinking towards a more comprehensive understanding of Islam as pertaining to the Constitution appeared to have been triggered by the rising political will of ruling politicians. At the peak of his power in September 2001, having outflanked a 181

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ahmad fauzi abdul hamid and zawawi ibrahim valiant challenge to his rule from his former deputy Anwar Ibrahim whom he had dismissed from UMNO and the government three years earlier, Prime Minister Mahathir Mohamad shockingly declared in front of delegates to the annual assembly of UMNO’s coalition partner Malaysian People’s Movement (Gerakan Rakyat Malaysia, GERAKAN) that Malaysia had, to all intents and purposes, already become an Islamic state. Astonishing as it was, one should not ignore the fact that immediate political calculations were foremost in Mahathir’s mind. Mahathir’s declaration was merely a direct response to PAS President’s Fadzil Noor’s challenge (Liew 2007: 112–13), and intended to pinch the Islamic state agenda away from PAS, whose collaboration with Anwar Ibrahim’s National Justice Party (Parti Keadilan Nasional, KEADILAN)10 and the non-Muslim dominated Democratic Action Party (DAP) had eroded a huge chunk of Malay-Muslim votes from UMNO and the National Front (Barisan Nasional, BN) ruling coalition in the 1999 general elections (Maznah 2003: 75–9).11 Clues that Mahathir was bracing for his Islamic state pronouncement can be found in an Islamic State Discussion (Muzakarah Daulah Islamiah) hastily convened slightly more than a month earlier and chaired by his Religious Advisor, Dr Abdul Hamid Othman. Gathering seventy religious scholars and notables, the Muzakarah concluded that Malaysia unequivocally qualified as an Islamic state on the basis that its administrative, political and religious affairs were controlled by Muslims, regardless of whether hudud was implemented or not (Saifulizam 2001; JAKIM 2008). That Mahathir was being politically expedient more than anything else is underlined by his insistence that despite his declaration, nonMuslims had every right to continue to perceive Malaysia as being a secular state (Asuki and Nizam 2001). The ‘Islamic state’ he had in mind, in other words, was not meant to be generically applied to all; exploiting the Islamic sentiments of the Malay-Muslims, it was a rhetorical device to convince them that Islam and their fate were safe in the hands of UMNO. In June 2002, Mahathir reinforced his stance by projecting Malaysia to be a ‘model Islamic fundamentalist state’ rather than a ‘moderate Muslim state’ (Ooi 2006: 176). Nonetheless, Mahathir’s Islamic state pretensions emboldened a host of doctrinaire Islamists, a lot of whom were by now part of the Islamic bureaucracy which had expanded by leaps and bounds during his tenure in power (Norani et al. 2005: 90–1; Maznah 182

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governance of religious diversity in malaysia 2013), to discursively essentialise Islam and secularism in bifurcated terms as binary opposites of one another. In the public space, concepts and ideologies such as ‘secularism’, ‘liberalism’, ‘humanism’, ‘capitalism’ and ‘pluralism’ were being played out as antitheses to Islam that carried the same ‘anti-religious’ baggage (cf. Soon 2008; Mohamed Elfie 2008). Amendments to extant statutory laws were justified by recourse to the syariah as the Grundnorm or ‘cardinal foundational principle’ with supposed eternal authority over Malay-Muslims (Norani 2008: 46–7). Islam, or rather Islamism, was bringing the two hitherto political foes, UMNO and PAS, closer together ideologically, in fact close enough to alarm non-Muslim civil society and political leaders into mobilising openly against the very idea of an Islamic-oriented polity (Riddell 2005: 182–4). In defence of non-Muslim rights, religious Christians, for instance, were cornered into a position of unabashedly defending the secular state, as defined in contradistinction to an Islamic state (Yeoh 2011: 87–93). UMNO–PAS convergence on Islamist matters appeared in the form of a discursive shift from whether Malaysia should be an Islamic state, to when and how an Islamic state could be achieved to best serve the Malay-Muslims (Kessler 2008: 63–4). Mahathir’s successor Abdullah Ahmad Badawi’s promotion of Islam Hadhari (civilisational Islam)12 during his Premiership (2003–9) failed to defuse the polarising polemic pitting the Islamist and secularist camps. Deprived of intellectual credibility and perennially suffering from poor implementation and weak infrastructural support from the government’s own Islamic officialdom, Islam Hadhari lost in the battle of ideas against the rising force of Islamist conservatism which saw in it a reincarnation of ‘liberal Islam’ (Kessler 2008: 71–6; Ahmad Fauzi and Muhamad Takiyuddin 2014). Haji Abdul Hadi Awang (hereafter ‘Haji Hadi’), who assumed the leadership of PAS in 2003, castigated Islam Hadhari as a ‘hybrid religion’ that permits the simultaneous practice of compartmentalised Islam alongside un-Islamic elements, and thus a potentially deviant bid’ah (religious innovation) (Abdul Hadi 2005: 24–34, 50, 90, 130, 196). In response to Islam Hadhari, Haji Hadi outlined five defining features of an Islamic state that he claimed to derive from the Qur’an and traditions of the Prophet Muhammad, namely, a congregation (jamaah) which upholds Islam as the state creed and internalises it 183

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ahmad fauzi abdul hamid and zawawi ibrahim in individual and social lives, an independent and sovereign country, a constitution which exalts the syariah, and citizens administered by Islamic law’s absolute justice regardless of their religious affiliation (Abdul Hadi 2005: 54–5). Clearly, Haji Hadi’s Islamist vision does not allow for any legal dualism which Malaysia has been practising in some jurisdictional areas since independence. Abdullah Badawi’s Western-educated deputy, Najib Razak, aggravated the developing tension by categorically affirming Malaysia’s Islamic state status to the point of denying that it had ever been or would ever be a secular state, igniting protests from non-Muslim religious and political leaders (Norani 2008: 49–50; Tan 2008; Lim 2008). While Abdullah quickly engaged in damage limitation by repudiating both a theocracy and secular state label for Malaysia (Vinesh 2007), the country’s Chief Justice and Attorney General appeared more willing to act on Najib’s than Abdullah’s cue. They floated the idea of a syariah-based code to supplant English common law as the basis of Malaysia’s legal system, triggering voices of disapprobation from the Bar Council, among others (Norila 2007; Koshy 2007; The Star Online 2007). As the golden jubilee of Malaysia’s independence neared, Faruqi summed up the worrying state of affairs enveloping Malaysia’s legalscape: a critical mass of Muslim lawyers, judges and politicians has adopted the view that Islam is the core, central, overriding feature of the Constitution . . . State Assemblies have been enacting laws and authorising administrative actions that violate the human rights guarantees of Articles 5–13, imposing penalties far beyond their powers, and trespassing on federal jurisdiction. Because all this is done in the name of religion, politicians look the other way. Most judges are reluctant to test these laws or actions on the yardstick of the Constitution. Painful dilemmas are arising in cases where one of the litigants is Muslim and the other non-Muslim. (Faruqi 2007)

Paradoxically, the Malaysian-style syariahisation, understood here as the institutionalisation of syariah-based values, norms and categories in the discourse and practice of Malaysia’s legal corpus, was proceeding apace whilst being attached to the larger secular judicial framework as sanctioned by the Federal Constitution (Ahmad Fauzi 2016: 32). The gradual incorporation and codification of syariah-based statutes were dependent on secular structures, personnel and rationalisation, hence enabling one to 184

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governance of religious diversity in malaysia question whether Malaysia’s syariah laws, having themselves been subjected to secularisation, were fit to be accorded a hallowed status (Maznah 2010: 512). Seven years on from Malaysia’s fifty-year anniversary of its founding, the situation has taken a turn for the worse in Faruqi’s view: Article 3(1) on Islam is trumping all other provisions of the Constitution, including the chapter on fundamental rights . . . Are syariah authorities subject to the Federal Constitution? Or is it the case that once they invoke the holy name of Islam, hukum syarah [sic], fatwa or a State Syariah Enactment, they have a blank-cheque power to do whatever is necessary to promote good and prevent evil? (Faruqi 2014)

Efforts undertaken by PAS to implement hudud in states it controlled, namely, Kelantan (1990–) and Terengganu (1999–2004), similarly involve human agency. Opinions have diverged, for instance, on the issues of the suitability and timing of and the nature and quantum of punishments prescribed by hudud laws (cf. Kamali 1998; Ahmad Fauzi 2009: 170–6). Irrespective of the fact that political dynamics has been more important than one would imagine for issues as central to the Malay-Muslim religious lives as that of installing ‘God’s law’ (Ahmad Fauzi 2015), opponents of hudud were being branded as diehard defenders of secularism. The question of the extent to which hudud was urgent in a multi-religious polity like Malaysia caused a huge split within the ranks of PAS during its General Assembly in June 2015, leading to the creation a splinter party, Parti Amanah Negara (National Trust Party, AMANAH). One of the most serious allegations levelled by PAS President Haji Hadi against PAS’s professionals’ faction who later left PAS and formed AMANAH was that they wanted to transform PAS into a secular party (Khalid 2015). In Malaysian Islamists’ imagination, hudud has now become the definitive criterion of an Islamic state, with increasingly overlapping perspectives between PAS, UMNO and government religious figures (Norshahril 2014: 54–9). After several stalled attempts during Najib Razak’s Premiership (2009–) to introduce private member’s bills to pave the way for the implementation of hudud in Kelantan (Ahmad Fauzi 2015: 209–13), in late May 2016 Haji Hadi managed to present in Parliament the bill which would dispense with the 3-6-5 safeguards. Dubbed the ‘hudud Bill’, the Syariah Courts (Criminal Jurisdiction) Bill 355 (Rang Undang-undang 355, RUU355) seeks to amend 185

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ahmad fauzi abdul hamid and zawawi ibrahim Section 2 of the Syariah Courts Act (Criminal Jurisdiction) 1965 [Act 355], thereby empowering syariah courts to mete out heavier penalties than imposed at present against Muslim perpetrators of offences listed under Schedule Nine of the Federal Constitution, except the death penalty. Although the debating of the bill was postponed to the next parliamentary session, the fact that it could make itself heard on the final day of the parliamentary session, jumping the queue over government bills listed in the Standing Order, was by itself unprecedented. Speculation had been going on for months that relations between Najib Razak and Haji Hadi had warmed to such an extent that PAS might join BN after the breakup of its alliance with PKR and DAP in the People’s Pact (Pakatan Rakyat, PR) coalition, but their tacit collusion over the tabling of RUU355 still caught UMNO’s non-Muslim coalition partners off guard (Cheng et al. 2016; Chan and Mazwin 2016). The latest hudud affair has driven the wedge further between advocates of the secular state on one side of the religio-political divide and its opponents on the other, with non-Muslim members of Najib’s cabinet even threatening to resign should RUU355 be passed. This was despite Najib’s and PAS’s assurances that RUU355’s contents do not amount to hudud and would not affect non-Muslims (Hanis 2016; Adam 2016). As far as detractors of RUU355 are concerned, the whittling away of secularism implicit in RUU355’s breaching of constitutional guarantees for equal protection of citizens before the law would constitute a fundamental change to Malaysia’s politicolegal structure, thus laying the path for it to become a fully-fledged Islamic state in the future (cf. The Star Online 2016; Singh 2016; Mohamad Siddiq and Fatihah 2016).

Is there hope for a synthesis? Over the last one and a half decades, religio-political discourse in Malaysia has ossified in a manner which pits Islam and secularism against each other as binary opposites, as institutionally represented in a juridical Islamic state and Malaysia’s extant federal state respectively. Society has been polarised along this line, with support for each camp cutting across partisan affiliations. If we take two extremes of the opposite poles, the ideological positions of PAS under Haji Hadi’s leadership and the avowedly secular DAP have reached such irreconcilable proportions that the Anwar Ibrahim-led 186

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governance of religious diversity in malaysia PR coalition, in which both parties had participated and through which they contributed to the opposition’s unprecedented electoral advances in the 2008 and 2013 general elections, broke up in June 2015. To Haji Hadi, secularism is intimately connected to Christianity in deviant form, Freemasonry, a global Zionist conspiracy and colonialism (Abdul Hadi 2007: 9–16). Tracing the origins of secularism in the ummah to the colonial era, the separation of religion and state and the privatisation of religion occupy the most damaging aspects of secularism on Muslim lives (Abdul Hadi 2008: 173). Haji Hadi is the author of an infamous 1981 tract, Amanat Haji Hadi, which has been blamed for causing rampant Malay-Muslim disunity by effectively apostasising UMNO members for retaining an infidel constitution and separating religion and politics (Badlihisham 2009: 67–73). Despite receiving sustained rebuke over violence allegedly arising from the Amanat’s inflammatory message, Haji Hadi has never disowned it. In a treatise defending the Amanat, Haji Hadi lambasted secularism for dragging Muslims into committing greater idolatry (Arabic: shirk Akbar) – an unpardonable sin in Islam. It was obvious though that the secularism Haji Hadi had in mind was the hard anti-religion version practised by Mustafa Kemal Atatürk (1881–1938) in early twentieth-century Turkey (Abdul Hadi 2002: 26–7). In his refutation of Islam Hadhari, Haji Hadi referred to the thoughts of, among others, Maududi and the Egyptian Ikhwan al-Muslimun (Muslim Brotherhood, MB) ideologue Sayyid Qutb (1906–66), who was himself ideologically influenced by Maududi (Abdul Hadi 2005: 2021; Wiktorowicz 2005: 78). This Maududicum-Qutb strand of Islamism, embracing a Manichean worldview between good (read: Islam) and evil (read: ignorance [jahiliyyah] aka non-Islam) and elevating syariah as part of belief (aqidah) thus allowing for the excommunication of unobservant Muslims, was way too radical for Malaysian Islam (Mohamad Fauzi 2007: 58, 102–9, 132–3). At the other end of the political spectrum, DAP consistently professes belief in a democratic secular state as the only viable option for a modern Malaysian polity, but maintains that this does not mean it is anti-Islam. As long-time party supremo Lim Kit Siang explains, the secular governance he espouses, in contrast with typical notions of ‘secular’, ‘is not atheist, anti-Islam, or anti-religion but trans-religion . . . a system of governance which upholds the spiritual and ethical values which are common to Islam and other 187

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ahmad fauzi abdul hamid and zawawi ibrahim great religions’ (Lim 2001: 54, 73). Such a polity would in fact be, claims Lim, ‘morality-based and pro-Islam, pro-Christianity, pro-Buddhism, pro-Hinduism and pro-Sikhism in defending and enhancing the multi-religious characteristics and diversity of the Malaysian nation’ (Lim 2012). While secularism à la DAP does not imply the relegation of religion to the private realm, it advocates state neutrality towards all religions – a notion that would incite protests from PAS, UMNO and government Islamists who demand that Islam be given a preferential position over other religions. As for hudud, DAP believes that its application in a modern context would be meaningless if higher objectives of the syariah (maqasid syariah)13 are not fulfilled (Zairil 2016). This position is in sync with the stance taken by Anwar Ibrahim’s mentor Ismail Raji Al-Faruqi and Abdullah Badawi through his Islam Hadhari scheme (Ahmad Fauzi 2009: 178–9, 2016: 36). In fact, DAP surmises that the terms ‘secularism’ and ‘liberalism’, unilaterally tagged to UMNO’s political rivals, have been deliberately made punching bags by ruling elites in a bid to frighten Malay-Muslims from voting opposition parties, for fear of getting entangled with ‘antiIslamic’ forces (Zairil 2014). In the civil society realm, endorsement of secularism and the secular state has been forthcoming from the Islamic Renaissance Front (IRF), launched in December 2009 and led by physician Dr Ahmad Farouk Musa (Ahmad Fauzi and Che Hamdan 2016: 10). Contemporary Malay-Muslim religious discourse has suffered from an unduly strong politico-legal bent, thus consigning philosophical and spiritual aspects of Islam to the periphery of their religious imagination. Islam is defined, interrogated and essentialised through thoroughly institutional lenses, invariably taking up politico-legal colouring. Content-wise, religion is internalised more as a series of physical injunctions and prohibitions, with emphases being mostly placed on Islam’s legalistic and credal aspects. Surveys of Islamic studies courses at the tertiary level prove the peripheral positions occupied by Sufism and philosophy as academic disciplines in Malaysia (Wan Suhaimi 2007; Che Zarrina 2007). ISTAC’s closure in 2015 is another manifestation. In his preface to a later edition to his book, Islam and Secularism, Syed Naquib al-Attas (2011: xxviii) asserts that Islam recognises no dichotomy between the sacred and profane, and an Islamic state can be neither wholly theocratic nor fully secular. His attacks 188

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governance of religious diversity in malaysia on secularism and secularisation had been misappropriated for political purposes rather than being appreciated as a philosophical programme. The politico-legal bias has created exclusive discursive domains among Malay-Muslims, hence explaining their lukewarm attitudes towards inter-religious dialogue with non-Muslims (Hunt 2009: 588). The study of critical scholarship is sorely missing from the curricula of Islamic studies programmes at institutions of higher learning (Muhammad Nur 2011: 153–4). The works of renowned Muslim scholars who have cogently argued for greater compatibility between Islam and secularism such as Asghar Ali Engineer (2006), Abdullahi Ahmed An-Na’im (2008) and Abdolkarim Soroush, whom even DAP’s Lim Kit Siang has quoted in his explication of secularism (Lim 2001: 73), remain ignored and shunned by the present cohorts of Malay-Muslim Islamic scholars. Disproportionate attention is given to syariah studies, a degree in which could land graduates lucrative careers in the expansive Islamic bureaucracy or private Islamic schools and colleges. What is lacking in Malaysia is the practice of Islam as also a ‘civil religion’ that is cognisant of its diversity and the rights such diversity entails to assorted sections of its plural society – the kind one finds in neighbouring Indonesia, where ‘twin tolerations’ exist between the secular democratic institutions and the religious establishment (Stepan, this volume). As both An-Na’im and Soroush confirm in separate interviews with Malaysian political scientist Farish Noor, virtues of secularism lie in its safeguarding pluralism, fostering a political culture that treats equally all competing interests and respecting individual rights (Farish 2002: 7, 17; see also Zawawi 2008, 2017). And as Alfred Stepan asserts in this volume, the ‘secularism–traditional’ binary often used in modernisation literature neither prevailed in practice anyway, nor is it desirable in the present context of nation-states hardly being homogeneous. By virtue of its successful synthesis between religion and secularism, Indonesia has consistently outshone other Muslim-majority states in all available indices measuring the quality of democracy. Ironically, syariahisation – the bane of contemporary Malaysian Islam – can itself be interpreted as evidence of the secularisation. Understanding religion as a compartmentalised phenomenon characterised mainly by institutionalisation, its role has been steered towards Malaysian-oriented worldly motives, sometimes to the detriment of the welfare of the ummah. It has been appropriated, 189

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ahmad fauzi abdul hamid and zawawi ibrahim for instance, towards furthering Malay ethnocentric ends. At this juncture, it is apt to consider the Sufi-centric views of Ashaari Muhammad (1937–2010), former founder-leader of Darul Arqam, a transnational Islamic movement banned in Malaysia since 1994 for alleged heterodoxy despite absence of incriminating evidence in support of the fatwa against it (Ahmad Fauzi 2005, 2006: 99–106). A prolific author of religious treatises subtly critical of both Malaysia’s religio-political establishment and its Islamist critics, Ashaari defines ‘secularism’ as an ideology which enjoins the conduct of one’s life without any connection whatsoever to God and to otherworldly concerns related to life after death. ‘Secularists’ can consequently, according to Ashaari, be divided into six categories. First, those who repudiate any notion of the Divine and the Hereafter. Second, non-Muslims who believe in God and the Hereafter but whose conduct of life is separated from such sacred concerns. Third, Muslims who believe in God but restricts the religious realm to only matters of worship. Fourth, Muslims who believe in the comprehensiveness of Islam but refuse to practise Islam in totality to safeguard their worldly interests. Fifth, Muslims who do practise Islam in accordance with its prescribed stipulations but for invariably worldly purposes. Sixth, Muslims who, after doing whatever is enjoined by Islam in its manifold aspects, refuse to share God’s material bounties with fellow humankind (Ashaari 2005: 609–13). Ashaari’s idiosyncratic use of the term ‘secular’ effectively censures a large number of Muslims as de facto ‘secularists’ without their realising it. These include Islamists whose struggle denigrates sacred purposes, for example exalting God and His Word, in favour of worldly intentions, for example erecting an Islamic state in pursuit of pragmatic ends. Ashaari thus castigates PAS as a ‘secular Islamic party’ whose ideological basis is ‘secularism’ garbed in Islamist clothing rather than religion (Ashaari 2007: 50). The Islamic state has replaced God in doctrinaire Islamists’ list of priorities, hence rendering them and their struggle ‘secularist’ rather than Islamic.

Concluding remarks Malaysia’s foundations as a nation-state have been rooted in both Islam and secularism since before independence. Such secularism is of the soft variety which assigns religion a constricted role in 190

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governance of religious diversity in malaysia the public realm, without permanently consigning it to the periphery. Over the last couple of decades, however, in contrast to the symbiotic relationship between Islam and secularism as originally envisioned by the country’s constitutional drafters, the balance has been gradually shifting towards the former in its versions of Islamism and syariahisation. Are Malaysian contemporary polemics on ‘Islam versus secularism’ then due primarily to semantics? As spelt out by Faruqi, what has taken place is ‘the assignment of different meanings to the same word by participants in a discourse’ when the grave reality is that ‘there is no ideal or prototype secular or Islamic state that one could hold up as a shining model or paradigm of one or the other’ (Faruqi 2004: 88). While Malaysian Islamists struggle to install Islam as the major factor in statecraft, Malaysian secularists insist on a minimalist role for Islam as traditionally understood by the country’s founding fathers. Until we reach a stable equilibrium, one way forward would be to look into their commonalities rather than their differences. In addressing the apparent conflation of terminologies and concepts on a global scale, Moten notes, ‘if secularism is defined as belief in pluralism and respect for all religions, then Islam may also be called secular’ (Moten 2005: 233). It is no secret that many Middle Eastern and African Muslim governments look favourably upon Malaysia as a model of a modern nation-state worth emulating. This has its roots in the successful synthesis between Islam and what is negatively perceived by outsiders as ‘secular modernisation’, but which in Malaysia has assumed a tenor less antithetical to religion, willing even to accommodate it. One is further encouraged by the fairly recent emergence of Muslim-based discourses that project an inclusive, rather than a typically Islamist-influenced exclusive, conception of Islam as a universal faith. Rather than arbitrarily imposing prejudicial and dogmatic categorisations upon the ‘Other’, such an accommodative approach interprets Islam to be well within the long line of great religious civilisations which together share an ultimate spiritual-moral vision of global justice and peace; one which transcends barriers of culture, ethnicity and nationality while connecting humankind to the Divine (cf. Chandra 2010, 2011; Ahmad Fauzi 2013: 24–30). Such locally derived visions can be allowed to synthesise with innovative foreign ideas built upon a deep simultaneous respect for both commitment to one’s religion and religious 191

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ahmad fauzi abdul hamid and zawawi ibrahim diversity, as put forward by Gurpreet Mahajan in this volume. As Mahajan argues, secularism’s language of choice has been premised on a misunderstanding of the nature of religious commitment, leading modern states, as commonly dominated by the ethno-religious majority, to frame policies based on tolerating instead of understanding the ‘Other’. Understanding, claims Mahajan, involves open appreciation of one another’s differences without the need to suspend judgement or lead separate lives. Mutual understanding requires adjustments from both majority and minority communities in that absolutist values held by them may need to be moderated in the interests of social harmony, as in the case of freedom of speech in the West. In Malaysia, however, such discursive novelties admittedly still remain outside mainstream state-controlled discourses, and thus beyond the reach of the politically docile Malay-Muslim masses. The challenge that lies ahead for pluralist Malay-Muslims is to push forward their agenda for reforming the mindset of their ethno-religious brethren through innovative means, until it becomes internalised on the ground. In the age of information and communications technology (ICT), when knowledge acquires transnational characteristics, this is not impossible, barring language barriers which the government has all along expressed its determination to overcome.

Notes 1. On 16 September 1963, the nation-state of Malaysia was founded out of the merger between Malaya, known today as Peninsular Malaysia, and Singapore, Sabah and Sarawak – two states in Borneo island – forming a single federation. In August 1965, Singapore left the federation to establish an independent country on its own. 2. From constituting 37 per cent of Malaya’s population upon independence in 1957, the ethnic Chinese now form between only 20 to 30 per cent of the population. This ratio has been projected to further decline in the future due to a falling birth rate among the Chinese and a rising proportion of foreign migrant labour. Ethnic Indians form less than 10 per cent of the population, while various indigenous groups from the Peninsula, Sabah and Sarawak – both non-Muslim and Muslim – make up 10–15 per cent of Malaysians. 3. ‘Islamist’ here refers to a believer-cum-practitioner of ‘political Islam’ – understood as the institutional expression of Islamism as a political ideology that has as its ultimate goal the establishment of a juridical Islamic state. As an adjective, ‘Islamist’ is to be distinguished from ‘Islamic’, which pertains to Islam as a religious faith.

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governance of religious diversity in malaysia 4. While it has been axiomatic to speak of Malaysia’s population in terms of the ‘Malay–Chinese–Indian’ ethnic divisions, groups like the Eurasians and various Orang Asli (literally, Original People) tribes have long become part of the country’s diverse racial make-up, pre-dating independence in 1957. Upon the formation of Malaysia in September 1963, the Bumiputera (literally, sons of the soil) category was created, subsuming the Malays – all of whom are legally Muslims, the Orang Asli, indigenous groups of Sabah and Sarawak – both Muslim and non-Muslim, and other non-Malay ethnic groups considered native to Malaysia such as the Siamese of northern Peninsular Malaysia and the Portuguese of Malacca. 5. In the case of states without hereditary Sultans, namely, Malacca, Penang, Sabah, Sarawak and the Federal Territories of Kuala Lumpur and Labuan, the role of head of Islamic religion was assumed by the Yang diPertuan Agong – the constitutionally appointed monarch rotated every five years among the nine Rulers. 6. Hudud punishments are criminal penalties instituted by the Qur’an and Sunnah (exemplary traditions of Prophet Muhammad) after lawful conviction in a court of law, such as amputation of the hand for thieves, flogging of eighty lashes for consuming intoxicating liquor, flogging for libel, stoning to death for adultery and flogging of one hundred lashes for fornication. 7. A mufti is a religious scholar authorised by a government to issue fatwa – an authoritatively considered legal opinion which provides guidance for Muslims. In Malaysia, however, a fatwa is more than just an opinion; it is binding upon Muslims of a particular state after being passed and gazetted by the state legislative assembly. Non-compliance to a fatwa is criminalised, leading to the possibility of being charged and convicted in a syariah court. 8. A kadi or qadi is a religious scholar qualified to be a judge or jurist or magistrate and based in syariah courts or religious offices that perform extra-judicial functions. 9. It may be germane to note that based on this definition, most nation-states in Western Europe hardly fit into the ‘secular state’ category either, as some other chapters in this volume show. 10. By 2001, Anwar Ibrahim was languishing in jail after having been found guilty of corruption and sodomy in 1999. In 2003, KEADILAN merged with the socialist-oriented People’s Party of Malaysia (Parti Rakyat Malaysia, PRM) to form the People’s Justice Party (Parti Keadilan Rakyat, PKR) led by Anwar’s wife, Wan Azizah Wan Ismail, as President. 11. Since 1974, Malaysia’s federal government has been helmed by BN, a multiethnic coalition of thirteen component parties whose precursor, the Alliance (Perikatan) – made up of UMNO, MCA and MIC – ruled the country from 1957 until the suspension of parliamentary democracy following racial riots in May 1969. Two former opposition parties, GERAKAN and PAS, which had defeated Perikatan in the states of Penang and Kelantan respectively in the 1969 general elections, were part of the original BN set-up, but while GERAKAN remains in BN until today, PAS was expelled in 1977. In the wake of Anwar Ibrahim’s expulsion from UMNO and the government in 1998, BN was challenged in the 1999 general elections by the Alternative

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ahmad fauzi abdul hamid and zawawi ibrahim Front (Barisan Alternatif, BA) comprising KEADILAN, DAP, PAS and PRM (see also above note 10). BA, however, lasted only until 2001. In 2008, immediately following the opposition parties’ success in denying BN a two-thirds parliamentary majority and wresting the state governments of four other states besides Kelantan which had been under PAS’s control since 1990, the People’s Pact (Pakatan Rakyat, PR) was formed to unite DAP, PKR and PAS. PR broke up in 2015 due to an internal rupture in PAS, whose progressive faction then founded the National Trust Party (Parti Amanah Negara, AMANAH) that continues to cooperate today with DAP and PKR in a newly constituted coalition called the Pact of Hope (Pakatan Harapan, PH). Of the three opposition-ruled states in Malaysia today, Kelantan has become a solitary PAS administration since 2015, while Penang and Selangor are officially PH- and previously PR-led governments marshalled by DAP and PKR respectively. 12. Guided by ten universal precepts, Islam Hadhari calls for values and principles of a state to be compatible with Islam, without necessarily forging a state which incorporates the Islamic legal framework, understood as being constantly prone to change and not fixed. In practice, Islam Hadhari necessitates a reappraisal of past judgments based on independent reasoning (ijtihads) so as to make them relevant to contemporary developments. See Ahmad Fauzi 2009: 178–9; Ahmad Fauzi and Muhamad Takiyuddin 2014: 162–3. 13. Maqasid syariah entails the protection of, at the very least, one’s religion (Arabic: din), self (Arabic: nafs), mind (Arabic: aql), pedigree (Arabic: nasl) and property (Arabic: mal).

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governance of religious diversity in malaysia Chandra Muzaffar (ed.) (2010), Religion Seeking Justice and Peace, Penang: Universiti Sains Malaysia. Chandra Muzaffar (2011), Exploring Religion in Our Time, Penang: Universiti Sains Malaysia. Che Zarrina Sa’ari (2007), ‘Pengajian Tasawuf di Institusi Pengajian Tinggi Awam Malaysia’ [The Study of Sufism in Public Higher Learning Institutions in Malaysia], in Mohd Fauzi Hamat, Joni Tomkin Borhan and Ab. Aziz Mohd Zin (eds), Pengajian Islam di Institusi Pengajian Tinggi Awam Malaysia [Islamic Studies in Malaysia’s Public Higher Learning Institutions], Kuala Lumpur: Penerbit Universiti Malaya, pp. 73–94. Cheng, Nicholas, Akil Yunus, Rahimy Rahim, Adrian Chan, Sira Habibu, Beh Yuen Hui, Simon Khoo, Arnold Loh and R. Sekaran (2016), ‘Liow to Quit Cabinet if PAS’ Private Member’s Bill Is Passed’, The Star Online, 29 May, (last accessed 1 February 2017). Concerned Lawyers for Justice (2014), ‘Hudud Law Reinforces the Constitution’, Malay Mail Online, 17 December, (last accessed 1 February 2017). Dobbelaere, Karel (1981), ‘Trend Report: Secularization: A Multi-dimensional Concept’, Current Sociology, 29: 2, 3–153. Engineer, Asghar Ali (2006), ‘Islam and Secularism’, in Ibrahim M. Abu-Rabi’ (ed.), The Blackwell Companion to Contemporary Islamic Thought, Malden, MA and Oxford: Blackwell, pp. 338–44. Esposito, John L. and John O. Voll (2001), Makers of Contemporary Islam, New York: Oxford University Press. Faiza Tamby Chik, J. (2004), ‘Lina Joy v Majlis Agama Islam Wilayah & Anor: High Court (Kuala Lumpur) – Originating Summons No R2–24–30 of 2000 Faiza Tamby Chik J 18 April 2001’, Malayan Law Journal, 2: 119–44, (last accessed 1 February 2017). Farish A. Noor (2002), New Voices of Islam, Leiden: ISIM. Farish A. Noor (2009), ‘Reformist Muslim Thinkers in Malaysia: Engaging with Power to Uplift the Umma?’, in Shireen T. Hunter (ed.), Reformist Voices of Islam: Mediating Islam and Modernity, New York and London: M. E. Sharpe, pp. 208–26. Faruqi, Shad Saleem (2004), ‘Constitutional Perspectives on Freedom of Religion, Secularism and Theocracy’, in Ibrahim Abu Shah (ed.), Islam, Democracy and Good Governance – The Malaysian Experience, Shah Alam: Pusat Penerbitan Universiti (UPENA), UiTM, pp. 79–102. Faruqi, Shad Saleem (2005), ‘The Malaysian Constitution, The Islamic State and Hudud Laws’, in K. S. Nathan and Mohammad Hashim Kamali (eds), Islam in Southeast Asia, Singapore: ISEAS, pp. 256–77. Faruqi, Shad Saleem (2007), ‘Bedrock of Our Nation’, The Malaysian Bar, 22 August, (last accessed 1 February 2017).

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ahmad fauzi abdul hamid and zawawi ibrahim Faruqi, Shad Saleem (2014), ‘At the Crossroads’, The Star Online, 13 November, (last accessed 1 February 2017). Fenn, Richard K. (1969), ‘The Secularization of Values: An Analytical Framework for the Study of Secularization’, Journal for the Scientific Study of Religion, 8: 1, 112–24. Fernando, Joseph M. (2006), ‘The Position of Islam in the Constitution of Malaysia’, Journal of Southeast Asian Studies, 37: 2, 249–66. Fox, Jonathan (2001), ‘Religion as an Overlooked Element of International Relations’, International Studies Review, 3: 3, 53–73. Gauhar, Altaf (1978), ‘Islam and Secularism’, in Altaf Gauhar (ed.), The Challenge of Islam, London: Islamic Council of Europe, pp. 298–310. Geertz, Clifford (1963), ‘The Integrative Revolution: Primordial Sentiments and Civil Politics in the New States’, in Clifford Geertz (ed.), Old Societies and New States: The Quest for Modernity in Asia and Africa, New York: Free Press, pp. 105–19. Geertz, Clifford (1968), Islam Observed: Religious Development in Morocco and Indonesia, Chicago: University of Chicago Press. Hanis Zainal (2016), ‘Hadi’s Bill Is Not about Hudud, Says Najib’, The Star Online, 27 May, (last accessed 1 February 2017). Hooker, Virginia (2004), ‘Perspectives on the Shari’a and the State: The Indonesian Debates’, in Virginia Hooker and Amin Saikal (eds), Islamic Perspectives on the New Millennium, Singapore: ISEAS, pp. 199–220. Hunt, Robert (2009), ‘Can Muslims Engage in Interreligious Dialogue?: A Study of Malay Muslim Identity in Contemporary Malaysia’, The Muslim World, 99: 4, 581–607. IIUM (n.d.a), ‘ISTAC: Historical Background’, (last accessed 1 February 2017). IIUM (n.d.b), ‘About Us: The Ibnu Khaldun International Institute of Advanced Research (ISLAH)’, (last accessed 1 February 2017). JAKIM (2008), ‘Malaysia Negara Islam: March 7, 2002’ [Malaysia an Islamic State: March 7, 2002], in Nathaniel Tan and John Lee (eds), Religion Under Siege? Lina Joy, the Islamic State and Freedom of Faith, Kuala Lumpur: Kinibooks, pp. 118–26. Itagaki, Yoichi (1963), ‘Criticism of Rostow’s Stage Approach: The Concepts of Stage, System and Type’, The Developing Economies, 1: 1, 1–17. Kamal Hassan, M. (1986), ‘Some Dimensions of Islamic Education in Southeast Asia’, in Taufik Abdullah and Sharon Siddique (eds), Islam and Society in Southeast Asia, Singapore: ISEAS, pp. 40–79. Kamal Hassan, M. (2003), ‘The Influence of Mawdudi’s Thought on Muslims in Southeast Asia: A Brief Survey’, The Muslim World, 93: 3–4, 429–64. Kamali, Mohammad Hashim (1998), ‘Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia’, Arab Law Quarterly, 13: 3, 203–34. Kamarudin Jaffar (1980), Dr. Burhanuddin Al Helmy: Politik Melayu dan Islam [Dr Burhanuddin Al Helmy: Malay Politics and Islam], Kuala Lumpur: Yayasan Anda.

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governance of religious diversity in malaysia Kessler, Clive S. (2008), ‘Islam, the State and Desecularization in Malaysia: The Islamist Trajectory during the Badawi Years’, in Norani Othman, Mavis C. Puthucheary and Clive Kessler (eds), Sharing The Nation: Faith, Difference, Power and the State 50 Years after Merdeka, Petaling Jaya: Strategic Information and Research Development Centre (SIRD), pp. 59–80. Khalid Samad (2015), ‘Ke mana hilangnya bijaksana, keikhlasan Hadi?’ [Where Have Hadi’s Intelligence, Sincerity Gone?], Malayskini, 1 October, (last accessed 1 February 2017). Koshy, Shaila (2007), ‘Call to Replace Common Law “Baseless”’, The Malaysian Bar, 23 August, (last accessed 1 February 2017). Liew Chin Tong (2007), ‘PAS Politics: Defining an Islamic State’, in Edmund Terence Gomez (ed.), Politics in Malaysia: The Malay Dimension, London and New York: Routledge, pp. 107–37. Lim, Ida (2012), ‘DAP’s “Secular” Stand Not Anti-Islam, Says Kit Siang’, Malaysia Today, , 13 October, (last accessed 10 February 2017). Lim Kit Siang (2001), BA and Islamic State, Petaling Jaya: Democratic Action Party. Lim Kit Siang (2008), ‘Najib Repudiating the Merdeka “Social Contract”, July 17, 2007’, in Nathaniel Tan and John Lee (eds), Religion Under Siege? Lina Joy, the Islamic State and Freedom of Faith, Kuala Lumpur: Kinibooks, pp. 152–3. Malaysia (1998), Federal Constitution with Index, Kuala Lumpur: MDC Publishers Printers. Marzuki Mohamad (2008), ‘Religion, Human Rights and Constitutional-Contract Politics in Malaysia’, Intellectual Discourse, 16: 2, 155–86. Mazhari, Maulana Waris (2012), ‘Can Islam and Secularism Dialogue with Each Other?’, trans. from Urdu by Yoginder Sikand, Islam and Muslim Societies: A Social Science Journal, 5: 1, 66–9, (last accessed 1 February 2017). Maznah Mohamad (2003), ‘The Contest for Malay Votes in 1999: UMNO’s Most Historic Challenge?’, in Francis Loh Kok Wah and Johan Saravanamuttu (eds), New Politics in Malaysia, Singapore: ISEAS, pp. 66–86. Maznah Mohamad (2010), ‘The Ascendance of Bureaucratic Islam and the Secularization of the Sharia in Malaysia’, Pacific Affairs, 83: 3, 505–24. Maznah Mohamad (2013), ‘Legal-Bureaucratic Islam in Malaysia: Homogenizing and Ring-Fencing the Muslim Subject’, in Hui Yew-Foong (ed.), Encountering Islam: The Politics of Religious Identities in Southeast Asia, Singapore: ISEAS, pp. 103–32. Means, Gordon P. (1978), ‘Public Policy Toward Religion in Malaysia’, Pacific Affairs, 51: 3, 384–405. Milne, R. S. and Diane K. Mauzy (1986), Malaysia: Tradition, Modernity and Islam, Boulder, CO and London: Westview Press. Mohamad Fauzi Zakaria (2007), Pengaruh Pemikiran Sayyid Qutb Terhadap Gerakan Islam di Malaysia [The Influence of Sayyid Qutb’s Thoughts on Islamic Movements in Malaysia], Kuala Lumpur: Jundi Resources.

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ahmad fauzi abdul hamid and zawawi ibrahim Mohamad Siddiq Azani and Fatihah Jamsari (2016), ‘Setting the Record Straight on Hudud and the Constitution’, Malayskini, 11 July, (last accessed 1 February 2017). Mohamed Elfie Niesham Juferi (2008), ‘Of Course Malaysia Is an Islamic State: July 21, 2007’, in Nathaniel Tan and John Lee (eds), Religion Under Siege? Lina Joy, the Islamic State and Freedom of Faith, Kuala Lumpur: Kinibooks, pp. 167–8. Moten, Abdul Rashid (2005), ‘Modernization and the Process of Globalization: The Muslim Experience and Responses’, in K. S. Nathan and Mohammad Hashim Kamali (eds), Islam in Southeast Asia, Singapore: ISEAS, pp. 231–55. Moten, Abdul Rashid (2006), ‘Islamic Thought in Contemporary Pakistan: The Legacy of ‘Allama Mawdudi’, in Ibrahim M. Abu-Rabi’ (ed.), The Blackwell Companion to Contemporary Islamic Thought, Malden, MA and Oxford: Blackwell, pp. 175–94. Muhammad Haniff Bin Hassan (2007), ‘Explaining Islam’s Special Position and the Politic of Islam in Malaysia’, The Muslim World, 97: 2, 287–316. Muhammad Nur Manuty (2011), ‘Islamic Studies Programs in Malaysia’s Higher Learning Institutions: Responses to Contemporary Challenges of Modernity, Globalization and Post 9/11’, in Kamaruzzaman Bustamam-Ahmad and Patrick Jory (eds), Islamic Studies and Islamic Education in Contemporary Southeast Asia, Kuala Lumpur: Yayasan Ilmuwan, pp. 137–58. Nagata, Judith A. (1984), The Reflowering of Malaysian Islam: Modern Religious Radicals and their Roots, Vancouver: University of British Columbia Press. Noaparast, Khosrow Bagheri (2012), ‘Al-Attas Revisited on the Islamic Understanding of Education’, Journal of Shi’a Islamic Studies, 5: 2, 149–72. Norani Othman (2008), ‘Religion, Citizenship Rights and Gender Justice: Women, Islamization & the Shari’a in Malaysia Since the 1980s’, in Norani Othman, Mavis C. Puthucheary and Clive Kessler (eds), Sharing The Nation: Faith, Difference, Power and the State 50 Years after Merdeka, Petaling Jaya: Strategic Information and Research Development Centre (SIRD), pp. 29–58. Norani Othman, Zainah Anwar and Zaitun Mohamed Kasim (2005), ‘Malaysia: Islamization, Muslim Politics and State Authoritarianism’, in Norani Othman (ed.), Muslim Women and the Challenge of Islamic Extremism, Petaling Jaya: Sisters in Islam, pp. 78–108. Norani Othman, Mavis C. Puthucheary and Clive Kessler (2008), ‘Introduction: A Shared Nation’, in Norani Othman, Mavis C. Puthucheary and Clive Kessler (eds), Sharing The Nation: Faith, Difference, Power and the State 50 Years after Merdeka, Petaling Jaya: Strategic Information and Research Development Centre (SIRD), pp. xiii–xxi. Norila Daud (2007), ‘Undang-undang syariah terbaik – Gani’ [Syariah Law the Best – Gani], Utusan Online, 23 August, (last accessed 1 February 2017). Norizan Abdul Rahman (2007), ‘Nilai Islam dalam Perlembagaan’ [The Value of Islam in the Constitution], Berita Harian (Kuala Lumpur), 30 August. Norshahril Saat (2012), ‘Countering Utopianism: Alatas and the Muslim Resurgence of the 1970s’, Review of Indonesian and Malaysian Affairs, 46: 1, 105–25.

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governance of religious diversity in malaysia Norshahril Saat (2014), ‘The Ulama, Thought-Styles, and the Islamic State Debate in Contemporary Malaysia’, Studia Islamika: Indonesian Journal for Islamic Studies, 21: 1, 47–76. Ooi Kee Beng (2006), ‘Mahathir as Muslim Leader’, in Daljit Singh and Lorraine C. Salazar (eds), Southeast Asian Affairs 2006, Singapore: ISEAS, pp. 172–80. Ooi Kee Beng (2007), ‘Malaysia: Abdullah Does It His Own Vague Way’, in Daljit Singh and Lorraine C. Salazar (eds), Southeast Asian Affairs 2007, Singapore: ISEAS, pp. 183–200. Puthucheary, Mavis C. (2008), ‘Malaysia’s “Social Contract”: The Invention and Historical Evolution of an Idea’, in Norani Othman, Mavis C. Puthucheary and Clive Kessler (eds), Sharing The Nation: Faith, Difference, Power and the State 50 Years after Merdeka, Petaling Jaya: Strategic Information and Research Development Centre (SIRD), pp. 1–28. Riddell, Peter G. (2005), ‘Islamization, Civil Society, and Religious Minorities in Malaysia’, in K. S. Nathan and Mohammad Hashim Kamali (eds), Islam in Southeast Asia, Singapore: ISEAS, pp. 162–90. Rosenthal, E. I. J. (1965), Islam in the Modern National State, Cambridge: Cambridge University Press. Rosnani Hashim and Imron Rossidy (2000), ‘Islamization of Knowledge: A Comparative Analysis of the Conceptions of Al-Attas and Al-Faruqi’, Intellectual Discourse, 8: 1, 19–44. Rostow, W. W. (1960), The Stages of Economic Growth: A Non-Communist Manifesto, Cambridge: Cambridge University Press. Saifulizam Mohamad (2001), ‘Kita negara Islam contoh’ [We Are an Exemplary Islamic State], Utusan Online, 5 August, (last accessed 1 February 2017). Sharabi, Hisham (1965), ‘Islam and Modernization in the Arab World’, Journal of International Affairs, 19: 1, 16–25. Sheikh, Mona Kanwal and Ole Waever (2012), ‘Western Secularisms: Variation in a Doctrine and Its Practice’, in Arlene B. Tickner and David L. Blaney (eds), Thinking International Relations Differently, London and New York: Routledge, pp. 275–98. Shiner, Larry (1967), ‘The Concept of Secularization in Empirical Research’, Journal for the Scientific Study of Religion, 6: 2, 207–20. Singh, Harinder (2016), ‘Our Constitution – an Undermined Document’, Malayskini, 9 July, (last accessed 1 February 2017). Soon Li Tsin (2008), ‘Seeing Past the Labels: August 9, 2007’, in Nathaniel Tan and John Lee (eds), Religion Under Siege? Lina Joy, the Islamic State and Freedom of Faith, Kuala Lumpur: Kinibooks, pp. 159–61. Suffian Hashim, M. (1962), ‘The Relationship between Islam and the State in Malaya’, Intisari, 1: 1, 7–21. Tan, Paul Chee Ing (2008), ‘A Constitutional Democracy, Not an Islamic State: July 20, 2007’, in Nathaniel Tan and John Lee (eds), Religion Under Siege? Lina Joy, the Islamic State and Freedom of Faith, Kuala Lumpur: Kinibooks, p. 171.

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ahmad fauzi abdul hamid and zawawi ibrahim The Star Online (2007), ‘Minister: Study Proposal on Switch to Syariah Law Thoroughly’, 24 August, (last accessed 1 February 2017). The Star Online (2016), ‘Malaysian Bar: Hadi’s Bill Contains Hudud Elements’, 9 June, (last accessed 1 February 2017). Tunku Abdul Rahman Putra (1977), Looking Back, Kuala Lumpur: Pustaka Antara. Vinesh, Derrick (2007), ‘PM: Malaysia Is Neither a Secular Nor Theocratic State’, The Star Online, 5 August, (last accessed 1 February 2017). von der Mehden, Fred R. (1986), Religion and Modernization in Southeast Asia, Syracuse: Syracuse University Press. Wahyudi, Yudian (2006), ‘Hassan Hanafi on Salafism and Secularism’, in Ibrahim M. Abu-Rabi’ (ed.), The Blackwell Companion to Contemporary Islamic Thought, Malden, MA and Oxford: Blackwell, pp. 256–70. Wan Mohd Nor Wan Daud (2005), Falsafah dan Amalan Pendidikan Islam Syed M. Naquib Al-Attas: Satu Huraian Konsep Asli Islamisasi [The Educational Philosophy and Practice of Syed M. Naquib Al-Attas: An Exposition of the Original Concept of Islamisation], Kuala Lumpur: Penerbit Universiti Malaya. Wan Suhaimi Wan Abdullah (2007), ‘Pengajian Falsafah Islam di Institusi Pengajian Tinggi Awam Malaysia: Sukatan, Masalah dan Cabaran Pengajian’ [The Study of Islamic Philosophy in Malaysian Public Higher Learning Institutions: Content, Problems and Challenges], in Mohd Fauzi Hamat, Joni Tomkin Borhan and Ab. Aziz Mohd Zin (eds), Pengajian Islam di Institusi Pengajian Tinggi Awam Malaysia [Islamic Studies in Malaysia’s Public Higher Learning Institutions], Kuala Lumpur: Penerbit Universiti Malaya, pp. 35–56. Wiktorowicz, Quintan (2005), ‘A Genealogy of Radical Islam’, Studies in Conflict & Terrorism, 28: 2, 75–97. Yeoh Seng Guan (2011), ‘In Defence of the Secular? Islamisation, Christians and (New) Politics in Urbane Malaysia’, Asian Studies Review, 35: 1, 83–103. Zainul Rijal Abu Bakar and Nurhidayah Muhd Hashim (2007), ‘Sejarah bukti Malaysia bukan negara sekular’ [History Is Proof that Malaysia Is Not a Secular State], Berita Harian (Kuala Lumpur), 1 August. Zairil Khir Johari (2014), ‘Sekularisme dan Islam yang lebih jujur’ [A More Honest Secularism and Islam], Roketkini.com, 5 October, (last accessed 1 February 2017). Zairil Khir Johari (2016), ‘Apa guna “hukum Islam” kalau gagal maqasid syariah?’ [What Is the Use of ‘Islamic law’ if Maqasid Syariah Fails?], Free Malaysia Today, 22 July, (last accessed 1 February 2017).

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governance of religious diversity in malaysia Zawawi Ibrahim (2004), ‘Globalisation and National Identity: Managing Ethnicity and Cultural Pluralism in Malaysia’, in Yoichiro Sato (ed.), Growth and Governance in Asia, Honolulu: Asia-Pacific Center for Security Studies, pp. 115–36. Zawawi Ibrahim (ed.) (2008), Representation, Identity and Multiculturalism in Sarawak, Kajang and Kuching: Malaysian Social Science Association and Dayak Cultural Foundation. Zawawi Ibrahim (2013), ‘The New Economic Policy and the Identity Question of the Indigenous Peoples of Sabah and Sarawak’, in Edmund Terence Gomez and Johan Saravanamuttu (eds), The New Economic Policy in Malaysia: Affirmative Action, Ethnic Inequalities and Social Justice, Singapore and Petaling Jaya: NUS Press, ISEAS and SIRD, pp. 293–313. Zawawi Ibrahim (2017), ‘Towards a Critical Alternative Scholarship on the Discourse of Representation, Identity and Muticulturalism in Sarawak’, in Victor T. King, Zawawi Ibrahim and Noor Hasharina Hassan (eds), Borneo Studies in History, Society and Culture, UBD-IAS ‘Asia in Transition’ book series 4, Singapore: Springer, pp. 35–55.

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9

Secularism and Multiculturalism in India: Some Reflections Rochana Bajpai

What role does secularism have in the governance of religious diversity in an age marked by the assertion of religio-cultural identities across the world? India, with its long history of religious pluralism, a state ideology of secularism, and the ascendancy of Hindu nationalism, is a key site for examining the disposition of secularism towards religious identities and diversity. Secularism and multiculturalism are often seen as opposed in political debates involving religious minorities, notably the well-known French headscarf case. Several scholars have suggested that religious traditions offer better resources for toleration than modern secularism (for India, see, for example, Madan 1998: 316; Nandy 1998: 336–7). Others, more sympathetic to secularism, have also suggested that it may be deficient in the normative resources required for the accommodation of religious practices, particularly in the case of minorities (Mahajan, this volume; Modood 2010). Through an examination of the career of secularism in India, this chapter suggests that it has more resources to accommodate strong religious belief and diverse religious practices than is commonly believed. Secularism in India developed as an approach for the accommodation of religious pluralism and conflict, and as such has had affinities with multiculturalism throughout, even blending into the latter at certain junctures (as in Australia; see Levey, this volume). Both secularism and multiculturalism are currently under attack in India from a dominant Hindu right. Opponents of Hindu nationalism, including Muslim leaders, continue to advocate secularism as a means to improve protections for religious minorities. As such, the view that secularism and multiculturalism are at 204

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secularism and multiculturalism in india odds, or that the accommodation of religious groups, particularly Muslims, requires going beyond secularism, may be true of Western Europe, but is not supported by the Indian experience. A global perspective on the career of secularism that includes countries such as Australia (see Levey, this volume), as well as Asian democracies with large Muslim populations such as India and Indonesia (see Stepan, this volume), suggests that a secularism of the moderate variety offers substantial resources for the accommodation of religion and cultural diversity and is hospitable to multiculturalism, understood as the ‘recognition of group difference within the public sphere of laws, policies, democratic discourses and the terms of a shared citizenship and national identity’ (Modood 2007: 2). In India and many other countries, the greater challenge to multicultural policies stems not from the concern that these breach some separation of state and religion, but rather from worries regarding national unity – an aspect that often remains neglected in contemporary framings of secularism within political liberalism. This is not to suggest as several post-colonial theorists have argued (for example, Chatterjee 1998), that secularism, and liberalism more broadly, is inextricably embedded within a homogenising nation-state framework and, as such, incapable of accommodating multicultural rights. My reading of the Indian experience suggests that secularism’s relationship to national unity is multifaceted and historically contingent. While Indian constitution-makers and subsequent policy makers have not created a sufficiently robust foundation for multicultural rights, this does not derive from the infirmity of secularism as an approach for the governance of religious diversity, but from the limits of Indian institutional imagination that remains imprisoned in the 1947 partition of the country along religious lines. This chapter is organised as follows: the first section locates debates on religious diversity in India in a wider comparative framework and assesses the applicability of the category multiculturalism to India. The next two sections focus on two influential criticisms of secularism, namely, that it is deficient in the resources required for the accommodation of religious practices, and that secularism on account of its origins in European Christianity does not travel well to non-Western contexts. Drawing upon constitutional and policy debates during two critical junctures in the evolution of multicultural policies in India, the Constituent Assembly’s 205

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rochana bajpai deliberations (1946–9) and the well-known Shah Bano case (1986), I argue that these criticisms are not sufficiently supported by evidence. The fourth section probes whether the Indian state and societal practices accommodating of religious diversity, are supported by a normative framework that is multicultural. In terms of state approaches, I argue that a normative deficit has remained in India’s constitutional framework with regard to the value of religious diversity. In terms of societal approaches, Indian experience suggests that references to indigenous traditions and philosophies can veer easily into support for the majority religion and religious group, and as such cannot be a substitute for state approaches for the accommodation of diversity, including moderate secularism.

On multiculturalism in India How to accommodate religious minorities within democratic states marked by the rise of majoritarian nationalism is a key challenge of our times (see Triandafyllidou, this volume). In India, as in Europe, political controversies regarding secularism and multiculturalism have focused on Muslim minorities. Both India and Europe have witnessed the ascendancy of illiberal nationalisms that cast Muslim minorities as a security threat in a context of global terrorism, stoking concerns regarding the numbers of Muslims relative to the majority ethnicity and religion. On questions relating to the rise of majoritarian nationalisms defined by Islamophobia and anti-Muslim prejudice, contemporary India bears comparison with Western Europe and the United States more than neighbouring states and emerging powers such as Pakistan, Indonesia and Turkey. In terms of numbers, India is home to the largest Muslim minority of any country – approximately 170 million Muslims comprising 14.2 per cent of its 1.27 billion people; on current projections, it will be the country with the largest Muslim population overall by 2050.1 The followers of each religion speak different languages (twenty-two languages are listed as official languages in the Indian Constitution), and belong to a variety of sects, tribes, and castes. In its scale and diversity, thus, India is comparable to all of Europe, which has a Muslim population of around 44 million in an overall population of approximately 742.5 million. There are, however, important differences. In India, unlike Europe and the US, issues pertaining to Muslims have not been 206

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secularism and multiculturalism in india framed in terms of the rights of immigrants or racial minorities. With Muslim presence dating back to the eighth century in Kerala (see Saberwal 2006), Muslims in India are not generally viewed as recent immigrants or foreigners (except in a few provinces such as Assam). As such, the influential distinction between the rights of immigrant groups and national minorities (Kymlicka 1995) is less relevant; nor is the model of ‘race’ prevailing in Britain and Europe (Modood 2007) as germane to the accommodation of religious minorities. While Hindu nationalists do regard Islam and Christianity as foreign religions (unlike Sikhism, Jainism and Buddhism, which are seen as progeny of Hinduism and born on Indian soil), most Muslims and Christians are viewed as converts from Hinduism – that is, as former insiders, who therefore ought to be willing to recognise the pre-eminence of Hindu culture in India. Unlike Islamophobia, anti-Muslim prejudice in India is not underpinned by ideas about the racial and cultural alien-ness of Muslims so much as distrust of their supposed political loyalties to Pakistan. India here is more like other states of Asia and Africa affected by geopolitical insecurity where religious and ethnic minorities are seen as a threat to the security of the state, ‘a potential “fifth-column”, prone to collaboration with a neighbouring enemy’ (Kymlicka and He 2005: 9). Finally, liberal democratic institutions in India are not sufficiently robust in practice to constrain the powerful and protect the rights of the vulnerable. In a context marked by weak protections for basic rights and liberties, the rise of the Hindu right since the 1980s has been accompanied by growing acts of violence and discrimination against religious minorities, particularly Muslims, drawing one of the world’s most diverse Muslim populations together as a more homogenous group unified by the experience of socio-economic and political marginalisation. Given the ascendancy of Hindu nationalism in India, as well as the resurgence of religion in politics globally, does secularism remain relevant as an approach towards religious diversity? Addressing this question requires some engagement with the concept of multiculturalism and its applicability to India. The provenance of the term is relatively recent, focusing on post-1960s debates around non-white minorities and non-European immigration in countries such as Canada, the United States and Britain (Modood 2007: 2). More specifically, the term came to refer to a 207

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rochana bajpai shift in the orientation of Western states towards various forms of ethno-cultural diversity, from an earlier stance of assimilation or colour-blindness towards accommodation – through the institution of various group-differentiated rights (Kymlicka 1995). While a narrower usage of multiculturalism is associated with policies of group-differentiated rights adopted by Western states after the 1970s, a broader usage persists, where the term multicultural is associated with societies characterised by cultural diversity and polities hospitable to pluralism, including pre-modern regimes such as the Ottoman Empire. In this broader usage of the term, multicultural polities in India date back to the pre-modern era. Several pre-modern regimes (Hindu, Buddhist and Islamic), that ruled over parts of the Indian subcontinent instituted accommodationist approaches towards religious and cultural diversity. Protomulticultural group-differentiated rights were also instituted by colonial and post-colonial states. It might, however, be felt that the term multiculturalism is not appropriate in the Indian context; in India, the term has not been used to describe such policies and has not become common parlance.2 India’s own traditions of religious pluralism pre-date Western multiculturalism by several centuries and are likely a greater influence on colonial and post-colonial trajectories of group-differentiated rights than post-World War II human rights discourses. A further objection regarding the applicability of the category may stem from the observation that as a state-based approach for the governance of diversity, it appears to have a liberal bias (Modood 2007). Multiculturalism, it can be argued, is just liberalism’s approach to diversity, inappropriate for contexts with other traditions for dealing with difference such as India, where group-differentiated rights pre-date the establishment of liberal-democratic institutions as well as the modern nation-state. It is certainly true that the multilayered and cross-cutting forms of cultural difference found in India do not seem to be adequately captured by the concept of multiculturalism, which appears to flatten difference, reducing multiform diversity to a single level in a manner more suited to post-World War II Western democracies. It is also true that liberalism ought not to be the only framework for the evaluation of ethno-cultural diversity (see Parekh 2000); the accommodation of the latter, particularly in non-Western contexts, has derived from multiple religious and historical traditions. 208

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secularism and multiculturalism in india Nevertheless, a circumspect usage of multiculturalism is still appropriate for India, for at least the following reasons. First, as noted above, there are sufficient similarities in concerns around religious minorities, particularly Muslims, in contexts marked by the rise of majoritarian nationalism such as India, Europe and the US to make comparative analysis suitable. Multiculturalism seems to be one useful term for such comparisons to engage Western debates, notwithstanding the concept’s descriptive limits. Second, given that the challenges of religious diversity denoted by multiculturalism are global and faced by countries across the world, one appropriate response to the Western bias of multiculturalism lies in showing that Western experience alone is insufficient for an adequate grasp of its contours or potential. This in turn requires engagement with the concept and a retrieval of its non-Western historical forms and trajectories, as scholars have begun to do with liberalism (for India, see Bajpai 2011; Bayly 2012). Third, the contemporary demands of minorities across the world, including in Asia and Africa, are framed in a language of rights and informed by human rights concerns, making some engagement with the language of multiculturalism appropriate, even if a liberal model is not wholly adequate to capture its global trajectories. Fourth, multiculturalism as a normative value denotes a positive evaluation of cultural diversity, which remains underdeveloped in official practice in new nation-states, including India as discussed below. As such, multiculturalism, like secularism, is a concept that is relevant for normative purposes, for critique and for attempts to improve state approaches towards the accommodation of religious diversity. It is deployed as such here, with cognisance of its limits.

On the compatibility of secularism with religion Secularism is often thought to be incompatible with multiculturalism on account of its difficulties in accommodating religion. Strong versions of this claim include those that hold that secularism is hostile to religion and, as such, unable to accommodate religion and its significance in people’s lives. In the 1990s, in the wake of the rise of Hindu nationalism, scholars had argued that secularism was doomed to failure as an approach to the accommodation of diversity, particularly in light of India’s deep religious belief and encompassing religious practices (see, for example, Madan 1998: 299). 209

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rochana bajpai Weaker versions of this claim hold that although moderate secularism (Modood 2007) can accommodate religion to an extent, including the expression of religious identity in the public sphere, these are still inadequate for a thoroughgoing accommodation of religious diversity and religious practices (see Mahajan, this volume). Given these influential critiques, it is worth reiterating that the multiple conceptions of secularism in India advocated by its founders and subsequent policy makers have for the most part been respectful of religious belief and practice. Indian constitutionmakers were in a sense post-secular in a secular age, insisting in most cases that secularism was compatible with the recognition of the significance of religion. In the Constituent Assembly debates, although the term ‘secularism’ was not often used, there were frequent references to a ‘secular state’. Although of course the extent of, and the grounds for, respect for religion varied, most advocates of a secular state emphasised that it did not imply that the state was hostile to religious belief.3 Moreover, a secular state was not a state that was incognisant of the importance of religious faith in Indian society; nor was it zealous in inculcating scepticism towards religious belief among citizens.4 Critics have argued that secularism in India is an alien imposition on a religious population, propped up by the tiny Westernised liberal elite who led the independence movement and later, the process of constitution-making. It is true that there was a strand of opinion among modernist nationalists in the Constituent Assembly, exemplified by Nehru, where some hostility or condescension towards religious belief and belonging, as ‘backward’ and therefore undesirable relics of a pre-modern era, emerged. Nevertheless, the significance of this strand of secularism in Indian political discourse has been overestimated on account of the preoccupation of political theorists and intellectual historians with exemplary figures such as Nehru. Most of those who pressed for a secular state in the Constituent Assembly did not conform to this image of the critics of secularism, of a Westernised elite disdainful of the strength of religious belief in a society from which they were estranged. During constitution-making, several proposals made by secular modernists to limit the scope of religion in the public sphere were rejected. A few secular modernists in the Constituent Assembly (including Muslim members) had pressed for the privatisation 210

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secularism and multiculturalism in india of religion through measures such as the prohibition of religious instruction in educational institutions, receiving aid from the state, the banning of all religious markers and prohibitions on setting up religious political organisations (for details, see Bajpai 2011). However, after several permutations during its passage through various Constituent Assembly committees, a broad definition of the right to freedom of religion was eventually adopted in the Constitution, that included the right to ‘practise’ and ‘propagate’ religion as well as to ‘profess’ religion (Shiva Rao 1967; CAD VII: 817–19, 822–4, 831–8). A clause outlawing forced conversions was dropped. This was in keeping with the demands of many religious minorities, particularly Christian representatives, who argued that propagation was fundamental to the Christian faith. Furthermore, after extensive debate, the Constituent Assembly decided that the state could aid educational institutions that imparted religious instruction, a position that was in keeping with the wishes of the religious-minded including minorities (Shiva Rao 1967: 221, 281; Bajpai 2011). As such, demands to restrict religion to the private sphere of individual conscience and belief were rejected, with expressions of religious piety and belonging in the form of collective public practices being seen as consistent with constitutional secularism. Indeed, no hard distinction between the private and the public spheres was posited. Indian constitutional secularism thus resembles what Tariq Modood describes as moderate secularism in the context of Western Europe: a pragmatic accommodation with religion based on some recognition of the importance of religion in people’s lives, as well as the nature of prevailing religious practices.

On Indian secularism as a case of conceptual distortion So far, I have suggested that criticisms made by some multiculturalism advocates among others that secularism is incapable of recognising the significance of religious identities, or the collective practice-based nature of South Asian religions, are off the mark. Against my contention that in its Indian versions, moderate secularism has the capacity to accommodate religion and religious diversity, it could be argued that what we see in India is not secularism properly conceived. Articulations of secularism in the Indian Constituent Assembly debates, according to de Roover et al., are exemplary of 211

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rochana bajpai the ‘typical problems of conceptual migration’ (2011: 586). With conceptual migrations, misunderstandings and incorrect interpretations abound, as ‘liberal topoi are detached from their conditions of intelligibility’ and ‘interpreted in terms of Indian commonplace ideas’ (2011: 584). Focusing on the arguments of advocates of Muslim personal law in the Constituent Assembly, de Roover et al. note that in the absence of the conceptual context of liberalism, Muslim representatives interpreted the claim that the state ought not to interfere with religion, in terms of ‘a commonplace from Islamic theology’, holding that since ‘religion covered all of God’s revelation’, ‘a secular state cannot interfere in Muslim personal law’ (2011: 586). Nor was this a lone instance of conceptual distortion: secularist opponents of such claims failed to ‘draw upon any conception of religion clarifying which properties make something religious or secular’ (2011: 586). In other cases, ‘liberal claims about politics and religion were transformed and distorted in terms of topoi about dharma’, with misconceptions created by the lack of ‘semantic equivalence’ between religion and dharma (de Roover et al. 2011: 587). At the core of de Roover et al.’s account of the conceptual distortions of secularism in India is the claim that liberal ideas are moored to early modern European Christian theological debates in which they originated: The conceptual language that dominates liberal political theory consists of topoi resulting from the secularization of Christian theology. These topoi are dependent on . . . their conditions of intelligibility: they require other clusters of ideas present in western society in order to remain coherent and productive in the theorizing of political problems. When liberal principles like ‘the separation of politics and religion’ migrate to other cultures, their conditions of intelligibility do not travel with them. (de Roover et al. 2011: 591)

To the counter-claim that ‘there is a creative Indian interpretation of secularism’, de Roover et al. respond that this is an ‘illusion’ that ‘stands in the way’ of theorising ‘the Indian problem of living together in a different way’ (2011: 590). As such, secularism is an obstacle and not a solution to Indian problems of religious diversity and conflict. How do we address this influential line of critique of secularism in India? It is of course true that terms and concepts acquire meanings within wider theoretical fields that place constraints on their 212

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secularism and multiculturalism in india interpretations, limiting the kinds of policies and actions they can justify. Whole fields of meaning do not travel with the terms they give birth to across space or time (across countries, or indeed within these), so that modifications in meaning are inevitable as a result of travel. Inaccurate usages may well be more likely when concepts migrate to different cultures, and are evident in some usages of secularism in India. From this, however, it does not follow that that the ‘conceptual limits set by the original theological clusters’ (de Roover et al. 2011: 581) in which liberal ideas originated determine their every movement, so that conceptual distortions in the sense of misrepresentations and falsifications necessarily occur when liberal values are invoked in non-Christian polities and societies. By way of analogy, consider the case of democracy: the claim that the conditions of intelligibility of democracy are limited by the universe of ancient Greece, where the concept originated, is implausible. Returning to India, the debates in the Constituent Assembly are less exemplary of the distortions that attend conceptual migrations (de Roover et al. 2011), than of how a similar solution of a secular state can be arrived at through different routes in distinct contexts. Against the view that secularism in India has not meant the separation of state and religion, common among both critics and advocates of secularism in India (for a more detailed discussion, see Bajpai 2002, 2011), it needs to be highlighted that most articulations of secularism in the Constituent Assembly included forms of separation associated with the term in its Western liberal connotations.5 This included, first, disestablishment, the notion that the state would not have an official religion or that the majority religion of Hinduism would not be established. A clause explicitly stipulating disestablishment was considered (Shiva Rao 1967: 87, 140, 174), and in the end, disestablishment was eventually included indirectly, most notably in the form of fundamental rights prohibiting the state from extracting taxes for the promotion of any particular religion, stipulating that no religious instruction would be provided in educational institutions maintained wholly out of state funds, and proscribing compulsory attendance at religious instruction or worship in any educational institution recognised by the state or receiving aid out of state funds (Indian Constitution Arts 27–8). A second conception of secularism as separation was that of state impartiality between different religions. A secular state implied that the state would 213

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rochana bajpai not give preference to any particular religion; secularism here was identified with non-sectarianism. It was held: [A secular state] only means that the State or the Government cannot aid one religion or give preference to one religion as against another. Therefore it is obliged to be absolutely secular in character, not that it has lost faith in all religions. (Ananthasayanam Ayyangar, CAD VII: 881–2)

A third conception of secularism as separation was what scholars have termed the ‘de-politicisation of religion’, the distancing of the state from ideological conflicts rooted in religious differences. While a few radical secularists sought the privatisation of religion, most advocates sought to keep the state apart from religious controversies (although the precise implications of this remained somewhat vague; see Bajpai 2011 for details). However, against my contention of similarities between Indian and Western secularism, it might be argued that these exist only on the surface, that while similar-sounding notions were invoked, such as those of non-establishment, state neutrality between religions and the exclusion of religion from politics, these were underpinned by vastly different values, making for very different conceptions in the Indian context. While a full account of the conceptual universe of secularism in India that includes the indigenous cultural and historical traditions that inform its elaborations is not possible here, at least two of the motivations commonly cited by representatives in favour of a secular state were similar to those in several Western contexts. The most common motivation cited for the exclusion of religion from politics was that ‘mixing religion and politics’ imperilled political unity and social cohesion, as the recent partition of the country had demonstrated. If the political domain became the site of conflicts between religious groups (as Indian nationalists felt it had under a British divide-and rule policy), the country would be torn apart again. To save itself and to achieve the consolidation of the nation, the state had to keep clear of matters concerning religion. As Rajeev Bhargava has noted, the emergence of a secular state in India, as in many Western countries, was also the product of a ‘struggle to make the state relatively independent of deeply conflicting religious groups’ (Bhargava 1998: 497). Even if accounts of religion and of religious conflict were very different 214

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secularism and multiculturalism in india between India and the West (and within these categories), that the state needed to keep some distance from religious matters to preserve social peace was common ground. A second set of values commonly cited in support of a secular state in the Indian Constituent Assembly was that of equal citizenship and non-discrimination between individuals. The state had to distance itself from religion, it was argued, in order not to discriminate between its citizens on religious grounds, to treat all individuals as equals irrespective of the religion to which they belonged (see KM Munshi, CAD VII: 1057). Some wanted the inclusion of a provision explicitly stipulating state neutrality in matters relating to religion: with the actual profession of faith or belief, the State should have no concern. Nor should it, by any action of it, give any indication that it is partial to one or the other. All classes of citizens should have the same treatment in matters mundane from the state . . . . (KT Shah, CAD VII: 816)

A secular state was thus seen to be a requirement of egalitarian liberal values such as non-discrimination and equality for all individuals that were professed widely in the Constituent Assembly by ideologically disparate members, including Hindu nationalists. It may be felt that the state–religion relationship in India is better characterised as one of multi-faith establishment (Modood 2007) rather than moderate secularism. It is true that there have been aspects of establishment in Indian state practice and, indeed, that the line between modest separation and modest establishment is a fine one (see Laborde 2013). In the Constituent Assembly, religious believers of different persuasions pressed for measures such as the inclusion of the name of God in the Constitution on grounds that such measures were consistent with a secular state, because no particular God or religion was being favoured for special attention (see HV Kamath and Pandit Malviya, CAD X: 439–46; Chiriyankandath 2000: 19–20). However, apart from a provision that allows ministers, parliamentarians and judges to take their oath of office in the name of God, the Indian Constitution makes no reference to God (Smith 1963). Furthermore, non-discriminatory state support for some kinds of religious institutions can be seen as consistent with separation, so long as the latter is not identified with 215

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rochana bajpai the complete dissociation of the state from religion. State support for minority educational institutions, for example, suggests some separation from the dominant religion. State funding for hospitals run by religious organisations indicates that the state does not discriminate against religious providers (Sen 1998: 457). Even if my argument is accepted for the Constituent Assembly debates, it might be argued that these represented the high noon of liberal nationalism in India and are therefore unrepresentative. In Indian political and legal debates since 1950, it may be argued that conceptual distortions of secularism are the norm, demonstrating that fundamental misrepresentations occur when liberal ideas travel to non-Western settings. While an extended survey is not possible here, it is worth looking more closely at conceptions of secularism in the Shah Bano case, where the government’s institution of special exemptions for Muslims, overturning a Supreme Court judgment, was seen as an abandonment of secularism. In the Shah Bano case, questions of gender equality and minority rights were debated within the broader frame of the place of religion in a secular order and the jurisdiction of courts and parliaments in the sphere of religious law (see Parashar 1992 for background; Bajpai 2011 for more details).6 Government spokesmen defended exemptions for followers of Muslim personal law from provisions of a common criminal code in terms of secularism construed as equal respect for all religions. In ‘a truly secular state in a multi-religious society’ it was declared, ‘it is the paramount duty to equally respect all religions and give equal respect and protection to all laws, including personal laws, which are based on the religious tenets . . .’ (Eduardo Faleiro, Lok Sabha Debates7 [henceforth LSD] 1986, cn. 343). A government minister explained: The fact of the matter is that our people are religious . . . we cannot change it. We have to take that into account. And therefore respect for all religions becomes the bedrock of our secularism not merely separation of religion from State. That is the difference from the western concept . . . . (KC Pant, LSD 1986 cols 389–90)

Is this an instance where the abandonment of the notion of separation renders the very notion of secularism unintelligible? Certainly, there are aspects of the accommodation of religion in the Shah Bano case that lend themselves to criticisms of conceptual distortion. The government was promulgating an Act explicitly based on Muslim 216

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secularism and multiculturalism in india religious law, pronouncing an authoritative version of the law, and defending the Act as based on a correct understanding of religious law (‘what we have put in the Bill reflects the proper personal law of Muslims’, Law Minister Ashok Sen, LSD 1986 cols 321–2).8 Secularism as the equal respect of all religions was construed primarily in terms of state deference to religion and to the rights to religious freedom of groups and of minorities (see Rajendra Kumari Bajpai, Congress, LSD 1986 col. 426; Ebrahim Sulaiman Sait, Muslim League, LSD 1986 cols 492–3). The government stance, in fact, registered a shift to a more subjective notion of religion, where the views of religious authorities and members of the religious community, rather than those of the state, would be decisive in determining the scope of religion. While the government’s stance reflected a shift away from dominant conceptions of secularism (see Bajpai 2011 for details), the elaboration of secularism as equal respect for all religions continued to encompass certain forms of separation. These included the view that the state would not identify with any religion, and, moreover, that there was no privileged status for the religion of the majority. Furthermore, the Muslim Personal Law Act was not defended in terms of the intrinsic correctness of a religious doctrine. The government was not necessarily accepting either that Muslim personal law in a particular form was an essential aspect of religion, or that Islamic doctrine must always dictate maintenance provisions for Muslims, but only that a majority of India’s Muslims at the time believed this to be the case, and that the principles of secularism and democracy therefore required that the government defer to the sentiments of its Muslim citizens. By implication, if majority Muslim opinion changed and no longer considered maintenance to be an essential part of their religion, the government could rescind exemptions. It is true that little attempt was made by the government to ascertain the opinion among Muslims as a whole; instead, as in colonial practice, the views of self-appointed community leaders – in this case, a conservative clergy – were accepted as representing Muslim views (see Agnes 2005: 126). However, in promulgating a statute based on Islamic law, the government was not accepting the notion of ‘the divine immutability of the Shariat’ or even that of ‘the religious sanctity of personal law’ (Hasan 1998: 75–6). Even as articulations of secularism in official discourse drew more on 217

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rochana bajpai Indian religious and cultural traditions than they had done during the Constituent Assembly debates (see Bajpai 2011, 2014 for a detailed analysis), these articulations continued to adhere to some separation of religion and state and, as such, remained comprehensible as secularism. Evidence from a case considered exemplary of the Indian government’s reneging on secularism, thus, on closer analysis does not support the view that conceptual migrations of secularism in India are mostly distortions.

On the normative deficit of multiculturalism in India Even if my account so far is accepted, it could be argued that the accommodation of religion and religious diversity in India owes more to multiculturalism than to secularism. For some, India’s Constitution and state practice recognise the value of religious diversity in desirable ways that go beyond secularism. Thus, Gurpreet Mahajan argues that moderate secularism ‘too is not enough by itself for accommodating and valuing religious and cultural diversity’, for it still has a liberal individualist bias: while offering more space for the accommodation of religious minorities, it ‘too is hampered by its suspicion of religion and its commitment to prioritising individual autonomy and liberty’. That India has not seen the kinds of ‘demands for accommodation . . . that are heard so frequently in many Western liberal democracies’ derives primarily from a ‘commitment to diversity and not a moderate form of secularism’ (Mahajan, this volume, p. 75) It is true that liberal individualist secularism has dominated state practice in many Western democracies, and this does not exhaust the possibilities for the accommodation of religious diversity. As its advocates have argued, however, secularism can assume multiple forms, some of which are hospitable to groupbased religious practices, as the Indian case suggests (Bhargava 1998; Stepan, this volume). Emphasising the ‘co-celebratory recognition for majority and minority religions’ that characterises the secular state in India, Stepan notes that in Western European countries, ‘not one of . . . sixty religious holidays . . . is for a nonChristian minority religion. All are for the Christian majority religion’ (Stepan, this volume, p. 141). By contrast, in India, as in Muslim majority Indonesia and Senegal: 218

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secularism and multiculturalism in india all . . . deeply religious countries, religion is publicly acknowledged by the democratic state as being an important part of the private and public life of all citizens, and there is a great effort for state and society to ‘co-celebrate’ . . . the diverse and intense religious identities in the polity. (Stepan, this volume, p. 141)

In India at the national level, ‘the majority Hindu religion only has five compulsory, paid religious holidays, and all together, Muslims, Sikhs, Christians, Jains and Buddhists get ten and the government gives subsidies for Muslims to take the hajj, the pilgrimage to Mecca’ (Stepan, this volume, p. 141). In Indian political debate, respect for religion and accommodation of religious diversity have mostly been identified with the value of secularism, in minority demands as well as government responses. During constitution-making, Muslim leaders demanding stronger multicultural provisions such as constitutional guarantees for Muslim personal law used the language of secularism, which was not perceived by them to be at odds with recognition of the significance of religion or the nature of commitment to it (see, for example, Mahboob Ali Baig Sahib Bahadur, CAD VII: 544). During the Shah Bano debate (1986), government ministers defended the shift to stronger multicultural policies granting Muslims greater self-governance in the arena of religious family laws in terms of secularism. Government spokesmen stated that ‘the real definition [of secularism] . . . is that we show equal respect to all religions’ (Jagan Nath Kaushal, Congress, LSD 1986, cn. 408; see also KC Pant, LSD 1986 cols 389–90; see Bajpai 2011 for more details). In other words, in minority claims as well as government discourse in India, multiculturalism type respect for religious diversity has been viewed as a concomitant of Indian secularism (for a critique of the view that Indian secularism is a conceptual distortions, see the previous section). Also, notwithstanding the fact that the Indian Constitution displays features of multicultural accommodation (Mahajan 1998; Bhargava 2000; Bajpai 2000), a normative deficit remained in the constitutional framework with regard to the recognition of the value of religious diversity, as I have detailed elsewhere (Bajpai 2011). Materials were available in the repertoire of secular Indian nationalism for supporting restricted multicultural rights. Thus in a departure from the standard liberal position, groups were recognised as subjects of rights and entitlements, as well as individuals 219

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rochana bajpai (see Mahajan 1998; Bhargava 2000). Equality and justice were seen to require religious and cultural freedoms for all groups, including minorities. Justice, it was said, demanded that no individual or group be subject to compulsion in matters of religion or language. The recognition of the group reflected the influence of India’s cultural traditions and also recent history where British colonial practice had underscored state non-intervention in religion. In most nationalist connotations of secularism, the pursuit of religion and the preservation of language and culture on the part of citizens of all communities were held to be legitimate goals; their pursuit by citizens in their individual as well associational capacity was regarded as a corollary of the exclusion of religion from the political domain. Nevertheless, justifications for multicultural provisions remained underdeveloped in nationalist opinion during the constitution-making process. In large part, this derived from how the requirements of national unity were understood, which meant an emphasis on individual over group rights, and on difference-blind citizenship in this period (Bajpai 2011). Thus, equal citizenship was seen to imply the same rights for individuals from all groups, as this provided a means for welding a people divided by their group membership into a nation. It also provided the basis for a common national identity in a situation in which religious and ethnic criteria were divisive. In other words, secularism as equal citizenship construed individualistically was both instrumentally and constitutively tied to national unity (see Bajpai 2014 for more details). Several constitution-makers professed a secular view of the national identity, where Indian-ness was defined primarily in political terms, in terms of membership of a state where religion was irrelevant for purposes of citizenship.9 Reigning European models of national identity based on language and descent were rejected here: instead of commonalities of language, religion or other cultural attributes, nationality was defined primarily in political terms, as consisting in secular democratic citizenship. Multicultural type quotas in legislatures and public services for religious minorities (and to a lesser extent, caste and tribal minorities) were opposed by nationalists of the left as well as the right, as incompatible with secular nationalism. Religion-based separate electorates in particular were regarded as the direct cause of Partition, but special representation provisions for religious, caste and tribal minorities more generally were seen as undermining secular nationalism. This 220

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secularism and multiculturalism in india was on several counts – because these required the recognition of a person’s religion (or caste/ethnic affiliation more broadly) in public policy; because these created differences in the rights of individuals depending on the religious and cultural community to which they belonged; and also because they encouraged identification with religious and caste communities, and thereby were seen to detract from the building of a sense of common nation-hood, and to pose a threat to the political integrity of the country (on the different grounds on which these were rejected, see Bajpai 2000, 2011). Finally, in some cases, the recognition of pre-modern forms such as religion and caste in state policy was seen as an indicator of India’s ‘backwardness’, unbecoming for a country aspiring to join the ranks of advanced nation-states (see, for example, Renuka Ray, CAD V: 268; Mahavir Tyagi, CAD V: 218; on analogical linkages between secularism and nationalism, see Bajpai 2011). When the Constituent Assembly withdrew legislative quotas for religious minorities in August 1949, Nehru commended their abolition as ‘a historic turn in our destiny’, confessing that he had never been convinced about the provision: ‘doing away with this reservation business . . . shows that we are really sincere about this business of having a secular democracy’ (CAD VIII: 329, 332). Although limited multicultural provisions were retained in the Constitution, notably autonomy for minority educational institutions as well as separate family laws for Muslims, Christians, Hindus and Parsis, a case for the differential rights of minority cultures remained unarticulated in nationalist opinion. This was unlike the case of integrationist group-differentiated rights such as quotas for ex-Untouchable and tribal groups in legislatures and government employment, which, despite misgivings, were accommodated by Indian constitution-makers as consistent with liberal and democratic principles, more than a generation before multiculturalism emerged in Western democracies. In contrast with the affirmative action type provisions for rectifying socio-economic disadvantage for which arguments were elaborated, in the case of the limited multicultural provisions that were incorporated, there were no attempts to go beyond formal symmetrical notions of equality to substantive, contextual notions that could justify special provisions for religious minorities. There were, for instance, no arguments along the lines that minorities faced a greater threat to the integrity of their religion, language or culture than the majority, 221

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rochana bajpai whose practices were inevitably supported both by society and by the state (Kymlicka 1995). The cultural rights of minorities were thus interpreted largely as negative liberties. The duties required of the state were limited to forbearance from interference (on the general point, see, for example, Shue 1980). While minorities were free to pursue their culture at their own initiative, and the Constitution left open the possibility of state aid, this was regarded as a concession that went beyond the requirements of the right, rather than a duty necessary for its fulfilment. Notwithstanding assertions of India’s unity in diversity, it is hard to find elaborations of how the protection of minority cultures formed a part of their vision of the common good. When we turn to the Shah Bano case of the mid-1980s, a time when concerns regarding the survival of India as a nation-state were less acute, here too the government failed to elaborate substantive, contextual notions of equality that could justify the differential treatment of Muslims that they were instituting in policy. (Hindu law had been extensively reformed at state initiative in the 1950s, overriding protests from orthodox Hindus of interference in religion.) The move from all groups having equal rights to religious freedom, to (some) religious minorities having in effect greater freedom from state regulation, remained unelaborated in official discourse (for a more detailed analysis, see Bajpai 2011, 2014). If normative support for religious diversity has been deficient in its constitutional and policy discourse, perhaps India’s accommodationist practices have been supported by societal traditions and cultures of everyday living? Ashis Nandy (1998) and others have influentially argued that religious traditions and social practices offer better resources for the accommodation of pluralism and minorities than statist ideologies such as secularism. As I have detailed elsewhere, however, the resources for toleration in religious traditions can veer too easily into support for the majority religion or religious group (see Bajpai 2011, 2014). References to Indian traditions, civilisation and philosophy, although often espoused by followers of all faiths, have often served as a conduit for the ‘unstated norms of the Hindu majority’ (Cossman and Kapur 1996: 2616). The Shah Bano debate, where policy makers defended the accommodation of religious diversity in the case of Muslim personal law by invoking Indian civilisational values of tolerance of difference, offers a good illustration 222

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secularism and multiculturalism in india of this. On its own, in the absence of an elaboration of substantial equality arguments, the appeal to societal multiculturalism slipped easily into a sense of Hindu superiority vis-à-vis other religions as less open-minded, as well as a grievance against special treatment of minorities, as an instance of illegitimate partiality or ‘minority appeasement’. A common slogan of the Hindu right, this appealed simultaneously to the sense that minorities were being conciliated for reasons that went beyond justice, at the cost of the nation, and through an abuse of the tolerance of Hindus. My point is not to deny that religious communities, religious leaders and everyday ways of living offer valuable resources for the accommodation of religious diversity – they often do so. It is, however, to suggest that societal traditions are unlikely to suffice in themselves, to be an adequate substitute for state approaches, including versions of moderate secularism, as a framework for the accommodation of diversity.

Conclusion This chapter has suggested that secularism and multiculturalism in India have not been opposed to each other for the most part, as in many European contexts, but contiguous and mutually supportive. Both are challenged by the current ascendancy of Hindu nationalism. Although the term multiculturalism has never been common parlance in India, the circumstances of multiculturalism played a central role in the incorporation of secularism in the Indian Constitution, with constitution-making occurring against the backdrop of Hindu–Muslim conflict, mobilised minorities and British colonial legacies of institutional recognition of religion. Official secularisms in India have largely been accommodationist in relation to religious practices and religious diversity, albeit to differing extents in different areas of state policy. Advocates of secularism have not been a small Westernised elite estranged from religion but have included those of staunch religious faith from minority backgrounds pressing for stronger multicultural policies both during the constitution-making process and since. Secularism, it is often suggested, is a Western concept – a specifically Christian response to processes of modernisation – that does not travel well to non-Western cultures and societies where it is found in distorted forms. By contrast, this chapter has suggested 223

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rochana bajpai that articulations of secularism in Indian constitutional and legislative debates have invoked forms of moderate separation between state and religion and remain recognisable as versions of moderate secularism. As Rajeev Bhargava, Alfred Stepan and others have argued, the secular ideal of separation can assume multiple forms. India’s experience suggests that secularism is not necessarily reductionist of religion, seeking to privatise it to a core of individual belief. Moderate secularism in India has been individualist at some points and communitarian at others; its disposition towards multicultural policies in India has varied over time, crucially in accordance with how the requirements of national unity are construed. Attention to the Indian experience brings to the foreground the close relationship of secularism and national unity that has often remained neglected in European debates (Bajpai 2011, 2014; see also Triandfyllidou, this volume). Multicultural type policies in India, such as provisions of religious freedom including display of religious symbols in public arenas (for example, kirpans for Sikhs), non-discrimination and equal opportunity for members of religious groups, have been seen in official discourse as well as minority demands as consistent with, even an element of, Indian secularism. The ascendancy of Hindu nationalism and its manifestation in the increasing identification of state leaders with Hindu cultural symbols and practices (for example, Hindu ceremonies on election victories, Yoga Day celebrations), as well as decreasing participation and official support for the public festivals of minorities such as Eid, Christmas and Easter, endanger both secularism and multiculturalism in India. Among other factors, the rise of Hindu nationalism has been facilitated by a normative deficit in India’s constitutional framework with respect to multicultural minority rights. This deficit derives not from the ideal of secularism, which has the capacity to accommodate both religiosity and diversity, but from the normative vision and institutional imagination of Indian policy makers, which remain trapped in overly narrow understandings of national unity and identity. Better accommodation of religious diversity requires more inclusive conceptualisations of national identity and unity to strengthen secularism and multiculturalism alike. Whilst societal traditions may offer valuable resources for this task, the Indian experience also suggests that some form of moderate secularism will continue to remain necessary as a state framework to check the advance of religious majoritarianism. 224

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Notes 1. The population of India’s other major religious communities is Christian, 2.3 per cent; Sikh, 1.7 per cent; Buddhist, 0.7 per cent; and Jain, 0.4 per cent. Statistics are taken from (last accessed 4 August 2016). 2. I am grateful to Prof. Bhikhu Parekh for pushing me to clarify this point. 3. While the inclusion of the term ‘secular’ was proposed during the deliberations of the Constituent Assembly (see KT Shah, Constituent Assembly Debates [henceforth CAD] VII: 815–16), there was no explicit mention of a secular state in the Constitution, until the Preamble was amended to include the term in 1976. The Constituent Assembly Debates are available online at (last accessed 1 March 2017). 4. See KM Munshi, CAD VII: 1057; see also Rev. Jerome D’Souza, CAD VII: 1059; M Ananthasayanam Ayyangar, CAD VII: 881. 5. While Donald E. Smith’s early classic on Indian secularism stated that the concept of separation means ‘simply that religion and the state function in two basically different areas of human activity, each with its own objectives and methods’ (Smith 1963: 6), scholars now agree that the separation of state and religion can take a variety of forms, depending upon the wider theory of secularism (Bhargava 1998), as well as values of the political system other than secularism (Sen 1998). 6. The case involved a claim for maintenance filed by a divorced Muslim woman, Shah Bano. Her husband petitioned the Supreme Court against a High Court order that directed him to pay maintenance to his divorced wife, arguing that under Muslim personal law, he was not required to pay maintenance after a certain period (iddat, roughly three months), as he had paid the mehr (dower) amount. The Supreme Court judgment in Mohammed Ahmed Khan v Shah Bano rejected his claim, holding that ‘the religion professed by the parties or the state of the personal law by which they are governed cannot have any repercussion on the applicability’ of relevant provisions of the Criminal Procedure Code. This judgment unleashed what has been described as the biggest agitation launched by Muslims in post-Independence India with the Muslim Personal Law Board leading attempts to mobilise the Muslim community against what it condemned as the Supreme Court’s assumption of the right to interpret the Qur’an, even as Muslim intellectuals mobilised in support of the judgment. While the government initially appeared to support the Supreme Court judgment, the government reversed its stance, and brought forward the Muslim Women (Protection of Rights on Divorce) Bill 1986, overriding the judgment in a move widely perceived as capitulation to conservative Muslim opinion. 7. The Lok Sabha Debates are available online at (last accessed 1 March 2017). 8. See also ‘The Act is but a statement of the law as contained in the Islamic law . . .’ (Eduardo Faleiro, LSD 1986 col. 348). 9. Broadly speaking, two main conceptions of India’s national identity can be distinguished: secular nationalist and Hindu nationalist (Varshney 1993: 235).

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References Agnes, Flavia (2005), ‘Law and Gender Inequality: The Politics of Women’s Rights in India’, in Mala Khullar (ed.), Writing the Women’s Movement: A Reader, New Delhi: Zubaan, pp. 113–30. Bajpai, Rochana (2000), ‘Constituent Assembly Debates and Minority Rights’, Economic and Political Weekly, 35: 21–2, 1837–45. Bajpai, Rochana (2002), ‘The Conceptual Vocabularies of Secularism and Minority Rights in India’, Journal of Political Ideologies, 7: 2, 179–97. Bajpai, Rochana (2011), Debating Difference: Group Rights and Liberal Democracy in India, Delhi: Oxford University Press. Bajpai, Rochana (2014), ‘Reframing Secularism: Religion, Nation and Minorities in India’, in Brian Black, Gavin Hyman and Graham M. Smith (eds), Confronting Secularism in Europe and India: Legitimacy and Disenchantment in Contemporary Times, London: Bloomsbury, pp. 21–38. Bayly, Christopher A. (2012), Recovering Liberties: Indian Thought in an Age of Empire and Liberalism, Cambridge: Cambridge University Press Bhargava, Rajeev (1998), ‘What Is Secularism For?’, in Rajeev Bhargava (ed.), Secularism and Its Critics, New Delhi: Oxford University Press, pp. 486–542. Bhargava, Rajeev (2000), ‘Democratic Vision of a New Republic: India, 1950’, in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy, Delhi: Oxford University Press, pp. 26–59. Chatterjee, Partha (1998), ‘Secularism and Tolerance’, in Rajeev Bhargava (ed.), Secularism and Its Critics, New Delhi: Oxford University Press, pp. 345–79. Chiriyankandath, James (2000), ‘Creating a Secular State in a Religious Country: The Debate in the Indian Constituent Assembly’, Commonwealth and Comparative Politics, 38: 2, 1–24. Cossman, Brenda and Ratna Kapur (1996), ‘Secularism: Bench-Marked by Hindu Right’, Economic and Political Weekly, 31: 38, 2613–30. de Roover, Jakob, Sarah Claerhout and Sn Balagangadhara (2011), ‘Liberal Political Theory and the Cultural Migration of Ideas: The Case of Secularism In India’, Political Theory, 39: 5, 571–99. Hasan, Zoya (1998), ‘Gender Politics, Legal Reform, and the Muslim Community in India’, in Patricia Jeffery and Amrita Basu (eds), Appropriating Gender: Women’s Activism and Politicized Religion in South Asia, New York: Routledge, pp. 71–88. Kymlicka, Will (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford: Clarendon Press. Kymlicka, Will and Baogang He (eds) (2005), Multiculturalism in Asia, Oxford: Oxford University Press. Laborde, Cécile (2013), ‘Political Liberalism and Religion: On Separation and Establishment’, The Journal of Political Philosophy, 21: 1, 67–86. Madan, T. N. (1998), ‘Secularism in Its Place’, in Rajeev Bhargava (ed.), Secularism and Its Critics, New Delhi: Oxford University Press, pp. 297–320. Mahajan, Gurpreet (1998), Identities and Rights: Aspects of Liberal Democracy in India, Delhi: Oxford University Press.

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secularism and multiculturalism in india Modood, Tariq (2007), Multiculturalism: A Civic Idea, Cambridge: Polity. Modood, Tariq (2010), ‘Moderate Secularism, Religion as Identity, and Respect for Religion’, The Political Quarterly, 81: 1, 4–14. Nandy, Ashis (1998), ‘The Politics of Secularism and the Recovery of Religious Toleration’, in Rajeev Bhargava (ed.), Secularism and Its Critics, New Delhi: Oxford University Press, pp. 321–44. Parashar, Archana (1992), Women and Family Law Reform in India, New Delhi: Sage. Parekh, Bhikhu (2000), Rethinking Multiculturalism: Cultural Diversity and Political Theory, Basingstoke: Macmillan. Saberwal, Satish (2006), ‘On the Making of Muslims in India Historically’, Sociological Bulletin, 55: 237–66. Sen, Amartya (1998), ‘Secularism and Its Discontents’, in Rajeev Bhargava (ed.), Secularism and Its Critics, New Delhi: Oxford University Press, pp. 454–85. Shiva Rao, B. (1967), The Framing of India’s Constitution: Select Documents, vol. 2, Delhi: Indian Institute of Public Administration. Shue, Henry (1980), Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, Princeton: Princeton University Press. Smith, Donald E. (1963), India as a Secular State, Princeton: Princeton University Press. Varshney, Ashutosh (1993), ‘Contested Meanings: India’s National Identity, Hindu Nationalism, and the Politics of Anxiety’, Daedalus, 122: 3, 227–61.

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10

Secularism as Proto-Multiculturalism: The Case of Australia Geoffrey Brahm Levey

Introduction Political secularism was the West’s first attempt at multiculturalism. It was a political innovation that responded to pluralism by making room for it. Historically, the origins of secularism lie in a pragmatic response to the bloody religious wars of the sixteenth and early seventeenth centuries. The aim was to find a way in which different faith communities could co-exist amicably (Hunter 2008). Of course, applying the late-twentieth-century development of ‘multiculturalism’ to the advent of secularism is anachronistic and there are two features associated with the latter that distinguish it from the former. First, secularism developed from the idea of religious toleration, specifically, from a change in attitude to heresy and heretics (Zagorin 2003). Freedom of conscience then progressively became associated with a principle of equal respect towards citizens and state neutrality (Maclure and Taylor 2011). Multiculturalism typically entails a more respectful posture towards difference than mere forbearance or toleration and an affirmatively interventionist state rather than ‘hands-off’ neutrality or benign neglect. Second, as Locke (1963) made clear, religious toleration implied a certain separation between religious and political authority for the sake of both. Each could best execute its respective mission if it did not trespass on the other.1 Here, again, toleration prefigured state neutrality based on equal respect. Matters of faith could best be pursued ‘privately’, while political authority governed the public domain. In contrast, multiculturalism typically entails the public recognition of cultural difference. 228

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secularism in australia Australia presents a case where these two responses to diversity – secularism and multiculturalism – genuinely complement and indeed begin to merge into each other. Or so I will argue in this chapter. However, I also want to argue that secularism and multiculturalism in Australia face a common challenge from attempts to reassert national identity. Somewhat unexpectedly for the twenty-first century, religion has become the favoured vehicle for this reassertion. While a multiculturalism that is supportive of ethnic and religious diversity remains well entrenched institutionally and popular publicly, it continues to be challenged politically by diehard cultural nationalists and the defenders of old-time Anglo-Australia, some of whom occupy high political office. Australia is of more general interest, I suggest, in at least two other respects. First, though it is in Asia it is not of Asia. Institutionally and culturally, Australia instead bridges Britain and the United States, the Old and New Worlds. Its federal parliamentary democracy borrowed aspects from both Westminster and Washington, leading some to call it a ‘Washminster’ system (Thompson 1980). Yet, Australia rejected both England’s established church and the US’s ‘high wall of separation’ between church and state. Second, Australia is often compared with the US and Canada as one of the great immigrant democracies. Like Canada, it adopted multiculturalism as state policy in the 1970s. Yet, Australia more closely resembles many European countries and perhaps even Quebec in the precedence it grants to the established (Anglo-Australian) majority culture (Levey 2012). Australia thus combines Old and New World patterns and concerns, offering a unique vantage point on the governance of religious diversity in relation to secularism. Today Australia’s population is approaching 24.5 million (ABS 2017). At June 2015, 28.2 per cent of Australia’s estimated resident population was born overseas, and a further 20 per cent had at least one parent born overseas. Indeed, two recent prime ministers were born overseas: Tony Abbott (England) and Julia Gillard (Wales). Australia is the only country apart from Israel to have doubled its population through immigration in half a century. Though the majority of Australians remain nominally affiliated with Christianity (61 per cent: 35.9 per cent Protestant, 23.3 per cent Catholic), this has been steadily declining over the years. The largest non-Christian religious group is Buddhists at 2.5 per cent (530,000) of the population. Muslims account for 2.3 per cent 229

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geoffrey brahm levey (476,000) of the population; almost 65 per cent of Muslims in Australia were born overseas. A little over 23 per cent of Australians report having ‘no religion’ (it is higher for younger cohorts), a figure that has been steadily rising over the years (ABS 2017, reporting figures from 2015). Australian society is overwhelming irreligious and, in this sense, secular. Less than 10 per cent of the population attends church weekly and less than a quarter do monthly (Maddox 2009). Unlike presidents of the United States, Australian prime ministers do not feel duty-bound to ritually ‘God Bless Australia’. Nor do they feel the public need to attend church. Indeed, when Labor Prime Minister Bob Hawke confessed to being unfaithful on national television in the 1980s, his popularity rose (presumably, as much for his candour as for his infidelity). I will begin with some remarks on the constitutional context and the operative political culture. The second section discusses the place of religion in multicultural Australia. In the third section I canvass how religion has been reasserted in recent years as a trope for reinforcing Anglo-Australian institutions and culture as the core of Australian national identity. I conclude by noting the key challenges these dynamics pose for Australians.

Constitutional context and political culture Maclure and Taylor (2011: 27–35) distinguish between a ‘rigid’ or ‘republican’ and an ‘open’ or ‘liberal-pluralistic’ way of institutionalising a secular state. The USA (‘high wall of separation’) and France (laïcité) well illustrate the rigid-cum-republican approach. Most liberal democracies, however, practise secularism as a way of accommodating religion rather than keeping it at bay. They impose no religious doctrine on their citizens, set no religious tests for public office, and protect freedom of worship. Otherwise, their state authorities variously support, recognise and accommodate religious institutions and practices, including, in some cases, sanctioning an established church. Australia very much falls into the accommodationist mould of state secularism, albeit with a twist.2 The twist is that it is not altogether clear whether the country observes its own constitutional provisions on state–religion relations as it is far from clear what 230

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secularism in australia these provisions actually require. Section 116 of the Constitution of the Commonwealth of Australia states: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

The religious provisions were expressly modelled on the First Amendment and Article VI of the Constitution of the United States, the relevant passages of which read: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. (First Amendment) . . . no religious test shall ever be required as a qualification to any office or public trust under the United States. (Article VI)

Despite these similarities, the two constitutions give an entirely different effect to their respective religious provisions. For a start, unlike its US equivalent, Section 116 is not part of a bill of rights. There is no such bill in the Australian Constitution. Indeed, Section 116 is the only provision in the Constitution that has even the appearance of an explicit reference to a civil liberty, and even then is understood as a statement of government powers rather than of a liberty. Also, Section 116 appears in that part of the Constitution dealing with the states, yet the provision only binds the Commonwealth and not the state governments. There is no Australian equivalent of the ‘equal protection’ clause of the US’s Fourteenth Amendment, which bars a state from ‘deny[ing] to any person within its jurisdiction the equal protection of the laws’. Attempts to introduce such a national covering clause in Australia have failed. Section 116 also has some subtle but significant differences in wording compared with the US First Amendment. The High Court of Australia has interpreted the section ‘for establishing any religion’ to mean that the Commonwealth is barred from making laws with this stipulated intent or for this purpose, whereas the First Amendment speaks of a more encompassing effect – ‘respecting an establishment’ and ‘impeding’ free exercise. Unlike the extensive practice of judicial review in the United States, there have been only 231

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geoffrey brahm levey four cases in which Section 116 has been tested in the High Court, three involving free exercise and one involving establishment. In each case, the Court opted for a narrow interpretation of free exercise and establishment. Compulsory military service (1912), dissolving a branch of Jehovah’s Witnesses and acquiring its property (1943), and the forcible removal of Indigenous children from their families (1997) were held not to contravene the free exercise clause. In the Defense of Government Schools (DOGS) case of 1981, state aid to religious schools was judged not to be ‘for establishing any religion’. In short, where a free expression of religion conflicts with a state interest, the state prevails.3 And the state may engage with religion in any way it chooses short of aiming to establish any religion or setting religious tests for public offices. Scholarship on Section 116 is almost as limited as the case law. Interpretations tend to divide according to discipline. The classic historical account of the constitutional conventions of the late nineteenth century (charged with drafting the Constitution) concludes that the delegates overwhelmingly intended Section 116 to replicate the ‘high-wall’ of church–state separation as propounded in the US (Ely 1976). The leading political science analysis contends that the resemblance of Section 116 to the First Amendment is misleading as the Australian constitutional provisions and their judicial interpretation were informed by the experience and institutions of the colonial period (Hogan 1981, 1987). For example, the colonies of Victoria and Queensland abolished state aid to church schools in the 1870s, and New South Wales in 1880, upon establishing their own state schools (McLeish 1992: 215). The latter were to be ‘free, secular and compulsory’; however, secular then meant non-sectarian Christian or more specifically, generically Protestant (Bouma 2011). Catholics elected to establish their own comprehensive school system, as did some other religious groups on a lesser scale. Government and religion thus remained entwined. Reviewing the history and the jurisprudence, legal scholar Stephen McLeish (1992) notes that inclusion of Section 116 was largely motivated by the recognition of ‘Almighty God’ in the preamble to the Constitution and the desire for ‘balance’. He argues that the imperative behind church– state relations in Australia has always been twofold: the avoidance of sectarianism and the protection of religion. On this view, Section 116 should be read as an expression of state neutrality in the sense of equal treatment and non-preferentialism rather than as separation 232

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secularism in australia or ‘hands-off’ neutrality. Secularism clearly resembles some versions of multiculturalism on this reading. How the Constitution is interpreted and, indeed, how religious and cultural diversity is negotiated owe much to the political culture. In this respect, a few points are worth highlighting. The state preceded the formation of civil society in colonial Australia and has been strong and central in its national life ever since. Australians do not fear government; they look to it for everything. The political culture values pragmatic, utilitarian and efficient solutions to problems. It is not in thrall to tradition, ideology or principle for principle’s sake. In a celebrated account, Hugh Collins (1985) saw in these dominant features of Australian life the influence of Jeremy Bentham’s political philosophy. He noted three aspects of Bentham’s thought, in particular. One is utilitarianism and the quest to reconcile the pursuit of individual interest with the sovereign interest through the calculation of individual utility. This feature abjures doctrines of social contract and natural rights. Australia is the only Western democracy not to have a constitutional or legislated bill of rights. Collins teases out the implications of the commitment to utilitarianism by noting that the ‘rationalist assumptions of Bentham’s philosophy signal an approach to politics that is both secular and instrumental’ (Collins 1985: 149). Second, Collins detects in Australia Bentham’s ‘legalism’. Institutional forms and functions, from the electoral system to the bureaucratic apparatus, are what are important for governing interests, not abstract notions of rights or the politics of consent. The third feature of Bentham’s thought noted by Collins is a corollary of the other two: his positivism. The emphasis is on practical matters and solutions; there is little interest in ideas or speculative thought. Marion Maddox suggests that the ‘conventional “pragmatic liberalism” view of Australian political thought’ is to see religious exemptions, state funding of religious schools and the like as ‘momentary aberrations or populist accommodations, the triumph of pragmatism over theory’ (Maddox 2009: 611). She maintains these cases are better understood as a ‘series of religion–state interpenetrations that suffuse Australian political life’. She is right about the latter. However, whatever the popular understanding, pragmatic liberalism in Australia is not of the ad hoc or purely populist variety. Whether in terms of utilitarian benefit, avoiding sectarianism or a ‘fair go’, Australian pragmatism typically has been governed by the principled concerns of a ‘Benthamite society’ (Collins 1985). 233

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Australian multiculturalism and the place of religion Australia turned to multiculturalism as state policy in the 1970s. Previously, it had sought to exclude diversity at the door. The White Australia policy was in effect from federation in 1901 until its formal abolition in 1973. However, from the 1940s, cultural assimilation was increasingly advanced as the preferred policy response to diversity. As suggested in the preceding section, religious groups were often accorded state support and accommodation long before the advent of multiculturalism. These groups were generally though not exclusively Christian and Protestant; Catholics and Jews were also the beneficiaries of state support (Getzler 1970). Indeed, religion was a privileged ‘identity’ dimension in this respect. Historically, this privilege included the outlawing of blasphemy. Most of the six states had provisions against blasphemy in their criminal codes or under common law. While some still do so, the conventional wisdom is that these have long been ‘dead letters’ with the last attempted Crown prosecution for blasphemy usually dated to Victoria in 1919, and the last successful prosecution for blasphemous libel dated to a New South Wales case in 1871 (Coleman and White 2010; Hunt 2013). In fact, routine convictions for mundane cases of blasphemous speech and action occurred up until the 1940s and sporadic cases until the 1960s (Lennon v Collings [1933]; Pringle forthcoming). Other accommodations of religion that are still very much alive include exemptions from standing law. To cite one such case, Jews in New South Wales were granted exemption from animal slaughter laws as early as the 1920s, a privilege they still enjoy.4 And state funding for church schools was reinstated in the early 1960s (after a ninety-year hiatus), when multiculturalism was still unheard of. Thus, in Australia, multiculturalism continued rather than inaugurated a tradition of publicly recognising religion and religious minorities. It is sometimes said that multiculturalism focuses on ethnic, racial or indigenous groups to the near exclusion of religious groups, precisely out of concern for the principle of state secularism (for example, Modood 2010). It is doubtful this characterisation fairly describes the positions of most liberal multiculturalists;5 it certainly does not reflect the Australian experience with multiculturalism, where religion has never been the ‘poor cousin’ among identity groups. 234

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secularism in australia Australian multiculturalism first took shape as a programme of migrant settlement and welfare support for people from non-English speaking backgrounds (Galbally 1978; Australian Ethnic Affairs Council 1978). By the early 1980s, its ambit was being framed as addressing ‘all Australians’ rather than only migrants and ‘ethnics’. The first national multicultural policy statement – National Agenda for a Multicultural Australia (OMA 1989), inaugurated by the Hawke Labor government – identified four main planks: the right of all Australians to maintain their cultural identities within the law; the right of all Australians to equal opportunities without fear of group-based discrimination; the economic and national benefits of a culturally diverse society; and respect for core Australian values and institutions – reciprocity, tolerance and equality (including of the sexes), freedom of speech and religion, the rule of law, the Constitution, parliamentary democracy and English as the national language. Subsequently, three further national policy statements have been issued (Commonwealth of Australia 1999, 2003; DIAC 2011).6 These versions have further refined the policy’s emphases and presentation of principles, though the key 1989 principles have essentially endured. Church groups and religious minorities clearly felt multiculturalism was relevant to them as they figure prominently among those making submissions to the various public hearings held around the country as the policy was being developed (for example, Council of the Australian Institute of Multicultural Affairs 1984). Moreover, the ensuing policy recognises them within its brief; religious groups are eligible, for example, to compete for the various multicultural grants programmes and they participate in the annual multicultural festivals and events, such as Harmony Day. When the Australian Parliament conducted an inquiry into multiculturalism in 2011, religious organisations again lined up to make submissions. A chapter of the inquiry’s report is devoted to religious diversity, interfaith dialogue and Australia as ‘a multifaith community’ (Joint Standing Committee on Migration 2012). The picture is not all rosy. Australian multiculturalism works well in certain respects and remains deficient in others. Specifically, ‘liberty’ and ‘equality’ issues tend to be well accommodated. Institutionally and culturally, Australians today are generally relaxed about people expressing their cultural difference. For example, at the very time that France was embarked on banning the wearing 235

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geoffrey brahm levey of conspicuous religious symbols at state schools, the Victorian Police Force was graduating its first observant Muslim female officer with a specially made hijab for police work (The Australian 2004). While a few conservative politicians agitated to have the hijab banned in Australian state schools in the mid-2000s following further restrictions in some European countries, these calls went unheeded (Sydney Morning Herald 2005; The Australian 2006). Surveys confirm that ‘there is little public objection to the hijab or the women who wear them’ (Dunn 2009). Even calls in 2014 to ban the wearing of the burka and niqab in the Australian Parliament by visiting members of the public, on security grounds, came to nothing. Public institutions also have been generally responsive to accommodating religious and cultural difference. For example, some Australian banks specialise in sharia-compliant finance, which is overseen by the banking sector’s regulator, the Australian Prudential Regulation Authority. Many universities have provided ablutions facilities and prayer rooms for their Muslim students (Levey 2009). Rather more controversially, religious institutions are exempt from various anti-discrimination provisions. Australian governments and legal institutions have also conscientiously grappled with the vexed issue of Jewish divorce and the ‘chained woman’, that is, where the Jewish woman is unable to remarry (under Jewish law) unless her husband grants a gett or bill of divorce (for example, ALRC 1992; Jones and Jones-Pellach 2011). While civil courts have been reluctant to intervene in any determined way, a potentially landmark decision by a Victorian court in 2015 found that withholding a gett constituted unlawful ‘psychological and emotional abuse’ (Australian Jewish News 2015). Regarding equality, extensive anti-discrimination laws apply at the state and federal levels. Most jurisdictions have some protection against discrimination based on religion. Victoria’s Racial and Religious Tolerance Act 2001, Tasmania’s Anti-Discrimination Act 1998 and the Northern Territory’s Anti-Discrimination Act 1996 are the most comprehensive in outlawing discrimination on the basis of religious belief as well as religious activity. South Australia’s Equal Opportunity Act 1984 protects ‘religious dress (in work or study)’, while New South Wales’s Anti-Discrimination Act 1977 includes only ethno-religious membership as a recognised ground of discrimination. At the federal level, the Australian 236

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secularism in australia Human Rights Commission Act 1986 protects against discrimination on the basis of religion in employment by Commonwealth bodies. Also relevant in this connection was the concerted attempt by the conservative Abbott government in 2014 to repeal the anti-vilification provisions of the Racial Hatred Act 1975 (Cth), ostensibly in the name of free speech. The spur to the attempted reform was a Federal Court’s finding, under the provisions, against a conservative commentator who had, in two of his articles, questioned the Aboriginality of nine prominent ‘light-skinned’ Aborigines and suggested they so identified only for material gain (Eatock v Bolt 2011). The Court found for the nine applicants who had initiated the action against Bolt. The government cried ‘political correctness gone mad’ and threw everything it could behind its reform proposal to win it support, including installing a free-market, libertarian polemicist as the federal Human Rights Commissioner to help advocate for it. However, ethnic and religious minorities mobilised against the change (despite religious vilification not being covered by the Racial Hatred provisions) and the Australian public at large (according to polls) remained unconvinced that weakening the protections was desirable. After a protracted government campaign and public debate, the government summarily dropped its reform proposal (Levey 2015). Liberty and equality issues are the ‘good news’ story. Australian multiculturalism also has failings. Another important aspect of successful multicultural integration – inclusion (in effect, the third of the tricolor values, fraternité) – is scarcely acknowledged in the policy or enacted in practice. This deficiency is particularly evident in areas of symbolic and rhetorical recognition and institutional representation. Here, religion looms large. Examples include the government’s scheduling of national elections or other major national events, such as the 2020 Summit on Australia’s future, on the Jewish festivals of Yom Kippur and Passover; the non-inclusive manner in which Christmas is publicly celebrated in state schools and elsewhere (Levey 2006); and the continued practice of opening sessions in both houses of the federal Parliament with the Lord’s Prayer. The latter practice persists despite calls and suggestions for making the opening statements more inclusive and representative of the population (Cahill et al. 2004). The United States Congress, for example, rosters or invites opening prayers or statements from 237

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geoffrey brahm levey its diverse communities, despite the US having a more fervently Christian society. Such slights and exclusions surely do not count as major disabilities. Nevertheless, they are emblematic of a general attitude of condescension towards minorities, which understandably rankles them. Three examples serve to illustrate the attitude: • In the mid-2000s, the conservative Howard government was telling Muslims they must abide by democratic norms. At the same time, it was telling the Muslim and indigenous communities who among their members would represent them to the government – hardly a lesson in democracy. • Former prime minister, Tony Abbott (deposed by his party in 2015) served as Health Minister in the Howard government (1996–2007). In Parliament, in connection with what he viewed as ethnic ‘branch stacking’ in a Labor Party pre-selection battle, he jibed across the chamber: ‘Are there any Australians left in the so-called Australian Labor Party today?’ In an instant, the minister had rhetorically disenfranchised every immigrant Australian as not being really Australian, and this in the ‘People’s House’. • Dignitaries and political leaders routinely address the Jewish community by affirming the Jews’ place in Australian society only after noting the contribution of prominent Jewish figures in business, the professions, the arts, and so on. Apparently, even for an old Australian minority like the Jews – who have been present in the country since European settlement in 1788 – being a born or naturalised Australian and a regular law-abiding citizen are not warrant enough to be a valued and equal member of the society. Conspicuous achievement is instead the listed price of acceptance. After thirty or so years of official multiculturalism, in a country built on immigration, the continued prevalence of such attitudes may seem surprising. Their common denominator is the strong current of cultural nationalism to be found among sections of ‘Anglo-Australia’ and especially its elites. Former prime minister and arch cultural nationalist, John Howard captured the sentiment well in one of his favoured expressions: ‘People come to Australia to join us, not to change us.’ Howard refused even to say the word ‘multiculturalism’ during 238

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secularism in australia most of his eleven years in office (Johnson 2007). In a 1999 referendum, he unsuccessfully tried to have the legendary Australian custom of ‘mateship’ inscribed in the preamble to the Constitution. In 2001, he controversially appointed an Anglican Archbishop to be the Governor General of Australia, the first time the Queen’s representative in Australia had been a man (or woman) of the cloth. (When challenged, Howard noted that there had been two Jewish Governors General, as if every Jew were a rabbi.) The first Australian citizenship test, which his government introduced in 2007, included questions on cricket heroes and other Australian sporting icons (Tate 2009). In 2006, he removed the words ‘multiculturalism’ and ‘multicultural’ from all federal governmental use. The cultural-nationalist outlook, which assumed prominence in the post-war period, has become defensive in the multicultural era. As Brisbane’s Sunday Mail newspaper (in the Murdoch stable) editorialised: The statistical evidence is that there will probably come a time when the celebrations of other faiths will loom larger in Australian life. In the meantime, Christians will continue joyously to observe their important celebrations in a manner that will reflect their historical dominance. (Sunday Mail 2005)

Australian multicultural policy has sought to accommodate something of the cultural-nationalist sentiment within the community. The first national multicultural policy states, for example, that ‘Our British heritage . . . helps to define us as Australian’ (OMA 1989: 51). Some critics see Australian multiculturalism, in policy and in practice, as little different from old-time Anglo-conformity and assimilationism (for example, Hage 1998; Boese and Phillips 2015). Elsewhere I have argued that Australian multiculturalism is more aptly described as a form of ‘liberal nationalism’, in which the established Anglo-Australian institutions and culture are recognised as being foundational and granted some precedence but whose privileged position is seriously limited in the interests of serving all Australians (Levey 2008b).7 Such accounts, however, do not entirely explain why Australian multiculturalism neglects ‘inclusion’ as a worthy principle in its own right. A close reading of the national multicultural policy statements reveals that ‘inclusiveness’ is identified with respecting the liberty and, especially, the equality (‘access and equity’) provisions (Levey 239

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geoffrey brahm levey 2013).8 The assumption is that inclusion is simply the corollary of respecting these other values. Overlooked is the fact that one can enjoy equal citizenship rights and equal opportunities and still be socially marginalised. Encouraging this blind spot are arguably two features of Australian political and general culture. The legacy of Australia’s origins as a penal colony is a powerful ethos of egalitarianism, anti-authoritarian and levelling or ‘commoner’ in character. For example, when taking a taxicab, Australians instinctively sit in the passenger seat next to the driver to avoid the impression of being chauffeured. The nation’s leaders, from the prime minister down, typically follow suit even in their government, chauffeur-driven vehicles. Respecting ‘inclusion’ for its own sake also rubs up against the powerful Australian cultural norm of ‘mateship’, referred to above. What might seem to be the quintessentially Australian sentiment of fraternity and inclusion is traditionally reserved for males and therefore excludes half the population. Moreover, the practice of mateship tends be highly demanding and conformist; one is accepted as a mate on the implicit understanding that one does as one’s mates do. As Russel Ward (1958: 168) observed in his classic The Australian Legend, ‘By the 1880’s mateship had become such a powerful institution that often one could refuse an invitation to drink only at one’s peril.’ Mateship works to dissolve difference rather than to include it.

Religion and the reassertion of national identity Over the last decade or so both conservative and Labor governments have placed increased emphasis on social and national cohesion. This has come in the wake of public anxieties over Islamic radicalism and Muslim integration. While the Labor governments have generally avoided linking social cohesion campaigns to notions of Australian national identity,9 the conservative governments have shown no such reticence. Invoking the ‘Judeo-Christian tradition’ and more expressly Christianity figures prominently in this enterprise. Maddox (2007) identifies several policy areas where the Howard governments sought to promote Christian values: • Outsourcing welfare services to churches. • Government-funded pregnancy counselling service. 240

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secularism in australia • Amending the Marriage Act to ensuring marriage can only be between a man and a woman (and overturning the Australian Capital Territory’s attempt to sanction civil unions). • Increased proportion of federal funding to small, nondenominational Christian schools. • Offering tax benefits to two-parent families with one breadwinner. • Sustained rhetorical attack on Muslims (‘us vs. them’). As Maddox (2007) observes, given the irreligiosity of Australian society, these initiatives are more about reinforcing the dominant culture in the face of perceived challenges from Muslims and other minorities. Still, not every policy listed can bear the weight of this interpretation. As the then health minister, Tony Abbott oversaw the pregnancy-counselling service. Abbott is a committed Catholic (he trained for the priesthood) and had publicly described abortion as a ‘national tragedy’ (Fozdar 2011). That view is not widely shared in the community. The pregnancy-counselling service was very much his baby. Also, Howard is a committed Methodist. So both men’s respective appeals to Christian values are sincere. It is just that they also sincerely believe that these values are and should remain integral to Australian culture and national identity and help put pesky minorities in their place. Since 2007, when Howard lost office, popular momentum has built in favour of same-sex marriage and many politicians have announced that they no longer oppose its legal recognition. Throughout his two years in office (September 2013–September 2015) Abbott had insisted that his party’s position should stand and he would not be granting a conscience vote on the question (Gartrell 2015). Shortly before his own party replaced him as leader, he sought to manage the issue by suggesting there might be a national plebiscite on same-sex marriage. On some issues, Abbott pushed religion even more vigorously than had Howard. The National School Chaplaincy Program, whose first iteration was established by Howard, is a federally funded programme for religious chaplains to visit state schools to offer counselling to students. The government has steadfastly refused to include qualified youth and social workers in this programme, insisting they be religious chaplains. They can, however, be of any faith. This concession is interesting and open to interpretation. It would seem to have little to do with Abbott respecting multiculturalism. For then 241

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geoffrey brahm levey he would presumably be open to school counsellors who are not religious chaplains. Rather, the multi-faith concession is arguably related both to Abbott’s belief in the importance of religion in civic affairs and to a reflexive respect for Australia’s long-standing tradition of non-sectarianism in state schools. In any case, in 2014, the High Court found the programme to be unconstitutional, but not for the reason outsiders may think. Section 116 and the secular state were not the issue; rather, the Commonwealth was found to have breached its powers by directly funding an area of education that falls within state jurisdiction. The Commonwealth now hands the money to the states to run the programme. As elsewhere, security issues are ever present, sometimes in unexpected places. After considerable agitation by a Christian conservative and inveterate critic of Islam, Senator Cory Bernardi, a Senate inquiry took place into halal and other food certification regimes in Australia. Bernardi’s concern was that monies for certification were being siphoned off to fund Islamic radicals abroad. In the event, the Senate inquiry recommended little more than greater clarity in labelling and increased governmental monitoring of food certification, especially of halal (Economics References Committee 2015). Religious instruction (RI) in schools has been another point of contention in recent years. The general pattern is that religious education – that is, education about religions – is provided as part of the state’s educational curriculum, while RI (or ‘special religious education’ in NSW) – that is, training in a particular faith – is available for a short period each week and provided by registered personnel from religious groups. Children for whom an appropriate religious instructor is unavailable or whose parents do not wish their child to participate in the programme are exempt and assigned alternative educational tasks for the duration. The system has worked well for decades. In 2011, however, the Queensland and Victorian Departments of Education changed their ‘opt-in’ provision for RI to an ‘opt-out’ provision, meaning children would automatically receive some RI unless their parents formally declined it. It is a curious turn of events in multicultural Australia. As Gary Bouma observes, to ‘by default, force children into being instructed as though they were Christians, or Christians in the making – or as one School Chaplain described them “not-yet-Christians” – is unsupportable in multicultural, multifaith Australia’ (Bouma 2011). 242

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secularism in australia However, it is also clear that many Australians continue to subscribe to the view that Australia is a Christian society and feel particularly threatened by diversity and change. Recently, for example, a grassroots protest movement ‘Reclaim Australia’ has been established and has held demonstrations against Islam and Muslims in the capital cities. The organisation’s website states: Australia is a nation of many people groups with the majority being caucasion [sic] and Christian. We have successfully embraced multiethnicity for decades . . . Yet, all of a sudden we have to make all these changes to the way we do ‘Australian’ in order to cater to an [sic] minority who refuse to integrate anyway. If Islam can’t cope with how we do ‘Australian’ well then perhaps Islam needs to move along to somewhere where they are not so offended by the locals.10

Some scholars have pointed to how old-time ethno-nationalism masquerades today as civic nationalism in public discourses about migrants (Fozdar and Low 2015). Since ethno-nationalism is now discredited, they say, civic values are advanced with much the same exclusionary intent. The argument lacks precision by conflating ethno-nationalism, based on biology and bloodlines, and cultural nationalism, focused on shared values and practices. John Howard often insisted that he was a multi-racialist but not a multiculturalist. His concern was with protecting the Australian way of life, not with who wanted to sign up to it (Howard 2011). While deploying civic values to mask other, more nefarious purposes doubtless occurs, it should not be overstated. As above, the Reclaim Australia group is totally upfront about what its members believe. And, as we have seen, the mainstream conservative parties under Howard and Abbott have openly promoted Christianity and Anglo-Australian motifs as integral to Australian culture and identity. A more pervasive phenomenon is the cultural inflection of liberal democratic values or their interpretation in practice. For example, donning a beach hat is typically viewed as a matter of personal liberty, whereas donning a hijab often is not. The cultural inflection of civic values is a general phenomenon and speaks to the deep imprint of cultural patterns and habituation on human understanding. But that is a very different thing from trying to mask prejudice behind a more acceptable facade. 243

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geoffrey brahm levey In late 2015, the Human Rights Commissioner Tim Wilson initiated a Roundtable on Religious Freedom in Australia, beginning with the taking of public submissions. The stated aims of the exercise are to consider the right to religious freedom and its limits and to identify and address the ‘key issues for religious communities in relation to contemporary Australian public policy’ (Australian Human Rights Commission 2015: 5).

Conclusion The two great liberal attempts to accommodate diversity, secularism and multiculturalism, are often assumed to be at loggerheads. In Australia, they work in tandem. Here, state secularism is taken to mean no established church and non-sectarianism. Accordingly, Australia does not have divorce from religion so much as polygamy. The state is engaged across the board with religion and has many partners. The multicultural era simply extended a long tradition of state entanglement with religion. This arrangement benefits religious minorities in that they enjoy the kind of state support and accommodation that a separationist form of secularism would deny them. However, the same cultural and institutional context that allows government to support and accommodate religious minorities allows government to support, recognise and accommodate the dominant culture and its religious preferences. In the same vein, Australian multiculturalism recognises the established Anglo-Australian institutions and culture as foundational and seeks only to limit, and not eliminate, majority precedence. This produces challenges not only for minorities. Cultural nationalists and the mass public face the challenge of remembering – or learning – that liberal-democratic institutions and values are also an integral part of the British inheritance and the Anglo-Australian core culture and should not simply be equated with dominant cultural patterns. Liberals face the challenge of acknowledging that liberal democratic principles are often in tension and, in any case, admit of competing interpretations. And all Australians face the challenge of ‘drawing lines’: deciding where public recognition of religion and culture – of the majority no less than of minorities – is and is not appropriate and on what basis. This conundrum is, of course, not only an Australian one. But if the past is any guide, the Australian approach will continue to bring a ‘principled pragmatism’ to these 244

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secularism in australia sorts of negotiations. Unfortunately, this reflex posture also means that rectifying blind spots such as the inattention to the principle and practice of inclusion is likely to prove just as challenging as ever.

Notes 1. Two of the Abrahamic faiths divided authority along similar lines, Christianity via ‘rendering unto Caesar and unto God’, and Judaism via its rabbinic principle of ‘the law of the land is the law’. In this sense, the advent of political secularism was itself a religious injunction (Taylor 2008; Levey 2008a). Jonathan Israel (2006) notes that early Enlightenment thinkers drew on and reinterpreted Scripture to fashion their arguments for toleration. 2. Veit Bader (2003: 271) cites Australia along with Belgium, India, Germany and post-1983 Netherlands as a prime example of what he calls a ‘nonconstitutional pluralism’ model. 3. One analysis suggests that attempts to restrict dress based on religious identity would fall foul of the free exercise clause in the Constitution (Gray 2011). 4. Prevention of Cruelty to Animals Act 1901–1953 (NSW). 5. Most liberal multiculturalists invoke religious practices for discussing legitimate cultural rights claims as well as their limits (for example, Tamir 1993; Margalit and Halbertal 1994; Miller 1995; Soutphommasane 2012). Kymlicka does suggest that the treatment of religion is unhelpful for considering the appropriate relationship between the ‘liberal-democratic state and ethnocultural groups’ as the former is based on ‘separation of church and state’ (Kymlicka 2002: 344–5). However, elsewhere he includes religious minorities as having legitimate cultural rights claims under the terms of his theory of minority rights (Kymlicka 1995). 6. In March 2017, as this book was going to press, the Turnbull government released a new national multicultural policy statement (DSS 2017). The new policy stresses the shared values of respect, equality, and freedom; it also acknowledges the importance of inclusion and a sense of belonging for all Australians. However, the document places the entire onus on citizens and newcomers to integrate. Unlike the previous multiculturalism policy statements, the new policy does not address the reciprocal measures that government and public institutions will take to be more accommodating of cultural diversity and the needs of minorities. Tellingly, the new policy avoids using the word ‘multiculturalism’. 7. Political historian Gregory Melleuish (1997) argues that the accepted form of liberalism in Australia has been of the ‘Machiavellian’ nationalist rather than ‘Hegelian’ universalistic variety. 8. The first Rudd Labor government (2007–10) introduced a ‘social inclusion’ policy that was framed entirely in terms of addressing socio-economic hardships. 9. In his speech announcing the Gillard government’s intention to reinvigorate multicultural policy, Immigration Minister Chris Bowen (2011) did not once refer to national identity. 10. This quotation is from the Reclaim Australia website as it appeared on 26 November 2015. The group has since changed its URL and revamped its website.

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References Australian Bureau of Statistics (ABS) (2017), ‘Population Clock’, (last accessed 1 March 2017). Australian Ethnic Affairs Council (1978), Australia as a Multicultural Society, Canberra: Australian Government Publishing Service. Australian Human Rights Commission (2015), Religious Freedom Roundtable – Issues Paper, 22 October, Sydney: AHRC. Australian Jewish News (2015), ‘Court Ruling Eases Jewish Divorce’, 9 March. Australian Law Reform Commission (ALRC) (1992), Multiculturalism and the Law, Report No. 57. Sydney: The Commission. Bader, V. (2003), ‘Religious Diversity and Democratic Institutional Pluralism’, Political Theory, 31: 2, 265–94. Boese, M. and M. Phillips (2015), ‘Multiculturalising at the Interface of Policy and Practice’, in F. Mansouri (ed.), Cultural, Religious and Political Contestations: The Multicultural Challenge, New York: Springer, pp. 205–22. Bouma, G. (2011), ‘Getting Facts Straight about Religious Education in Schools’, ABC Religion & Ethics, ABC Online, 26 July, (last accessed 3 February 2017). Bowen, C. (2011), ‘The Genius of Australian Multiculturalism’, Address to the Sydney Institute, 17 February. Cahill, D. et al. (2004), Religion, Cultural Diversity and Safeguarding Australia, Melbourne: Australian Multicultural Foundation; Canberra: Department of Immigration and Multicultural and Indigenous Affairs. Coleman, E. B. and K. White (2010), Negotiating the Sacred: Blasphemy and Sacrilege in a Multicultural Society, Canberra: ANU E Press. Collins, H. (1985), ‘Political Ideology in Australia: The Distinctiveness of a Benthamite Society’, Daedalus, 114: 1, ‘Australia: Terra Incognita?’, 147– 69. Commonwealth of Australia (1999), A New Agenda for Multicultural Australia, Canberra: AGPS. Commonwealth of Australia (2003), Multicultural Australia: United in Diversity, Canberra: AGPS. Council of the Australian Institute of Multicultural Affairs (1984), Looking Forward: A Report on Consultations Concerning the Recommendations of the Committee of Review of the Australian Institute of Multicultural Affairs, Melbourne: The Institute. Department of Immigration and Citizenship (DIAC) (2011), The People of Australia: Australia’s Multicultural Policy, Canberra: DIAC. Department of Social Services (DSS) (2017), Multicultural Australia: United, Strong, Successful. Canberra: Department of Social Services. Dunn, K. (2009), ‘Public Attitudes Toward Hijab-Wearing in Australia: Uncovering the Bases of Tolerance’, in T. Dreher and C. Ho (eds), Beyond the Hijab Debates: New Conversations on Gender, Race and Religion, Newcastle upon Tyne: Cambridge Scholars Publishing, pp. 31–51. Eatock v Bolt (2011) FCA 1103 (28 September).

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secularism in australia Economics References Committee (2015), Third Party Certification of Food, The Senate, Canberra: Commonwealth of Australia. Ely, R. G. (1976), Unto God and Caesar: Religious Issues in the Emerging Commonwealth 1891–1906, Melbourne: Melbourne University Press. Fozdar, F. (2011), ‘The Choir Boy and the Mad Monk: Christianity, Islam, Australia’s Political Landscape and Prospects for Multiculturalism’, Journal of Intercultural Studies, 32, 621–36. Fozdar, F. and M. Low (2015), ‘“They have to abide by our laws . . . and stuff”: Ethnonationalism Masquerading as Civic Nationalism’, Nations and Nationalism, 21, 524–43. Galbally, F. (1978), Migrant Services and Programs: Report of the Review of Post-Arrival Programs and Services for Migrants, Canberra: AGPS. Gartrell, A. (2015), ‘Can Tony Abbott again Deny His Party a Conscience Vote on Same Sex Marriage?’, Sydney Morning Herald, 31 May. Getzler, I. (1970), Neither Toleration Nor Favour: The Australian Chapter of Jewish Emancipation, Melbourne: Melbourne University Press. Gray, A. (2011), ‘Section 116 of the Australian Constitution and Dress Restrictions’, Deakin Law Review, 16, 293–324. Hage, G. (1998), White Nation: Fantasies of White Supremacy in a Multicultural Society, Sydney: Pluto Press. Hogan, M. (1981), ‘Separation of Church and State: Section 116 of the Australian Constitution’, The Australian Quarterly, 53, 214–28. Hogan, M. (1987), The Sectarian Strand: Religion in Australian History, Ringwood, Vic.: Penguin. Howard, J. (2011), ‘The Anglosphere and the Advance of Freedom’, Lecture #1176 on Democracy and Human Rights, The Heritage Foundation, Washington DC, 3 January. Hunt, E. (2013), ‘Andres Serrano “Piss Christ” Triggers Religious Fury and Court Battle in 1990s Trials’, Herald Sun (Melbourne), 6 March. Hunter, I. (2008), ‘The Shallow Legitimacy of Secular Liberal Orders: The Case of Early Modern Brandenburg-Prussia’, in G. B. Levey and T. Modood (eds), Secularism, Religion and Multicultural Citizenship, Cambridge: Cambridge University Press, pp. 27–55. Israel, J. (2006), Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man 1670–1752, Oxford: Oxford University Press. Johnson, C. (2007), ‘Howard’s Values and Australian Identity’, Australian Journal of Political Science, 2, 195–210. Joint Standing Committee on Migration (2012), Inquiry into Migration and Multiculturalism in Australia, Canberra: Commonwealth of Australia. Jones, M. and P. Jones-Pellach (2011), ‘Jewish Women and Religious Freedom in Australia Status Report’, Sydney: Australian Human Rights Commission, (last accessed 3 February 2017). Kymlicka, W. (1995), Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford: Oxford University Press. Kymlicka, W. (2002), Contemporary Political Philosophy: An Introduction, 2nd edn, Oxford: Oxford University Press.

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geoffrey brahm levey Lennon v Collings [1933] (24 April 1933, High Court), transcript concerning application for special leave to appeal (refused), available at NSW Local Government Reports, vol. ii (July 1932–June 1934), 89–96. Levey G. B. (2006), ‘Symbolic Recognition, Multicultural Citizens, and Acknowledgement: Negotiating the Christmas Wars’, Australian Journal of Political Science, 41, 355–70. Levey G. B. (2008a), ‘Secularism and Religion in a Multicultural Age’, in G. B. Levey and T. Modood (eds), Secularism, Religion and Multicultural Citizenship, Cambridge: Cambridge University Press, pp. 1–24. Levey G. B. (2008b), ‘Multiculturalism and Australian National identity’, in G. B. Levey (ed.), Political Theory and Australian Multiculturalism, New York: Berghahn Books, pp. 254–76. Levey G. B. (2009), ‘Cultural Diversity and Its Recognition in Public Universities: Fairness, Utility, and Inclusion’, in J. Zajda and H. Daun (eds), Global Values Education: Teaching Democracy and Peace, New York: Springer, pp. 143–53. Levey, G. B. (2012), ‘Interculturalism vs. Multiculturalism: A Distinction without a Difference?’, Journal of Intercultural Studies, 33, 217–24. Levey, G. B. (2013), ‘Inclusion: A Missing Principle in Australian Multiculturalism’, in P. Balint and S. Guérard de Latour (eds), Liberal Multiculturalism and the Fair Terms of Integration, London: Palgrave Macmillan, pp. 109–24. Levey, G. B. (2015), ‘Why the Campaign to Reform the Racial Discrimination Act Failed’, in Perspectives on the Racial Discrimination Act: Papers from the 40 Years of The Racial Discrimination Act (1975) Conference, Sydney: AHRC, pp. 97–103. Locke, J. (1963), A Letter Concerning Toleration, ed. M. Montuori, The Hague: Martinus Nijhoff. McLeish, S. (1992), ‘Making Sense of Religion and the Constitution: A Fresh Start for Section 116’, Monash University Law Review, 18, 207–36. Maclure, J. and C. Taylor (2011), Secularism and Freedom of Conscience, Cambridge, MA: Harvard University Press. Maddox, M. (2007), ‘Secularism and Religious Politics: An Australian Exception?’, paper presented at the Secularism and Beyond-Comparative Perspectives conference, University of Copenhagen in cooperation with Department of Theology and Religion, University of Birmingham and Department of Legal Philosophy and Law of Culture and Religion, University of Vienna, 29 May–1 June. Maddox, M. (2009), ‘Religion, State and Politics in Australia,’ in J. Jupp (ed.), The Encyclopedia of Religion in Australia, Cambridge: Cambridge University Press, pp. 608–20. Margalit, A. and M. Halbertal (1994), ‘Liberalism and the Right to Culture’, Social Research, 61, 491–510. Melleuish, G. (1997), ‘Universal Obligations: Liberalism, Religion and National Identity’, in G. Stokes (ed.), The Politics of Identity in Australia, Cambridge: Cambridge University Press, pp. 50–60. Miller, D. (1995), On Nationality, Oxford: Clarendon Press. Modood, T. (2010), ‘From Multiculturalism to Multifaithism?’, Studies in Ethnicity and Nationalism, 10, 307–9.

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secularism in australia Office of Multicultural Affairs (OMA) (1989), National Agenda for a Multicultural Australia, Canberra: AGPS. Pringle, H. (forthcoming), ‘Blasphemy in Australia: The Rags and Remnants of Persecution?’, in J. Templeman (ed.), Blasphemy and Freedom of Expression, Cambridge: Cambridge University Press. Reclaim Australia (2015), . Soutphommasane, T. (2012), The Virtuous Citizen: Patriotism in a Multicultural Society, Cambridge: Cambridge University Press. Sunday Mail (Brisbane) (2005), ‘Season for All’, 4 December. Sydney Morning Herald (2005), ‘Push to Ban Headscarves Divisive: Dems’, 28 August. Tamir, Y. (1993), Liberal Nationalism, Princeton: Princeton University Press. Tate, J. (2009), ‘John Howard’s “Nation” and Citizenship Test: Multiculturalism, Citizenship, and Identity’, Australian Journal of Politics and History, 55, 97–120. Taylor, C. (2008), ‘Foreword: What Is Secularism?’, in G. B. Levey and T. Modood (eds), Secularism, Religion and Multicultural Citizenship, Cambridge: Cambridge University Press, pp. xi–xxi. The Australian (2004), ‘New Recruit’s Headpiece Sets Her Apart’, 27 November. The Australian (2006), ‘The Veiled Conceit of Multiculturalism’, 24 October. Thompson, E. (1980), ‘The “Washminster” Mutation’, Australian Journal of Political Science, 15, 32–40. Ward, R. (1958), The Australian Legend, Melbourne: Oxford University Press. Zagorin, P. (2003), How the Idea of Religious Toleration Came to the West, Princeton: Princeton University Press.

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11

The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity Raphael Cohen-Almagor1

This chapter is dedicated to the memory of two of my teachers whose work is quoted here, who influenced my thinking in different ways, and who are no longer with us: Asher Arian and Ronald Dworkin. Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. (Article 18, Universal Declaration of Human Rights)

Introduction Israel is a Jewish democracy. The differences between Judaism and liberal democracy are not easily reconcilable. This chapter outlines the difference between liberal and illiberal societies. It argues that the lack of separation between state and religion leads to discrimination against non-Orthodox Jews in the private sphere, in conducting their most personal issues of marriage and divorce. It further argues that lack of separation between state and religion contributes to the discrimination against Israeli-Palestinian citizens in the public sphere. The majority of Israeli-Jews feel a strong sense of belonging and affinity to the State of Israel and for Judaism. For most of them it is important to live in Israel and to be part of Israeli society and the Jewish people (Arian and Keissar-Sugarmen 2012: 12). The majority of Israeli-Jews deeply appreciate religion yet they see it as a matter of personal choice, not as an overwhelming dictate from above. 250

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jewish orthodoxy and religious diversity in israel A 2010 survey of Israeli-Jews over the age of twenty asked about self-definition: 8.8 per cent defined themselves as Haredi; 9.6 per cent defined themselves as religious; 13.7 per cent defined themselves as traditional/religious; 24.4 per cent defined themselves as traditional/not very religious; while 43.4 per cent defined themselves as not religious or as secular (Cohen and Susser 2012: 16). That means 67.8 per cent of the Jewish population in Israel would most likely object to religious coercion. A 2015 Gallup poll shows that Israel is one of the world’s least religious countries. Nearly two thirds of the Israelis polled either described themselves as not religious, or convinced atheists; 57 seven per cent of Israelis described themselves as non-religious; while 8 per cent said they were convinced atheists. Only 30 per cent described themselves as religious.2 Data shows in abundance that the lack of separation between state and religion puts non-Orthodox Jews as well as the IsraeliPalestinians in a precarious position, undermines their equal rights and liberties, and paves the way for discrimination against them.3 At the same time, this situation makes Israel an illiberal society, one that cannot be considered a ‘light unto the nations’ as many people aspire to.4 The more minorities are integrated into society and receive equal treatment, respect and concern, the more light that society will shed unto other nations, serving as an inspiring model to follow. A multicultural society cannot ignore the demands of diversity. Diversity is an inescapable part of the collective life. It cannot be pushed aside or suppressed without coercion. Since we are attached to and shaped by our culture, the basic respect we owe to our fellow human beings extends to their culture. Bhikhu Parekh notes that respect for their culture also earns their loyalty, gives them the confidence and courage to interact with other cultures, and facilitates their integration into the wider society. Cultural diversity is thus desirable for society and represents a valuable collective asset (Parekh 2000: 196). Now let me turn to explain the concept of liberal democracy in more detail and elaborate on its main principles.

Liberal democracy Commonly, democracy is defined as a form of government in which political power belongs to the public as a whole and not merely to 251

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raphael cohen-almagor a single person or a particular limited group of people. Democracy is procedural in character. It is about the rule of the people by the people. Democracy provides a framework of governance aiming to entertain as many public interests as possible. The term ‘democracy’ has been used in conjunction with the terms ‘monarchy’ and ‘aristocracy’, and this trilogy has been employed to discern situations of monopoly, of oligopoly and of equality. A state is democratic, not ‘if’, but insofar as the great mass of the population can exercise an effective influence on the process of decision making. Thus, it implies that democracy is a matter of degree and not a fixed concept, and that it is more useful to think in terms of a scale than to attempt to lay down conditions for democracy. At the heart of the democratic theory lies the principle of popular will: the citizens participate in influencing and shaping the policies which concern their lives. They share the duties and rights of political life; they possess the same burdens and benefits, rights and liberties; they initiate policies and govern the political authority. The state is regarded as an organisation whose aim is to serve the given society, and to make it more of a community. In a democracy this means making the community freer and of a participatory character. Democracy can be considered as a way of administering discussion between different persons who hold different interests. The aim is not to secure complete agreement on every question, though democracy certainly welcomes crystallisation of consensus and agreement. Democracy does not demand the creation of a society which consists of people who parrot the decisions of the governing body, but rather it demands to accept the right to be different, to accept that there can be a range of opinions. This acceptance implies, in turn, an agreement on the ways in which these differences could be settled in practice. Therefore, the commonly accepted treaty is compromise, a principle whereby that which divides is rejected in favour of that which unites the people. However, this is not to say that compromise is a self-sufficient principle that can be divorced from moral or other considerations. Compromise between two or more groups is not to come at the expense of the rights of others. Liberal democracy is a democracy enshrined in the liberal ideology. It is defined as a form of government in which political power belongs to the public as a whole and not merely to a single person or a particular group of people. At the centre is the individual. Liberal democracy is designed to promote respect of each and every citizen 252

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jewish orthodoxy and religious diversity in israel qua citizen. This notion is called the Respect for Others Argument. The liberal ideology promotes human individuality, pluralism, liberty, equality before the law and the dignity of the person. These values underpin the foundations of liberal societies. In every society certain norms and moral codes must be shared by all people despite their cultural differences; hence the range of norms that society can respect has limitations. The most basic norms liberal democracy has to secure are respecting others as human beings (under the Kantian Respect for Others Argument) and not to inflict harm upon others (under the Millian Harm Principle). According to Immanuel Kant, it is only through morality that a rational being can be a law-giving member in the realm of ends, and it is only through morality that a rational being can be an end in himself. Kant distinguishes between relative values and intrinsic values, explaining that people have intrinsic value, that is, dignity. Kant identifies dignity with moral capacity, arguing that human beings are infinitely above any price: ‘to compare it with, or weigh it against, things that have price would be to violate its holiness, as it were’ (Kant 2008: 33; for further discussion, see Bird 2006). In other words, ‘humanity so far as it is capable of morality, are the only things that have dignity’ (Kant 2008: 33). Kant wrote: ‘Such beings are not merely subjective ends whose existence as a result of our action has value for us, but are objective ends, i.e. things [Dinge] whose existence is an end in itself’ (Kant 2008: 29). Each person has dignity and moral worth. They should be respected qua being persons and should never be exploited. The Respect for Others Argument is founded on the assertions that we ought to respect others as autonomous human beings who exercise self-determination to live according to their own life plans, and that we respect people as self-developing beings who are able to develop their inherent faculties as they choose (that is, to develop capabilities people wish to develop, not every capability that they are blessed with). At the same time, we insist on the requirement of mutuality. We ought to show respect for those who respect others. Each individual is a bearer of rights and a source of claims against other persons, just because the resolution of the others is theirs, made by them as free agents. To regard others with respect is to respect their right to make decisions regardless of our opinions of them. We simply assume that each of us holds that our own course of life has intrinsic value, at least for the individual, and we 253

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raphael cohen-almagor respect the individual’s reasoning, so long as she does not harm others. We respect her rights as a person even if we have no respect for her specific decisions and choices. The boundaries of tolerance are determined by the qualification of not harming others, which is added to the Respect for Others Argument. Under the Harm Principle, restrictions on liberty may be prescribed when there are clear threats of immediate violence against some individuals or groups.5 A similar idea was pronounced by Rabbi Hillel in his dictum: ‘What is hateful to you do not do unto your fellow people.’6 The Millian Harm Principle holds that something is eligible for restriction only if it causes harm to others. Mill wrote in On Liberty: ‘Acts of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind’ (Mill 1948: 114).7 Whether an act ought to be restricted remains to be calculated. Hence, in some situations, people are culpable not because of the act that they have performed, though this act might be morally wrong, but because of its circumstances and its consequences. While Kant spoke of unqualified, imperative moral duties, Mill’s philosophy is consequentialist in nature. Together the Kantian and Millian arguments make a forceful plea for moral, responsible conduct: always perceive others as ends in themselves rather than means to something, and avoid harming others. As Ronald Dworkin suggests, the concept of dignity needs to be associated with the responsibilities each person must take for his or her own life. Dignity requires owning up to what one has done.8 Liberal democracies accept these notions of respecting people, not harming others, and the ideas of the dignity of the person as the foundations of governance. On the other hand, theocracy denies the background rights and moral values of liberal democracy. Theocracy also has a conception of justice but this understanding of justice is very different from the liberal concept of justice. According to Mahatma Gandhi, the litmus test of a decent or civilised society is the status of minorities (Parekh 2001, 2016). The more egalitarian the society, the more decent it is. In this respect, Israel is struggling. Egalitarianism is still in the making, something that Israel should aspire to achieve. Israel has struggled between liberalism and promoting its religion as a Jewish state. Israeli leaders have given precedence to Judaism over liberalism. 254

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jewish orthodoxy and religious diversity in israel

Liberal and illiberal societies In liberal democracy irreconcilable and incommensurable conceptions of the good often occur. Having diverse ideals, in light of which people lead different ways of life, is the normal condition. Furthermore, this variety is conceived to be a good thing. It is rational for members of a democratic society to want their plans to be different, for human beings have talents and abilities the totality of which is unrealisable by any one person or group of persons. We not only benefit from the complementary nature of our developed inclinations, but we take pleasure in one another’s activities. Hence, citizens should be allowed to follow their conceptions of the good as far as it is socially possible, rather than being obliged to live with convictions they do not uphold. In The Law of Peoples, John Rawls draws a distinction between liberal and illiberal societies. Liberal societies are pluralistic and peaceful; they are governed by reasonable people who protect basic human rights. These rights include providing a certain minimum to means of subsistence, security, liberty and personal property as well as to formal equality and self-respect as expressed by the rules of natural justice (Rawls 2002: ch. 2; for further discussion, see Rorty 1997). Liberal peoples are reasonable and rational. Their conduct, laws and policies are guided by a sense of political justice (Rawls 2002: 25). In contrast, non-liberal societies fail to treat their people as truly free and equal. They adopt norms based on compulsion and coercion. Authoritarian societies aggressively fight to undermine political opponents while liberal societies encourage pluralism of ideas and provide avenues to empower opposition. Theocracy attempts to provide strict answers to all questions and concerns whereas liberal societies have no qualms to present questions with no definite answers, to challenge common truisms, to present competing ideas, to admit human infallibility and to celebrate heresy. Persons, as moral agents, have their conceptions of a moral life, and accordingly determine what they deem to be the most valuable or best form of life worth leading. It is emphasised that one’s conception of the good does not have to be compatible with moral excellence. It does not mean a conception of justice. The assumption is that a conception of the good comprises a basic part of our overall moral scheme and that it is public insofar as it is something we 255

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raphael cohen-almagor advance as good for others as well as for ourselves. Consequently, we would want others to hold the conception for their sake. But we refrain from coercing others. When that desire is based on coercion, it cannot be said to be moral because people are no longer autonomous to decide on their way of life (Cohen-Almagor 2006). They are then forced to follow a scheme that they do not consider to be a conception of the good life. Israel is a young and relatively small country. It was established in 1948. Its size is roughly 22,072 square kilometres.9 This is more or less the size of Wales (20,758 square kilometres).10 On the eve of 2016, the Israeli population was 8,462,000.11 Because Israel is a relatively young democracy, it lacks experience in dealing with the pitfalls involved in the working of the system. Like every young phenomenon, Israeli democracy needs to develop gradually, with great caution and care. Israel struggles with issues pertaining to religious diversity and is still searching for the right balance between the public and the private. In the next sections I show that Jewish democracy and liberal democracy are not easily reconcilable.

Religious diversity and state institutions Israel formally inherited the Ottoman millet system in its modified form as applied under the British Mandatory regime,12 when the Provisional Council of State enacted the Law and Administration Ordinance on 19 May 1948. The Ottoman millet system was employed to segregate and categorise colonial subjects into ethnoreligious and tribal communities and to categorise them as first and foremost members of various religious groups, subjecting them to legal and institutional authority of their respective faiths (Sezgin 2010). In this way, different religious groups did not meddle in each other’s affairs and, at the same time, the Ottoman rulers limited the power of each group through segregation. Muslims, Christians and Jews were all recognised as self-governing units (or ‘millets’), and allowed to impose restrictive religious laws on their own members. This was a group-based form of toleration, which did not recognise any principle of individual freedom of conscience (Kymlicka and Cohen-Almagor 2000). There are five officially recognised religions in Israel: Judaism (Orthodox), Islam (Sunni), Christianity (various denominations), Ba’hai and Druze.13 Each citizen may follow the religion into which 256

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jewish orthodoxy and religious diversity in israel he or she is born. Aiming to establish a monolithic Zionist-IsraeliJewish identity, Israel’s first prime minister, David Ben-Gurion, negotiated the identity of the newly established state with the religious-Orthodox community. The Israeli government decided to grant the rabbinical courts jurisdiction over issues pertaining to personal status. Questions of marriage and divorce were perceived as central and more important than any other religious issue. Consequently, such matters are determined in accordance with religious laws by the religious courts of different communities (Raday 2002: 492). The religious courts are granted exclusive jurisdiction over matters of marriage and divorce and concurrent jurisdiction with the civil courts regarding issues of maintenance and succession. Thus, adopting the millet system in Israel served several prime purposes: • Unity: maintaining unity of all the Jewish elements in society. • Identity: identifying and crystallising the importance of Judaism in private matters. • Inclusion: including all Jews within the arrangement regardless of whether they were secular or religious. • Exclusion: excluding non-Jews from the rabbinical courts. • Tolerance: projecting to all concerned, inside and outside Israel, that the Zionist state is tolerant of non-Jewish religions, granting them autonomy to handle their own affairs. However, this system is manifestly illiberal. For Jews, at the centre of attention is Jewish Law, not the individual. All need to conform to the Orthodox way of life. There is no pluralism and equality between different dominations of Judaism. Respect for others’ way of life does not exist. The concept of coercion is a major source of contention. Orthodox and Ultra-Orthodox religious people have no qualms coercing others because they believe people are not free to start with. Moreover, some of them believe that if some people go astray, they may lead the entire community down the drain. We Jews sit in the same boat, and if some are leading reckless lives, they knock holes in the boat and we all sink to the bottom. Thus, the only way to avoid this fate is to coerce the reckless to change their way of life and adopt the ‘correct’ one. Thus it is very difficult, if not impossible, to find a modus vivendi, some form of reconciliation between liberals and religious people. 257

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raphael cohen-almagor The religious coercion brings about continued agony and a great deal of hardship that alienate many parts of the population from the state and its institutions. I have discussed these sentiments when they concern women in an earlier article (Cohen-Almagor 2000). In another article I argued unequivocally for separation between state and religion (Cohen-Almagor 2014). Thus I will not elaborate here about this need. I think that the present state of affairs offends and discriminates against non-Orthodox Jews as well as non-Jews. A comprehensive 2009 survey among Israeli-Jews showed that more than half of the respondents (55 per cent) believed that relations between the religious and nonreligious in Israel were ‘not so good’ or ‘not at all good’ (Arian and Keissar-Sugarmen 2012: 16). As Judaism is governed by patriarchal norms, those norms guide state interference in the most personal matters of people. The most intimate private concerns become open to public regulation. Secular people are required to abide by a set of norms and halachic regulation that are not part of their worldview.

Governance and power struggle The discourse between liberals and religious people is difficult. While liberals base their reasoning on trying to understand the other, finding compromises, establishing paths for discourse, appreciating pluralism, the religious people remain unmoved in their unshaken beliefs. Concessions to the religious only bolster their stand and empower them to make further demands. Today, in 2016, the struggle for power is more between the national religious and the ultrareligious than it is between both these camps and the secular people. Although secular people resent coercion, somehow they allowed the government, the Knesset and the army, three major bases of power, to become more religious. How can we explain this? Internal conflicts were and remain secondary to the Arab-Israeli conflict. From Prime Minister Ben-Gurion onwards, unity against external threats has been perceived by all prime ministers as most important. Promoting religious pluralism which would aggravate the Orthodox monopoly is secondary. Due to power politics considerations, secular leaders who on the whole wish to retain the Jewish character of the state do not push hard for separation between state and religion. But there is a way to retain the Jewish character of Israel while promoting pluralism and tolerance and 258

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jewish orthodoxy and religious diversity in israel subduing religious coercion. People who wish to live life free of coercion are demanding changes. Both liberalism and Judaism offer very different comprehensive societal and legal dimensions. Judaism assumes the existence of God and puts him at the centre as the source of all authority. Liberalism believes that everything stems from the individual and that democracy is a developed system of governance designed to secure and promote individuality. God may exist in individual beliefs but such belief is a matter of personal choice. God is not necessarily part of the equation. Judaism believes in God in an existential way, as an objective truth. Liberalism perceives God as a subjective truth, existential only to the extent that one decides to make God existential for one’s life. Adhering to the principles of respecting others and not harming others, the constant challenge for all democracies is to secure basic human rights for all, the powerful as well as the powerless, for those who are able to take care of themselves and for those who are struggling to maintain their independence and autonomy. In Israel, secular Jews and Jews of non-Orthodox denominations as well as minorities are put at a disadvantage as a result of a lack of separation between state and religion. Discrimination against secular Jews and Jews of non-Orthodox denominations Orthodox Judaism is hostile to secularism and to other Jewish denominations. Orthodoxy has a monopoly on all Jewish-religious affairs and is not willing to share power positions. The Rabbinic Courts Jurisdiction Law (Marriage and Divorce) of 1953 provides that for Jews who are either citizens or residents of Israel, matters of marriage and divorce are exclusively under the jurisdiction of the Rabbinic Courts, and that marriage and divorce should adhere to Halacha (Cohen-Almagor 2000). The judges are all Orthodox men. In 1949, the Israeli government pledged in a letter to the ultra-religious party Agudat Yisrael that it would never introduce civil marriage and divorce, which could lead to de-homogenisation of the Israeli-Jewish identity and which enable interfaith marriages (Sezgin 2010: 641). Secular people and non-Orthodox Jewish denominations are inclined to be egalitarian and inclusive. They prefer discussion, 259

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raphael cohen-almagor debate and education over coercion. They endorse diversity and pluralism. They are not guided by one holistic conception of the good. Their sense of justice is not rigid and is not necessarily Jewish. Universal values are embraced and deemed no less important, possibly more important, than Jewish values. In other words, secular and non-Orthodox Jewish denominations are quite liberal. As explained, the clash between Orthodox Judaism and liberalism is inevitable. The Reform and Conservative movements in Israel are relatively small but despite the power politics that is directed against them they are growing. The Israel Movement for Progressive Judaism is Israel’s liberal Jewish religious movement, the equivalent to North American Reform Judaism, and is a member of the World Union of Progressive Judaism. The first Reform synagogue, Jerusalem’s Congregation Har El, was founded in 1958.14 In 2013, 3.2 per cent of The Israel Democracy Institute survey identified themselves with the Conservative movement, 3.9 per cent with the Reform movement and 26.5 per cent with the Orthodox movement. The rest did not identify themselves with any movement or did not answer the question (Cohen and Hermann 2013). All have to follow the Orthodox dictates. The US Department of State (2014) estimates that between 500,000 and 600,000 traditional and secular Jews feel a sense of belonging to the Conservative or Reform streams of Judaism. Conservative and Reform marriages performed inside Israel are not recognised by the state. The only Jewish marriages in Israel that are recognised are those performed by the Orthodox Rabbinate. This does not deter over 1,000 couples a year from asking a Reform rabbi (male or female) to officiate at their wedding.15 Most couples, after having a Jewish Reform or Conservative ceremony in Israel, go overseas to places such as Greece, Cyprus, sometimes other European countries and even the United States to conduct a civil ceremony. This marriage is recognised in Israel for marriage registration purposes. Israelis who go abroad to marry are not necessarily affiliated to the Reform or Conservative movements. They simply object to coercion and do not wish to have any religious stamp on a very personal civic ceremony. It is estimated that one in six Jewish couples marry abroad.16 The 2013 Religion and State Index showed that two thirds of secular Israelis would prefer not to marry in an 260

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jewish orthodoxy and religious diversity in israel Orthodox ceremony, if they were free to choose.17 Furthermore, couples who decide to go their separate ways, including those who married in a civil marriage abroad, are still required to divorce in a religious court. Most Israelis are not aware of this.18 Only when couples separate do they realise that they are forced to undergo a discriminatory ritual in rabbinical courts that are of little significance for them.19 Thus the present situation infringes basic human rights, freedom of religion, freedom of conscience and equality. It calls for a change. If an illiberal minority is seeking to oppress other groups, then most liberals would agree that intervention is justified in the name of self-defence (Rawls 1971: 216–21). Hence, the secular majority in Israel has every right to object to attempts which aim at narrowing its freedom of conscience and at broadening the authority of religious orthodoxy. The 2015 Israel Religion and State Index presents alarming figures about denial of basic civil rights in Israel. A total of 666,000 Israelis cannot legally get married in Israel. Of these, 364,000 are immigrants from the former Soviet Union who are officially classified as having ‘no religion’ on account of their mothers not being halachically Jewish (which renders them ‘non-Jews’ in the eyes of the Rabbinate and the State of Israel), 5,000 Israelis who are classified as ‘forbidden to marry’, 13,000 non-Orthodox converts and 284,000 members of the LGBTQ community. In addition, the Index denotes other populations that face legal marriage restrictions. These include 269,000 female divorcées who cannot marry men who are descendants of the priestly clan, Cohanim, whether religious or secular, 80,000 Cohanim who cannot marry either divorcées or female converts, and 50,000 female converts who are subject to the implementation of the Biblical law that forbids their marriage to men who have the religious ‘priest’ status.20 Presently, conversions to Judaism performed by non-Orthodox rabbis are recognised for the purpose of registering as a Jew but not for acquiring citizenship under the Law of Return that grants Jews automatic Israeli citizenship. The government has provided funding for Orthodox conversion programmes and only recently, after a legal battle, has started to support non-Orthodox programmes. Until recently, only the Chief Rabbinate determined the legal validity of conversions to Judaism under Orthodox rabbinic law.21 The Chief Rabbinate does not recognise non-Orthodox converts to Judaism as Jews; therefore, Reform and Conservative converts 261

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raphael cohen-almagor cannot marry or divorce in the country or be buried in Jewish cemeteries. Generally speaking, Conservative and Reform movements perform conversions only for individuals who already hold Israeli citizenship, and these conversions are recognised by the Ministry of Interior for residence registration purposes but not by the Rabbinate. This also means that those who undergo Conservative and Reform conversion are not entitled to Israeli citizenship in accordance with the Law of Return.22 The government has not implemented a May 2009 High Court of Justice ruling requiring it to stop discrimination against non-Orthodox conversions.23 In 2015, prominent Orthodox Zionist rabbis decided to rebel against the monopoly of the Chief Rabbinate and established an independent conversion network providing a more liberal conversion framework (Admaker 2015). The battle against the Chief Rabbinate coercion is expected to be long as this institution is unlikely to be willing to relinquish any segment of power. Conservative and Reform institutions and synagogues do not officially receive state funding the way that Orthodox institutions do. After a legal battle, since 2008 the state has started funding non-Orthodox synagogue buildings. In various towns and cities around the country, people ascribing to Reform or Conservative Judaism serve in only a few local city and town councils, in religious councils and on various boards. The Reform and Conservative movements receive state funding from a few offices, for example from the Ministry of Education and from the Ministry of Absorption, for specific projects and initiatives. To date, four regional council Reform congregations have received state funding, a long-standing fact for Orthodox congregations and institutions.24 With almost no support from a government that funds only Orthodox institutions, the Reform movement has built forty congregations and a network of schools and synagogues in Israel’s major cities (Yoffie 2013). As its members, like secular Jews, abhor coercion and believe in universal human rights and equality before the law, they generally support separation between state and religion. Indeed, 61 per cent of Israelis support such a separation; 86 per cent support freedom of choice, allowing people to follow their conceptions of the good as they believe is appropriate for them;25 72 per cent support having shopping malls outside the cities open on Shabbat; and 45 per cent wish to have limited 262

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jewish orthodoxy and religious diversity in israel public transportation on Shabbat (Nachshoni 2015).26 Sixty-four per cent of Israelis favour conversion to Judaism conducted by non-Orthodox Jewish denomination (Nachshoni 2014, 2015);27 64 per cent of Israelis support Orthodox weddings as well as Conservative, Reform and civil marriage (Nachshoni 2015);28 60 per cent support obliging the Chief Rabbinate that administers all religious affairs to issue Kosher certificates to businesses that are opened also on Shabbat (Nachshoni 2014). Presently this is not the case. Fifty-two per cent (69 per cent of the secular) support same-sex marriage or civil union; and 48 per cent oppose, of which 91 per cent are Charedim, 84 per cent religious and 51 per cent Massortiim (Nachshoni 2011). Discrimination against minorities I have discussed this issue in another article (Cohen-Almagor 2015). Here I wish to highlight some major findings and to provide some updated information. The Palestinian-Arabs comprise some 21 per cent of the Israeli population. According to the Central Bureau of Statistics, in 2014 there were 1,720,300 Israeli-Palestinians (CBS 2015). Due to the continued strained relationships between Israeli-Jews and the Palestinian people at large, the continued occupation of the West Bank, and the ever-present security concerns that deny Israel basic tranquillity, relationships between Jews and Palestinians in Israel are never relaxed. The 2013 Israeli Democracy Index showed that the greatest share of respondents identified the tension between Jews and Arabs as the most serious area of friction in Israeli society (Hermann et al. 2013: 13, 150). The tension relates both to the Palestinians in the West Bank and Gaza as well as to the Palestinians inside the Green (1967) Line. The Jewish public was divided as to whether Jewish citizens should be given more rights than non-Jewish citizens. The fact that roughly half of the respondents considered the latter to be an acceptable policy is extremely problematic since the essence of democracy is the principle of equal rights for all citizens (Hermann et al. 2013: 14). Of the Jews in the sample, 27.5 per cent were said to ‘Agree totally’ and further 16.3 per cent ‘Agree somewhat’ with the statement ‘The government should encourage Arabs to emigrate from Israel’ (Hermann et al. 2013: 148). The survey also revealed that a majority of the Jewish public considered the Jews 263

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raphael cohen-almagor to be the ‘chosen people’: 50.1 per cent believe this ‘Very strongly’ and a further 14.2 per cent believe this ‘Quite strongly’ (Hermann et al. 2013: 152; for further discussion, see Cohen-Almagor and Guiora forthcoming). This sense of ‘chosenness’ entails the exclusion of others. According to government figures, the 2013 budget for religious services for the Jewish population, including funding for religious councils, salaries for religious personnel, funding for the development of cemeteries, and funding for the construction of synagogues and ritual baths was approximately 418.8 million new Israeli shekels (NIS) ($120.7 million). Religious minorities received approximately NIS79.1 million ($22.8 million), or 13 per cent of total funding, which included NIS14.1 million ($4.1 million) for development of religious sites and structures (US Department of State 2014). The majority of Israeli-Palestinians do not feel that they are fully integrated into Israel because it is a Jewish state, and due to continued discrimination in many spheres of life. All the symbols of the state are Jewish, ignoring its minorities. Palestinians would not easily (if at all) identify with a state whose symbols are the Star of David and the Menorah, and where the national anthem speaks of Zion and of ‘the yearning of the Jewish soul’ (for an elaborated discussion, see Rubinstein 2006). Thus, the Israeli-Palestinians do not feel at home in Israel. According to the 2015 Israeli Democracy Index, 32.4 per cent of the Israeli-Palestinians greatly feel a part of the state and its problems (of whom a mere 8 per cent responded ‘very much’ and 24.4 per cent ‘quite a lot’). This marks a considerable drop compared with the previous year (58.9 per cent). Of the Palestinians in the sample, 45.7 per cent answered the question ‘To what extent do you feel part of the State of Israel and its problems?’ ‘Not so much’, while 21.1 per cent answered ‘Not at all’ (Hermann et al. 2015: 27, 109). Multiculturalism is grounded in a specific set of socio-political realities and is developed out of a broadly accepted framework of norms, policies and politics (Modood 2013: 113). An important distinction has to be made between formal citizenship and full citizenship. Israeli-Jews can be said to enjoy full citizenship: they enjoy equal respect as individuals, and they are entitled to equal treatment by law and in its administration. The situation is different with regard to the Israeli-Palestinians, the Bedouin and the Druze 264

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jewish orthodoxy and religious diversity in israel (Firro 1999, 2001). Although they are formally considered to enjoy liberties equally with the Jewish community, in practice they do not share and enjoy the same rights and liberties. Officially, Israeli-Palestinians enjoy full equality before the law. They have the right to vote and to be elected to state institutions. They have been serving in the Israeli parliament, the Knesset and they enjoy religious and cultural autonomy. However, in 2010, only 7 per cent of civil servants were Palestinians. This is a third of the Arab percentage of the Israeli population. Only 1.5 per cent of university faculty members were Palestinians (Vikomerson 2011: 6–7; Chatab et al. 2013). Arab citizens are discriminated against in having access to land, in land planning, in rural and urban development, and in housing provisions. Arabs own only 2.5 per cent of Israel’s land and they lack the ability to acquire the majority of Israeli land. While over 1,000 Jewish settlements have been established since 1948, the Arab community has remained almost at a standstill (Nasser 2012: 85–6). Arabs are in the periphery of the job market. They are among the first to be dismissed in hard times for the economy, and the last to re-enter the job market when it revives. Arabs have generally held the low-skilled, low-wage jobs in the Israeli economy. On average, Arab men earn 60 per cent of the national average wage, while Arab women earn 70 per cent of the average wage (CBS 2008; Peleg and Waxman 2011: 36–7). In 2009, the hourly pay for Arabs was only 62 per cent of that of the Jews at NIS27/hour compared with NIS44/ hour (Chatab et al. 2013; see also Asali 2006). Thus, unsurprisingly in the 2015 Israeli Democracy Index, 74 per cent of Arabs strongly agreed with the statement that they were discriminated against and 12.9 per cent somewhat agreed with this statement (Hermann et al. 2015: 131). The schism between Jews and Arabs was and remains very significant. On 30 December 2015, the Israeli government approved a much-needed five-year plan worth NIS15 billion (approximately $3.84 billion) for social and employment development designed to improve the Arab community’s position in society. The programme adjusts budget distribution mechanisms between Jewish and Arab communities with twenty different budget mechanisms in various spheres of life including infrastructure (40 per cent of the national budget for road infrastructure development in Arab communities), development (40 per cent of the budget of the 265

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raphael cohen-almagor Ministry for Development of the Negev and the Galilee Periphery will be allocated to Arab communities), community services (at least 25 per cent of the construction budget for new day care centres will be allocated to Arab communities), education (20 per cent of the informal education budget will now be allocated to Arab citizens), employment and industry (42.5 per cent of the budget for industrial parks will be allocated to industrial parks that yield income to Arab communities). In addition, affirmative action measures will be adopted to compensate for the historic disparity in budget allocation for housing and transportation (Gideon 2016). All these are very important steps on the route to closing the gaps and promoting equality in Israeli society. This route, however, is long and winding. Far more is needed to assure equality to all. It is sad and disappointing that only now such measures are being taken to ensure just allocation of budgets to Israeli-Palestinians in accordance with their proportion in society.

Conclusions The constant challenge for Israeli democracy is to secure basic human rights for all. In Israel, the tensions between Orthodox Judaism and those who do not follow the Orthodox dictates are numerous. Un-Orthodox Jews and minorities are put at a disadvantage as a result of lack of separation between state and religion.29 The Reform and Conservative movements should have the same status as that enjoyed by the Orthodoxy. Civil marriages should be recognised in Israel. Respect for democratic processes will result in respect for Jewish and religious diversity. What is needed is a deliberative process involving all parties, all aiming to reach a compromise. The compromise process involves open and sincere communication between the parties. It is a conscious process in which there is a degree of moral acknowledgement of the other party (Golding 1979: 16). Israel is advised to enhance and promote civic education which includes discussions on the merits of tolerance, based on respect for others, and on the merits of compromise, based on mutual genuine concessions between different groups of society. Unfortunately, the education curricula of the Ultra-Orthodox schools lack these values. 266

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jewish orthodoxy and religious diversity in israel The upholding of the Kantian Respect for Others Argument and the Millian Harm Principle safeguards the rights of those who might find themselves in a disadvantageous position in society, such as ethnic, religious, national and cultural minorities; homosexuals; and others. All segments of the population are entitled to the same rights and liberties. Accommodations and corrective mechanisms should be devised and implemented in every sphere where minorities are not accorded equal status.30 Support for human rights and for liberal democracy necessitates equal rights for all citizens and separation between state and religion.

Notes 1. I thank Orly Erez-Likhovski, Tariq Modood and Anna Triandafyllidou for their advice and constructive comments. I am also grateful to Deputy President of the Israel Supreme Court Justice Elyakim Rubinstein, Ruth Kaddari, Yonatan Melamed and Elliot Vaisrub Glassenberg for providing me with valuable information. 2. ‘Poll: Israel Is One of the World’s Least Religious Countries, The Algemeiner, 21 April 2015, available at (last accessed 5 February 2017). 3. Peleg and Waxman 2011; Nasse 2012; Steiner 2013; Hermann et al. 2013; Jabareen 2013; Wood 2013; Cohen-Almagor 2005; Kimmerling and Migdal 2003; Raday 1995, 2002; Halperin-Kaddari 2000–1; Kretzmer 1987; Lustick 1980. 4. Motion to take note, ‘Israel: Arab Citizens’, House of Lords Official Report, Hansard, 741: 84, 13 December 2012. 5. To quote Mill, the end for which ‘mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection’ (Mill 1948: 72–3; see also 114, 138). Power can be rightfully exercised over any member of society, against his or her will, if done to prevent harm to others. 6. The Talmud, Shabbat 31a, available at (last accessed 1 March 2017). 7. See ‘Of Individuality, as One of the Elements of Well-Being’ (Mill 1948: ch. 3). 8. Dworkin asserts that people who blame others or society at large for their own mistakes, or who absolve themselves of any responsibility for their conduct by blaming genetic determinism lack dignity. ‘The buck stops here’, says Dworkin, in an important piece of ethical wisdom. See Dworkin 2011: ch. 8, especially 210–11. 9. Israel in Numbers (Hebrew), Jerusalem: Israel Bureau of Statistics, 2009, available at (last accessed 5 February 2017). 10. Wales Factfile, available at (last accessed 5 February 2017).

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raphael cohen-almagor 11. Latest Population Statistics for Israel, Jewish Virtual Library, January 2016, available at (last accessed 5 February 2017). 12. This in accordance with the Palestine Order in Council (1922) which ordered that ‘In Matters Of Personal Status Shall Be Exercised In Accordance With The Provisions Of This Part By The Courts Of The Religious Communities Established And Exercising Jurisdiction At The Date Of This Order’. See (last accessed 10 February 2017). 13. The Palestine Order in Council recognised eleven religious communities: Jewish, Muslim and nine Christian denominations. Later the Israeli government added the Ba’hai, the Presbyterian Evangelical Church and the Druze. 14. ‘Progressive Judaism in Israel’, 2011, Israel Movement for Reform and Progressive Judaism, available at (last accessed 5 February 2017). 15. I thank Yonatan Melamed for this information. In recent years, some 50,000 couples have married each and every year. In 2013, there were 52,705 marriages. See Central Bureau of Statistics (Hebrew), available at (last accessed 5 February 2017). 16. ‘One in Six Marriages Involving Jews Are Conducted Abroad’, Hiddush (Hebrew), 21 August 2014. 17. Ibid. The National Council of Jewish Women (NCJW) has called on the government of Israel to adopt a system of civil marriage and divorce: ‘NCJW is committed to the letter and spirit of respect for democratic values and civil liberties. The monopoly of authority given to Orthodox rabbinical courts in Israel regarding issues of personal status, particularly marriage, weakens rather than strengthens the state itself by causing disunity, disrespect for the law, and even hostility among Israelis and between Israel and Jews abroad. In addition, twenty percent of the Israeli population is made up of members of minority groups whose marriages are similarly governed by the religious authorities of each faith, and who, as a result, face marital issues of their own. As a result, hundreds of thousands of Israeli citizens are denied the right of marriage solely based on issues of religion.’ ‘NCJW Board Calls for Civil Marriage in Israel’, National Council of Jewish Women, 3 April 2013, available at (last accessed 5 February 2017). 18. Sixty-two per cent of the Jewish population are unaware that even those who are married in civil ceremonies abroad may only get legally divorced in Israeli rabbinical courts. ‘Marriage Freedom in Israel by the Numbers’, The 2015 Israel Religion and State Index, Hiddush, 2016, available at (last accessed 5 February 2017). 19. The halachic ceremony of granting a get, the bill of divorce, is conducted by men. The wife has to wait outside the courtroom while the judge, his assistants and the witnesses, all men, participate in the ancient ceremony. The wife is called to the courtroom only for the final stage of the ceremony in order to receive the get (Triger 2012: 1).

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jewish orthodoxy and religious diversity in israel 20. ‘Marriage Freedom in Israel by the Numbers’, The 2015 Israel Religion and State Index, Hiddush, 2016, available at (last accessed 5 February 2017). 21. On 31 March 2016, the High Court of Justice declared that the state must recognise private conversions to Orthodox Judaism that are conducted outside the framework of the Israeli Chief Rabbinate. The Court ruled that individuals who underwent conversion at any Orthodox rabbinical court, in Israel or aboard, will be recognised as Jewish, and will thus be eligible to receive Israeli citizenship in accordance with the Law the Return. H.C. 7625/06 Martina Ragchova, Sean P. Murphy and Rachel Z. Altar v. Ministry of the Interior and Others, 31 March 2016. 22. A petition regarding this point has been pending before the Supreme Court for a decade. 23. H.C. 11585/05 Progressive Judaism Movement in Israel v. Ministry of Absorption (Hebrew), 19 May 2009, available at (last accessed 5 February 2017). For further discussion, see US Department of State 2014. 24. I thank Elliot Vaisrub Glassenberg and Orly Erez-Likhovski for this information. 25. In 2014, 84 per cent supported freedom of choice and conscience (Nachshoni 2014). 26. In 2014, 34 per cent wish to have limited public transportation on Shabbat (Nachshoni 2014). 27. Same figure for 2014 and 2015. 28. In 2014, 66 per cent of Israelis supported Orthodox weddings as well as Conservative, Reform and civil marriage (Nachshoni 2014). 29. For further discussion, see Modood 2010, who calls for moderate political secularism that takes seriously multiculturalism and respects all religions. 30. See discussions on Jewish obligations to minorities in Identities (Hebrew), 3 (2013), 125–57, especially the articles by Aviad Hacohen, Elyakim Rubinstein and Naftali Rotenberg.

References Admaker, Yaki (2015), ‘Rebellion against the Rabbinate Monopoly: Religious Zionist Establish an Independent Conversion Network’ (Hebrew), Walla News, 10 August, (last accessed 5 February 2017). Arian, Asher and Ayala Keissar-Sugarmen (2012), A Portrait of Israeli Jews, Jerusalem: The Israel Democracy Institute. Asali, Muhammad (2006), ‘Why Do Arabs Earn Less than Jews in Israel?’, Discussion Paper no. 06.03, Jerusalem: Maurice Falk Institute for Economic Research in Israel. Bird, Graham (ed.) (2006), A Companion to Kant, Oxford: Blackwell. Central Bureau of Statistics (CBS) (2008), Arab Population 2008 (Hebrew), Jerusalem: Central Bureau of Statistics.

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raphael cohen-almagor Central Bureau of Statistics (CBS) (2015), Annual Report – 2015 (Hebrew), Jerusalem, 10 September, (last accessed 5 February 2017). Chatab, Nabil, Sami Miaari, Avital Manor, Ola Navoani and Shlomit Kagia (2013), ‘“Social Justice” in Jewish–Arab Relationships in Israel’, The Israel Democracy Institute, 22 April, (last accessed 1 March 2017). Cohen, Asher and Bernard Susser (2012), ‘Religious Pressure Will Increase in the Future’, Israel Studies Review, 27: 1, 16–20. Cohen, Chanan and Tamar Hermann (2013), ‘Reform and Conservative Jews in Israel: A Profile and Viewpoints’ (Hebrew), in Tamar Hermann, Nir Atmor, Ella Heller and Yuval Lebel (2013), The Israeli Democracy Index 2013, Jerusalem: The Israel Democracy Institute, p. 201. Cohen-Almagor, Raphael (2000), ‘Israeli Democracy, Religion and the Practice of Halizah in Jewish Law’, UCLA Women’s Law Journal, 11: 1, 45–65. Cohen-Almagor, Raphael (ed.) (2005), Israeli Democracy at the Crossroads, London: Routledge. Cohen-Almagor, Raphael (2006), ‘On Compromise and Coercion’, Ratio Juris, 19: 4, 434–55. Cohen-Almagor, Raphael (2014), ‘Avoiding the Destruction of the Third Temple: Separating State and Religion’, in Yossi Goldstein (ed.), Religion Nationalism: The Struggle for Modern Jewish Identity, An Interdisciplinary Annual, Ariel: Ariel University, pp. 170–89. Cohen-Almagor, Raphael (2015), ‘Israeli Democracy and the Rights of Its Palestinian Citizens’, Ragion Pratica, 45, 351–68. Cohen-Almagor, Raphael and Amos Guiora (forthcoming), ‘Democracy and Security in Israel’, in Leonard Weinberg and Elizabeth Francis (eds), Routledge Handbook of Democracy and Security, London and New York: Routledge. Dworkin, Ronald (2011), Justice for Hedgehogs, Cambridge, MA: Belknap Press of Harvard University Press. Firro, Kais M. (1999), The Druzes in the Jewish State: A Brief History, Leiden: Brill. Firro, Kais M. (2001), ‘Reshaping Druze Particularism in Israel’, Journal of Palestine Studies, 30: 3, 40–53. Gideon, Kobi (2016), ‘Changes to Israel’s Budget Allocation to Arab Communities’, BICOM, 8 January, (last accessed 5 February 2017). Golding, Martin (1979), ‘The Nature of Compromise: A Preliminary Inquiry’, in J. Roland Pennock and John W. Chapman (eds), Nomos XXI: Compromise in Ethics, Law, and Politics, New York: New York University Press, pp. 3–25. Halperin-Kaddari, Ruth (2000–1), ‘Women, Religion and Multiculturalism in Israel’, UCLA Journal of International Law and Foreign Affairs, 5: 2, 339–66. Hermann, Tamar, Nir Atmor, Ella Heller and Yuval Lebel (2013), The Israeli Democracy Index 2013, Jerusalem: The Israel Democracy Institute. Hermann, Tamar, Chanan Cohen, Ella Heller and Dana Bublil (2015), The Israeli Democracy Index 2015, Jerusalem: The Israel Democracy Institute, (last accessed 5 February 2017).

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jewish orthodoxy and religious diversity in israel Jabareen, Yousef (2013), ‘Two Kinds of Equality: Toward Critical Transformative Theory in Israeli Adjudication’ (Hebrew), Public Space, 7, 37–65. Kant, Immanuel (2008), Groundwork for the Metaphysics of Morals, (last accessed 1 March 2017). Kimmerling, Baruch and Joel S. Migdal (2003), The Palestinian People: A History, Cambridge, MA: Harvard University Press. Kretzmer, David (1987), The Legal Status of the Arabs in Israel, Boulder, CO: Westview Press. Kymlicka, Will and Raphael Cohen-Almagor (2000), ‘Ethnocultural Minorities in Liberal Democracies’, in Maria Baghramian and Attracta Ingram (eds), Pluralism: The Philosophy and Politics of Diversity, London: Routledge, pp. 228–50. Lustick, Ian (1980), Arabs in the Jewish State: Israel’s Control of a National Minority, Austin: University of Texas Press. Mill, John Stuart (1948), On Liberty, in Utilitarianism, Liberty and Representative Government, London: J. M. Dent. Modood, Tariq (2010), ‘Moderate Secularism, Religion as Identity and Respect for Religion’, Political Quarterly, 81: 1, 4–14 Modood, Tariq (2013), Multiculturalism, Cambridge: Polity. Nachshoni, Kobi (2011), ‘Poll: 80% for Core Obligation, 63% for Shabbat Transportation’ (Hebrew), Ynet, 28 September. Nachshoni, Kobi (2014), ‘State and Religion 2014: Israeli Citizens – Secular and Liberal’ (Hebrew), Ynet, 23 September. Nachshoni, Kobi (2015), ‘State and Religion 2015: Want Free but Traditional Israel’ (Hebrew), Ynet, 11 September. Nasser, Kais (2012), Severe Housing Distress and Destruction of Arab Homes: Obstacles and Recommendations for Change, Nazareth: Dirasat, The Arab Center for Law and Policy. Parekh, Bhikhu (2000), Rethinking Multiculturalism, Houndmills: Palgrave Macmillan. Parekh, Bhikhu (2001), Gandhi: A Very Short Introduction, Oxford: Oxford University Press. Parekh, Bhikhu (2016), Debating India: Essays on Indian Political Discourse, New Delhi: Oxford University Press. Peleg, Ilan and Dov Waxman (2011), Israel’s Palestinians, New York: Cambridge University Press. Raday, Frances (1995), ‘Religion, Multiculturalism and Equality: The Israeli Case’, Israel Yearbook on Human Rights, 25, 193–241. Raday, Frances (2002), ‘Self-Determination and Minority Rights’, Fordham International Law Journal, 26: 3, 453–99. Rawls, John (1971), A Theory of Justice, Oxford: Oxford University Press. Rawls, John (2002), The Law of Peoples, Cambridge, MA: Harvard University Press. Rorty, Richard (1997), ‘Justice as a Larger Loyalty’, Ethical Perspectives, 4, 139–51. Rubinstein, Amnon (2006), Israeli Arabs and Jews: Dispelling the Myths, Narrowing the Gaps, New York: American Jewish Committee.

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raphael cohen-almagor Sezgin, Yuksel (2010), ‘The Israeli Millet System: Examining Legal Pluralism through Lenses of Nation-Building and Human Rights’, Israel Law Review, 43, 631–3. Steiner, Talya (2013), Combating Discrimination against Arabs in the Israeli Workforce (Hebrew), Jerusalem: The Israel Democracy Institute. Triger, Zvi (2012), ‘Freedom from Religion in Israel: Civil Marriage and Cohabitation of Jews Enter the Rabbinical Courts’, Israel Studies Review, 27: 2, 1–17. US Department of State (2014), 2013 Report on International Religious Freedom: Israel and the Occupied Territories, 28 July, (last accessed 5 February 2017). Vikomerson, Rebecca (2011), Public Policy in Divided Societies, Nazareth: Dirasat, The Arab Center for Law and Policy. Wood, Alice (2013), ‘Israel’s Arab Citizens’, Fathom, 1, (last accessed 5 February 2017). Yoffie, Eric H. (2013), ‘Why Israel Desperately Needs Reform Judaism, Haaretz, 8 December.

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12

Secularism as a Double-Edged Sword? State Regulation of Religion in Turkey Haldun Gülalp

Introduction Briefly defined, secularism is a political principle that aims to guarantee citizens the right to freedom of ‘conscience and religion’, as spelled out in international human rights documents (Universal Declaration of Human Rights, Article 18; European Convention on Human Rights, Article 9). Although only implicit in these documents, this right also includes freedom from religion. Secularism, then, entails the existence of a political space separate from and independent of religions for the purpose of negotiating common issues and areas of concern, so that the social and political needs of all religious and irreligious members of society may be met. This is a normative definition of a principle designed to maintain and promote peace in a diverse society. A variety of institutional arrangements may protect this principle. Within Europe alone we see several different models, as we do in other parts of the world (Madeley and Enyedi 2003; Bhargava 2005). Alongside this definition there is also another one, in which secularism indicates religion’s subordination to the temporal power of the state. On the basis of this latter definition, Turkey has always been considered secular and indeed a standard bearer in the Muslim world. But the validity of this definition is questionable, as state control over religion also implies its political manipulation, which may not only fail to serve the normative goal stated above, but may actually generate a religiously dominated state policy. 273

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haldun gülalp

Turkey, a model of secularism in Muslim society? In the mainstream Western and Turkish view, ‘Turkey . . . is the only democratic and truly secular country in the Islamic world’ (Özbudun 2000: 1), thanks to Kemal Atatürk’s reforms (Lewis 1994). Islam is an exception among religions for not being conducive to secularisation, and ‘Turkey [is] the exception within the exception’ (Gellner 1997: 236). Turkey’s republican regime privatised religion through state action because that was the only way to secularise a Muslim society (Berkes 1964; Karal 1981). In this account, the state forcibly removed Islam from the public realm in a deliberate attempt to emulate the Western experience, where the separation of public from private, and politics from religion, had ‘organically’ developed. Secularism was introduced ‘from above’, in an effort to bring religion under state domination and control. The mainstream view thus endorses Turkey’s ‘state-led’, ‘top-down’ secularism (laiklik, borrowed from the French laïcité), while Islamists protest that laiklik is intolerant of religious expression and demand that it become more visible in political affairs. Those who dispute the ‘privatisation’ thesis indicate that secularisation from above actually politicises religion because, far from serving the normative goal of social peace, it turns religion into a matter for political battle. They assert, for instance, that Turkey’s ‘program of secularization defeated its own purpose’ because ‘Religious institutions were not separated from the state but rather became subservient to it’ (Toprak 1981: 1); or that, although Turkey was inspired by the French model, it has failed to implement it properly (Bayart 1994); or that Turkish laiklik falls short of the norm, for ‘Secularism carries the meaning of divorcing religion and politics, and this divorce has not occurred in Turkey’ (Davison 2003: 342). These objections ultimately concur with the Islamist critique that government regulation proscribes the public visibility of religion. Scholars ranging from liberal to Islamist sympathisers have described Turkish secularism in the following terms: ‘militant’ (Çağlar 1994), ‘authoritarian’ (Göle 1996), ‘oppressive’ (Yavuz 2003) and ‘pathological’ (Kadıoğlu 2010). But Turkey is not considered to be alone in this regard. Ahmet Kuru, for example, classifies both Turkey and France as examples of ‘assertive’ secularism, where the state plays ‘an “assertive” role to exclude religion from the 274

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state regulation of religion in turkey public sphere and confine it to the private domain’, while the USA represents ‘passive’ secularism, in which the state plays ‘a “passive” role by allowing the public visibility of religion’ (Kuru 2009: 11). He thus measures the ‘quality’ of secularism in terms of the ‘public visibility’ of religion (that is, the more, the better). There are also those who argue that, more generally, secularisation can only take place through state action (Keddie 1997), or that secularism is by definition an assertion of state sovereignty over religion (Asad 2003; Troper 2009). The objective of controlling religion cannot be specific to Turkey, where state and religion are institutionally unseparated, if it also applies to France, the original home of laïcité, where they are separated. According to Étienne Balibar (2004: 355), ‘there is no natural distinction between the political and the religious, but a historical one resulting from decisions that are themselves political’. What appears as neutrality, then, is actually a political arrangement. If the modern nation-state shapes religion and religiosity, it cannot be ‘neutral’. According to Talal Asad (2006), secularism in this sense is necessarily authoritarian; even totalitarian. If the sovereign state has the right to take ‘decisions that affect religion’ (Asad 2006: 504), then it follows that there is no meaningful difference between ‘laiklik’ (or laïcité) and ‘secularism’ or between the ‘passive’ and ‘assertive’ variants of secularism. In either case, the state determines the public and political role of religion on the basis of its sovereign power. The question of secularism in Turkey is also often framed in terms of the contrast between state and civil society, hence as a question of democracy and freedom. If, the argument goes, Kemalist secularism is an imposition on society, then the suppression of religiosity constitutes a violation of democratic freedoms. Stateenforced secularism is seen as a straitjacket placed on individuals who wish to exercise their rights to religious expression. The expansion of the public visibility of religiosity is then considered to be a democratic gain at the expense of the oppressive state. Placed within the ‘centre–periphery’ model, the Turkish state is described as the oppressive centre and the pious majority of the people as the oppressed periphery (Mardin 1973, 1989). So, for example, the headscarf ban in Turkish universities indicates the secularist elites’ effort to ‘monopolize public Islamic identities . . .’, whereby they aim to ‘limit the effectiveness of Islamic groups’ voices in civil society’ (Gurbuz 2009: 231, 244). The state distinguishes between 275

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haldun gülalp the ‘genuinely pious’ Muslim and the ‘militant’ Islamist, between ‘good Muslim’ and ‘bad Muslim’, and thus determines the ‘correct’ Islamic identity. In this way, it is argued, the secular Turkish state promotes its own version of Islam. Resembling the ‘assertive’ versus ‘passive’ classification, the Kemalist project is sometimes described as ‘interventionist’ secularism and contrasted with the ‘alternative’ secularism advanced by the Islamist movement in Turkey, which is presumed to be more democratic (Azak 2010). The theme of conflict between the secular state and religious civil society thus necessarily imputes a democratic character to Islamic expression. But there is no a priori reason to assume that religious expression generates more democracy and, as we see below, the evidence shows no correlation between the two. Paralleling Asad’s critique, it is argued that ‘Secularism is not a neutral paradigm, but a state ideology as well as a hegemonic public discourse in contemporary Turkey’ and is implicated in ‘militarism, authoritarianism, and the culture of the state’ (NavaroYashin 2002: 6), or that Turkey’s secularist ideology occupies both public and private spheres, making it an all-encompassing, totalitarian force that regulates both social and personal life (Özyürek 2006). But would it not be authoritarian or totalitarian if religious ideology expanded outwards from the private realm to occupy and even monopolise the public as well? Clearly, one could not impute a democratic character to religiosity simply because it opposes the secularism of the state. Finally, Alfred Stepan, echoing the widely shared contrast between France and Turkey, describes French secularism as an instance of ‘twin tolerations’ between state and religion, whereas Turkish secularism has ‘been directed toward controlling religious expression so that it conforms with state goals’ (Stepan 2000: 51–2). But ‘state goals’ may include the expansion of religion’s public visibility, just as well as its proscription. State control over religion does not necessarily result in ‘assertive’ (or militant, or authoritarian) secularism; it may well lead to the opposite. It is true that the Turkish state regulates religious affairs through a number of instruments, including the Directory of Religious Affairs (Diyanet İşleri Başkanlığı, DIB) and others, but these instruments may be used not only to marginalise the public and political role of religion, but also to create a state whose power is religiously legitimised. 276

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state regulation of religion in turkey Aiming to transcend the debate in the extant literature, I argue in this chapter that the institutional structures typically associated with ‘secularism’ in Turkey, that is, the instruments by which the Turkish state aims to regulate religious affairs, actually function as a double-edged sword that may cut either way. This becomes evident when we examine the political fluctuations that widen or narrow the room for religious expression in the public sphere. I show in this chapter that the political visibility of religion has not been constant in Turkey’s republican history, nor has its variation correlated with democracy as implied; yet throughout this history the institutional structures of the ‘secular’ state have remained in place.

Uniformity of secularism? The work of two particular authors that cite the state’s ‘monopolisation’ of the religious field deserves a more detailed treatment. Nazan Maksudyan (2005) argues that within Turkish secularism the state specifically limits the potential intervention of other (political as well as civil society) actors in order to serve the dual purpose of both protecting Islam and removing it from the public and political sphere. While, paraphrasing Weber, Maksudyan speaks of ‘state monopoly’ over ‘the legitimate use of religion’, she also makes an interesting observation that negates the presumed continuity in the politics of secularism. Insightfully comparing the religious practices of İsmet İnönü, the successor of Kemal Atatürk as head of the Republican People’s Party (RPP) and president of the republic between 1938 and 1950, with Adnan Menderes, the leader of the opposition Democratic Party (DP) and prime minister of Turkey from 1950 to 1960, she observes the following: İnönü was the more religiously pious individual, though he paid particular attention to keeping it private, while Menderes was far from being religious in his private life but was popularly received as religious, because he used religion for political propaganda. Maksudyan’s comparison implicitly rejects those analyses that locate democracy in Islamism. Azak, for instance, argues that the Kemalist secularism of the RPP emphasised a non-existent threat of fundamentalism, and the ‘DP’s alternative secularism . . . emphasized the freedom of conscience’ (Azak 2010: 129). But Azak also notes that İnönü explained his own position by distinguishing between ‘the exploitation of religion’ and the ‘religiosity of the 277

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haldun gülalp citizens’ (Azak 2010: 130). Judging by Maksudyan’s depiction of the private lives of the two leaders, İnönü’s statement seems fully justified both in terms of ‘freedom of conscience’ and as an implicit critique of the position of Menderes. Incidentally, Kemal Atatürk, too, was careful to make the same distinction between Islam and Islamism, that is, between private religiosity and political religion (Parla and Davison 2004: 100–15). At the same time, however, Maksudyan’s depiction of the contrast between the two leaders raises a question that cannot be answered in terms of this conception of secularism. How could we assume a continuity between these two leaders, who endorse opposing policies of religiosity, simply because both have led a state that holds a ‘monopoly over the legitimate use of religion’? Ümit Cizre Sakallıoğlu (1996), working within a similar framework, likewise fails to establish the continuity in Turkish secularism. First she argues that the Turkish state has a ‘basic secularist orientation’, whatever political party or military regime may be in power, because ‘the state elite has been in a singular position to influence and structure the political course and discourse of Islam in republican Turkey’ (Sakallıoğlu 1996: 231). She then adds that while the state has (seemingly) segregated Islam from the political realm, it has also incorporated ‘Islamic politics into the system in various ways’ (Sakallıoğlu 1996: 231). While this argument challenges the ‘secular state vs. religious civil society’ perspective insofar as it notes that the presumably ‘secular’ state has sometimes spoken in religious language, she untenably attributes this situation to the secular character of the Turkish state, which derives from the control it maintains over religion: ‘it has been the Turkish state’s secular character that has defined and set limits on the complex relationship between politics and Islam’ (Sakallıoğlu 1996: 232). It is an incoherent proposition to describe the Turkish state as secular whether it allows for religious expression in public, as it sometimes does, or whether it does not. While the ‘monopolisation’ argument correctly identifies the government’s role in manipulating the place of religion in public and political life, it not only obfuscates the meaning of secularism but also leaves open the question of who exactly is the ‘state elite’ that continuously maintains this secularism, as both of these authors observe a continuity amidst changes in the political party in power or even changes in political regime (parliamentary 278

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state regulation of religion in turkey or military). This idea is more widely shared than by these two authors and involves the assumption that there is a core agency among state institutions that ultimately preserves Kemalist secularism and constrains the behaviour of elected governments that may go astray. This agency, called the ‘deep state’, is often identified with the military, considered to be the founding institution of the republic, and/or the high courts that have repeatedly ruled in the past for the closure of Islamist parties. It has been remarked that ‘Secularism in Turkey is the discourse of state power employed by the army’ (Navaro-Yashin 2002: 202), and that, as the guardian of secularism, the military tends to intervene every time a democratic election results in Islamist victory (Gellner 1994). But then how do we account for the policies of the military regime in the 1980s that, as Sakallıoğlu (1996) herself observes, led to the development of the Islamist movement in the following years? Her answer seems to involve circular reasoning: Although the post-1980 period may at first sight seem to have been a revolutionary break with the traditional political management of Islam by the state, it only represents another mode in the state–Islam relationship, which has not changed in its basic secular orientation or in the primacy of the role of the state. (Sakallıoğlu 1996: 247)

Likewise, how do we interpret the current situation in Turkey, where an Islamist-oriented government has undermined the secularist power position of the military and also brought the judiciary into alignment with its own political priorities so that the courts now serve an authoritarian Islamist agenda? I suggest that what we observe in Turkish history is really a debate (or struggle) on the proper place of religion in public and political life, rather than an unbroken continuity. The outcome is determined according to the relative room for manoeuvre that the politically powerful group may have. Hence, a given political party in power may wish to advance or constrain the public role of religion, and may or may not be successful in doing so vis-à-vis the position of other state institutions. But would any outcome then be considered to be within the realm of ‘secularism’? If religion can be brought into or withdrawn from the public sphere for political purposes, and within the confines of political power, then secularism could no longer be defined as the privatisation or 279

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haldun gülalp public marginalisation of religion. But if secularism is defined as the sovereign state’s prerogative (its ‘monopoly’) to define a place for religion, whether narrow or wide, then a religiously legitimised state would also fall within the realm of possibilities described by secularism. That would obviously be an oxymoron. The ambiguities and fluctuations in the place of religion in Turkey’s political history urge us to rethink these received notions. We see below that several critical moments of contestation over secularism reveal the falsity of the near unanimous claim (whether supportively or critically) that ‘assertive’ secularism has been a constant in Turkish history. They also show that the Kemalist position has not uniformly favoured ‘assertive’ secularism or even favoured the use of state institutions to regulate religion. Political actors have frequently debated the proper place of religion at critical moments, and have sometimes been able to impose their vision when in power. Yet regardless of whether ‘assertive’ or ‘passive’ secularism (or ‘assertive’ or ‘passive’ Islamism) has prevailed, those in power have used the same state institutions and instruments to regulate religious affairs. In other words, those institutions that secularists have created and used to constrain Islam or to support an approved version of Islam have also been used by Islamist governments to promote their own priorities.

Debating institutional structures of secularism Notwithstanding the prevailing view in the literature that the Kemalist regime created DIB (the Directory of Religious Affairs) specifically in order to dominate religious affairs and even suppress religiosity in society (Davison 2003; Gözaydın 2009; Kuru 2009; Azak 2010; Kadıoğlu 2010), the fact is that the creation of the institution had ‘liberal’ origins, intended precisely to separate religion from politics. At the time that the law was passed (on 3 March 1924) in the parliament of the newly created republic (29 October 1923), the government structure inherited from the Ottoman Empire included both the chief of staff of the military and the head of the religious institution as members of the cabinet. The same law removed both of these seats from the cabinet and reduced them to the level of departments of the prime ministry, on the grounds that neither military nor religious affairs should be involved in politics or policy making (see Genç 2005). 280

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state regulation of religion in turkey Moreover, as a result of the parliamentary debate on what to call this department’s affairs, the term ‘religion’ (din), which was in the original proposal, was found inappropriate and the decision was made to call it ‘piety’ (diyanet). The correct English-language rendering of the name of this directorate is therefore ‘affairs of the pious’, rather than ‘affairs of religion’ (or ‘religious affairs’) as is customary. The difference is significant, for the objectives of the department were described in terms of helping the pious citizens with questions about their private affairs regarding religious practice and no more than that. The intention was indeed the privatisation of religion and its separation from politics. The following year marked a turning point. The legislation passed in 1925 (Tekke ve Zaviyeler Kanunu), banning Sufi brotherhoods and other grassroots religious groupings because they were seen by the regime as potential sources of political opposition, has perhaps been more critical in creating the perception that Kemalism has always suppressed religion and religiosity. The law was evidently motivated by a reaction to the Kurdish-Islamist uprising led by Sheikh Said earlier in the year. As an influential and revered head of the Nakshbandi order, Said publicly condemned the Kemalist regime for destroying religion and incited rebellion to end the ‘blasphemy’ (Olson 1989). The rebellion broke out in February; Said was captured and executed in April. In March 1925, soon after the beginning of the rebellion, the Law for the Maintenance of Order (Takrir-i Sükun Kanunu) was passed, giving the government extraordinary powers, and it remained in effect until 1929. In June 1925 the regime closed down the opposition party in the parliament, the Progressive Republican Party, because of its alleged Islamist leanings (Ahmad 1993: 57–60). The law banning Sufi orders was passed in November 1925, presumably because the government saw this as an effective method of de-politicising religion. The regime was somewhat relaxed in 1930 to allow the formation of another opposition party, the Free Party, which likewise promoted ‘freedom of religion’ and was soon dissolved. The creation of another party with similar leanings had to wait until 1945 for the post-war atmosphere of democratisation. Although the suppression of both religiously oriented political movements and parties and religious associations such as Sufi orders might rightly indicate the ‘monopolisation’ of religion by the Kemalist state, it is debatable whether this was the suppression of religion 281

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haldun gülalp and religiosity, as claimed by Islamists, or of the political manipulation and exploitation of religion and religiosity, as claimed by Kemalists. As the resolution of this debate would require a separate analysis of the period between 1925 and 1950, I will instead focus on a less well-known episode, where Kemalists, while in opposition in the 1950s, are seen to endorse a model of state–religion relations that Stepan (2010) describes as the ‘twin tolerations’. In the first free and fair multi-party elections (1950), the RPP lost power to the DP. While it may sound out of place today, a contemporary observer describes the DP period (1950–60) as a period of decline of Kemalism and rise of Islamism (Reed 1954). He notes that soon after Atatürk’s death in 1938, under the rule of İnönü, ‘who had always been more moderate in matters of religion’ (cf. above on İnönü), things had begun to change (Reed 1954: 270). Particularly after the end of World War II, when opposition parties were allowed to form, matters of religion gained greater ground due to populist political competition (Reed 1954: 271). The process accelerated under DP rule, when religion acquired greater visibility in politics, education and general public discourse, leading to concern among some circles that ‘the basic constitutional principles of secularism and revolutionism [were] being threatened’ (Reed 1954: 277). The Kemalist reaction to this situation was expressed in an important book, entitled Laiklik, that has largely been ignored in the literature. Published in 1954 by Türk Devrim Ocakları (Turkish Revolutionary Hearths), a Kemalist organisation created in 1952 in opposition to the policies of the DP government headed by Menderes, the book contains a set of articles by well-known Kemalist intellectuals, who collectively define secularism as the strict separation between state and religion, such that the existence of DIB violates this principle, and explicate it as the freedom of belief and conscience, a principle that essentially places religion in the elevated position that it deserves to be, rather than the base position that it has occupied as a vehicle utilised for political ends (Türk Devrim Ocakları 1954). One chapter, for example, distinguishes between three modes of state–religion relations: ‘Theocracy’, where religion dominates the state; ‘Sovereignty’, where the state dominates religion; and ‘Freedom’, where religion and the state are completely separated. The third model deserves the title of ‘freedom’ because it accords 282

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state regulation of religion in turkey with the highest principles of human rights and is pursued in such advanced democracies as the US, France and Belgium (Poroy 1954: 38–9). In Poroy’s view, for freedom of conscience to be realised, communities should have the right to build places of collective worship and own the property of such places (Poroy 1954: 43). This last point is important, as religious communities have never had legal personality in Turkey (Bottoni 2013). Jewish and Christian (Armenian and Greek Orthodox) communities are formally recognised as ‘protected minorities’ by international treaties but they can only own property through their foundations, and hence their properties have been insecure. Based on an interpretation of the 1935 Law on Foundations, Turkey’s Supreme Court of Appeals ruled in 1971 and 1974 that all government expropriations of the properties of non-Muslim foundations were legal (Oran 2007: 38–40; Yannas 2007: 68). These communities could only reclaim their properties when they were enabled to appeal to the European Court of Human Rights in the 1990s and secured judgments against Turkey or offers of friendly settlement. Other religious minorities, such as Alevis, Bahais and many others, however, are simply ignored, for DIB does not recognise them as legitimate religions. Another chapter of this Kemalist manifesto develops a different link between secularism and ‘freedom’. The author argues that secularism does not oppose religiosity, but religious ‘fanaticism’. Whereas secularism promotes the freedom of thought and belief, religious fanaticism does the opposite (Batuhan 1954: 53–5). A chapter by a prominent Kemalist historian, Enver Ziya Karal, points out that there is no religious class in Islam, such as in the Catholic Church, and therefore all religious functionaries in Turkey are salaried state employees. But secularism, he argues, requires the independence of the religious organisation from the state. The existence of DIB is therefore in contradiction to secularism (Karal 1954: 72–4). This last point is made in greater detail by a legal scholar, İhsan Ada, who also served as an RPP deputy during the last term of the Menderes (DP) government (1957–60). The initial Republican Constitution of 1924 declared Islam to be the religion of the state, but this provision was lifted in 1928 and subsequently replaced by secularism (laiklik) in 1937. The author quotes the reasoning in the original parliamentary proposal to lift the religious reference from 283

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haldun gülalp the Constitution and points out that the continued existence of DIB is a violation of this reasoning. The state, he argues, cannot concern itself with such activities as opening religious schools, broadcasting religious programmes on public radio, and so on. Moreover, he adds, the DIB personnel are empowered to discriminate against the millions of Shia and Alevi citizens of the nation (Ada 1954: 93–6). In a similar vein, another legal scholar suggests that the expression of ‘state-recognized religion’ within Turkish law ought to be removed, as it is not the secular state’s business to recognise or not recognise a given religious belief (Erman 1954: 116–17). Curiously, while the ideas in this book were in complete contrast to the received wisdom about Kemalist secularism and evidently arose as a reaction to the pro-Islamist policies of the DP government, they were abandoned within a matter of years. Another pamphlet published in 1968 by the same organisation, and with the exact same title, contains articles that lament the forty years of struggle for laiklik that still continues without definite success (Türk Devrim Ocakları 1968). One of the authors, another wellknown legal scholar, claims that: secularism is not just separation between state and religion. It is, rather, the right of the state, or of those in political power, to prevent fundamentalists from any impact on social life and to have absolute control in this area to guarantee this outcome. (Tunaya 1968: 16)

What accounts for this radical reversal of Kemalist views? The answer seems to lie in the impact of the 1960 military coup, which ended the ten years of DP rule. The coup was avowedly motivated, among other things, by a reaction to the DP government’s Islamist leanings. Kemalists were now back in power, or so they believed. The military regime of 1960 quickly set up an assembly to write a new constitution before handing power back to civilians in the following year. Three positions on secularism were debated in that constitutional assembly. All of them, however, remarkably endorsed state intervention in religious affairs, regardless of whether they were in favour of secularism or Islamism (Akan 2011). The minority position was voiced by a retired officer, who contended that because Turks were a religious people, the state could utilise religion as a vehicle to promote economic development and other national objectives. He recommended mandatory religious education in 284

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state regulation of religion in turkey schools and other such measures (Akan 2011: 206). We may note that while this was a minority view at the time, it was actually a precursor of the so-called ‘Turkish–Islamic synthesis’ that became official state ideology after the 1980 coup (more on it below). Of the two major positions in the constitutional assembly, the one that lost out was what has traditionally been supported by Islamists in Turkey. In some ways similar to the minority position, it did not hold that there should be a separation between state and religion, but that the state should provide greater support to religion by serving the religious needs and promoting the religious activities of the people (Akan 2011: 202–3). The position that ultimately prevailed in the constitutional assembly is what has come to be known as ‘assertive’ secularism. Among the arguments in its favour was the notion that ‘a decentralised formation of religious infrastructure outside the state would be a regime threat’ and bring about the end of laiklik (Akan 2011: 204). The state had to contain religion so that it would not get out of hand as a political force by the actions of ‘civilians’ (Akan 2011: 204). Yet, among the proponents of this view there were those who had previously found a contradiction between the principle of laiklik and the existence of DIB, but who then came around in the course of debates in the constitutional assembly to seeing this institution as necessary under Turkey’s particular circumstances (implying the threat of Islamic fundamentalism). While DIB did not appear in the first Republican Constitution of 1924, it was now written into the constitution prepared under the military regime. What was the reason for this change of mind? Most likely, it was the directive of the leader of the coup, and subsequent President of the Republic, Cemal Gürsel. He reportedly ordered the constitutional assembly to create a document that would never allow anyone to politically exploit religion (Gözaydın 2009: 39). What thus became the dominant doctrine was subsequently articulated in a textbook on the ‘meaning of the constitution’, penned by a scholar who was also a member of the constitutional assembly: whereas in Western society state and religious affairs are separated, Islam’s particular characteristics make Turkish secularism unique. As Islam does not allow a separation between state and religion, the secular Turkish state needs an institution such as DIB to relegate religious belief into the private conscience of the individual (Soysal 1974: 171–4). This, perhaps, is the clearest expression 285

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haldun gülalp of ‘assertive’ secularism. Unlike the early Kemalists, who carefully distinguished between private religiosity and religious politics, that is, between Islam and Islamism, this new conception draws the line at Islam itself, theorising the necessity to keep it under control. This is an argument that we would today call ‘orientalist’.

Political change in global context The broader context of Turkey’s political history accounts for the changing perceptions about the place that religion ought to occupy. After the Kemalist early decades of the republican period, Turkey’s post-war Western alliance encouraged the institution of multi-party democracy, creating an opening for an Islamist orientation in politics. The DP government of the 1950s could pursue pro-Islamist policies thanks to popular electoral support, but was then removed from power by a military intervention in 1960 when things seemed to get out of hand for the Kemalist establishment. While the DP was in power Kemalists temporarily favoured ‘twin tolerations’, but they became more assertive when the new constitution of 1961 instituted mechanisms of regulating religion by the secularist camp. This new position remained dominant through the 1960s and 1970s, until the military coup of 1980, which revised the Kemalist consensus and created a new model of increased religiosity. As a NATO member, Turkey’s military could only act with US complicity, if not direct guidance (Eligür 2010: 91–2; Öktem 2011: 60–3). The coup followed the Iranian Islamic revolution of 1979 and was intended to strengthen NATO’s eastern flank against the expanding ‘communist’ influence in Asia. The use of Islamic themes by the military would both ideologically foster the stance against communism and also contain any possible demonstration effect emanating from next-door Iran. As in previous cases, the coup was carried out in the name of Kemalism; but this time the military regime adopted what was called the ‘Turkish–Islamic synthesis’. The notion of ‘synthesis’ implied the acknowledgement of Islam’s significance in Turkish national identity, but aimed to set limits to its political expression so that Islam would only remain within the confines of nationalism and not turn into ‘fundamentalism’ (Çetinsaya 1999). It was, in other words, an experiment in contained and controlled Islamisation of politics and society. 286

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state regulation of religion in turkey Religion classes became mandatory in primary and middle schools as a new constitutional provision, religious language began to be used more widely in political discourse, and so on. This shift in state discourse was welcomed by Islamists, because the ‘public visibility of Islam’ grew in the 1980s, just as it did in the 1950s. Indeed, this situation led to a widening opportunity for the domestic Islamist political movement to thrive in the late 1980s and beyond (Toprak 1990; Yavuz 2003; Kuru 2009). By the mid-1990s, however, the Cold War had ended and the ‘communist’ threat had been replaced globally by the threat of Islamic ‘fundamentalism’. In the post-Cold War context of the fear of a ‘clash of civilisations’, Turkey was urged by NATO (and the Western community of nations more generally) to take a firmer position domestically to prevent the development of Islamist politics. The rise of Islamism in the 1980s and 1990s, both globally and domestically, resulted in a backlash of ‘assertive’ secularism and yet another military intervention in 1997. Better organised in the 1980s and 1990s than ever before, Islamists in Turkey began to gain new ground through electoral politics. In the municipal elections of 1994, the pro-Islamist Welfare Party (Refah Partisi, RP) won several major cities, including Istanbul and Ankara. It then emerged from the parliamentary elections of 1995 with the plurality of the national vote and was able to form a coalition government. In a delayed response, however, starting in early 1997 the military began to put pressure on the RP-led government and eventually forced it to resign. In 1998, the Constitutional Court ruled for the closure of this party for violating the principle of secularism, and this closure was upheld by the European Court of Human Rights. An attempt to create another political party to replace the RP also ended in similar closure. The ban in Turkish universities (and certain other locations) on the use of the headscarf as a symbol of Islamic identity was implemented particularly in this time frame. Similar bans were imposed in a number of other European countries, and these bans were also upheld by the European Court. The secularist revival, both in Turkey and elsewhere, was thus a conjunctural phenomenon linked to the perception of a growing Islamist threat in this period. What has been described and criticised by both liberals and Islamists as the ‘assertive’ mode of secularism came to prevail in this political environment, but was 287

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haldun gülalp eventually ideologically weakened. Paralleling the global rise of postmodernism and the politics of religious identity, Kemalism fell into general disarray and ideological decline (Kasaba 1997; Gülalp 1995). The confrontational mood of the time led to the view that secularism is in general authoritarian, militaristic and even potentially (or really) totalitarian. As secularism began to be perceived, both domestically and globally, as an unconvincing ideology that could only be maintained by force, pro-secularist arguments suffered a radical decline in quality. Starting from ‘liberal’ origins, the concept of secularism in Turkey was transformed into an ‘orientalist’ one in the 1960s and 1970s, a superficial lip service in the 1980s, and finally a set of coercive threats in the 1990s. Islamists were thus able to frame their own political project in the liberal terms of human rights and freedoms. Finally, in a reversal of the past experience of Islamist-oriented political parties in Turkey, the Justice and Development Party (Adalet ve Kalkınma Partisi, AKP) swept to power in 2002 with significant support from liberals critical of Kemalism’s excesses and it has remained in office to this day. Initially claiming a project of correcting the past ‘injustices’ of Kemalist secularism and describing its ideology as ‘conservative democracy’, the AKP then began slowly but firmly to lead Turkey in an Islamist direction. In the post-9/11 context, the AKP was welcomed by the West as the embodiment of ‘moderate Islam’ and touted as a role model for the rest of the Middle East. But, cautious at first and speaking the language of democratisation, the AKP gradually turned authoritarian and began to Islamise the state and society as it more securely entrenched itself in power (Özbudun 2014; Kaya 2015). Even as the AKP grew more Islamist and authoritarian, the institutional structure of state–religion relations remained unchanged. Two points follow from this observation. First, when we consider the state’s role in relation to religious affairs, we need to distinguish the objective of creating the conditions for peaceful co-existence from the manipulation and exploitation of religion and religious sentiment for political ends. Second, the distinction drawn between ‘moderate’ and ‘radical’ Islam is largely immaterial with regard to secularism. Both types of Islamism may easily oppose secularism as a principle of freedom of religion and ultimately aspire to a totalitarian imposition of religious identity, as we see in the next section. 288

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Instruments of religiosity and discrimination The standard narrative on DIB describes it as a fundamental pillar of the Kemalist secular state. Under government supervision and funded by the general budget, it has served to generate and disseminate an official interpretation of religion in general and Islam in particular. But, irrespective of the historical precedence of Kemalist proclivities, DIB and other such institutions of ‘secularism’ could serve, and have served, policies contrary to the Kemalists’ original intentions. They may certainly be used as pillars of secularism, but they may also be used to further an Islamist agenda. In the early years of the Republic, DIB’s budget and functions were rather limited. It was primarily concerned with the administration of mosques and their personnel. Further limitation came in 1931, when this particular function was transferred to the Directorate of Pious Foundations, also part of the government bureaucracy. DIB was then only directly responsible for the appointment of local muftis (Islamic scholars). The RPP government passed a law in 1950, only months before the parliamentary elections that brought the DP to power, returning the administration of all mosques to DIB and increasing the size of its budget and personnel. DIB continued to grow in size and extend its reach in the 1980s, but especially during the current AKP period it turned into a powerful and prominent institution (Gözaydın 2009). According to the statistics on DIB’s official website, the number of its personnel grew roughly from 74,000 in 2002 to 120,000 in 2014 (that is, by more than 60 per cent in twelve years of AKP rule). Its budget for 2015, as reported on the Finance Ministry’s website, exceeded the combined total of the budget of five cabinet ministries (Ministry of Youth and Sports; Science and Technology; Forestry and Water; Customs and Trade; and the European Union). DIB’s functions were diversified during this period. In 2012, it started to run its own television channel, Diyanet TV, targeting women and children in particular. New projects empowered DIB representatives to directly intervene in community and even familial affairs in provincial neighbourhoods. DIB’s Strategic Plan for 2012–2016, published in early 2012, included such strategic aims as playing an effective role in the solution of social problems, finding ways to prevent the moral degeneration of society, increasing collaboration with other Muslim nations in order to present to the world an 289

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haldun gülalp ‘objective’ image of Islam, and so on. In addition to its enormous size and daily involvement in social life, DIB also plays a significant political role in legitimising government actions, which may take the form of public statements by the Director of DIB or written sermons prepared by DIB headquarters and sent to all mosques around the country to be read at Friday prayers. DIB is not the only instrument at the service of religiously oriented policy making. Another central institution is the public education system, including universities, which was charged by Erdoğan in 2012 to ‘raise pious generations’. In its effort to compete with the DP in the first multi-party elections in 1946, the ruling RPP had opened a number of Imam-Hatip Schools, designed to train preachers and prayer leaders employed by DIB (Akşit 1991). Subsequently these schools began to be seen as an alternative venue to secular schools for those who sought education in a religious environment. In the late 1970s, when the Islamist party was able to occupy the seat of Education Ministry during several consecutive coalition governments, the number of these schools grew rapidly. The process continued in the 1980s. With the 1997 military-led backlash against the rising Islamism, the middle divisions of these schools were closed down by extending the length of compulsory primary education from five to eight years. In 2012, however, the ruling AKP changed the system once again, in effect making the Imam-Hatip Schools the mainstream venue for public education at both middle and high schools. During AKP rule, graduates of Imam-Hatip Schools, including President Erdoğan himself, have come to occupy prominent positions in Turkey’s public and political life. The Islamisation of education, however, did not signify the advancement of religious freedoms against the ‘oppressive’ practices of Kemalist secularism, but rather a deepening of discrimination. The military regime of 1980–3 had abolished the autonomy of the universities and created the Higher Education Council that began to centrally govern the entire university system. Each university president currently gets appointed by the president of the republic from among a short-list of candidates prepared by this Council. Thanks to their institutional independence from the elected government, both the Council and university presidents could oppose the priorities of the AKP during its first years in office. They were particularly harsh in the imposition of the headscarf 290

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state regulation of religion in turkey ban on university students. The AKP unsuccessfully attempted to lift the ban through parliamentary action in 2008, and instead found itself the subject of a Constitutional Court case for violating the principle of secularism. Several Islamist parties had previously been dissolved by the Constitutional Court, though this time the penalty was only a monetary fine. This was an instance in which the elected government found its power constrained by other state institutions regarding its policy on secularism. But, as the AKP began to remove all significant checks on its power, it gained enough political leverage to lift the headscarf ban first in universities in 2011, then in all public institutions in 2013, and finally in middle and high schools in 2014. As far as universities are concerned, after the AKP won the office of the President, and thus acquired the power to appoint both members of the Council and university presidents, social science faculties around the country began to be filled by theologians or Imam-Hatip graduates with social science degrees. The growing public and political presence of Islamic language under AKP rule in recent years has clearly not been the same thing as the creation of a more democratic public space, or even of the conditions for freedom of conscience unless one is a devout Muslim. Former prime minister, and current president of Turkey, Erdoğan was on the campaign trail before the June 2015 elections, speaking on behalf of his former party despite his oath of non-partisanship as president, waving the Qur’an, saying that he lives by it and that all answers can be found in it, and charging the leader of the main opposition party (RPP) for being Alevi. President Erdoğan declared: ‘Why should DIB be equidistant to all religions? We all know what the religion of this nation is’ (as reported in major newspapers on 25 April 2015). Leaving aside the obligation of a normatively secular state to be equidistant to all religions, we do not in fact know what the religion of the nation is. Unless one is a member of the protected Christian or Jewish communities and can effectively prove it, all citizens, regardless of whether they have no religion or belief in God, or may culturally consider themselves Muslim but do not practise, are counted as Muslim. Most importantly, all Alevis (Turkey’s largest religious minority, estimated to constitute 15–20 per cent of the population, amounting to a size of anywhere from 12 to 20 million) who wish to be recognised and counted as Alevi, are also automatically assumed 291

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haldun gülalp to be Muslim. In mainstream Sunni (Muslim) opinion, and according to Sunni authorities, the Alevi faith is just a deviant sect, or at best a Sufi order, and deserves no recognition. Thus, the AKP government has indeed granted greater public visibility to Sunni Islam, but this is not the same thing as the visibility (or freedom) of religion in general. Religious discrimination against Alevis has been confirmed by a series of European Court of Human Rights judgments in recent years. Turkey was found in violation of Alevi pupils’ ‘right to education’ in two separate cases seven years apart (Zengin v. Turkey 2007 and Yalcin and Others v. Turkey 2014), because the government has (still) not rectified the situation in which predominantly Sunni doctrines and practices are taught in the compulsory religion classes of middle school, with minimal and only superficial references to the Alevi faith. The Court also found Turkey in violation of ‘freedom of religion’ in three separate cases. The first one (Isik v. Turkey 2010) concerned the demand by a citizen that his government-issued identity card indicate his religion as Alevi instead of Islam, to which the government responded by noting that in DIB’s official opinion the term referred to a sub-group of Islam, and hence the designation was correct and the demand could not be met. The other two judgments (CEM Vakfi v. Turkey 2014 and Dogan and others v. Turkey 2016) have been the most important so far, directly challenging the government’s view that the mosque is the only acceptable worship place for all Muslims, including Alevis. These judgments in effect urge the Turkish government to recognise the Alevi faith, with its own worship places and rituals, separate from the Sunni majority version of Islam. Before these judgments came in, during 2009–10 the government organised a series of workshops with representatives of Alevi associations, presumably in order to identify problems and negotiate solutions, even though Alevi demands were already abundantly clear and basically converged on the official recognition of identity. At the end of a prolonged process of meetings, mostly for political affect, the government declared in 2011 that the 1925 law banning Sufi orders (Tekke ve Zaviyeler Kanunu) made it impossible to meet Alevi demands, because the official theological opinion equated the Alevi faith with a Sufi order and stated that each religion may have only one place of worship. The AKP government thus relied on Kemalist instruments to deny the Alevi identity. 292

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state regulation of religion in turkey

Conclusion What does the Turkish experience tell us about secularism more generally? In Turkey, the question of secularism has for the most part been conceptualised and debated as the regulation of religion by the state. But secularism conceived and implemented in this sense is a double-edged sword, which may moreover easily slide into a totalitarian project in either direction. Authors who have been critical of the headscarf ban in Turkey speak of the secular state’s ‘hegemonic definition of authentic Islam’ (Gurbuz 2009: 247). But ‘authentic Islam’ is also hegemonically defined by such ‘Islamic’ states as Iran and Saudi Arabia. The extant literature depicts the Turkish state as secular because of its regulation of the religious field. But this is a problematic definition, for state power may be used to dominate, suppress or ban religion, or to promote, advance or impose it. If, however, secularism is understood as the rendering of state affairs independent (and, indeed, free) of religion, and endorsed as the political principle of equal recognition designed to maintain social peace between non-believers and the variety of believers, then the answer to the question that is at the heart of this book (more or less secularism?) readily presents itself: there can be no such thing as ‘too much secularism’.

Acknowledgements I am grateful to the editors of this volume, Anna Triandafyllidou and Tariq Modood, and to Yunus Sözen for their constructive comments on earlier drafts of this chapter.

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state regulation of religion in turkey Kadıoğlu, Ayşe (2010), ‘The Pathologies of Turkish Republican Laicism’, Philosophy and Social Criticism, 36: 3–4, 489–504. Karal, Enver Ziya (1954), ‘Devrim ve Laiklik’, in Türk Devrim Ocakları (ed.), Laiklik, Istanbul: Milli Tesanüt Birliği Yayınları, pp. 63–75. Karal, Enver Ziya (1981), ‘The Principles of Kemalism’, in Ergun Özbudun and Ali Kazancigil (eds), Atatürk: Founder of a Modern State, London: C. Hurst, pp. 11–35. Kasaba, Reşat (1997), ‘Kemalist Certainties and Modern Ambiguities’, in Sibel Bozdoğan and Reşat Kasaba (eds), Rethinking Modernity and National Identity in Turkey, Seattle: University of Washington Press, pp. 15–36. Kaya, Ayhan (2015), ‘Islamisation of Turkey under the AKP Rule: Empowering Family, Faith and Charity’, South European Society and Politics, 20: 1, 47–69. Keddie, Nikki (1997), ‘Secularism and the State: Towards Clarity and Global Comparison’, New Left Review, 226, 21–40. Kuru, Ahmet (2009), Secularism and State Policies toward Religion: The United States, France, and Turkey, Cambridge: Cambridge University Press. Lewis, Bernard (1994), ‘Why Turkey Is the Only Muslim Democracy’, Middle East Quarterly, 1: 1, 41–9. Madeley, John T. S. and Zsolt Enyedi (eds) (2003), Church and State in Contemporary Europe, London: Frank Cass. Maksudyan, Nazan (2005), ‘Resmi Din – Sivil Din Çatışması: Dinin Meşru Kullanımı Üzerinde Devlet Tekeli’, Toplumsal Tarih, 135, 56–61. Mardin, Şerif (1973), ‘Center–Periphery Relations: A Key to Turkish Politics?’, Daedalus, 102: 1, 169–90. Mardin, Şerif (1989), Religion and Social Change in Modern Turkey: The Case of Bediuzzaman Said Nursi, Albany, NY: State University of New York Press. Navaro-Yashin, Yael (2002), Faces of the State: Secularism and Public Life in Turkey, Princeton: Princeton University Press. Öktem, Kerem (2011), Angry Nation: Turkey since 1989, London: Zed. Olson, Robert (1989), The Emergence of Kurdish Nationalism and the Sheikh Said Rebellion, 1880–1925, Austin: University of Texas Press. Oran, Baskın (2007), ‘The Minority Concept and Rights in Turkey: The Lausanne Peace Treaty and Current Issues’, in Zehra F. Kabasakal Arat (ed.), Human Rights in Turkey, Philadelphia: University of Pennsylvania Press, pp. 35–56. Özbudun, Ergun (2000), Contemporary Turkish Politics: Challenges to Democratic Consolidation, Boulder, CO: Lynne Rienner. Özbudun, Ergun (2014), ‘AKP at the Crossroads: Erdoğan’s Majoritarian Drift’, South European Society and Politics, 19: 2, 155–67. Özyürek, Esra (2006), Nostalgia for the Modern: State Secularism and Everyday Politics in Turkey, Durham, NC: Duke University Press. Parla, Taha and Andrew Davison (2004), Corporatist Ideology in Kemalist Turkey: Progress or Order?, Syracuse, NY: Syracuse University Press. Poroy, Nazım (1954), ‘Laiklik Hakkında Misalli bir İnceleme’, in Türk Devrim Ocakları (ed.), Laiklik, Istanbul: Milli Tesanüt Birliği Yayınları, pp. 21–52. Reed, Howard (1954), ‘The Revival of Islam in Secular Turkey’, Middle East Journal, 8: 1, 267–82.

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haldun gülalp Sakallıoğlu, Ümit Cizre (1996), ‘Parameters and Strategies of Islam–State Interaction in Republican Turkey’, International Journal of Middle East Studies, 28: 2, 231–51. Soysal, Mümtaz (1974), 100 Soruda Anayasanın Anlamı, Istanbul: Gerçek Yayınları. Stepan, Alfred (2000), ‘Religion, Democracy, and the “Twin Tolerations”’, Journal of Democracy, 11: 4, 37–57. Toprak, Binnaz (1981), Islam and Political Development in Turkey, Leiden: E. J. Brill. Toprak, Binnaz (1990), ‘Religion as State Ideology in a Secular Setting: The Turkish–Islamic Synthesis’, in Malcolm Wagstaff (ed.), Aspects of Religion in Secular Turkey, Occasional Paper Series No. 40, Durham: University of Durham, Centre for Middle Eastern and Islamic Studies, pp. 10–15. Troper, Michel (2009), ‘Sovereignty and Laïcité’, Cardozo Law Review, 30: 6, 2561–74. Tunaya, Tarık Zafer (1968), ‘Laiklik ve Ötesi’, in Türk Devrim Ocakları (ed.), Laiklik 1968, Istanbul: Türk Devrim Ocakları Genel Merkezi, pp. 15–20. Türk Devrim Ocakları (ed.) (1954), Laiklik, Istanbul: Milli Tesanüt Birliği Yayınları. Türk Devrim Ocakları (ed.) (1968), Laiklik 1968, Ankara: Türk Devrim Ocakları. Yannas, Prodromos (2007), ‘The Human Rights Condition of the Rum Orthodox’, in Zehra F. Kabasakal Arat (ed.), Human Rights in Turkey, Philadelphia: University of Pennsylvania Press, pp. 57–71. Yavuz, Hakan (2003), Islamic Political Identity in Turkey, London: Oxford University Press.

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Part III Afterword

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Four Dogmas or Heresies in the Discussion of Secularism and Religion Joseph H. H. Weiler

One person’s dogma is another’s heresy. So it is with any discourse of religion and even more so in the discourse of secularism and religion. So, I wish to strip any normative patina which attaches to these words. I use them simply because I want to address some of the most commonly and strongly held assumptions and positions underlying this discourse. This afterword does not set out to summarise the rich contributions to this volume nor to take direct issue with any particular one. And yet, there is no idea or proposition in this afterword which is not inspired by, or does not take issue with, at least one of these contributions and in this respect it may be seen as a veritable dialogical epilogue (even if monological in form) to the collection of essays. Blessedly, the volume does not speak with one voice and displays a rich variety not only of sensibilities but also of distinct framings, normative positions and analytical moves. It is a microcosm of the general debate which has come to the fore in our societies in the recent one or two decades after a rather long lull when the issues seemed to be dormant. The reasons for this revival are clear enough, not least – in no order of importance – the advent of large-scale immigration, the rise of the ‘identity’ issue in public sentiment, public discourse and politics and the prominent role which courts, national and transnational, have assumed in the debate. Both as cause and effect, religion has suddenly moved closer to the centre of political discourse and disputation in Europe – something relatively novel. 299

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joseph h. h. weiler I will proceed by addressing four interconnected themes underlying many of the discussions. Inevitably, some issues and propositions will run through all four heresies/dogmas.

Freedom of religion, freedom from religion and the monolithic dogma It is a commonplace that our contemporary notion of freedom of religion also incorporates freedom from religion. And it is equally common to consider that freedom of religion is there to protect the interest of communities of faith whereas freedom from religion is there to protect secular communities and sensibilities. Part and parcel of this commonplace understanding, encapsulated in the very expression of freedom of religion – in the singular – is the manner in which in our discourse of state and religion, we lump all religions together as a monolithic phenomenon. All too often prescriptive models on the appropriate relationship between the liberal pluralist state are premised on such a monolithic view. And our policies and prescriptions follow suit – as for example the famous (or infamous) ban in French schools of the display by students of any visible or prominent religious symbols such as the burqa for Muslim women or the yarmulke for Jewish boys (Christians are allowed a small unobtrusive carrying of the cross). The reason or rationale is often the laudable wish not to discriminate or appear to be discriminating among religions, and in more recent times, the equally laudable wish not to inflame Islamophobic tendencies in Western society. Nonetheless, I would contend, this grouping together is also a manifestation of that not uncommon strand in ‘liberal’ secularism which happily consigns religion to the ‘private sphere’, the prerogative of individuals who believe in all that foolishness. Christianity, Islam, Judaism? Why even bother disentangling them? After all, all three revere that man who blithely raised his hand to murder his son because some God told him to do so. Be that as it may, disentangle them we should if we are to have a more fine-grained understanding of the interface of religion, secularism and the modern liberal state. I want to do this in two steps. First, to address the issue of freedom of and from religion as refracted through the well-known speeches given by Pope Benedict – at the UN, at the Collège des 300

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four dogmas or heresies Bernardins in Paris, at Westminster and above all at Regensburg and Berlin in his address to the German Bundestag. And on the basis of that to point out some important distinctions among the three principal monotheistic religions. It would be redundant, perhaps even otiose, once again to parse through the Regensburg and Bundestag speeches. I will try first succinctly to recapture their most essential messages – and the nexus between the two. But the burden of this reflection will be in going beyond the two speeches and exploring some of their implications and consequences – intended and unintended. Benedict was shaped by and helped shape Vatican Council II. Ever since that seismic tremor, the Holy See in Rome has insisted on the importance of freedom of religion. John Paul II and Benedict were in the habit of claiming that it was the most fundamental of all freedoms. In our general secular culture this was and is typically received with a forgiving smile: ‘Which freedom would you expect a Pope to privilege?’ construing this statement in a corporatist sense, as if the Pope were some trade union leader concerned about his members’ benefits. There is of course this aspect to religious freedom and there is nothing ignoble in the Shepherd watching out for his Flock. What had not received enough attention is the fact that in the context of the Regensburg Lectures the religious freedom the Pope was alluding to was, it would appear, the opposite: the freedom to adhere to a religion of one’s choice or not to be religious at all. The Pope embraced boldly the notion that freedom of religion includes freedom from religion. This is not simply or primarily an expression of liberal tolerance and liberty. It is an expression of a profound religious proposition with significant ramifications. ‘We impose our faith on no one. Such proselytism is contrary to Christianity. Faith can develop only in freedom,’ the Pope lectured his own faithful at Regensburg. As I understand this teaching, a much deeper meaning of religious freedom than the freedom to practise religion emerges here. At the core of religious freedom is the freedom to say no to God. That is a religious proposition. Jews, say, ‘All is in the hand of God except the fear of God.’ That is how God wanted it. True religiosity, a true yes to God, can only come from a being which has the internal spiritual ability, capacity and external material condition to say no. Benedict makes religious freedom including freedom 301

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joseph h. h. weiler from religion a theological proposition which, in turn, has a profound anthropological significance. Religious freedom goes to the deepest notion of the human as an autonomous agent with the faculty of moral choice even in the face of his or her creator. Choice over one’s fate and destiny is all too often considered an artefact, a defining artefact, of modernity which distinguishes us from earlier epochs in which men and women understood their condition as set by fate. I have always doubted that proposition since it surely does not and cannot include this most fundamental of choices which has been with man from the Garden of Eden onwards. From the onset of our civilisation the freedom to say no to God (even if not respected by religious and secular authorities) was hard-wired into our very essence as humans. That freedom is an expression of the deepest understanding of humans as autonomous, sovereign moral agents. For religious persons, we, humans, are autonomous, sovereign moral agents because we were thus created by, and in the image of, God with a specific telos which gives meaning to one’s existence which could not be achieved if we were not so created. Even a secular atheist can understand that if one were to accept the existence of an omnipotent Creator (which the atheist denies), to insist as an intrinsic religious proposition on the liberty to say no to such a creator is fundamental to the very understanding of the human condition within such a worldview and is to stipulate a primordial notion of liberty. When the Pope stipulates freedom of religion as being the most fundamental, it is precisely because it stands as proxy to the very ontology of the human condition. What it is to be human. Equally, one does not have to be religious in order to understand why an assault on religious freedom thus understood constitutes such a profound attack not only on the religious and not simply on a particular individual liberty of conscience but on the core of humanity. One can go yet one step further, and in my understanding the Pope goes one step further. Citing James he explains, in the Regensburg homily rather than the discourse on science, that ‘the royal law’, the law of God’s kingship, is also ‘the law of freedom’. If at the core of religious freedom is the ability to say no to God, how, then, does exercising that liberty by actually accepting the Law of God’s Kingdom constitute an actual enhancement of 302

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four dogmas or heresies one’s freedom? It is not simply, although it is also that, a religious expression of the notion of rational liberty – the realisation that it is only a legal framework which will allow us to exercise our liberty. No, it is deeper still. By acting outside the constraints of God’s law I merely become a slave to my human condition including my human desires. A human sovereignty unbound is no sovereignty at all. Likewise, to accept God’s law, and no other, as ‘royal law’, the law of he who transcends this world, is to assert my inner liberty vis-à-vis anyone who is of this world. There is no better antidote to totalitarianism in this world. It is sad that so many religious persons betrayed that royal law when fidelity to that law was most needed. At the core of the Bundestag discourse was an answer to the regnant Rawlsian orthodoxy which would exclude religious argument as legitimate input to public discourse and public normativity. Religion, after all, is predicated on a self-referential and immutable ‘article of faith’ and thus unsuitable as a premise and a mode of discourse for defining the general public good. Rawlsian orthodoxy predicates a vocabulary of rationality, transcending closed and self-referential systems of belief, as the common language of public discourse and a condition for public normativity. Benedict challenges that orthodoxy in more than one way. First, it is wrong to bundle all faiths under the generic ‘religion’ as if they were all of the same cloth when it comes to the issue of public normativity. Even within the Abrahamic family there are marked differences on this issue – separating Christianity from Islam and Judaism. Second, the Rawlsian reading of Christianity is misguided and mistaken. When the Christian steps into the public space to make demands on public normativity, he or she is not to make such demands based on revelation and predicated on faith or religion. It is, as we have seen, part of Christian anthropology that humans are endowed (so endowed by their Creator – but this is neither here nor there) with the faculty of reason, common to humanity, which, indeed, constitutes the legitimate language of general public normativity. The content of the Christian demand will typically be in the realm of practical reason – morality and ethics as often expressed through natural law. This is not a concession to secularism. It is an inevitable result of the religious propositions which informed the Regensburg discourse. 303

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joseph h. h. weiler To adopt a publicly binding norm predicated exclusively on religious faith and revelation would violate precisely that profound, religiously based, commitment to religious freedom, whereby coerced faith is a contradiction and contrary to divine will. It is a courageous proposition because it is not only an entry visa into the normative public square, but imposes, too, a serious and severe discipline on the Christian community of faith. The stricture of reason might force one to revisit one’s articles of faith. To reverse previous judgements, one no longer has that joker in the pack: ‘This is what God commanded.’ That is not reason. One might lose, reasonably, an argument rooted in reason. If one adopts a language, one has to speak it correctly to be understood, to be convincing. And that is true also for the language of reason. Regensburg and Berlin belong, thus, to the same route, are predicated on the same logic. They are two sides of the same coin. I can now also explain the sense in which not all religions are cut from the same cloth. I should emphasise because of the sensitivity of the issue that though I think these notions are implicit in the Regensburg lectures, these are my constructs and should not be attributed to anyone but myself. It is possible to arrange Christianity, Islam and Judaism in accordance with two parameters: the reach of their normative claim and the nature of their normative claims in the general public space. As regards the first parameter, Christianity and Islam find themselves in the same bracket, both self-understanding themselves as universal with a strong missionary vocation – a missionary vocation which can if not severely controlled breed religious intolerance tendencies. Judaism is inward looking with extremely weak proselytising tendencies; its religious intolerance tendencies will be directed at fellow Jews but not at Gentiles. As regards the second parameter, Islam and Judaism find themselves in the same bracket, both of them have a normativity which is partly consistent with a universal moral ethic (thou shalt not kill) but a very substantial part of which is revelational and cannot have any persuasive power vis-à-vis non-believers or believers of other faiths. Christianity by contrast, not necessarily historically, but certainly in its contemporary understanding at least since Vatican II (and probably long before it), stands with a general public normativity rooted in the universal ethical idiom and, in its official position, abjures any form of religious coercion. Revelation, as we saw, is excluded as a 304

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four dogmas or heresies legitimate consideration for any form of public coercion. That, of course, neutralises the possible intolerance tendency which might flow from its universalism. The reader of this afterword can work out the various permutations these parameters produce, but it is clear that when discussing the issues of religious normativity in the public space it serves no purpose to lump all these religions together in the way the Rawlsian orthodoxy does.

Church and state – the Christian bias I have just pointed out the common practice of lumping all religions together in addressing, descriptively or normatively, the relationship between the liberal secular state and religion. Here I want to point out a different habit – that of imposing a Christian conception of religion when dealing with other religions. What I find interesting and worth reflection is the manner in which this conception has become part of general liberal and secular culture. The case of the Jewish Free School decided by the UK Supreme Court provides an illuminating example of such – precisely because the Supreme Court (hitherto the House of Lords) was speaking in the name not of Christianity but of secular liberalism. The case is noteworthy since it is not every day that the Chief Rabbi of Britain is found by the Supreme Court of the UK to be guilty of race discrimination. But that is what happened in the decision in the Jewish Free School (JFS) case. Five Law Lords found direct discrimination which, under British law, can never be justified or excused. Two Law Lords found indirect racial discrimination which can be justified or excused but which was not so justified in this case. Only two Law Lords of a quorum of nine exonerated the Chief Rabbi of that rather heavy charge. The facts of the case are as simple as the law and its underlying conceptual conundrum are complex. Unlike classical secular states, Britain still embraces an established church, and the monarch is both head of state and head of the church. However, based on the principle of non-discrimination, privileges which were once extended exclusively to the Church of England are now enjoyed by all major religions. Notably, in the field of education, the state will fund (with certain strings attached) religious schools – Christian, whether Anglican or Catholic, Jewish, Muslim and others. 305

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joseph h. h. weiler Although there is in force a general prohibition on discrimination on grounds of religion, there is a specific exemption for these ‘maintained’ schools. Thus, the law allows Catholic schools to give in their admission policy preference to Catholics and so with the other religions. Only if the school cannot fill its enrolment capacity with its own co-religionists, is it obliged to accept applicants of other religions. The law also allows such schools to determine eligibility by reference to ‘membership’ or ‘practice’. By contrast there is no exemption for discrimination on grounds of race. JFS is an old and outstanding school. By all measurements it scores among the very best in the UK. Its admission policy gives preference to Jews. Since the number of Jewish applications consistently exceeds the places available, in effect non-Jews are excluded. In determining who was a Jew for the purpose of admission, JFS relied on the Office of the Chief Rabbi who in turn applied the criterion of membership in the Jewish people rather than the practice of Judaism. Membership was determined by traditional halachic norms: someone born to a Jewish mother or converted according to Halacha. M., a 13-year-old, was an applicant to the school. He lived with his father and both of them were active and committed practising Jews in the Masorti tradition – a mild form of progressive Judaism. His application was turned down since his mother, an Italian Catholic by birth, had converted to Judaism by Masorti rules, a conversion not recognised by the Chief Rabbi. In the eyes of the majority, this exclusion amounted to prohibited racial discrimination. In this afterword I will avoid most of the finer legal points and focus on the underlying issues of principle. We usually associate ‘race’ with bloodlines, genetic make-up and other biological factors. ‘Born to a Jewish mother’ seems to point in that direction. But let us imagine both of M.’s parents as Italian by birth, or for that matter Chinese. The bloodline, genetic make-up and biological race of their son would be Italian or Chinese respectively. But, had the mother undergone an appropriate halachic conversion, blood, genes and race notwithstanding, M. would be fully Jewish. Put differently, with exactly the same ‘racial’ make-up M. would be considered Jewish had his mother satisfied the religious requirements of conversion and the same M. with the same genes and blood would not be Jewish if his mother did not satisfy the religious requirements of conversion. 306

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four dogmas or heresies If M. were female, she could marry a Cohen and their son would be a member of the priestly cast. (At the time of the Temple the daughter of a convert could marry the son of the Chief Priest and their son would be the Chief Priest of all Israel, his genes and blood notwithstanding.) There are no preconditions for conversion: white or yellow or black, male or female, anyone may join. His or her race is irrelevant. But they must join the people by following certain religious rules of joining. At their source the criteria are, on this view, religious not racial. So how did the majority reach its conclusion that excluding M. was a manifestation of racism? English law includes ‘ethnic origins’ as a proxy for race. Ethnic in the case law of the Court is understood as ‘appreciably wider than the strictly racial or biological’. Various criteria make up ethnicity: shared history, cultural tradition, common geographical origin or descent from a small number of common ancestors, a common language, a common literature, a common religion, being a minority within a larger community, and so on: A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group . . . Provided a person who joins the group feels himself or herself to be a member of it, as is accepted by other members, then he is [for the purposes of the law prohibiting racial discrimination,] such a member.

The majority found that on these criteria the Jewish people are an ethnic group. We should not hasten to condemn the British courts for construing race anthropologically and giving a non-religious definition to Jewishness. First, it is consistent with the purpose of the UK Race Relations Act. Anti-Semites, for example, do not follow religious definitions of Jewishness. We would not want a Jew, anthropologically understood, to suffer persecution or discrimination by, say, an employer on account of his or her Jewishness, and then face a legal defence that according to Orthodox or Masorti or Reform rules, the person was not actually Jewish. Second, we do not want the legislator or the courts to be in the business of deciding religious criteria for Jewishness. But we should note that a gap may open between this anthropological definition of Jewishness and a religious definition. 307

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joseph h. h. weiler It is here that we come to the key difference between majority and minority. One of the Law Lords, Lady Hale, in a lucid and succinct opinion captures the core of the majority reasoning: There is no doubt that the Jewish people are an ethnic group . . . [I]t is just as unlawful to treat one person more favourably on the ground of his ethnic origin as it is to treat another person less favourably. There can be no doubt that, if an employer were to take exactly the same criterion as that used by the . . . Chief Rabbi and refuse to employ a person because the Chief Rabbi would regard him as halachically Jewish, the employer would be treating that person less favourably on grounds of his ethnic origin . . . There can be no logical distinction between treating a person less favourably because he does have a particular ethnic origin and treating him less favourably because he does not.

M. was treated less favourably because he did not come under the Chief Rabbi’s definition of Jewishness. In the eyes of the majority that definition was an ethnic determination. Since ethnic stands as a proxy for race, the admission policy amounted to racial discrimination. As a matter of internal Jewish policy and politics, the wisdom of the policy of the Chief Rabbi and JFS to exclude students such as M. calls for serious reflection and does not allow for easy answers. Why would he not include in his criteria the standards of other Jewish streams? It is not, however, the point I am driving at. But even from the perspective of the non-Orthodox denominations, the result of the case should be alarming. All Jewish denominations accept the proposition that Jewish identity is determined by either descent or conversion though they may differ on the precise rules of descent and the content of the conversion. Also a Reform school could face an M. who felt Jewish but was not Jewish by their criteria because, say, neither of his parents converted in accordance with Reform strictures. The reasoning of the majority is both problematic and telling. Implicitly the majority conflated the secular anthropological criterion of ethnicity which is the province of the civil courts with the religious criterion which is the province of religious authorities. In fact, it is possible that someone would be anthropologically Jewish but religiously not. Many such Jews were gassed at Auschwitz. 308

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four dogmas or heresies Was the Chief Rabbi concerned with ethnicity as the majority held? To the minority, it was evidently clear that his concerns were not even remotely close. Thus, another Law Lord, Lord Rodger: Faced with a boy whose mother had converted under Orthodox auspices, the governors would have considered him for admission without pausing for a single second to enquire whether he or his mother came from Rome, Brooklyn, Siberia or Buenos Aires, whether she had once been a Roman Catholic or a Muslim, or whether he or she came from a close-knit Jewish community or had chosen to assimilate and disappear into secular society. In other words, the ‘ethnic origins’ of the child or his mother . . . would not have played any part in the governors’ decision to admit him . . . In other words, the only ground for treating M less favourably than the comparator [i.e., a son of a halachically converted woman] is the difference in their respective mothers’ conversions – a religious, not a racial ground.

Who is more persuasive? Reach for your bottle of aspirin. But before you do, let us dig deeper. The key to the majority decision is not, in my view, to be found in their different understanding of what the law on racial discrimination means but in different sensibilities brought to the facts. It is this very example given by Lord Rodger, which seems to animate the majority each of whom has his own version. The following question and answer hover all over the majority narrative though they are never quite stated: How is it possible that the JFS and the Chief Rabbi will, with equanimity, consider eligible someone who is not interested in Judaism, who may even be a confirmed atheist, and whose sole or primary reason for going to JFS is, say, its outstanding educational standards and its public funding which makes it free whereas they will reject an M. who is deeply religious, a committed and knowledgeable Jew, albeit Masorti? Surely, the first guy is by definition not religious and hence his classification as a Jew must logically follow some other criterion, that is, ethnic and racial.

This, I would submit, is the underlying rationale of the majority, and probably of many of you reading this little tale. What is wrong with the above implicit reasoning? Well, nothing other than that it is a profoundly Christian, nay, Protestant 309

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joseph h. h. weiler understanding of religion and religious belongingness. It endorses the Christian New Covenant as articulated by Paul, where the ‘old’ covenantal boundaries of peoplehood were broken down, and a universal salvific message, the Good News, was extended to all individuals independent of the people to whom they belonged. To quote Paul, ‘There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.’ On this view, you are Christian if you believe in Christ. You are not if you don’t. Common sense: if you reject Christ, how can you be considered a Christian? This has shaped the Western sensibility as to what religious membership means. It is to be respected. But it is not the Jewish understanding of religious belonging. In fact, it was articulated by Paul (né Saul) precisely as a rejection of that understanding and as a rejection of Judaism as a whole. You can, as a Jewish religious proposition, belong to the Jewish people, and be a Jew, even if you have lost your faith. This, of course, is baffling to the Christian (Protestant) mind. At this deep level, the first thing that is troubling about the majority is the unintended intolerance shown towards a religion whose self-understanding is different. I find entirely unconvincing the attempt of the majority to pin their conclusion on the words of the parliamentary Act they were interpreting. Their anthropological reading of ethnicity is suitable in the circumstances for which the Act was intended. But when the legislator makes an exception for religion and the religion in question is Judaism, it should be understood on its own terms, not on Christian Protestant terms. You cannot make an exception for a religion so long as that religion self-understands itself the way Christianity does. It also explains why the majority does not even begin to grasp that if someone is Jewish, as religiously defined, even if ignorant, indifferent or atheist, there would be a duty, a religious duty from Scripture itself, ‘To Tell Your Son’, to instruct him in the ways of the Covenant. The criterion of the Chief Rabbi is not as arbitrary as it seems at first blush but reflective of a deep religious commitment. Even, one could protest, if one accepted the self-understanding of the religion in question, that acceptance cannot be absolute. We would not allow child sacrifice, even if religiously mandated. What, then, if I continue to hold that the Jewish self-understanding and definition of belongingness – descent and conversion – are discriminatory? This is 310

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four dogmas or heresies the second troubling aspect of the majority reasoning. The only discrimination I see is the one against Jewish institutions applying religious criteria of membership. Lady Hale herself speaks of the Jewish ‘people’. The Jewish religious definition of peoplehood – descent and conversion – is no different from all secular definitions of peoplehood: you are French, or Italian, or German, or Irish, or Australian or, yes, British, if you are born to a parent or parents belonging legally to that people (that is, descent) or if you legally naturalise (conversion). Some countries add place of birth (jus soli) but practically none exclude the first two criteria. Let me drive this point home by a brief hypothetical. Only if you are British do you enjoy certain rights such as eligibility to be elected to Parliament. Imagine now a different M. born and bred in Britain, speaking English, a loyal and patriotic citizen. He is British not because of the location of his birth (Britain does not apply jus soli) but because of descent. He was born to British parents. In this case, too, M. was born to parents who originally were not British but naturalised as British citizens. And now, finally, imagine that it was discovered that the naturalisation was defective – based on some fraud of his parents – they were, say, convicted felons and failed to disclose such, or other failure to satisfy the conditions for naturalisation. So it turns out that M.’s parents were not British after all because of that defect. The sad but inevitable result would be that M. too would not be British. M. now wants to stand for election to Parliament. ‘I am afraid, sir,’ will say the British election officer, ‘that until such time as you naturalise according to the proper procedure, you may not stand for election, which is a right reserved to Britons.’ ‘Even to Britons,’ M. might protest, ‘who never set foot in this country, who hate it, who disparage it, who want to abolish the monarchy?’ ‘I am afraid so,’ will be the answer of the election officer in Britain and in just about every other country in similar circumstances, which is just about all countries. If the majority of the Law Lords in the JFS case accept the peoplehood of the Jews, as they expressly do, why would they hold the Jewish religious definition of membership as discriminatory when it is similar to the secular universal practice among all other peoples? The important point here is not to accept or reject the justice or injustice of the Supreme Court’s ruling but to illustrate how easily in our cultural and political habits we internalise the Christian selfunderstanding of religion in addressing issues of church and state. 311

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joseph h. h. weiler

The dogma of secular neutrality One of the most pervasive and persuasive articles of faith of laïcité is that it enshrines and ensures the principle of neutrality of the liberal state. Nowhere is this ‘dogma’ more strongly held than when it comes to the role of the state in education. The Second Chamber of the European Court of Human Rights in the Lautsi case gave forceful expression to this principle. In unanimously finding that the Italian requirement of displaying a crucifix in all classrooms of public schools was a violation of the European Convention on Human Rights it said: ‘The State’s duty of neutrality and impartiality is incompatible with any kind of power on its part to assess the legitimacy of religious convictions or the ways of expressing those convictions’ (paragraph 47). Obviously displaying a crucifix in the classroom would violate such. It is a position and a conclusion which appear almost axiomatic. If one believes in the neutrality of the state – not least on matters of religion – as a core liberal marker, how could one not reach such a conclusion? Often it is put as follows: how could one consider an empty wall which forbids the crucifix as more objectionable than a wall which allows the crucifix? I do not wish to engage with the far deeper ontological issue of whether liberalism as such can usefully be described as a ‘neutral’ worldview, but instead grapple with the assumption of neutrality and the way it plays out in relation to religion in contemporary Western societies. Secularism, laïcité, is not an empty category which signifies absence of faith. It is to many a rich worldview which holds, inter alia, the political conviction that religion only has a legitimate place in the private sphere and that there may not be any entanglement of public authority and religion. For example, on this view, only secular schools should be funded by the state. Religious schools must be private and not enjoy public support. It is a political position, understandable historically and respectable as such. But it is difficult to consider it as ‘neutral’ on the political spectrum. Today, the principal social cleavage in our states as regards religion is not among, say, Catholics and Protestants, but among the religious and the ‘secular’. If the social palette of society were only composed of blue, yellow and red groups, than black – the absence of colour – would be a neutral colour. In a society the 312

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four dogmas or heresies overwhelming members of which are religious albeit of different denominations, a secular, non-religious state could in this setting be considered as neutral. But once one of the social forces in society has appropriated black as its colour, then that choice is no longer neutral. Secularism is not like the black which is absence of colour, but the black which is a bold colour in and of itself. If one is presented with a binary choice, in this case a religious vs. a nonreligious worldview, neither choice is neutral any longer. Let us see how this plays out in relation to education, if we compare two models of state funding of education – the FrancoAmerican model on the one hand and the Dutch-British model on the other. Under the first model, in the name of neutrality, the state will only fully fund secular schools. This is a happy choice for nonreligious parents the education of whose children will be paid for by the state but somewhat less happy for parents who wish their children to receive an education which reflects or at least respects the religious commitment and who to achieve such have to send their child to a private school which only receives a partial subsidy for some of the functions of the school. The Netherlands and the UK understand the dilemma and adopt an ‘agnostic’ position: they will fund public schools which are secular, or affiliated with one of the principal religions in society. I think a case can be made that the Dutch and British model is more neutral. If we look inside the classroom we may also see the difficulty of the neutral posture articulated by the Second Chamber of the European Court of Human Rights. Consider the following parable of Marco and Leonardo, two friends just about to begin school. Leonardo visits Marco at his home. He enters and notices a crucifix. ‘What is that?’, he asks. ‘A crucifix – why, you don’t have one? Every house should have one.’ Leonardo returns to his home agitated. His mother patiently explains: ‘They are believing Catholics. We are not. We follow our path.’ Now imagine a visit by Marco to Leonardo’s house. ‘Wow!’, he exclaims, ‘No crucifix? An empty wall?’ ‘We do not believe in that nonsense,’ says his friend. Marco returns agitated to his house. ‘Well,’ explains his mother, ‘we follow our path.’ The next day both kids go to school. Imagine the school with a crucifix. Leonardo returns home agitated: ‘The school is like Marco’s house. Are you sure, Mamma, that it is okay not to have a crucifix?’ But imagine, too, that on the first day the walls are naked. Marco returns home 313

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joseph h. h. weiler agitated: ‘The school is like Leonardo’s house,’ he cries. ‘You see, I told you we don’t need it.’ In reality, the laic alternative to the crucifix is not a naked empty wall. The walls of our schools are open to accommodate and endorse all manner of worldviews, and in reality often do – except the one worldview which is explicitly excluded, which is the religious worldview. At the entrance of every elementary school in France you will find inscribed: Liberté, Égalité, Fraternité – the battle cry of the French Revolution. I would be delighted to send my children to a school which displayed such rousing words, embodying such ideals. But if I were a monarchist, I might feel, well, upset. Were I a monarchist and were to complain to the school board of the city or region, I would be told: win the next election, and have it removed, and put up instead, La France, c’est moi. I would never dream of telling my children that Liberté, Égalité, Fraternité is a neutral principle. On the contrary, it is an ideological position which I favour, and for which much blood was spilled. I would mobilise to defend it, democratically of course, and hope my children would be equally so mobilised. But neutral? And yet, there it is on the wall. Imagine, not a far-fetched hypothetical, that a region in the country decided to be nuclear free. Driving through Europe you find many such regions. Many of them espouse a nuclear-free icon, often the triangular peace sign of the 1960s. It, too, in such regions could go on the wall of a school. The classroom wall, in principle and in reality, is covered with signs and symbols which reflect democratic, ideological preferences of our polities. Leave your privileged tenured university desks, enter into the nearest school. Take a look around. The only thing you will not find is a religious symbol. The principle of classroom neutrality does not, in theory and praxis, require an empty wall. It could not – there is hardly a symbol or picture which does not carry some explicit or implicit ideological baggage. Even Goldilocks and the Three Bears is not ideologically neutral. What the laic constitutional principle does is to allow most such representations on the wall, when democratically arrived at by school boards, educational authorities and the like, except religious ones which are prohibited even if they were to be massively supported by democratic institutions. This result follows the logic of constitutionally defining religion as a private affair even if religion itself does not so define itself. Tell such to Isaiah or Amos or Jeremiah. 314

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four dogmas or heresies The educational consequence is not trivial, for the message, both explicit and implicit, can well be understood as: all worldviews can find their place on the wall and are thus to be understood as legitimate, except a religious worldview which, by implication at least, becomes toxic. Nelson Mandela or Che Guevara, yes, John Paul II, Muhammad or Moses, no. Both the Italian choice – crucifix – and the French choice – no crucifix – pose an educational challenge. The Italians will have an imperative exigency in their educational programming to teach respect for other religions and for no religion at all. The French, who today do not only forbid a crucifix on the wall, but forbid children to wear a cross or a headscarf or a kippah (but you can wear a shirt with Marx, Karl or Groucho, on the back), have an imperative educational exigency to teach respect for the religious sensibility and not allow the ban to be interpreted as the state endorsing an attitude of contempt or derision towards religion. There may be particular circumstances where the arrangements by the state could be considered coercive and inimical given, say, the demographic composition of a school catchment area, in which case a variety of pluralist options are open. But, indeed, pluralism and accommodation seem to be more fecund concepts to deal with these issues than ‘neutrality’.

Reframing the approach to collective religious identity and individual religious liberty We habitually talk of the commitment to religious freedom, both positive and negative: freedom of religion and freedom from religion, which European states are constitutionally bound to guarantee their citizens and residents. But when it comes to the identity of the state, how does one reconcile the two? Would not a religious identity of the state militate against the freedom of religion of its secular population and citizens adhering to a different religion? And would not a state shorn of any religious identity compromise the freedom of religion of, say, a majority who wish to see that preference reflected in the state? Europe, I would argue, has charted an interesting and in my view appealing approach to this issue. The European constitutional landscape posits two rather than one ‘Freedom of and from Religion’. In addition to the classical 315

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joseph h. h. weiler individual Freedom of and from Religion, in its very structure Europe represents a second collective, identitarian, Freedom, conceptually stemming from self-determination, namely the freedom of nations/states to include in their self-definition, in their selfunderstanding, and in their national and statal symbology, a more or less robust entanglement of religion and religious symbols. Consider France and the United Kingdom, good examples because both are founding members of the European Convention on Human Rights and, with the usual imperfections, are both considered robust liberal democracies in good standing. France, in its very constitution, defines itself as laïque – usually understood as mentioned above, as a political doctrine which does not allow the state any endorsement or support of religion and would, say, consider the display of religious symbols by the state or full funding (though subsidies in France, as compared with the USA, can be substantial), as, well, anathema. At an individual level, laïcité does not necessarily mean individual atheism or agnosticism. I know many persons who are religious in a profound and capacious way, but uphold laïcité. They do so because they believe that, independently of their personal conviction, it is wrong for the state to get entangled with religion. This precision is important since it helps highlight the fact that laïcité is a political doctrine about the best way to regulate the relationship between the state and religion. The origins of, and justification for, laïcité can be historical (the specificities, for example, of the Ancien Régime and the subsequent French Revolution) but also theoretical – rooted in both principled and pragmatic consideration of, say, how best the state may ensure peaceful co-existence among religious factions. Laïcité is to be contrasted with an opposing doctrine, which is also very common in Europe and which has no accepted name. ‘Theocracy’, for even the most ardent supporters of French-style laïcité, would not be an appropriate label to describe a state like the modern UK or Denmark. For convenience let us refer to ‘moderate secularist’ states. Like France, like everyone else, the moderate secularists are both committed to, and obligated by, an imperative of assuring individual freedom of and from religion, but see no wrong in a religious, or religiously rooted, self-understanding of nation and state, and in a public space more or less replete with state-endorsed religious symbology. In England, part of the UK, the monarch is both the head of state but also the titular head of the Anglican faith 316

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four dogmas or heresies and its institutional manifestation in the Church of England: the ‘established church’ of the nation and state. Many state functions have a religious character: clergy sit (or sat) ex officio as part of the legislature, the flag carries the cross (of St George) and the national anthem is a prayer to God. In somewhat of a mirror image of what I wrote above, I know many persons in England who are very convinced atheists and yet see no harm in the ‘moderate secularist’ state, and are also able to invoke considerations of principle and pragmatism: has the UK been more riddled with religious strife than, say, France? It would seem that at least until recently, Catholics, Jews and Muslims were at peace with, say, a photo of the monarch on the wall of a classroom or, more significantly, the English (or British) population at large has been at peace with a Catholic, or Jewish or Muslim or Church of England classroom funded from the general tax receipts of a population which is mostly secular, just as their French counterparts would be uncomfortable with the above. It is not my purpose to claim normative parity for these two positions – a proposition which would be hotly contested. But I will make two claims in relation to them. First, both the French and the British (English) models are considered constitutionally legitimate in Europe. The UK (or Denmark, or Malta, or Greece and many others with different recipes from the ‘moderate secularism’ cookbook) is not, simply by being what it is, in violation of the Convention or in violation of the common constitutional traditions of Europe. Second, and more controversially, I do need to repeat here that the claim that laïcité embodies a principle of neutrality requires a very narrow (and self-serving) definition of what we mean by neutrality. Sure, a laic state, à la France, is neutral as between different religious factions in the French public space. But it is not neutral in a broader political sense. What may hang on a French classroom wall will depend on the political colour of French democracy at any given time: a bust of Voltaire? S’il vous plaît. Marx? Pourquoi pas? The noble battle cry of the French Revolution – Liberté, Égalité, Fraternité – is, in fact, to be found on countless school walls across the country. The only things that may not be displayed, independently of the contemporary colour of voter preference, is a cross, or a mezuzah or a crescent. Kids may come to school with any manner of emblems such as the famous peace triangle, but not with you-know-what. 317

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joseph h. h. weiler There is not contestation in Europe about the principle of freedom of and from religion (though many debates about its application). But there is a deep contestation about the most suitable way to regulate the symbolic and iconographic entanglement of church and state. The laïque position is surely not ‘neutral’ about that contestation: it is as much a polar position as is the ‘moderate secularist’ position. It does not simply choose a side. It is a side. It is theoretically autistic or disingenuous to claim neutrality for a term which defines one pole in a bipolar dispute. This argument brings about yet a third very important underlying distinction which is rarely articulated, but which can be very visible. There are those who truly believe that laïcité is a primordial condition – sine qua non for a good liberal democracy and that, at least implicitly, the moderate secularist position is sub-optimal at best and aberrational at worst. Consequently, it is morally imperative for good democrats and liberal pluralists to attempt to clip the wings of religious manifestations of the moderate secularist state as far as possible – a principled and consistent position. There are others (myself included) who hold the view that, even more in today’s world than before, the European version of the moderate secularist state is hugely important in the lesson of tolerance it forces on such states and its citizens towards those who do not share the ‘official’ religions and in the example it gives the rest of the world of a principled mediation between a collective self-understanding rooted in a religious sensibility, or religious history, or religiously inspired values and the imperative exigencies of liberal democracy. There is, on this view, something inspiring and optimistic in the fact that even though the Queen is the titular head of the Church of England, the many Catholics, Muslims and Jews, not to mention the majority of atheists and agnostics, can genuinely consider her as ‘their Queen’ too and themselves as equal citizens of England and the UK. I think there is intrinsic value of incalculable worth in the European pluralism which validates both France and the UK as acceptable models in which the individual right to and from religion may take place. This, then, is how I would frame the issues against which the spate of cases and debates currently present in the European public space must take place. All too often these debates are reduced to the oft-difficult line-drawing exercises between freedom of and from religion and their counterbalancing by other societal mores. 318

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four dogmas or heresies We all accept that when it comes to Freedom of Religion, the right, like all other fundamental rights, is not absolute. We would not allow in the name of religious freedom human sacrifice, or even the kind of conduct which incites to hatred or threatens public order and peace. The individual liberty is ‘balanced’ against a collective good variously defined. But surely Freedom from Religion is not absolute, and its vindication has to be so balanced, and the principle collective good against which it should be balanced would, in my view, be the aforementioned collective freedom of a self-understanding, selfdefinition and determination of the collective self as having some measure of religious reference. Freedom of Religion surely requires that no schoolkid be obligated to chant God’s name, even in, say, God Save the Queen. But does Freedom from Religion entitle such to demand that others not so chant, to have another national anthem? How does one negotiate the individual and the collective rights at issue here? At the identitarian level one should simply accept that religion, religious symbols and memories and histories can be an important part of the fabric of the collective self which constitutes the nation and accept, as is the practice in so many European states, that such could be reflected in the symbology of the state. And yet at the same time, respecting and embracing an inclusive notion of equal citizenship, recognising such as a marker of tolerance and a modern manifestation of liberal sensibilities and perhaps even celebrating the overall European constitutional landscape with its openness to so many formulations of the relationship between religion and state. At the individual level whilst striving to respect fully freedom of and freedom from religion, instead, then, of negotiating the impossibilities of neutrality through separation, the operative concept should shift to accommodations – pragmatic solutions in which, in the hard cases where freedom of and from religion clash, one seeks the outcomes that afford maximum respect to these different personal commitments. I think that both to understand the new debates and to arrive at meaningful, ethical, deontological, identitarian and pragmatic results may profit by this reframing.

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Rethinking Secularism1 Bhikhu Parekh

Reading the essays in this collection, one is struck by the variety of ways in which different societies across the globe manage their diversity, especially the religious. Some do so confidently and with success. Some others do so diffidently, nervously, not quite sure where it would all end. While almost all of them take secularism in some form as their desired goal, they feel uneasy about some aspects of it and seek to redefine it, sometimes explicitly, sometimes by stealth. In this afterword I make a few brief remarks about the nature and limits of secularism as well as why and how it can be made more hospitable to the religious sensibility.

Political secularism Political secularism has been subjected to much ill-informed criticism in recent years. It is said to involve hostility to religion and to its marginalisation from political life. Although communist countries have shown this tendency, others have not. And the former have done this because they are communists, not because they are secular. Not giving religion a major political role does not by itself amount to hostility but rather shows an awareness of its limitations and a concern not to violate its integrity by asking it to do more than it can. What is more, religion has continued to flourish in many secular states without hindrance. Secularism again is supposed to involve state indifference to religion. This is misleading. The state is concerned with public order, morality, social harmony and hygiene, and is necessarily concerned with religious beliefs and practices that violate these. What is more, no state ignores or can afford to ignore religious demands without 320

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rethinking secularism endangering its stability. Members of the armed forces have certain religiously mandatory dietary requirements. The state refusing to meet them on the ground that as a secular state it takes no account of people’s religion and that it is committed to treating all members of the armed forces alike is bound to provoke discontent and worse. Similarly in its self-interest as well as out of respect for their beliefs, the state provides prisoners, armed forces and others with appropriate prayer facilities, a chaplaincy service, and so on. It may also for similar reasons grant exemption to or demand alternative services from conscientious objectors. If being secular meant total indifference to or separation from religion, no state could be or should want to be one, and one that tried would not last long. It is said that secularism involves separation or mutual exclusion between the state and religion. This is a half-truth. Religion is concerned with issues of human well-being, social justice, brotherhood, peace and human stewardship of nature, which inevitably impinge on and bring it into cooperative or conflictual relationship with the state. As we saw, the reverse is just as true. The state and religion thus converge or overlap in several areas, where they need to find ways of cooperating, and cannot be separated beyond a certain point. Finally, some mistakenly equate secularism with amoralism, rejection of moral values, cynical pursuit of the state’s own ends. Secularism involves not rejection of religion and the morality associated with it but rather a redefinition of the relation between the state and religion so that the former can pursue such basic values as freedom of conscience and equality between religions. The state’s secularity is valued as the only or the best way to achieve these basic values, and has a built-in moral dimension. Political secularism, or secularism confined to the political realm and implying a secular state, is basically a doctrine about the proper relation between the state and religion. Whatever else the state does, it must ensure public order, protect the basic rights of its citizens, and treat them all equally. This is the minimum basis of its legitimacy, of its right to claim their loyalty and support, and any state failing to meet it is to that extent structurally flawed. In order to realise these and related objectives in a religiously diverse society, where citizens belong to different religions or to none, it needs to satisfy the following conditions. First, the state should be autonomous in the sense that the source of its authority should be located within it and not in some 321

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bhikhu parekh transcendental principle or being. Its authority could be derived from the ruling family, dynasty, a class of nobles or its citizens as a whole. Although all but the last are objectionable on other grounds, they are internal to the state and do not affect its secular character. The state’s autonomy ensures that its decisions are its own and not dictated by some transcendental agency or its earthly representative. Second, the state should pursue objectives that all its citizens share independently of whether or not they are religious and of what kind. Its ends should not be required or enjoined by and in that sense specific to a particular religious tradition. Third, the state should not establish or institutionalise a religion and require its citizens to belong to it as a condition of their citizenship or occupancy of a particular office. It should grant rights and allocate obligations to its citizens on a religiously nondiscriminatory basis. Finally, the state’s decisions, policies and laws should be publicly defended and justified, and should be based on reasons its citizens can assess and debate. If they were justified in terms of reasons derived from a particular religious tradition, they would not be acceptable or even accessible to those belonging to other traditions or none. These four requirements define a secular state. A state that fails on any of these is to that extent not secular, and cannot attain its basic objectives in a religiously diverse society. It would remain in the grip of a particular religion and lack both the authority to command the allegiance of others and the will to promote their interests. A state is articulated at five levels, and its secularity needs to inform all of them. First, symbols of its collective identity such as the national anthem, the flag, the national motto and the national crest. Second, an institutional structure and the way it derives its authority. Third, its objectives or ends, both those it must pursue as a condition of its survival and stability and those it may. Fourth, its rules of membership and the rights and obligations of its citizens. Finally, its language of political discourse or the manner in which it conducts and debates its affairs. Some of these levels are far more important than others in giving reality to the citizens’ basic rights as well as their ability to identify with the state. We might be indulgent towards the state’s failure to be fully secular at other levels, but not at these crucial levels. 322

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rethinking secularism Take a state whose Constitution formally acknowledges the existence of God but draws no further conclusions from it. Reference to God is largely intended to reassure the religious majority, to locate the state within a transcendental framework, and to stress that its authority is not absolute. Unlike the Iranian, the state might not be run by the clergy, its laws might not be expected to meet scriptural norms, it might not impose any burden on non-believers, and so on, and is in these and other ways secular. It religious dimension might make it easier for the believers to identify with it and could be used to promote pro-religious policies at an appropriate time. However, all this is largely hypothetical and may not happen. Although not as harmless as ‘In God We Trust’ inscribed on the US dollar bill, its effect on the secular character of the state is nil or negligible. Such a state is not fully secular, but may be considered as such for all practical purposes. Similar difficulties can arise in relation to religion as well. Although of varying degrees of antiquity and spanning several millennia in some cases, religion underwent a remarkable change with the rise of modernity. For centuries it was seen as a way of life deeply woven into and governing every aspect of the believer’s personal and social life. The emergence first of the modern state and later of secularism posed a challenge. The state needed to regulate or abolish some of the practices associated with religion, which it thought it could not do because of its secular character. Religion therefore had to be redefined to make a legitimate space for state intervention, and that was done largely by equating it with belief, principally those relating to the divine. Religious beliefs were largely free of state control whereas religious practices were not. Non-European states later faced the same problem, and adopted broadly the same approach. In India, for example, a religiously based social practice such as untouchability is seen by the authors of its Constitution and the courts as a social rather than a religious practice, and brought under the control of the state in a way that a religious practice or ritual could not be. Defining religion is never free from relations of power, and nor is secularism. Such questions also arise at a level where religion largely continues as culture. Indians dispute whether yoga is secular or religious in nature, and whether it can be taught in state-supported secular schools. They dispute whether supporting Indian classical dances is a secular activity the state may legitimately undertake or a religious 323

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bhikhu parekh activity it should refrain from supporting. Such disputes also arise in relation to activities that once had a religious origin but are now continued for largely cultural reasons. Lighting a lamp or breaking a coconut at the inauguration of a public event in India has religious origins and rationale, but it is now largely a custom or at best a cultural practice. Some see even the necktie as a cultural residue of the Christian cross. It is difficult to say whether these practices should be seen as ‘essentially’ or ‘primarily’ cultural or religious. They could be either depending on the meaning and significance assigned to them by the individuals involved. But even this is not easy to ascertain and can in any case vary with individuals and groups. Given this uncertainty about what is secular and how to distinguish it from the religious, the discussions of these practices remain contentious and inconclusive not only among the general public but also among the experts.

Equal treatment I argued above that a secular state should treat its citizens equally and grant them equal rights. Strictly speaking this is not an essential component of secularism per se but rather of its liberal version. Granting equal rights to all religions is not as simple as is sometimes suggested. Religions differ greatly. Some are belief centred, others give primacy to practices. Some are individually oriented, others communally. Some religions are seen by their believers as a matter of choice; others as a kind of birthmark one carries until one’s death. Abrahamic religions are all theistic; dharmic religions take little account of God or draw the boundary between human and the divine quite differently or not at all. For some diet, dress, and so on are markers of their identity while others treat these as inconsequential and a matter of personal choice. For some such as the Hindus, temples or public places of worship are not central to their religious identity; for others such as the Muslims, mosques are its integral part; Christians take a view that falls between the two. Since religions are not all alike, treating them equally cannot mean treating them the same. Their treatment is necessarily differentiated, diverse, appropriate to each religion, discriminating without being discriminatory. The principle of equality would require, for 324

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rethinking secularism example, that those for whom dress is a mandatory marker of their religious identity should have the right to wear it whereas those for whom it is not might not have, that practice-based religions could be subjected to greater constraints than the belief-based, and that the state might initially concentrate on a majority’s ugly practices in the hope that this would prepare the ground and establish its bona fide when it later turns to minorities. Similarly seeing secularism as involving a wall of separation between the state and religion makes sense in relation to the individualistically oriented Protestantism but not many other religions. To define secularism in this way is to Protestantise it and to universalise a parochial historical practice. All this calls for a highly nuanced and context-sensitive interpretation and application of the principle of equality, and ensuring that in order to avoid mechanical and unfair uniformity we do not fall prey to subtle and stealthy discrimination. Symbols are an important aspect of religious life and raise the question of their equivalence across religions. In the French debate on the Muslim girl’s right to wear the hijab in school, it was argued that, since the Christian girl was free to wear a cross or even a crucifix, her Muslim counterpart should be free to wear the hijab. This implied that the hijab was equivalent to and had broadly the same weight and significance for a Muslim as the cross had for a Christian. At one level this view was right because both the cross and the hijab have a religious meaning for the wearer, are markers of their religious identity, are considered by them mandatory, and so on. At a different level, it was not. Unlike the cross, the hijab is a dress and can be worn by non-Muslims as well without suggesting that they had converted to Islam. The Qur’an prescribes a modest dress but not necessary the hijab, which is not a religious requirement and many Muslims over the centuries have not worn it. In some respects the cross has a greater religious meaning, but less in others. The Bible, for example, does not seem to require Christians to wear it, nor does it view it as a necessary marker of Christian identity. Since the question of the symbolic equivalence of the cross and the hijab was raised in the context of a school and was largely practical, it was not subjected to an intricate philosophical debate and was resolved in a broad-brush manner. This was deeply unsatisfactory but served its purpose for the time being at least. While all citizens should obviously enjoy equal rights including the religious, it is not so obvious that the state should grant 325

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bhikhu parekh them equal public recognition or acknowledge them as equally important constituents of its identity. They might not all have played an equal part in shaping its history and culture, and cannot expect equal recognition. Christianity, for example, has exercised a long and profound influence on Britain, but not the recently arrived Hinduism or Sikhism or Islam. It makes some sense to say that Britain is a Christian country but none at all to say that it is a Hindu or a Muslim country. This is so not because Christians outnumber the rest but rather because Christianity has for centuries shaped its institutions and ethos. While Britain should publicly acknowledge the presence of non-Christian religions, respect them, and give them their due space in its self-definition, the space cannot be equal to that given to Christianity. This is sometimes misleadingly said to reduce their followers to the status of second-class citizens. The term ‘second-class citizens’ is used loosely to refer to anyone not treated in exactly the same way as the rest, and covers such diverse groups as black South Africans under apartheid, black Americans before the Civil War, and African Americans today. To grant newly settled minority religions a proportionate but not equal public recognition does not amount to treating them as if they did not count or were inferior.

Working together As I argued earlier some secularists, particularly those influenced by the French model, strongly plead for the avoidance of almost all institutional contact between the state and religion, especially in the delivery of public services and goods. In their view it entangles the state in religious matters, compromises its secular character, and gives undeserved legitimacy to religion. This view makes an important point but overstates it. Cooperation between the state and religious organisations does reduce the institutional distance between the two, and also makes the state complicit in their appeal to religious motivations and language. However, the state’s reasons for cooperation could be entirely secular, it might cooperate on its own terms, use it to pursue valuable public goods, and continue to control the purse strings. More importantly it could benefit greatly from its collaboration with religious organisations. Some of its problems are too intractable to be tackled by it on its own, and need resources some of which are best supplied by religion. The latter 326

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rethinking secularism can appeal to sentiments and motives beyond the reach of the state, offer its own distinct reasons and motivations for respecting the law or pursuing the common good, mobilise moral energy, and provide non-bureaucratic networks and support groups. Religious organisations could be of great help in healing broken selves, rehabilitating prisoners and addicts, restoring fractured relations, creating mutual trust, and building a sense of community. This is not to say that they alone can do these things or that they might not cause divisions and complicate the matter further, but rather that they have the potential to do good and, when suitably steered, can deliver results which it would be wrong to reject. It is of course essential that this should not put non-believers at a disadvantage, place them in situations they cannot accept, or deny them equal secular provisions. As long as these and related conditions are met, it is difficult to see why a secular state should on principle eschew such cooperation. In Germany, for example, 80 per cent of its publicly funded nursery schools are run by churches on behalf of the state, and this is also broadly the case with some of its hospitals. There is no evidence that this has adversely affected the secular character of the German state or generated a widespread sense of discrimination and discontent among non-believers. Experiences of some other countries, however, have not been so happy, for example Northern Ireland. The important point is not to generalise the experiences of a particular country but rather to keep one’s mind open to the possibility of mobilising and combining the society’s diverse moral resources in pursuit of worthwhile public goods. To insist that a secular state should not in any way be associated with religious organisations and activities is to take an unacceptably dogmatic and ultimately untenable approach. Just as the state has a legitimate interest in the affairs of religion and benefits from cooperating with it, the reverse is equally true. Religion is not a private activity or merely a matter of belief but has profound social and political implications. It is concerned with the quality of human relations, brotherhood, equality, disinterested concern for others, social justice, inner motivations, and so on, which is why religious people in the course of acting out their commitments have been actively involved in campaigns against racism, apartheid, wars, global injustice, repressive regimes, exploitation of nature and environmental pollution. Although religiously inspired, many of these are largely secular movements pursuing secular goals. 327

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bhikhu parekh From time to time religious involvement in the affairs of the state has led to tension between the two. When Britain offered thanks to its dead in the Falklands War, the then Archbishop of Canterbury injected a reference in his speech to the Argentinian dead as well. The Church of England report, titled Faith in the City, eloquently highlighted the urban havoc caused by Margaret Thatcher’s industrial policy. The prime minister did not like either. The right-wing media followed her lead and argued that in a secular state, the churches had no business getting involved in the affairs of the state, an argument rightly rejected by them. The secular state in Britain was obviously drawing the boundary between it and religion on terms suited to it, and the church was strongly resisting it. Such contestations about the nature and limits of secularism, in which the boundary is challenged and redrawn, are inescapable and prevent its prevailing version from becoming hegemonic.

Multiculturalising secularism States can be secular in several different ways. While sharing in common the minimum preconditions of being a secular state, each might assign religion a different role, place and degree of influence in its public life. Some have established churches, others do not. Some fund religious schools, others do not or do so partially. Some sacralise their secularism, clothe it in a quasi-religious imagery, and even talk of civil religion; others seek to squeeze out all traces of religious influence from their secularism. Some collaborate with religious organisations in the delivery of public services; others do this to the minimum or not at all. Some allow religious political parties and reduce the functional distance between the state and religion; others ban them or subject them to severe constraints. Some secular states are indulgent towards minorities and fund their cultural and religious institutions; others have a majoritarian bias. These and other differences arise from the country’s culture and history, and are responses to the kinds of challenges it faced from its religious organisations and the compromises it reached. There are multiple secularisms, each with its unique story. Although they can be fruitfully compared in specific respects and judged better or worse, they cannot be assessed on a single axis and graded overall. And although they can learn from each other, the history of each is unique and cannot be replicated in or be a model for another. 328

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rethinking secularism It is about time we brought to the study of secularism some of the important insights of multiculturalism. We need to appreciate that secularism is a cultural practice embedded in and shaped by the culture of the wider society and taking different forms in different countries. At a different level this is also true of religion, which is both shaped by and in turn shapes the society’s wider culture. Different societies may therefore draw the boundary between the religious and the secular differently as long as they do so for good reasons. Second, since religions differ greatly, equal treatment of them is necessarily differential. The state may permit a practice in one religious community but not in another, or allow its members to do things not allowed to those of another. Since this can easily open the doors to discrimination or at least give credence to the charge of it, such a differential treatment should be subject to a rigorous public scrutiny. Third, states are of several different kinds. So are religions, and so too are the ways of relating the two. It is therefore absurd to expect a universally applicable model of secularism. Each state must of necessity work out an appropriate version of it. Fourth, secularity is one of several values. Indeed, strictly speaking it is not a first-order value like freedom or equality but an instrumental value whose significance largely lies in facilitating the realisation of others. As one value among several, it could sometimes come into conflict with them and a balance needs to be struck. A secular state should resist the temptation to become a secularist state in which secularity is absolutised and privileged over all others. Religion has a long history and deep roots in almost every culture. Rather than declare an open or covert war on it and unwittingly encourage it to mobilise its dark forces, we need to give it a respectable but non-hegemonic place in political life and make it a responsible and disciplined partner in a generously designed secular political order. Finally, just as a multicultural society needs common principles to hold its diverse communities together, so does a religiously diverse society with the added problem of finding a common ground not only between its religions but also between them and the non-believers. The only way to do so is to start with what I have elsewhere called society’s operative public values and conduct a critical dialogue on their relevance and acceptability. The dialogue accords equal public 329

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bhikhu parekh respect and space to religious and non-religious voices, and aims to reach a consensus which they can all endorse for their own different reasons (see Parekh 2006: ch. 9).

Rethinking European secularism Just as European societies have for long remained monocultural, they have also been effectively monoreligious.2 The break-up of Western Christendom virtually led to every European state becoming a confessional state. A territory under a sovereign followed the principle of one king, one faith, one law. Religious dissent was tantamount to sedition, and those involved were faced with death or expulsion. Thanks to the ensuing religious homogenisation, England became Anglican, the Netherlands Calvinist, Sweden Lutheran, and so on. Later when the idea of toleration was introduced, it largely meant privatisation and invidious isolation. In the tolerant Netherlands, for example, non-Calvinists lived under conditions of deep inferiority. They were not allowed to have churches on the same high street as the Calvinists; these were tucked away in by-lanes, were not to look like churches, and were housed in ordinary buildings and private gardens. Europe has not known religious diversity. By and large the only non-Christians known to most of Europe were atheists and Jews, both of whom it treated with great suspicion and even contempt. In the process of nation building on the basis of one culture, one religion, one language, and so on, those of the majority ethnic group were seen as the norm and became the basis of the state’s national identity. Being accustomed to dealing with individual dissenters within a shared Christian tradition, European secularism has been acutely sensitive to intra-religious domination, and that too of individuals. It has not, however, been sensitive to the treatment of other religions or to inter-religious domination, especially those that are communally oriented and seek recognition as communities. It mistakenly assumes that all religions are basically like Christianity and organised along broadly the same lines. It is hardly surprising that when European societies were confronted with other religions, especially those that were differently constituted such as Islam, they felt disoriented. Almost every Muslim demand has been seen as a refusal to integrate and dismissed or conceded with great reluctance, such as the right to wear a headscarf, 330

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rethinking secularism build a mosque, practise ritual animal slaughter, call the faithful to prayer, have time off for Friday prayers, and a burial ground. While in some cases the resistance to a Muslim demand had some justification, the fact that virtually each of these requests has resulted in prolonged controversy and some of them are still not accepted in some European countries is indicative of its deeper roots in the European view of secularism. This has limited its capacity to manage its religious diversity and been one of the major contributory causes of its problems. The European view needs to be radically reconsidered so as to allow it to acknowledge how very different religions can be and how to respond to their differences in a non-assimilationist way.

Notes 1. I owe a deep debt of gratitude to my friends Tariq Modood and Anna Triandafyllidou for their encouragement and putting up with the slow progress of this piece. 2. In the next two paragraphs, I have drawn on Bhargava 2015.

References Bhargava, Rajeev (2015), ‘Parekh’s Multiculturalism and Secularism: Religions in Political Life’, in Varun Uberoi and Tariq Modood (eds), Multiculturalism Rethought: Interpretations, Dilemmas and New Directions, Edinburgh: Edinburgh University Press, pp. 157–82. Parekh, Bhikhu (2006), Rethinking Multiculturalism, 2nd edn, Basingstoke: Palgrave Macmillan.

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Index

Page numbers followed by ‘n’ indicate a note. Anglo-Perak Treaty 1874 (Pangkor accord), 171 An-Na’im, Adullahi Ahmed, 189 Anshor, Maria Ulfah, 164n anti-‘secularisation’, 8–9, 63–5 anti-Semitism, 42 anti-war movements, 8 Arab Spring 2011, 5, 49, 162 Arian, Asher, 250 Arqam, Darul, 190 Asad, Talal, 9, 19–20, 158, 275 ASEAN, 142, 163n Asia, 18, 140–297, 229 Assembly for Italian Islam, 45–6 ‘assertive’ secularism, 274–6, 280, 285–8 Association of Southeast Asian Nations (ASEAN), 142, 163n Asylum and Immigration Chamber, 121 Atatürk, Mustafa Kemal, 162, 187, 274, 277–8, 282 Attas, Syed Naquib al, 174–7, 188–9 Australia, 18–19, 228–49 Australian Human Rights Commission Act 1986, 236–7 The Australian Legend, 240 Austria, 39 Azak, Umut, 277–8

Abbott, Tony, 237–8, 241–3 Abdullah Ahmad Badawi, 183, 184, 188 Aborigines, Australian, 237 accommodation, 13, 63–5, 127–30, 208, 222–3, 230–1, 267 India, 77–84 ‘positive’, 16, 155, 161, 164–5n ‘reasonable’, 102, 121 ‘active citizenship’, 96, 106–7 Ada, İhsan, 283–4 l’affaire du foulard (headscarf issue) see headscarves ban ‘aggressive secularism’, 61 Agudat Yisrael, 259 Ahmadiyya, 142, 152, 164n Air France, 75–6 Al Qaeda, 11 Albania, 147 Albanians, 43 Alevis, 284, 291–2 Ali, Ben, 162 All-Malayan Council of Joint Action (AMCJA), 178 Almond, Gabriel A., 170 Amanat Haji Hadi, 187 American Revolution (1776), 7, 159 Anglican Church in Britain, 65–6, 67, 68 332

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index ‘burqa bans’, 46, 75, 123–5, 131, 133–4n, 236; see also headscarves ban

Azra, Azyumardi, 164n Bader, Veit, 69–70n Ba’hai, 256 Bajpai, Rochana, 17–18 Bali, 144 Balibar, Étienne, 275 Bangladeshis, 39, 42, 43 Bargain of 1957, 179 Bauböck, Rainer, 63 Bauman, Zygmunt, 29, 35–6, 47–8 Bedouin, 264 Belgium, 39, 46, 55, 123, 125, 131, 161, 165n Ben-Gurion, David, 257, 258 Bentham, Jeremy, 233 Berlin, Isiah, 144 Bernardi, Cory, 242 Bertelsmann Democracy Status Index, 141–68 Bhargava, Rajeev, 55, 64–7, 91n, 214, 224 Blasphemy Law 1965, 152 BN, 182, 186, 193–4n Bosnians, 39 Bouchard, Gerard, 86 Bourguiba, Habib, 162, 163 Bowen, John, 146 Bramadat, Paul, 126–8 Britain, 42–5, 57, 62, 89, 121, 229; see also England; UK British Mandatory regime, 256 British Muslims, 39, 65–6 Brussels shootings and explosions March 2016, 33 Buddhism, 144, 147, 229 Bulgaria, 32, 39, 44–5 Bumiputera, 178–9, 193n Bundestag discourse, 303–4

Canada, 18, 102, 229 Castells, M., 48 Catholic Church, 133n, 144, 147, 232, 283, 306 Charlie Hebdo killings, Paris, January 2015, 5, 33 Chik, Faiza Tamby, 180–1 Christianity Australia, 229, 240–3 bias, 65–7, 305–11 contrast with Judaism and Islam, 20–2 equal treatment, 324–6 European, 10, 60–1, 330 freedom from and of religion, 300–5 India, 212 Indonesia, 147 Israel, 256–7 propagation, 211 religio, 175–6 Turkey, 283, 291 Church of England, 56, 316–18, 328 ‘civil liberties’, 163n co-celebratory recognition, 143, 146–8, 161, 218 Cohen-Almagor, Raphael, 19 Cold War, end of, 30, 287 Collins, Hugh, 233 colonial period, 80–1, 101 Committee for the Relations between Muslim Organisations and Government (Contactorgaan Moslims en Overheid), 45 333

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index ‘deep state’, 279 Defense of Government Schools (DOGS) case 1981, 232 democracy comparisons, 141–68 Democratic Action Party (DAP), 182, 186–9 Democratic Party (DP), 277, 282, 284, 286, 289, 290 Denmark, 41–5, 55, 124, 146 cartoons of Prophet Muhammad 2006, 30 Department of Religious Affairs (Jabatan Agama Islam), 179 Dewan Dakwah Islam Indonesia (DDII), 152, 153 Dialogue Among Religious Communities, 164n DIB, 276, 280, 283–5, 289–92 Directorate of Pious Foundations, 289 Directory of Religious Affairs (Diyanet İşleri Başkanliği, DIB), 276, 280, 283–5, 289–92 discrimination, 40 Australia, 235–7 employment, 132n equal treatment, 324–5 Europe, 117–22 European Muslims, 42, 48 freedom from and of religion, 300 India, 215 against minorities, 112, 263–6 against non-Orthodox Jews, 250, 259–63 disestablishment, 66, 68, 213 Dobbelaere, Karel, 173–4 DP, 277, 282, 284, 286, 289, 290 Druze, 256, 264

Communism, 11, 320 Communism, collapse of, 28–31 Communist China, 8 Communist Other, 30 Communist Party, 52 Communist regime, 44 Communists ‘reformed’, 31 Confucianism, 144, 147 Conseil Français du Culte Musulman (CFCM), 45 Conservative movement, 260–3, 266 Constituent Assembly, 210–11, 221 Constituent Assembly deliberations (1946–9), 205–6, 210–16, 218 Constitution of the Commonwealth, 231–2 Constitution of the United States, First Amendment, 231–2 constitutional protection, 113–15 Consumerism, 29, 35 Council of Religions, 55 Council of the Islamic Religion (Majlis Agama Islam), 179 Court of Justice of the European Union (CJEU), 115–16 courts, 112 ‘crisis of secularism’, 11–12, 54 ‘Cultural Diversity and Judiciary Practice in Europe’, 113–39 ‘cultural identities’, 61–3 culturalising of social problems, 40–1 Dahl, Robert, 158, 159 DAP, 182, 186–9 de Roover, Jakob, 211–12 de Rougemont, Denis, 103 334

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index Faruqi, Shad Saleem, 191 Fatayat NU, 164n fatwa, 89, 190, 193n fear and suspicion, 28, 42, 104, 106 Federación Española de Entidades Religiosas Islámicas (FEERI), 46 Federal Constitution 1957, 171–2, 178, 180–2, 186 Federation of Malay, 171 female genital mutilation (FGM), 157, 165n festivals, 81–3 Finland, 55 First World Conference on Muslim Education in Mecca 1977, 175 Foblets, Marie-Claire, 14 foreign fighters, 42, 48–9 Forum Demokrasi (Forum for Democracy), 151 four principles, 94–5, 100 Framework Programme 7, 112 France ban on religious symbols in schools, 235–6, 300, 314, 325–6 difference, 59 disestablishment, 68 headscarves ban, 46, 75–6, 123, 125, 131, 133–4n, 204 laïcité, 55, 93, 95–6, 230, 274–6, 316–17 laws, 121 Muslims, 39–46, 53 national identity, 62–4 religious holidays, 146 urban violence, 30 Free Party, 281

Dworkin, Ronald, 250, 254, 267n Economist’s Democracy Index, 141–68 education, 42–4, 57, 83, 232, 241–2, 290–2, 305–15 Egypt, 5, 154, 187 Employment Equality Directive, 117–22, 128, 132n England, 30, 55, 90; see also Britain; UK Ennadha Islamist Party, 163 equality, 58–61, 324–6 Erdoğan, President, 290–1 ‘ethic of citizenship’, 106–7 European Charter, 120 European Convention on Human Rights, 120, 133n, 312, 316–17 European Council, 31 Helsinki summit 1999, 31 European Court of Human Rights (ECtHR), 115–16, 119–20, 131, 132–3n, 162, 283, 287, 292, 312–13 European culture, 29–30 European Judicial Training Network (EJTN), 113 European Network of Councils for the Judiciary (ENCJ), 113, 120, 122, 126, 130 European religious diversity, 4–7, 29–33 European secularism, 330–1 European Union, 29–31, 36–7, 115–22, 132–3n, 159 Faith in the City, 328 Faruqi, Ismail Raji al, 175, 176–7, 185, 188 335

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index Haredi, 251 Harm Principle, 254, 267 Hashemi, Nader, 158 Hawke, Bob, 230, 235 headscarves ban, 46, 66–7, 75, 162, 287, 290–1, 330–1 Hefner, Robert W., 155–6 Helmy, Burhanuddin al, 178 High Court of Australia, 231–2, 242 hijabs, 79, 236, 243, 325; see also headscarves ban Hindu nationalism, 204–5, 207, 209–11, 215 Hindu right, 223 Hinduism, 8, 80–3, 144, 147, 213, 324 Holyoake, George Jacob, 158 homophobia, 42 Horowitz, Donald, 142 Howard, John, 238–9, 241, 243 hudud laws, 185–6, 188, 193n human rights, 14–15, 17, 161–3, 253–4 Huntington, S. P., 97

‘freedom’, 282–3, 292, 315–19 freedom from religion, 26–139, 300–5, 319 Freedom House’s Gastil Index, 142–68, 163n freedom of religion, 26–139, 111–39, 211, 300–5, 319 Freedom Party, 62 ‘French Muslims’, 40 French Revolution (1789), 7, 159, 314, 317 Le Front National, 62 Fukuyama, F., 30 Gandhi, Mahatma, 8, 254 Gastil Index, 142–68, 163n Gauhar, Altaf, 174 GERAKAN, 182, 193–4n Germany, 39–44, 55, 63, 121, 146, 161, 164–5n, 327 Gezi Park movement, 49 globalisation, 28, 33–7, 47–8, 104 governance of religious diversity, 26–139, 250–72, 258–9 in the public space, 130, 140–297 Greece, 39, 41–4 Gülalp, Haldun, 19–20 Gürsel, Cemal, 285

Ibrahim, Ahmad, 180 Ibrahim, Anwar, 176–7, 181–2, 186–8 Ibrahim, Zawawi, 16–17 IIUM, 177 Ikhwan al-Muslimun (Muslim Brotherhood, MB), 187 Imam-Hatip Schools, 290–1 ‘inclusive neutrality’, 102 India accommodation, 77–84 anti-secularism, 8–9 constitutional framework, 17–18

Habermas, Jürgen, 9, 69n Haji Hadi, 183–7 Haki Abdul Hadi Awang (Haji Hadi), 183–7 Halacha, 259, 306–7 Hale, Lady, 308, 311 Hamid, Ahmad Fauzi Abdul, 16–17 Hanafi, Hassan, 174 336

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index Islamic State Discussion (Muzakarah Daulah Islamiah), 182 Islamic State (ISIS), 5–6, 11, 48–9 Islamis Commission of Spain, 46 Islamisation, 174, 286–7, 290 ‘Islamisation of knowledge’ scheme, 175–177 Islamiska Samarbetsrådet (Islamic Cooperation Council), 45 ‘Islamophobia’, 37–8, 42–3, 48, 106, 206 Israel, 8, 19, 229 Jewish Orthodoxy, 250–72 Judaism, 19 The Israel Democracy Institute, 260 Israel Movement for Progressive Judaism, 260 Israeli Democracy Index 2013, 263–4 Israeli Democracy Index 2015, 264–5 ISTAC, 174–5, 177, 188 Italy, 39, 45–6, 122, 124, 312

Europe could learn from, 64 modernisation, 165n Muslims, 8, 143 nationalism, 8 religious holidays, 147 religious violence, 67 secularism, 161, 204–27, 323–4 Indian Constitution, 77–8, 81, 83–4, 219–20, 222, 223 Indian National Congress, 81 Indignados, 34, 49 Indonesia, 15–16, 20, 141–68, 218–19 İnönü, İsmet, 277, 282 International Institute of Islamic Thought and Civilisation (ISTAC), 174–5, 177, 188 Iran, 39, 75–6, 153–4 Iranian Revolution (1979), 8, 286 Iraq, 30, 39 Ireland, 41 ISIS, 5–6, 11, 48–9 Islam ‘authentic Islam’, 293 institutionalisation of, 43–6 Malaysia, 17, 173–7 as ‘other’, 11, 31, 101–2 political secularism, 53 radicalism, 240, 242 in a secular state, 169–203 ‘un-Islamic’, 172–3 and Western culture, 103 Islam and Secularism, 174, 188–9 Islam Hadhari, 183–4, 187–8, 194n ‘Islamic’, 172–3 Islamic Public Law, 164n Islamic Renaissance Front (IRF), 188

Jains, 147 Jansen, Yolande, 63–4 Jawaharlal Nehru University, 77–8 Jewish Free School (JFS), 305–11 Jewish Orthodoxy, 19, 250–72 Jews, Turkey, 283 jihadist terrorism, 1–2, 5–6, 31, 47–9, 60 Jinnah, Mohammed Ali, 8 Judaism Australia, 234, 236, 238, 245n Church and state, 305–11 courts, 20–1 337

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index Lausanne treaty 1923, 44 Lautsi and Others v. Italy, 119–20, 134n, 312 Law and Administration Ordinance 19 May 1948, 256 Law and Religion, 129 Law for the Maintenance of Order 1925, 281 Law of Foundations 1935, 283 The Law of Peoples, 255 Law of Return, 261–2, 269n laws, 82–3, 104–6 legal framework, 95–6 ‘legalism’, 233 legislative intervention, 123–7 Levey, Geoffrey Brah, 18–19 liberal democracy, 251–4 ‘liberal Islam’, 183 ‘liberal nationalism’ ,239 ‘liberal’ secularism, 300 liberalism, 9, 205, 208 Lijphart, Arend, 158 Lim Kit Siang, 187–9 Lina Joy v Majlis Agama Islam Wilayah & Anor, 180–1 Linz, Juan L., 158 ‘liquid modernity’, 35–6 Locke, J., 228 London bombs 2005, 30 Love in the Western World, 103 Lutheran Church in Denmark, 56

Judaism (cont.) Europe, 330 laïcité, 63–4 tolerance, 304 Turkey, 291 Justice and Development Party (Adalet ve Kalkinma Partisi, AKP), 288, 289–92 Kalyvas, Stathis N., 159 Kamal, Muhammad Hassan, 174, 175 Kant, Immanuel, 253–4, 267 Karal, Enver Ziya, 283 KEADILAN, 193–4n Kebe, Abdoul Aziz, 157 Kemalist secularism, 275–6, 279–84, 286, 288–90 Khomeini, Ayatollah, 8 Kundera, Milan, 36 Künkler, Mirjam, 153 Kurdish-Islamist uprising 1925, 281 Kuru, Ahmet, 274–5 Kymlicka, Will, 61–3, 245n Laborde, Cécile, 65, 67 laïcité, 312, 316–18 Air France, 76 Australia, 230 definition, 93–4 in Europe, 55 Europe, 10 Indonesia, 143 Jews, 63–4 Muslims, 40 separatism, 159 Turkey, 162–3, 274–5 laiklik, 274–5, 282, 284–5 language, 62–3

Maarif, Shaafi, 151–2 Maarif Institute, 152 Maclure, J., 230 Maddox, Marion, 233, 241 Madjid, Nurcholish, 152–3 Madrid bombs 2004, 30 Mahajan, Gurpreet, 12–13, 18, 192, 218 338

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index Muhammad, Ashaari, 190 Muhammadiyah, 145–6, 152, 153, 156 multiculturalism, 58–65 Australia, 19 Europe, 29–30 and French model, 95 in India, 204–27 and moderate secularism, 11–12, 51–74 public repudiation of, 32 and secularism, 328–30 ‘multiculturalist sensibility’, 60 ‘multifaith community’, 235 ‘multiple secularisms’, 158–61 ‘multivalued’, 144 Musa, Ahmad Farouk, 188 Muslim citizens are residents, 97–8 ‘community’, 38 holidays, 147 identity politics, 8 integration, 240 loyalty, 97, 102 ruling elites, 170 visibility as ‘threat’, 14 Muslim Council of Britain (MCB), 45, 67 Muslim Personal Law Act, 216–18 Muslim Personal Law Board, 225n ‘Muslim problem’, 41–2 ‘Muslim question’, 102 Muslim Scholars Association (ICMI), 153 Muslim Youth Movement of Malaysia (Angkatan Belia Islam Malaysia, ABIM), 174 ‘Muslimophobia’, 42–3

Mahathir Mohamad, 182–3 Majelis Tabligh (Propagation Committee), 153 majoritarian nationalism, 206 Maksudyan, Nazan, 277–8 ‘Malay supremacy’, 179 Malaysia, 16–17, 169–203 Malaysian Constitution, 17 Malaysian People’s Movement (Gerakan Rakyat Malaysia, GERAKAN), 182, 193–4n Mali, 147 marginalised youth, 2, 6 marriage, 260–1, 268n Marx, Karl, 67 Marxism, 108 Marxism–Leninism, 7 ‘mateship’, 240 Maududi, Abul A’la, 174, 177, 187 Max Planck Institute for Social Anthropology, 113 McLeish, Stephen, 232 Menchik, Jeremy, 156 Menderes, Adnan, 277–8, 282, 283 Merz, Friedrich, 40 Middle East, 140–297 Mill, John Stuart, 254, 267, 267n Milward, Alan, 28 ‘moderate secularism’, 12, 13, 55–8, 65–8, 85–6, 99, 224 Modood, Tariq, 11–12, 91n, 93, 99, 105, 211 Mogra, Ibrahim, 67 Mohamad, Mahathir, 176 Moroccans, 39, 42 Moten, Abdul Rashid, 191 Movement for Rights and Freedoms, 45 339

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index National School Chaplaincy Program, 241–2 national state, 33–4, 49n nationalism, liberal, 37–8 nationalism, re-emergence of, 33–7 nation-states, 28, 79, 205 NATO, 11, 286–7 Natsir, Muhammad, 152 N’Diaye, 157 Nehru, 210, 221 Netherlands, 39, 41–5, 62, 96, 146, 161, 313, 330 ‘neutrality of the public sphere’, 96 New Economic Policy (NEP), 179 9/11 terrorist attacks, 30, 40 niqabs, 123, 236; see also headscarves ban Noor, Fadzil, 182 Noor, Farish, 189 North Africa, 39, 40 Northern Ireland, 327 Norway, 55, 146 NU, 145, 151, 156

Muslims anti-Muslim hostility, 61–2, 207 Australia, 229–30, 235–6, 238 controversies about, 46–7 difference, 80–3 equal treatment, 324–5 Europe, 4–5, 330–1 as Europe’s others, 38–43 France, 63–4 Indonesia, 15–16 laws, 106, 256–7 legal framework, 100–1 Muslimness, 59–60 ‘parallel societies’ of, 31–2 as threat, 11 visibility, 93–4, 108 mutual autonomy, 53, 55 Nahdlatul Ulama (NU), 145, 151, 156 Najib Razak, 184, 186 Nandy, Ashis, 222 National Agenda for a Multicultural Australia, 235 National Association of Imams of Senegal (ANIOS), 157 National Awakening Party (PKB), 164n national Church, 56 National Council of Jewish Women (NCJW), 268n National Front (Barisan Nasional, BN), 182, 186, 193–4n national identity, 28, 240–4 National Justice Party (Parti Keadilan Nasional, KEADILAN), 182 National Mandate Party (Partai Amanat Nasional, PAN), 153

‘objective alienation’, 67–8 Occupy, 34, 49 On Liberty, 254 orientalism, 103, 104, 286, 288 ‘other’, 11–12, 94, 96–7, 101–3, 191–2 Pakistan, 8, 156, 207 Pakistanis, 39, 42–3, 66 Palestine Order in Council, 268n Palestinian-Arabs, 263–6 Pancasila, 144–5, 164n Pangkor accord (Anglo-Perak Treaty 1874), 171 340

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index Progressive Republican Party, 281 Protestantism, 22, 144, 325 proto-multiculturalism, secularism as, 228–9 Provisional Council of State, 256 public good, 55–7 public spaces, 58–61, 93–110 Pusat enaga Ra’ayat (Centre for People’s Power, PUTERA), 178

Paramadina Foundation, 152 Parekh, Bhikhu, 21–2, 89, 105, 251 Paris shootings and explosions November 2015, 33, 49 Parti Amanah Negara (National Trust Party, AMANAH), 185 PAS, 17, 182–3, 185–8, 190, 193–4n ‘passive’ secularism, 274–6, 280 People’s Constitutional Proposals 1947, 178 People’s Pact (Pakatan Rakyat, PR) coalition, 186, 187, 193–4n Pew Research Center, 39, 61–2 Pierik, R., 102 PKR, 193–4n pluralism Australia, 228 Europe, 1–2 four principles, 95 India, 8, 208, 222 Indonesia, 149–52 Israel, 258–59 legal framework, 101–4 state neutrality, 114 political secularism, 52–4, 320–4 ‘Polity IV’, 141–68 Pope Benedict, 20–1, 300–5 Pope John Paul II, 301 populism, 2, 97 Poroy, Nazɪm, 283 ‘positive accommodation’, 16, 155, 161, 164–5n ‘post-secular’, 9 Powell, G. Bingham Jr., 170 Problems of Democratic Transitions and Consolidation, 158

Qutb, Sayyid, 187 Rabbinic Courts Jurisdiction Law, 259 Racial Hatred Act 1975, 237 ‘radicalisation’, 57 Rahman, Tunku Abdul, 171, 179 Rais, Amien, 145–6, 153 Ramadan, Tariq, 13–14 Rawls, John, 9, 16, 143, 146, 149, 161, 255, 303, 305 ‘reasonable accommodation’, 102, 121 ‘Reclaim Australia’, 243 Reform movement, 260–3, 266 Reformation, 7 refugee crisis, 34 Regensburg lectures, 301–4 Reid Commission, 171 RELIGARE, ‘Religious Diversity and Secular Models in Europe: Innovative Approaches to Law and Policy’, 112–39 Religion and State Index 2013, 260–1 Religion and State Index 2015, 261 ‘religionisation’, 15, 112 341

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index ‘secularisation’, 8–9, 54 anti-‘secularisation’, 63–5 secularism, 6–10, 13–14, 320–31 Australia, 19–20 citizenship, 55 domination, 9 India, 81–4, 91n, 204–27 institutional structures of, 280–6 in an Islam state, 169–203 and its discontents, 94–9 limits of, 84–6 Malaysia, 173–86 as proto-multiculturalism, 228–49 public space and visible diversity, 93–110 and religion, 209–11, 299–319 Turkey, 273–97 or ‘twin tolerations’ and ‘multiple secularisms’, 158–61 uniformity of, 277–80 ‘self-secularisation’, 159 Senegal, 143, 147, 155–7, 161, 165n, 218–19 Sennett, R., 29 ‘separation’ of religion and state, 7–8, 57, 60, 114, 171; see also ‘wall of separation’ Shah Bano case (1986), 206, 216–17, 219, 222–3, 225n sharia law, 15, 17, 143, 151–2 Shia citizens, 284 Shi’a Islam, 8 Sikhs, 80, 90, 147 Smith, Donald E., 225n Somalis, 39, 43 Soroush, Abdolkarim, 189 South Asians, 39, 43 South-east Asia, 39

religious coercion, 257–9, 261–2 freedom, 7, 53 holidays, 16, 148t, 219, 224 identity, 14–15 symbols, 312–15, 325 ‘Religious Diversity and Secular Models in Europe: Innovative Approaches to Law and Policy’, RELIGARE, 112–39 ‘religious marketplace’, 129 Republican Constitution, 283–5 Republican People’s Party (RPP), 277, 282, 289, 290 Respect for Others Argument, 253–4, 267 Robbers, Gerhard, 164–5n Rodger, Lord, 309 Roma, 32, 39 Romania, 32 Rostow, W. W., 170 Roundtable on Religious Freedom in Australia, 244 Roy, Olivier, 95 RPP, 277, 282, 289, 290 Rushdie, Salman, 89 RUU355, 185–6 Said, Edward, 103 Said, Sheikh, 281 Sakallɪoğlu, Ümit Cizre, 278–9 Sandberg, Russell, 129–30 Sarkozy, Nicolas, 32 Sassen, S., 34 Scandinavia, 159 Schinkel, Willem, 96–7 ‘secular age’, 9 secular neutrality, 312–15 secular paradigm, 75–92 342

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index Triandafyllidou, Anna, 10–11 Tunisia, 5, 162–3 Tunisians, 39 Türk Devrim Ocaklari (Turkish Revolutionary Hearths), 282, 284 Turkey, 7, 19–20, 44, 53, 147, 162, 187, 273–97 ‘Turkish-Islamic synthesis’, 285, 286 Turks, 39, 40–2, 44–5 ‘twin tolerations’, 15–16, 53, 145, 158–61, 276, 286

Spain, 39, 46, 123–4, 133n state institutions, 256–8 state law, 14–15 ‘state monopoly’, 277–8, 281–2 state support policies for religion, 160t state-religion, 7, 57–8, 215–16 state-religion separation see ‘separation’ of religion and state Stepan, Alfred, 15–16, 53, 189, 218–19, 224, 276, 282 stigmatisation, 41–2, 47 Sufism, 144, 281, 292 Suharto, 150–3 Sukarno, 144–5 Sunday Mail (Brisbane), 239 Sunni, 292 Supreme Court of Appeals, Turkey, 283 Supreme Court of India, 84 Supreme Court, UK, 305 Sweden, 39, 41–5, 55, 146 Switzerland, 146, 161 syariah, 177, 183–9 syariah courts, 172, 179–81 syariahisation, 189–91 Syria, 5, 6

UK, 39, 96, 123, 313, 316–18; see also Britain; England Umar, Nassaruddin, 164n ummah, 175, 187, 189–90 UMNO, 17, 177, 179, 182–3, 185, 187–8, 193–4n Unión de Comunidades Islámicas de España (UCIDE), 46 United Malays National Organization (UMNO) party, 17, 177, 179, 182–3, 185, 187–8, 193–4n universal principles, 87–90, 170 urban violence, 30, 31 USA multiculturalism, 61–2 ‘passive’ secularism, 275 ‘wall of separation’, 7, 52, 55, 64, 68, 229–32 War on Terror, 11, 30 USSR, 52 ‘us–them’ framework, 5, 33, 38

Tatars, 39 Taylor, Charles, 9, 86, 100, 147, 230 Tehran, 75–6 terrorism, international, 1–2, 5–6, 31, 37, 42, 47–9, 57, 60, 206 ‘tolerance’, 41, 91n, 222, 228, 259 Torks, Rik, 165n Treaty of Westphalia (1648), 7, 8, 22, 173

van der Burg, W., 102 Vatican Council II, 301, 304 343

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index women, 75–6, 78–84, 162–3, 236 women’s rights, 164n workplace and religious diversity, 117–22, 128 World Union of Progressive Judaism, 260

vilayat-i-faqih, 8 violent extremism, 100–1 Wahid, Abdurrahman (‘Gus Dur’), 145, 150–1 ‘wall of separation’, 52, 159, 230, 232; see also ‘separation’ of religion and state Ward, Russel, 240 ‘Washminster’ system, 229 Weber, Max, 87, 277 Weiler, Joseph H. H., 20–1 Welfare Party (Refah Partisi, RP), 287 Western Thrace, 39, 44 Wilson, Tim, 244

Young Muhammadiyah Intellectual Network (JIMM), 152 youth mobilisation, 49 Yuval-Davis, N., 96, 106–7 Zaman, Muhammad, 155–6 Zeitouna Mosque University, 163 Zionist-Israeli-Jewish identity, 257

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