Varieties of Religious Establishment 9781409452416, 9781315548401

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Varieties of Religious Establishment

Ashgate AHRC/ESRC Religion and Society Series Series Editors: Linda Woodhead, University of Lancaster, UK Rebecca Catto, University of Lancaster, UK This book series emanates from the largest research programme on religion in Europe today – the AHRC/ESRC Religion and Society Programme which has invested in over seventy-five research projects. Thirty-two separate disciplines are represented looking at religion across the world, many with a contemporary and some with an historical focus. This international, multi-disciplinary and interdisciplinary book series will include monographs, paperback textbooks and edited research collections drawn from this leading research programme. Other titles in the series: Contesting Secularism Comparative Perspectives Edited by Anders Berg-Sørensen Religion in the Neoliberal Age Political Economy and Modes of Governance Edited by Tuomas Martikainen and François Gauthier Social Identities Between the Sacred and the Secular Edited by Abby Day, Giselle Vincett and Christopher R. Cotter Discourses on Religious Diversity Explorations in an Urban Ecology Martin D. Stringer Understanding Muslim Chaplaincy Sophie Gilliat-Ray, Stephen Pattison and Mansur Ali Ageing, Ritual and Social Change Comparing the Secular and Religious in Eastern and Western Europe Edited by Peter Coleman, Daniela Koleva and Joanna Bornat

Varieties of Religious Establishment

Edited by Winnifred Fallers Sullivan Indiana University Bloomington, USA and Lori G. Beaman University of Ottawa, Canada

First published 2013 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA Routledge is an imprint of the Taylor & Francis Group, an informa business Copyright © 2013 Winnifred Fallers Sullivan and Lori G. Beaman Winnifred Fallers Sullivan and Lori G. Beaman have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identified as the editors of this work. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data a catalogue record for this book is available from the british library The Library of Congress has cataloged the printed edition as follows: Varieties of religious establishment / edited by Winnifred Fallers Sullivan and Lori G. Beaman. pages cm. – (Ashgate AHRC/ESRC Religion and Society Series) includes index. iSBn 978-1-4094-5241-6 (paper) 1. Freedom of religion. 2. Religious pluralism. 3. Religious tolerance. 4. Religions–Relations. i. Sullivan, Winnifred Fallers, 1950editor of compilation. BL640.V37 2013 323.44’2–dc23 2013005988 iSBn 9781409452416 (hbk) iSBn 9781315548401 (ebk)

Contents List of Contributors   Acknowledgments   1 Neighbo(u)rly Misreadings and Misconstruals: A Cross-border Conversation   Lori G. Beaman and Winnifred Fallers Sullivan PART I

Theory and Structure

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Spiritual Economies Beyond the Sacred/Secular Paradigm: Or, What Did Religious Freedom Mean in Ancient India?   Robert A. Yelle

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The Aesthetics of Religious Freedom   Benjamin L. Berger

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Varieties of Native Hawaiian Establishment: Recognized Voices, Routinized Charisma and Church Desecration   Greg Johnson

PART II

Retelling Religio-Legal Histories

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Deprivileging Religion in a Post-Westphalian State: Shadow Establishment, Organization, Spirituality and Freedom in Canada   Peter Beyer

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Religion, Land, Rights   Winnifred Fallers Sullivan

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The Implicit Sharia: Established Religion and Varieties of Secularism in Tunisia   Malika Zeghal



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15 33

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75 93

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Church of the Air: Roman Catholics, Religious Programming and Regulation in Canadian Broadcasting, 1918–2008   Mark McGowan



The Five Worlds of Religious Establishment in Taiwan   André Laliberté

PART III

Rethinking Law’s Capacities

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The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa   Peter G. Danchin

11 12

Thinking about Cooperation and Collaboration between Diverse Religious and Secular Community Responses to Domestic Violence   Nancy Nason-Clark and Catherine Holtmann Legal Pluralism and Shari’a in Western Societies: Theories and Hypotheses   James T. Richardson and Victoria Springer

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Index219

List of Contributors Lori G. Beaman, Ph.D., is the Canada Research Chair in the Contextualization of Religion in a Diverse Canada and Professor in the Department of Classics and Religious Studies at the University of Ottawa. Her publications include Defining Harm: Religious Freedom and the Limits of the Law (University of British Columbia Press, 2008), ‘Is Religious Freedom Impossible in Canada?’ in Law, Culture, and the Humanities (2010), ‘“It was all slightly unreal”: What’s Wrong with Tolerance and Accommodation in the Adjudication of Religious Freedom?’ in Canadian Journal of Women and Law (2011) and ‘Just Work it Out Amongst Your Selves: The Implications of the Private Mediation of Religious Freedom’ in Citizenship Studies (2012). She is co-editor with Peter Beyer of Religion and Diversity in Canada (Brill Academic Press, 2008). She is principal investigator of a 37-member international research team whose focus is religion and diversity (religionanddiversity.ca). Benjamin L. Berger is Associate Professor at Osgoode Hall Law School and a member of the faculty of the Graduate Program in Socio-Legal Studies at York University. He served as law clerk to the Rt Honourable Beverley McLachlin, Chief Justice of Canada, and was a Fulbright Scholar at Yale University, where he earned his doctorate in law. His areas of research and teaching specialization are law and religion, criminal and constitutional law and theory and the law of evidence, and he is the convener of the Osgoode Colloquium on Law, Religion & Social Thought. Peter Beyer is Professor of Religious Studies at the University of Ottawa, Canada. His work has focused primarily on religion in Canada and on developing sociological theory concerning religion and globalization. His publications include Religion and Globalization (Sage, 1994), Religion in the Process of Globalization (ed., Ergon, 2001), Religions in Global Society (Routledge, 2006), Religion, Globalization, and Culture (ed. with Lori Beaman, Brill, 2007) and Religion and Diversity in Canada (ed. with Lori Beaman, Brill, 2008). Since 2001 he has been conducting research on the religious expression of second-generation immigrant young adults in Canada. From this research, he is principal author of the forthcoming volume, Growing Up Canadian: Muslims, Hindus, Buddhists (McGill-Queen’s). Peter G. Danchin is Professor of Law and Director of the International and Comparative Law Program at the University of Maryland School of Law. He holds

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a B.A. and LL.B. with first class honors from the University of Melbourne, and an LL.M. and J.S.D. from Columbia Law School. From 2000–06, he was a lecturer and director of the human rights program at Columbia University’s School of International and Public Affairs and from1997–2000 taught in a research and training program conducted by the Center for the Study of Human Rights at Columbia University on Religion, Human Rights and Religious Freedom. His scholarship focuses on competing conceptions of the right to freedom of religion and belief in international legal theory and on tensions between liberal and value pluralist approaches. He is currently engaged in a joint research project on ‘The Politics of Religious Freedom: Contested Norms and Local Practices’ funded by the Henry R. Luce Foundation of New York, examining the multiple histories and genealogies of religious freedom. Catherine Holtmann is a doctoral candidate in the Sociology Department at the University of New Brunswick in Fredericton, New Brunswick. Her current research is a mixed-methods study of social network participation of Christian and Muslim immigrant women in the Maritime region of Canada and the strengths and vulnerabilities they bring to the settlement process. She is interested in the intersection between religion, ethnicity and social action and works with the Religion and Violence e-Learning Project (www.theraveproject.org). Cathy serves as the student caucus leader for the Religion and Diversity Project (www.religionanddiversity.ca). Greg Johnson is Associate Professor and Chair of Religious Studies at the University of Colorado at Boulder. He studies Native American and Native Hawaiian religious life, exploring repatriation and reburial disputes as a means to understand the ways religious claims are announced, enlivened and contested in the contemporary moment. Johnson’s recent publications include ‘Courting Culture: Unexpected Relationships Between Religion and Law in contemporary Hawai`i’ in After Secular Law, edited by Winnifred Fallers Sullivan, Robert A. Yelle and Mateo Taussig-Rubio (Stanford University Press, 2011). He is currently working on a book entitled Religion in the Moment: Contemporary Lives of Indigenous Traditions. André Laliberté is Full Professor at the School of Political Studies, University of Ottawa, where he teaches comparative politics and does research in China and Taiwan on state-religion relations. He has co-edited, with Bruce Berman and Rajeev Bhargava, Secular States and Religious Diversity (University of British Columbia Press, 2013) and written The Politics of Buddhist Organizations in Taiwan (RoutledgeCurzon, 2004), as well as articles in Social Compass, Archive de Sciences sociales des religions, Journal international de politique comparée, Pacific Affairs, Journal of Chinese Current Affairs and others, and chapters in multi-authored volumes on relations between states and religion in East Asia. Mark McGowan is a specialist in the history of religion, ethnicity and education in Canada. He currently teaches history at the University of Toronto, where he

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has been the recipient of four university teaching awards. From 2002 to 2011 he served as Principal of St Michael’s College, where he founded the Book & Media Studies Program and on which he now serves as its Coordinator. His awardwinning books include: Catholics at the Gathering Place (1993); The Waning of the Green: Catholics, the Irish, and Identity in Toronto (1999); Michael Power (2005); and Death or Canada (2009). Currently, he is writing a history of religious broadcasting in Canada and a book called The Imperial Irish: Canada’s Irish Catholics Fight the Great War, 1914–1918. Nancy Nason-Clark is Professor (and Chair) of Sociology at the University of New Brunswick. Nason-Clark received her Ph.D. from the London School of Economics and Political Science in England. She is the author or editor of eight books including: No Place for Abuse: Biblical and Practical Resources to Counteract Domestic Violence (2nd edition, 2010, with Kroeger); Responding to Abuse in the Christian Home (2011, edited with Fisher Townsend and Kroeger); Refuge from Abuse: Hope and Healing for Abused Christian Women (2004, with Kroeger); and The Battered Wife: How Christians Confront Family Violence (1997). Victoria Springer, M.A., is a doctoral candidate in the Interdisciplinary Ph.D. Program in Social Psychology Program at the University of Nevada, Reno. She is a graduate research assistant at the Grant Sawyer Center for Justice Studies and the Center for Research Design and Analysis. Her primary research interest is social psychology and law, including forensic evidence handling and the use of information in the courtroom and judicial decision-making. Her other research interests include xenophobic violence and the treatment of minority groups in response to terrorism. She is currently completing her dissertation on information use in felony sentencing in Nevada. Winnifred Fallers Sullivan is Professor and Chair of the Department of Religious Studies, Indiana University, Bloomington. She is the author of The Impossibility of Religious Freedom (Princeton, 2005) and Prison Religion (Princeton, 2009), and editor (with Robert A Yelle and Mateo Taussig-Rubbo) of After Secular Law (Stanford, 2011). James T. Richardson, J.D., Ph.D., is Professor of Sociology and Judicial Studies at the University of Nevada, Reno, where he directs the Grant Sawyer Center for Justice Studies and the Judicial Studies graduate degree program for trial judges. He has been a sabbatical visitor at universities in England and Australia over the years, most recently at the Centre for the Study of Contemporary Muslim Communities at the University of Western Sydney. He also has been a Fulbright Scholar in the Netherlands and a Rockefeller Fellow at Bellagio, Lake Como, Italy. His latest books are Regulating Religion: Case Studies from around the Globe (Kluwer, 2004) and Saints under Siege: The Texas State Raid on the Fundamentalist Latter Day Saints (New York University Press, 2011), with Stuart Wright.

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Robert A. Yelle is Assistant Professor in the Department of History and the Hardin Honors Program at the University of Memphis. He received a J.D. from the University of California at Berkeley and a Ph.D. in History of Religions from the University of Chicago. A former Guggenheim Fellow, Yelle is the author of: Explaining Mantras: Ritual, Rhetoric, and the Dream of a Natural Language in Hindu Tantra (Routledge, 2003); The Language of Disenchantment: Protestant Literalism and Colonial Discourse in British India (Oxford, 2012); and Semiotics of Religion: Signs of the Sacred in History (Continuum, 2012). He co-edited After Secular Law with Winnifred Sullivan and Mateo Taussig-Rubbo. Malika Zeghal is the Prince Alwaleed Bin Talal Professor in Contemporary Islamic Thought and Life at Harvard University, in the Faculty of Arts and Sciences. She is interested in Islamist movements and the institutionalization of Islam in the Muslim world, with special focus on the Middle East and North Africa in the postcolonial period and on Muslim diasporas in North America and Western Europe. She has published Gardiens de l’Islam. Les oulémas d’alAzhar dans l’Egypte contemporaine (1996) and Islamism in Morocco: Religion, Authoritarianism, and Electoral Politics (2008). She is currently working on a book on states, secularity and Islam in the contemporary Arab world, forthcoming at Princeton University Press.

Acknowledgments This volume originated in a workshop held at St Thomas University in Fredericton, New Brunswick, in November 2010. We are grateful to St Thomas for its generous hospitality on that occasion and to the Social Science and Humanities Research Council of Canada for its support of the larger project on Religion and Diversity in Canada of which this work forms a part. The editors are also grateful to Kerilyn Harkaway-Krieger, Heather Shipley and Karine Henrie for providing able editorial assistance.

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Chapter 1

Neighbo(u)rly Misreadings and Misconstruals: A Cross-border Conversation Lori G. Beaman and Winnifred Fallers Sullivan

This volume originated in conversations between two North American scholars of law and religion, one from the US and one from Canada. Notwithstanding a largely shared Anglo-American legal history and the presence of roughly the same immigrant populations and religious communities, we had found an unexpected cross-border illegibility with respect to church/state matters, particularly with respect to ‘establishment.’ While often using the same words, our words at times seemed to have different references and carry different normative weights. As we looked more closely, we began to understand better how real differences in constitutional history and in political culture have constituted and continue to animate quite disparate public debates about the place of religion and of religious diversity in the two countries in unexpected ways.1 This book extends our crossborder conversation to a longer historical and broader global engagement with the messy contemporary discussions about the legal management of religious diversity under a variety of ‘establishments’ after a widespread collapse of confidence in a hard-edged separationist model.2 In the feverish and volatile world of the politics of international religious freedom today, any differences originating in a North American conversation   We are not the only ones to have noticed the differences in Canadian and US constitutional cultures, of course. See, for example, Martha Field, ‘The Differing Federalisms of Canada and the United States’, Law and Contemporary Problems 55 (1992): 107–120. For an earlier moment in this cross-border conversation, see, also, Lori Beaman, ‘Is Religious Freedom Impossible in Canada?’, Law, Culture and the Humanities 6 (2010): 1–19. 2   We join here a number of others who are engaged in related projects. See, for example, After Secular Law, eds Winnifred Fallers Sullivan, Robert Yelle and Mateo Taussig-Rubbo (Stanford, CA: Stanford University Press, 2011); Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford and New York: Oxford University Press, 2010); Richard C. Schragger, ‘The Relative Irrelevance of the Establishment Clause’, Texas Law Review 89 (2011): 583–649. See also Politics of Religious Freedom, a collection of chapters published on the SSRC website reflecting on the diversity of approaches to these issues around the world: http://blogs.ssrc.org/tif/thepolitics-of-religious-freedom/. In a larger sense, this volume also reflects the new attention being paid to these topics in the wake of the critique of secularism by José Casanova, Talal Asad and others. 1

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might seem presumptively parochial – and yet there are interesting and instructive differences between these two religio-legal cultures that drove us to ask the question more broadly. Rethinking the intersection of law and religion today tends to proceed from a concern for the increasingly pressing limits of the politics of religious freedom and a critique of the foundational historical, social and cultural presumptions about religion which are seen to undercut or frustrate the possibility of realizing religious freedom. We thought it might be useful to begin instead from the other end, from what has historically been seen, in the US at least, as freedom’s evil twin, that is, religious establishment. Might it be that thinking that establishment is the natural state of affairs, rather than freedom, would allow us to gain a new purchase on this troublesome area? Eschewing, then, the assumption that human flourishing and “religious freedom” necessarily proceed from separation of religion and the state, either as a social fact or as a desideratum, we saw a focus on establishment as a way to see anew how political, social, cultural and legal factors structure religion. Although, of course, there is a sense in which ‘establishment’ is peculiarly tied to the history of the Church of England, and establishment issues might therefore be said to be uniquely a feature of the countries of the former British Empire, we sought to ask whether, following our intuition that all societies, including the US, have ‘established’ forms of religion, ‘establishment’ might prove comparatively valuable, rather than being inescapably bound, even in its varieties, to the peculiar political and colonial history of the North Atlantic and its diaspora legal systems.3 We think that the chapters in this volume confirm both the richness of the crossborder conversation (see McGowan’s chapter in this volume, for example) and the value of beginning with establishment. From ancient India to contemporary Tunisia, the contributors to this volume, historians, legal scholars, sociologists and scholars of religion, explore the often unexpected ways in which the conjunction of religious, political, and legal texts and institutions inform, constrain and liberate human beings in various times and places. These new perspectives do not just provincialize North American preoccupations. They also, we believe, begin to enlarge the possibilities for imagining new religio-legal formations. There is an explosion of publishing on religious freedom today. This volume proceeds on the assumption that the often premature rush to normative closure in much of this literature is obscuring the fascinating and politically important complex of issues that have arisen since religious freedom went viral. We are particularly interested in the links between establishment and religious freedom; these chapters aim to both unravel those links, as well as to examine more fully the analytical possibilities that emerge when such examinations move beyond conventional dichotomies and border maintenance.   See Evan Haefli, ‘Toleration and Empire: The Origins of American Religious Diversity’, in The American Colonies in the British Empire, supplemental volume of the Oxford History of the British Empire, ed. Stephen Foster (Oxford: Oxford University Press, forthcoming). 3

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Defining Establishment North Americans on the US side of the border have a particular historical allergy to the establishment of religion, one that can be traced to the politics of American colonization, revolution, and constitutional founding, but it is also one which continues to underwrite the claim which is made to American exceptionalism when it comes to religious freedom. A particularly strong variant of this historical narrative appears in the Opinion for the Court in the recent United States Supreme Court decision in Hosanna-Tabor v EEOC (2012). Prefacing a decision constitutionalizing a ministerial exception to the Americans with Disabilities Act, Justice Roberts tells a church-state history which begins with King John and Magna Carta and ends with the First Amendment to the US Constitution. The chief villain of the piece is Henry VIII, who is depicted as having ended the religious liberty earlier confirmed in Magna Carta by establishing/nationalizing ‘the church’. Giving the back of its hand to the Church of England, ‘the church’ figures throughout the Court’s opinion as a mystical transhistorical entity that is naturally entitled to freedom, a freedom it only properly attained with the ratification of the Bill of Rights.4 Our cross-border comparison had begun with the slightly startling observation by Sullivan that in the United States ‘we don’t have a state and we don’t have a church’.5 As for the state, for those outside of the US, the statement that ‘we don’t have a state’ is difficult to make sense of, particularly given the historically weighty, not to say threatening, presence of the United States on the international stage. Yet the American sense of the state as a domestic actor is really very distinct from the state as heir to the absolutism of the European monarchies, and frames the domestic discussion of religious establishment in very particular ways. ‘We don’t have a state’ because ‘we the people’ understand ourselves to be in charge of what is only a limited government. We are responsible for ourselves. We are not the responsibility of a state. Actions by the US government, particularly outside the US, certainly have state-like effects, but there is little reverence for, interest in or tolerance for state paternalism in the US itself.6 The US does not have a church, in the church-state sense, because American Christianity, as well as the other US-based religious communities that have adopted its institutional forms, have been dominated historically by the free-church model of the antinomian branch of the Reformation, through an explicit rejection of the Church of England – and later in a negative response to Catholic immigration. The free-church model has become largely naturalized in the US, even for Catholics and many non-Christian communities.7 Indeed, oddly the Catholic Church in the US   Hosanna-Tabor v EEOC, slip opinion at 6–10.   Sullivan, ‘Religion Naturalized: The New Establishment’, in After Pluralism, eds Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010). 6  Indeed skepticism about government can be found across the political spectrum. 7  See Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002) and Samuel Freedman’s recent New York Times article about a Jewish law professor arguing that the conservative movement is in violation of the anti4

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seems to speak of itself at times as a free church. While US political and cultural ways of life are saturated with Protestant anthropologies and cosmologies, and are sometimes described as having the effect of a de facto Protestant establishment, there is little history of formal institution-to-institution, church-state cooperation of the British, European or even of the Canadian, kind. (What Peter Beyer in this volume calls ‘mutual modeling.’) Religious participation in public life in the US has been largely through para-church organizations and other voluntary initiatives and the informal politics of cultural elites, while the legal, social and political privileging of Protestant Christian forms, although real, is usually conveniently forgotten (except perhaps in Hawaii, as Johnson explains in his chapter exploring the varieties of what we might call ‘virtual’ establishment in the U.S.). The US establishment is an establishment which pretends to reject establishment.8 The dual Protestant-Catholic establishment at the time of Canadian Confederation, on the other hand, described in Berger’s and Beyer’s chapters in this volume, combined with a lower level of individualism and rights talk in Canada, presents an interesting contrast to the relentless populism of US religion and politics. The Constitution Act, 1867, recognized the distinct religious and legal identities of Roman Catholics and Protestants by guaranteeing funding for their schools in those provinces in which each was a minority group. To be sure, linguistic differences were also a consideration in this arrangement, but to characterize it as being solely about language would be a gross simplification. We might say in the Canadian context that we very much have a state and we somewhat have a church – or churches. The Canadian expectation that ‘the state’ plays a role in myriad issues at numerous levels contrasts dramatically with the anti-statist rhetoric that dominates the US scene. Canada somewhat has a church because, although there is no one stateendorsed church, neither the Constitution nor the state has ever taken a separationist or disestablishmentarian approach to religion. Indeed, Canadian multiculturalism, including the eventual recognition of the rights of First Nations peoples, looks in some ways more like the multiple ‘establishments’ of various northern European countries than like the free market in religion often touted in the US. David Martin argues that relatively early on in its history Canada (as well as Australia) did not have an established church per se, but rather a shadow establishment whose contours were shaped by the dual religious groups mentioned above.9 Even when the opportunity trust laws when it seeks to control the hiring of rabbis. Samuel Freedman, ‘Seeing and Battling a “Cartel” in the Hiring of Rabbis’, The New York Times, 25 August 2012, A15. 8  See David Sehat, The Myth of American Religious Freedom (Oxford: Oxford University Press, 2011). 9   See David Martin, ‘Canada in Comparative Perspective’, in Rethinking Church, State and Modernity: Canada between Europe and America, eds David Lyon and Marguerite van Die (Toronto: University of Toronto Press, 2000), 23–33; John S. Moir, Church and State in Canada, 1627–1867: Basic Documents. (Toronto: McClelland & Stewart, 1967); and Denise J. Doyle, ‘Religious Freedom and Canadian Church Privileges’, Journal of Church and State 26 (1984): 293–311.

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arose to clarify the relationship between the state and religion during the drafting of the Charter of Rights and Freedoms in the late 1970s and early 1980s, the Canadian drafters included a freedom of religion clause but, in contrast to the separationist language of the US Constitution, included in the preamble a specific mention of God, putting ‘The Supremacy of God’ side by side with ‘the rule of law’.10 How do these rather different contexts shape religion and the ways in which the greatly expanded religious diversity of the twenty-first century is understood and managed today? In the US there is far less public interest than in Canada in the official enabling of minority religious practice.11 For the most part, with a few exceptions, it is the Christian majority that is insisting on its rights in the US, and it is largely successful in this endeavor. The lack of challenge to the inequities of the politics of religious freedom in the US is due in part to the peculiar politics of equality more generally in the US today, one in which the majority can gain traction by arguing that it is a victim of discrimination. While formally enabling minority religions in the US would be rhetorically cast as elevating religion over non-religion, enabling majoritarian Christian culture is regarded as areligious, a matched set of paradoxical moves made possible in part by a centuries-old Protestant theological polemics against ‘religion’. In contrast, in the Canadian context, ‘accommodation’ of religious practice is very much a live debate, particularly in Quebec, whose unique religious and political culture places it squarely between the strong laïcité politics of France and the more fluid church-state approach found in the rest of Canada. Beyond the details of this North American history, the language of disestablishment has recently become a more common touchstone in scholarly work and public discourse in other parts of the world, as practical global politics presses on lawmakers around the world.12 (Establishmentarian concerns are also evident in the new constitution-making in the wake of the revolutions in the Middle East, 10   See Bruce Ryder, ‘State Neutrality and Freedom of Conscience and Religion’, The Supreme Court Law Review 28 (2005): 169–77, for the argument that the inclusion of God in the preamble possibly represents an openness to alternative spiritual ways of reasoning, rather than a strict endorsement of Christianity. For an excellent set of reflections on religion, pluralism and law in Canada, see Richard Moon, Law and Religious Pluralism in Canada, (Vancouver: University of British Columbia Press, 2008). 11  An interesting exception to this generalization might be seen in the context of accommodating workplace discrimination although that accommodation is relentlessly individualistic. One might even see this displacement to the employment context as generating the result in Hosanna-Tabor. 12  Recent work illustrating this new attention to establishment includes Julian Rivers, The Law of Organized Religions, James Torke, ‘The English Religious Establishment’, Journal of Law and Religion 12 (1996): 399–446. Discussion of church-state and establishment enters into conversations about education in Myriam Hunter-Hénin’s Law, Religious Freedoms and Education in Europe (Burlington, VT: Ashgate, 2011), as well as in Marie-Claire Foblets, Jean-François Gaudreault-DesBiens and Alison Dundes Renteln, eds, Cultural Diversity and the Law: State Responses from Around the World (Montréal: Yvon Blais, 2010).

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as Zeghal’s chapter in the volume attests.) Widening the lens in this way connects this project to the broader reappraisal of secularization by scholars such as José Casanova and Talal Asad, and their many interlocutors, and invites a retelling of religio-legal history both longitudinally and geographically. Contemporary political arrangements with respect to religion are better understood when understood genealogically or placed next to imperial and postcolonial retellings of political history. One of our concerns in this volume is to mine the richness of the varieties of what we are calling establishment without reifying it as a core organizing concept. In other words, through an exploration of varieties, we seek to destabilize the notion that there is one model to which all must subscribe, but also to question the notion that dis-establishment is an essential tool in the religious diversity and religious freedom toolkits. We also seek to de-couple disestablishment and separation of church and state, often seen as necessary for religious freedom and imagined as only being possible in the context of political secularism, which, coming full circle, relies on disestablishment. Explorations of religious freedom have come to require a statement about the existence of establishment or disestablishment as a metric for the presence of the free exercise of religion. Such a concern for the presence or absence of a constitutional provision imposing separation often erases from view the day-to-day practices of religion and non-religion. The repetition of ‘we live in a secular state’ or ‘church and state are separated here’ acts as a mantra which can distract or obscure other realities. As can be seen in a number of chapters in this volume, for example, statements such as ‘Islam is the religion of the state’ can be unthinkingly dismissed as establishmentarian, notwithstanding both the more complex work that such constitutional provisions do and the comparative presence of cultural structures doing parallel work of protecting national religious identities in countries without such statements in their constitution.13 We aim to explore how varieties of establishments across both space and time, even within one socio-cultural context, as in Greg Johnson’s chapter on contemporary Hawai’i, challenge the utility of the establishment/nonestablishment framework itself. Accepting the natural presence of establishment as a heuristic draws to the forefront some of the underlying assumptions of theoretical, legal and policy approaches to religious diversity and what has often been described as its management. Our project begins by asking what happens if we shift the conversation first to a more careful historical and theoretical framing of the questions, in Yelle’s words, seeing a whole spiritual economy, or in Berger’s, seeing the underlying aesthetic of law’s religion and then drawing on other political and legal rubrics such as toleration, accommodation, transformations of the state over time, the presence   See, also, for a discussion of similar issues in a Buddhist majority context, Benjamin Schonthal, ‘The Legal Regulation of Religion: The Case of Buddhism in Post-Colonial Sri Lanka’, in Cambridge Companion to Law and Buddhism, ed. Rebecca French (Cambridge and New York: Cambridge University Press, forthcoming). 13

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or absence of coercion, new religious and spiritual ways of life, the structuring significance of private property rights, the brokering of majority/minority politics, sexual politics and the emergence of family law and analogies to other human rights concepts such as disability?14 We move past, then, a simple assessment of the existence of establishment and attendant assumptions about whether it is ‘good’ or ‘bad’ to refocus attention to what we consider to be more important and interesting questions and concepts. If establishment is the default, it might be possible to set aside the freedom-disestablishment association that stifles more innovative and insightful analysis. The displacement of the establishment question also opens space for questions about how establishments are both shifting and being maintained. For example, the transformation of majority religion into ‘culture’ in political, social and public sphere domains is one relatively recent metamorphosis of established religions in Italy, Quebec, the United States and France.15 Removing religion from the realm of the religious to the domain of the secular, in particular religion that is sometimes denominated culture or heritage, can reposition majority religion as part of the social fabric and thus as not really religion. Removing minority religion from the realm of the religious to the domain of culture can be a way to deny rights, or, on occasion, to claim others. Figuring objects and practices as culture solves some problems while creating others. Seeing religion as woven through the social fabric is part of our project, but the transition of majority religion to culture has potentially deleterious effects for minority religious groups. Naturalizing majority religion positions minority religious groups as asking for special concessions and highlights their difference rather than emphasizes their similarities. Moreover, it may also have the effect of cornering religious identity, as it were, resulting in an overemphasis on religion as a key identity marker and as a basis for rights claims. Alternatively, difference may dissolve such that religious groups are compelled to adopt a universal shape which, in North America and Europe, is decidedly Christian. Yet work on laws protecting indigenous religions suggests that culture can sometimes prove a robust rubric on which to make claims to autonomy.16 We have attempted to remain open to the diverse analytical possibilities that a naturalized establishment approach presents.   See, for example, Elizabeth Shakman Hurd, ‘International Politics after Secularism’, Review of International Studies, special Issue on ‘Theorising the Postsecular in International Relations’, eds Fabio Petito and Luca Mavelli, December 2012, 943–61; Saba Mahmood, ‘Religious Freedom, the Minority Question, and Geopolitics in the Middle East’, Comparative Studies in Society and History 15(2) (2012):418–46. 15   Culture, has, of course, a much storied history as well. See, for example, Tomoko Masuzawa, ‘Culture’, in Critical Terms for Religious Studies, ed. Mark Taylor (Chicago: University of Chicago Press, 1998). 16   See, for example, Winnifred Fallers Sullivan, ‘Reforming Culture: Law and Religion Today’, in Cambridge Companion for Religious Studies, ed. Robert Orsi (Cambridge: Cambridge University Press, 2011); Greg Johnson, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007). 14

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The threads that connect various narratives of the social, political, legal and intellectual history of disestablishment, separation of church and state and religious freedom are tangled and complex. The workshop from which these chapters are drawn asked participants to focus on the broad social, cultural and legal contexts in which religion is politically and legally managed. How do dominant religious cultures shape the law of states? How do religious communities themselves constitute normative systems? How are religious communities formed and imagined in relation to the legal context in which they are located? What shape does religious diversity take under various legal regimes? Are new religions or immigrant religions compelled to organize in particular ways in order to be understood as religion and legally protected as such? Are there geographic aspects to the ways in which religious communities are imagined? How do those geographies interact with conceptualizations of diversity or the possibility of religion? What disciplinary resources do law, sociology, history, anthropology and political science bring to these questions? The Chapters in this Volume Whether establishment proves an enduring category for thinking the legal regulation of religion, we present here eleven chapters that we think prove our intuition that purchase can be gained by standing back from the fervid contestation around ‘religious freedom’ and displaying instead varieties of religious establishment. These chapters are by sociologists, historians, lawyers, scholars of religion and political scientists. Examples are drawn from Tunisia, Taiwan, South Africa, Canada, Australia, Europe, India and the US. They consider the diverse political and legal structurings of various Christian, Muslim, Buddhist, Hindu, Jewish, Shinto, Vedic and aboriginal religious ways of life, among others. Cross-cutting themes are manifold in these engagements; familiar themes such as secularization, differentiation, the social construction of religion, the Treaty of Westphalia, neo-liberalism, gender, the public/private divide, state identity and power and legal pluralism; less familiar but potent themes of spiritual economy, the aesthetics of law, shadow establishments, the power of the media, implicit religion, the family as a site for the state/religion nexus and the state monopoly of rites. A desire to manage religious diversity is pervasive across the globe. Establishment focuses us on the background cultural assumptions, cosmologies, anthropologies and institutions used to manage religion, as well as both internal and external religious diversity; it is historically and culturally specific, and reveals difficulties with universal multicultural and interfaith models. All countries today are working with rusty models that don’t fit the current situation – especially the challenge of assertive Christianities, Islams and Marxisms – but also the transnational politics of native traditions and the global flow of religions. Everywhere we see legal and normative pluralism. Everywhere we see establishment. This is the new normal, whatever we choose to call it.

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While all of the contributions address theoretical, normative and descriptive issues, we have divided this volume into three parts: Part 1 including three primarily theoretical chapters, Part 2 a set of chapters focusing on retelling histories of establishments and Part 3 focusing on explorations of law’s capacities. Part 1 of the volume includes three chapters proposing theoretical frameworks for rethinking and reimagining the problematic of religious establishment. Robert Yelle asks whether current reappropriations of the notion of the axial age and of ideas of liberation in ancient Indian texts, while not without their own limitations, might provincialize Euro-American narratives of religious freedom and reorient our thinking toward a more holistic consideration of entire spiritual economies, each of which always and everywhere includes moments and techniques of both consolidation and escape. Reflecting on the philosophy of aesthetics in law, Benjamin Berger’s chapter, inspired by Kant, Cassirer and Paul Kahn’s The Culture of Law, takes examples from the Canadian context and considers the ways in which intuitions and assumptions about space and time condition the possibilities of religious freedom in all legal cultures. Finally, Greg Johnson’s chapter offers a trio of structuring forms – statutory establishment, structural establishment and naturalized establishment – forms which emerge from his analysis of the multiple dimensions of an Hawai’ian land dispute between a church and the Native American groups protecting burial sites as heuristics for a more nuanced reading of establishment more generally. Part 2 of the volume includes five chapters that focus on and complicate particular moments in the longer story of establishment/disestablishment. Peter Beyer’s chapter is a rereading of the Westphalian legacy, suggesting an emerging post-Westphalian modelling of religion and the state driven by secularization and globalization. Beyer considers the possibility that religion might be becoming entirely normalized as a field for state regulation, like other modern social fields such as the economy. Mark McGowan presents a lively reading of the management of religious media in Canada, primarily in the history of radio station licensing, revealing the historic accommodation of Catholic radio by a largely Protestant federal establishment. This accommodation fell, as an administrative legal matter, between the nationalized British model and the unregulated US model, but has now given way to the neo-liberal market model made possible by the dominance of cable channels. Winnifred Sullivan’s chapter sets the religious freedom discourses manifested in the 2010 Park51 mosque dispute in New York City within the long legal history of church property ownership in that section of Manhattan. André Laliberté outlines the fascinating complexity of 400 years of shifting state/religion interaction in Taiwan, an arrangement that, over time, blended imports from China, Spain, the Netherlands and Japan with, aboriginal religio-political arrangements. Finally Malika Zeghal explains the reasons for the apparently contradictory convergence among secularists and Islamists in Tunisia concerning both the continued importance of both the modernist and reformist Personal Law Code and a constitutional declaration of the Islamic nature of the Tunisian state.

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Part 3 includes three chapters that focus specifically on law and its capacity for being a vehicle for religious freedom. Peter Danchin considers the manifold contradictions in the liberal constitutional model as reflected in the long overdue efforts to recognize Muslim marriage in post-apartheid South Africa. Nancy Nason-Clark and Catherine Holtmann report on a five-year, multi-site project to develop electronic media approaches to transcend secular biases in social service delivery by providing information and assistance concerning domestic violence across a range of religious and secular contexts. Finally, James Richardson and Victoria Springer propose a template for the study of legal pluralism in all its forms with a view to understanding what particular social conditions give rise to the tolerance of plural normative systems within a society. From these chapters a number of themes that we think are important recur. First is the definition of religion, a subject that may seem rather well worn and overdone, but which receives new energy in a number of these chapters. Robert Yelle offers a fresh perspective on the entangled challenges of defining religion and the differentiation of religion as a separate sphere. Yelle proposes that we move toward a model that ‘recognizes how various social orders incorporate simultaneously mundane and transcendent dimensions that exist in dynamic tension with each other’ through what he calls a model of spiritual economy. Benjamin Berger highlights the point of tension between law and religious difference through the use of a Kantian aesthetics. Berger gets inside the culture of law’s rule to explore how a priori assumptions about time and space shape law’s reaction to and indeed definition of religion. Peter Beyer takes up the ways in which the political, and particularly the state, frames the religious. Beyer as well as Richardson and Springer note that pluralism, both legal and religious, has begun to reshape establishments and the ways in which religion is imagined. Danchin notes the structuring perdurance of Christianity within universal ideas of the public good and the emphasis on certain kinds of belief as constituting religion worth protecting through rights. Laliberté examines the consequences of a similar colonial residue in Taiwan, with a complicating overlay of multiple colonizers and their ideas about religion. Laliberté is especially critical of the tendency to see no religion when specifically Christian institutional forms are absent, in the Taiwanese context in particular, and in studies of Asia more broadly. A second important theme is that of space or geography. Berger notes the contrasting ways in which law and minority religion imagines space in two important examples from the Canadian context. But his discussion has relevance beyond Canada. Space and negotiation of boundaries, whether law’s jurisdiction, the ruler’s right to declare the religion of his or her territory, allowable interactions under caste regimes or the tensions and compromises resulting from plural legal regimes, are under-analysed aspects of establishments. How do establishments defend their territories? What are the legal, political and cultural mechanisms that are deployed? This spatial theme is picked up again in Part 2 of the volume. What are the boundaries of radio ‘territory’, how are they imagined and how does shifting those boundaries speak to religious establishments? What does the contest

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over land and burial sites in Hawaii reveal about establishment? Sullivan links the shifting ideologies of religious freedom and private property in the regulation of Trinity Church Wall Street across four centuries, from the grant of glebe land by the British monarch to the regime of Mayor Michael Bloomberg. A third theme, the public-private distinction, is also woven through these chapters. Religion both constitutes and disrupts the realms of the public and the private. The way the public is imagined, whether public religion or public law, attracts larger questions about the importance that attaches to those labels. Legal pluralism highlights the ways in which a so-called domain of ‘private’ law enters into the public sphere. Richardson and Springer offer a sociological map of how and when legal pluralism may develop. Their analysis points to the shifting terrain of the public-private divide, the conditions that determine its possibilities and the multi-layered interests that play into that process. Again we come back to Berger’s insight that law organizes social life on a spatial dimension, or, to recall Yelle’s caution about law’s conceit, at least attempts to do so. Peter Beyer’s chapter highlights the interrelations between private religious beliefs and public regimes (the king’s religion becomes the religion of the people), and the disruption of this schema and the establishment of a plurality of private practices into the public sphere. Nason-Clark and Holtmann’s research and development of a pragmatic tool calls us to reflect on the intersections of the space of home, the law, social service provision and religious commitment, which flow across boundaries online in ways that push past public-private dichotomies. Peter Danchin also notes the complicated and paradoxical nature of the designation of the ‘public’, its relationship to rights and the ways in which Christianity becomes intertwined with the regulation of the ‘private’ sphere to prevent Muslim family arrangements that were framed as being against the ‘public’ good. Other themes course through these chapters. All of them offer multiple interventions into a lively and increasingly global debate. We hope they will invite continued conversation.

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PART I Theory and Structure

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Chapter 2

Spiritual Economies Beyond the Sacred/ Secular Paradigm: Or, What Did Religious Freedom Mean in Ancient India?1 Robert A. Yelle

Winnifred Sullivan has argued persuasively that religious freedom is, strictly speaking, impossible, as every legal system defines and enforces a normative concept of religion, from which it is not permitted to derogate.2 Freedom is allowed, but only within certain bounds. To borrow the words of the First Amendment to the US Constitution, there is always an ‘establishment’ of religion, in the sense that what counts as religious, and what, whether regarded as religious or not, is permitted as valid expression, are unavoidably determined by law. I will suggest another sense in which the modern, secularist concept of ‘religious freedom’ is problematic. Informed by a study of classical Indian and Western theological traditions, I will argue that the very notion of ‘religious freedom’ is both something of a redundancy and something of an oxymoron. This is true because many religious traditions have articulated themselves in opposition to their social, cultural and legal contexts, precisely as a mode of liberation. There can therefore be no question, in these cases, of a legal establishment of religious freedom, precisely because ‘freedom’ has been defined through opposition to societally enforced norms.3 There is a structural analogy then between the idea of religion as ‘freedom from the law’, as thus outlined, and Carl Schmitt’s (in)famous ‘state of exception’ in which the sovereign suspends the law.4 Schmitt contended that such moments reveal the true nature of sovereignty and, therefore, the real foundation of normativity. Similarly, I will suggest that the idea of religion 1   This chapter is based in part on a talk given on a panel entitled ‘Is There a ReligiousSecular Divide in the Indian Traditions?’ at the Association for Asian Studies in Philadelphia, March 2010. 2   Winnifred Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005). 3   See Robert A. Yelle, ‘Moses’ Veil: Secularization as Christian Myth’, in After Secular Law, eds Winnifred Fallers Sullivan, Robert A. Yelle and Mateo Taussig-Rubo, (Stanford: Stanford University Press, 2011), 23–42. 4   Carl Schmitt, Political Theology: Four Chapters on the Theory of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005), 5–15.

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as freedom from the law reveals something fundamental about the nature of both law and religion. Lawyers are too accustomed to thinking and talking as if everything can be solved by law, that is, by having more, or less, or better regulation. Such a parochial approach does not help us to understand what may lie beyond the reach of the law, which is precisely where many traditions, including some Christian ones, have located the essence of religion. I am not making a claim for the independent or sui generis status of religion, but recognizing that, in many social systems, law and religion are, so to speak, ‘co-dependent’, locked in a tension-filled dynamic of complementarity and opposition. To understand such social systems both law and religion must be ‘thought together’. Taking such a systematic approach may even help us to get beyond the seemingly intractable problem of how to define ‘religion’, by showing the reciprocal connection and inevitable entanglement of religion with law in a larger social order. Indeed, some concept of freedom or transcendence is necessary for us to think the secular. The secular is neither simply the differentiation of social spheres, nor the separation of church and state, but rather bears a resemblance to certain social systems that incorporate a reference to the transcendent. In recognition of this, a number of scholars of religion have returned to Karl Jaspers’ (problematic) theory of an ‘Axial Age’, in which several religious traditions of liberation supposedly arose, and located in these traditions either a parallel to or a precedent for contemporary secularism.5 What constitutes an ‘Axial’ religion and how this concept might illuminate secularism have been tangled up. One of my tasks in this chapter will be to untangle these concepts a bit, so as to make them more useful for sociological analysis. My argument will be based upon a comparison of cases drawn from ancient and, to a lesser extent, modern Indian, as well as from Jewish and Christian, traditions. This comparative method is obviously in direct opposition to modern US constitutional fundamentalism and to Justice Antonin Scalia’s refusal to grant any authority to the decisions of other contemporary secular jurisdictions when interpreting US law.6 It should perhaps be unsurprising, given that I am an historian of religions who has devoted considerable time to the study of classical India and of the Protestant Reformation and its impact on modernity,7 that I disagree with such parochial approaches. In my view, we misunderstand secularism itself and make  See, in addition to the discussion below of Charles Taylor, such recent books as Axial Civilizations and World History, eds Johann P. Arnason, S.N. Eisenstadt and Björn Wittrock (Leiden: Brill, 2005); Robert Bellah, Religion in Human Evolution: From the Paleolithic to the Axial Age (Cambridge: Harvard University Press, 2011); and Robert Bellah and Hans Joas, eds, The Axial Age and its Consequences (Cambridge: Harvard University Press, 2012). 6   See Justice Scalia’s dissenting opinion in Roper v. Simmons, 543 US 551 (2005). See also his debate with Justice Stephen Breyer in the US Association of Constitutional Law debate on the Constitutional Relevance of Foreign Court Decisions held on 13 January 2005 at American University, Washington College of Law (available at http://www.freerepublic. com/focus/f-news/1352357/posts). 7   Robert A. Yelle, Explaining Mantras: Ritual, Rhetoric, and the Dream of a Natural Language in Hindu Tantra (London and New York: Routledge, 2003); Yelle, The Language 5

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nonsense out of such categories as ‘law’ and ‘religion’ when we avoid the task of achieving a comparative perspective, historically and cross-culturally, on our data. In a discussion of the Axial Age in ancient India, Louis Dumont affirmed the exemplary methodological principle that ‘the main comparative task is to account for or to express the modern case in traditional terms’ in order to mount [O]n the one hand, an attack on modern ideology using traditional findings in order to express the modern innovation in comparative language; on the other hand, an effort to free the description and analysis of traditional societies from the complications and obscurities that the superimposition of (comparatively) unanalyzed modern concepts had inflicted upon them.8

Unfortunately, this principle has infrequently been observed. The concept of the ‘secular’ or of ‘religious freedom’ has been applied to India in ways that distort what is essential in that context, while, on the other hand, what we might learn from studying cultures such as that of ancient India has not been developed. I will argue that, in order to redescribe the secular more adequately in light of these comparative cases, it is necessary to move away both from differentiation theories that construe secularism as the separation of religion from law and from the dubious thesis of an ‘Axial Age’, toward a model that recognizes how various social orders incorporate simultaneously mundane and transcendent dimensions that exist in dynamic tension with each other. For various reasons addressed below, I call this a model of ‘spiritual economy’. Secularism, too, can be viewed as a kind of spiritual economy that has located the transcendent in ways that resemble both other cultural traditions and earlier moments in Western traditions. The Trouble with Differentiation Theories and Their Implied Definitions of Religion The concept of secularism commonly includes the idea that the state and civil society can be and are in fact distinguished from religion. In historical terms secularism entailed the withdrawal of religion from affairs of civil law and the state, and thus from the domain of coercion, over which the state possesses a monopoly. Although the older notion of secularization as a decline of religion has been questioned or rejected, José Casanova, for example, insists that the definition of secularization as a ‘differentiation’ of the religious and civil domains is still valid.9 of Disenchantment: Protestant Literalism and Colonial Discourse in British India (New York: Oxford University Press, 2013). 8   Louis Dumont, ‘On the Comparative Understanding of Non-Modern Civilizations’, Daedalus 104, No. 2 (1975): 169. 9   José Casanova, Public Religions in the Modern World (Chicago: University of Chicago Press, 1994), 18–21, 36–9.

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A major problem with such theories is that they presume a definition of ‘religion’ that we do not possess. As Marc Galanter has noted with reference to modern India, ‘Secularism can be measured only when we can identify the religious …”10 Some scholars, including S.N. Balagangadhara and Timothy Fitzgerald, have used Indian data to argue either that the concept of ‘religion’ is incoherent or that it does not apply to what we call ‘Hinduism’.11 Scholars of religion are intimately familiar with this problem.12 Unfortunately, many scholars in other disciplines, including legal studies, still use the term ‘religion’ as if it referred to something self-evident. The differentiation thesis might appear to make some sense when it is applied to many Western societies in which there is or was an established church. In that case, ‘religion’ may be identified with the church and the ‘secular’ with what is opposed to this, namely, the state. However, as Donald Eugene Smith and Heinrich von Stietencron, among others, have argued, the multitude of religious traditions in India and the absence of any institutionalized religious authority there that parallels the Roman Catholic Church or nationally established Christian churches means that the question of whether there exists in India a divide between ‘church and state’ is a relatively meaningless one.13 As Smith points out, ‘How can there be separation of church and state when there is no church?’14 Discussions of secularism in India exemplify a basic inability to define clearly what ‘religion’ is, at least in a manner that escapes a culturally parochial European view of religion. Thus, Smith and T.N. Madan have claimed that in Indian traditions religion is not separate from other domains, but is instead a ‘total way of life’.15 As Gary Jacobsohn put it, India has ‘a social order inhabited by a thickly constituted   Marc Galanter, ‘Secularism, East and West’, Secularism and its Critics, ed. Rajeev Bhargava (Delhi: Oxford University Press, 1998), 254. 11  I would note in this regard S.N. Balagangadhara, The Heathen in His Blindness: Asia, the West, and the Dynamic of Religion (Leiden: Brill, 1994); Timothy Fitzgerald, The Ideology of Religious Studies (New York: Oxford University Press, 2003); and a number of contributions in Defining Hinduism: A Reader, ed. Jack E. Llewellyn (New York: Routledge, 2006). 12   See, in addition to Fitzgerald’s The Ideology of Religious Studies, Jonathan Z. Smith, Imagining Religion: From Babylon to Jonestown (Chicago: University of Chicago Press, 1982); Russell McCutcheon, Manufacturing Religion: The Discourse on Sui Generis Religion and the Politics of Religious Studies (New York: Oxford University Press, 1997); and Tomoko Masuzawa, The Invention of World Religions: Or, How European Universalism Was Preserved in the Language of Pluralism (Chicago: University of Chicago Press, 2005). 13   Donald Eugene Smith, ‘India as a Secular State’, in Secularism, ed. Bhargava, 201. Cf. Heinrich von Stietencron, ‘Hinduism’, in Secularization and the World Religions, eds Hans Joas and Klaus Wiegandt, trans. Alex Skinner (Liverpool: Liverpool University Press, 2009), 122–40. 14   Smith, ‘India’, 214. 15  Ibid., ‘India’, 227; cf. T.N. Madan, ‘Secularism in its Place’, in Secularism, ed. Bhargava, 297–320. 10

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religious presence’.16 Such statements allude, explicitly or implicitly, to the idea that Indian traditions enforce more ritual injunctions concerning behaviour, for example relating to caste. It is not ‘religion’ per se, but rather ‘ritual’ that is in question here, or a particular concept of ‘ritualistic religion’. In the United States, religious belief and expression generally are granted broader latitude than religious practice, where the latter comes into conflict with civil laws. In contrast, the Indian Supreme Court post-Independence has emphasized the importance of religious practice,17 a viewpoint that is codified in the separate systems of personal law for Hindus and Muslims. However, given that Indian religions are (supposedly) totalizing, their conflict with secularism, which tolerates no competing authority within its own domains, must inevitably also be total, as Smith argued: Paradoxically, the secular state, in order to establish its sovereignty and confirm its secularity, is required to undertake the most basic possible reform of religion. It is called upon by the Constitution to strip Hinduism and Islam of the sociolegal institutions that have distinguished them as total ways of life; to reduce these two great religious systems to their core of private faith, worship, and practice.18

Smith is referring to the idea, expressed already in the Indian Constitution, that India is a secular state, which has been seen by many as an aspiration or progressive ideal that is incompatible with the continued existence of separate systems of personal laws for members of different religious faiths. The idea that ritual – or at least publicly enforced norms of behaviour – may be excluded from the proper ‘core’ of religion is, as Galanter has pointed out, peculiarly Christian, or more accurately Protestant.19 The privileging of belief or doctrine over ritual practice was signalled in Martin Luther’s argument that salvation is ‘by faith alone’ (sola fide) and not by ritual works. As with the definition of religion in terms of a ‘church’, parochial Protestant understandings have informed both the characterization of Indian traditions as especially ‘religious’ (or even ‘superstitious’) because especially ‘ritualistic’ and, at the same time, the marginalization of the ritual dimensions of these traditions as not essential to ‘true religion’. Societies are often characterized as either secular or not secular based upon whether or not they possess certain types of religion (that  Gary Jeffery Jacobsohn, The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2005), 31. 17   See Smith, ‘India’, 198; Galanter, ‘Secularism’, 256. 18   Smith, ‘India’, 227. 19   Galanter, ‘Secularism’, 246, 261–2. I have argued elsewhere that similar theological biases informed and interacted with British colonial reforms of Hindu law, leading to a radical diminution of its ritual dimensions. See Robert A. Yelle, ‘The Hindu Moses: Christian Polemics against Jewish Ritual and the Secularization of Hindu Law under Colonialism’, History of Religions 49 (2009): 141–71. 16

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is, religious institutions that do not meddle in politics, or religions that emphasize private belief over ceremonial performance, and do not enforce norms of external behaviour). Such characterizations presuppose a definition of religion founded in early modern Christian theologies. The logical endpoint of the definition of religion as spiritual and anti-ritual was articulated by the Deist Thomas Morgan, who called an ‘established Religion … an Absurdity and Contradiction …’20 ‘True’ religion, being located in the heart of the individual believer, is supposedly beyond the reach of secular authority in any case. The thesis that secularism means differentiation fails, not only as applied to societies in which religion is not confined to either a clearly defined church or the private domain of individual conscience, but for other reasons as well. Max Weber found precedent for the separation of church and state in the Mosaic distinction of a transcendent God21 which, in Eckart Otto’s analysis, led to a subversive ‘counter[ing of] the intermeshing of state and religion’.22 Ancient Israelites refused to worship foreign kings as deities; they rendered service to God rather than to the state, in a manner similar to that in which early Christians refused to worship the pagan gods of Rome. This represented a radical desacralization of the state. Otto draws the logical conclusion: ‘… state and religious community move apart, in a process which must be described as secularization …’23 However, such differentiation was also simultaneously a form of sacralization, the establishing of a special bond between a chosen people and a transcendent, all-powerful God. When the Israelites had their own kingdom, this led to a fusion between civil and ecclesiastical domains,24 in a monarchy that was, in turn, subject to prophetic critique. It was this Israelite model of a fusion between civil and ecclesiastical powers or laws that a number of Protestants such as Roger Williams (c. 1603–83) rejected, on the grounds that the Gospel had abrogated the ritual commandments of Jewish law and relocated salvation in a kingdom not of this world.25 Such theological ideas contributed to what we now call ‘freedom of religion’ and to the further separation of church and state in the West. Although such ideas clearly promoted differentiation, to refer to them as ‘secular’, in the colloquial sense of ‘non-religious’, makes little sense.  Thomas Morgan, A Brief Examination of the Rev. Mr. Warburton’s Divine Legation of Moses (London, 1742), 75–6. See discussion in Robert A. Yelle, ‘Christian Genealogies of Religious Freedom’, The Immanent Frame (accessed 4/06/2012 at http://blogs.ssrc.org/ tif/2012/04/06/christian-genealogies-of-religious-freedom/). 21  Max Weber, The Protestant Ethic and the Spirit of Capitalism, trans. Talcott Parsons (New York: Charles Scribner’s Sons, 1958), 105. 22   Eckart Otto, ‘The Departure and Return of God: Secularization and Theologization in Judaism’, in Secularization and the World Religions, eds Joas and Wiegandt, 86. 23  Ibid., 88. 24   Ze’ev Falk, ‘Religion and State in Ancient Israel’, in Politics and Theopolitics in the Bible and Postbiblical Literature, eds Henning Graf Reventlow, Yair Hoffman and Benjamin Uffenheimer (Sheffield, UK: Sheffield Academic Press, 1994), 49–54. 25   See Yelle, ‘Moses’ Veil’, 30–31. 20

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In some cases, secularization even appears to mean the opposite of differentiation, a collapsing of the sacred into the profane and a valorization of mundane activity. This is what, according to Weber, happened during the Protestant Reformation, when ascetic impulses were directed into rather than beyond the world26 and the concept of the ‘calling’ dignified secular labours.27 According to Charles Taylor, this immanentism was a paradoxical consequence of the reform of the Church and the universalizing of a strict confessional discipline formerly reserved for the clergy.28 This process led to a relativizing of all earthly hierarchies. An analogous act of ‘collapsing’ was the Mahāyāna Buddhist assertion that nirvāṇa and samsāra are identical and that the Bodhisattva, who works in the world for the enlightenment of other beings rather than seeking his own liberation in isolation, is the highest ideal. Like the Protestant Reformation, Mahāyāna Buddhism was just as much about ‘sacralization’ as ‘secularization’. Arguably, the ultimate symbol of such collapsing of sacred and profane, at least in the Christian tradition, was the Incarnation, which fused human and divine. This event of de-differentiation, although clearly sacred, has also been interpreted as an event of secularization: Marcel Gauchet identified the Incarnation as a key moment in the disenchantment of the world,29 and Ernst Bloch, anticipating Slavoj Žižek, argued that it reveals that atheism – a humanizing or levelling of the sacred – is the true telos of biblical tradition.30 For all of these reasons, namely the problem of defining ‘religion’; the Christian parochialism underlying the notion of a ‘separation of church and state’, and, coordinating with this, the promotion of a de-ritualized religion; and the fact that differentiation often involves sacralization, while secularization often involves de-differentiation, depending on what we are looking at and how we are looking at it, it does not seem possible to uphold the definition of secularism as ‘differentiation’. Differentiation is thus not a theory that explains something called ‘secularization’, but, rather, a datum drawn from a particular Western history, a datum that must itself be theorized. The ‘Axial Age’, Differentiation and Secularization The problems with differentiation theories of secularism and secularization point to a more basic problem in the history of religions. Many traditions – including our own form of secularism – have defined themselves as a liberation from an existing  Weber, Protestant Ethic, 111–12, 153–4.  Ibid., 161–3. 28   Charles Taylor, A Secular Age (Cambridge: Harvard University Press, 2007). 29  Marcel Gauchet, The Disenchantment of the World: A Political History of Religion, trans. Oscar Burge (Princeton: Princeton University Press, 1999), 122–23. 30  Ernst Bloch, Atheism in Christianity: The Religion of the Exodus and the Kingdom, trans. J.T. Swann (London: Verso, 2009), 1302–144, 213–7; cf. Slavoj Žižek and John Milbank, The Monstrosity of Christ: Paradox or Dialectic? (Cambridge: MIT Press, 2009). 26 27

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order that is conceived as too restrictive. There are various names for such traditions; the most famous comes from Karl Jaspers’s concept of an ‘Axial Age’, describing a period between around 800 and 300 BCE, in which several of the major traditions that are now called ‘world religions’ were shaped.31 Judaism, Hindu traditions of renunciation, Buddhism, Confucianism and Greek philosophy all developed in this period, supposedly evidencing the rise of a critical consciousness. The very existence of an ‘Axial Age’ has been roundly critiqued. For one thing, it appears to secularize a Judeo-Christian notion of revelation and present it as an objective account of historical change. Vast differences among cultural traditions are flattened in order to make them fit the definition of ‘Axial’. Even extending the Axial Age over a 500-year period requires making an exception for Christianity, which came a few centuries late, not to mention Islam, which, while often added to the list, is sometimes excluded altogether. The distinction between Axial and non-Axial traditions privileges some traditions that are closer to the paradigm – which one suspects has been reverse-engineered precisely for the purpose of including these traditions – and reinforces a European sensibility according to which Christianity and both of its major cultural sources – Athens and Jerusalem – qualify as ‘Axial’. An important 1985 volume on Axial religions devoted only one slim chapter – around ten pages – to Islam, while devoting respectively around 100 pages to ancient Greece, 100 pages to ancient Israel and Mesopotamia, another 64 pages to Judaism and Christianity in Late Antiquity, 83 pages to China and 100 pages to India and Buddhism.32 In an apparent Freudian slip (or typographic error?), S.N. Eisenstadt, the editor of the volume, referred to the ‘Ancient Israeli [sic!] Axial Age’.33 ‘Axial’ seems to denote the commonalities of certain ‘great civilizations’ that must learn to get along in the world. One goal may be to downplay the differences between Christianity and Judaism, which can now both be seen as ‘Axial’, perhaps as opposed to Islam, despite the fact that Christianity conducted its own Axial revolution against Judaism. Axial traditions have been defined variously as monotheistic,34 iconoclastic35 and constituted by ‘a search for authority outside the institutionalized offices and structures of the seeker’s society’,36 by an ‘internalization’ of religious impulses at the expense of external rituals,37 and by ‘the strain toward transcendence’.38   Karl Jaspers, Vom Ursprung und Ziel der Geschichte (Zürich: Artemis Verlag, 1949).   S.N. Eisenstadt, The Origins and Diversity of Axial Age Civilizations (Albany: SUNY Press, 1986). 33  Ibid., 228. 34   V. Nikiprowetzky, ‘Ethical Monotheism’, Daedalus 104, No. 2 (1975): 69; Jan Assmann, The Price of Monotheism, trans. Robert Savage (Stanford: Stanford University Press, 2009). 35  Nikiprowetzy, ‘Ethical Monotheism’, 75; Assmann, Price of Monotheism, esp. 2–4. 36   S.C. Humphreys, ‘“Transcendence” and Intellectual Roles’, Daedalus 104, No. 2 (1975): 92. 37   Dumont, ‘On the Comparative Understanding of Non-Modern Civilizations’, 163. 38   Benjamin Schwartz, ‘The Age of Transcendence’, Daedalus 104, No. 2 (1975): 3. 31

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Recently, Jan Assmann has substituted the term ‘counter-religions’ (or ‘secondary religions’) to denote the iconoclastic and critical impulses of certain traditions, especially as these have defined themselves through opposition to existing religiopolitical orders (as Judaism did to Egyptian idolatry, and Christianity did to Jewish ritualism).39 Somewhat less helpfully, he has insisted that the ‘Mosaic distinction’ is a mode of monotheistic intolerance supposedly observable not only in the Abrahamic, but also in several non-Abrahamic traditions such as Buddhism.40 Pace Assmann, neither monotheistic nor intolerant appears especially useful as a descriptor for Buddhist or Hindu movements of renunciation. Given these difficulties with the concept of an ‘Axial Age’, it is therefore quite noteworthy that a number of scholars have revived it,41 or invoked it in connection with a description of contemporary secularism.42 Despite its evident problems, the notion of an ‘Axial’ transformation may have some value in expanding our too-restrictive account of secularization by allowing us to compare the present moment with other, more distant moments in other cultures. Like some contemporary theories of secularism, a number of theories use the notion of differentiation to define what is meant by the ‘Axial’. In a 1975 volume devoted to Axial traditions, Benjamin Schwartz summarized Peter Brown’s view that ‘In the twelfth century … the spheres of the supernatural and natural, the sacred and the secular, as well as of various realms within secular life, become sharply marked off’.43 In 1985, Eisenstadt pointed to differentiation as the key feature of Axial movements: Th[e] conceptions of a basic tension between the transcendental and the mundane orders differed greatly from the ‘homologous’ perceptions of the relation between these two orders which were prevalent in so-called pagan religions … [I]n the Axial Age civilizations the perception of a sharp disjunction between the mundane and transmundane worlds developed.44

39  Assmann, Price of Monotheism, 4. He defines ‘secondary religions’ as those that ‘differentiate themselves from … [primary religions] by denouncing them as paganism, idolatry, and superstition’, 1. 40  Assmann, Price of Monotheism, 3. 41   See note 7 above. 42   Focusing on the definition of Axial as ‘monotheistic’, Nikiprowetzky argued that ‘our present civilization … is totally permeated with monotheism’ as a result of its cultural heritage (in Schwartz 69). S.C. Humphreys spoke of ‘secularization’ in ancient Greece, by analogy to more recent developments. ‘Dynamics of the Greek Breakthrough: The Dialogue between Philosophy and Religion’, in Eisenstadt, Origins and Diversity, 92–110 at 92. See also the discussion below of Charles Taylor’s use of the concept of ‘Axial traditions’ in Taylor, A Secular Age. 43   Schwartz, ‘The Age of Transcendence’, Daedalus 104, No. 2 (1975): 6, referring to Peter Brown’s contribution to the same Daedalus issue. 44  Eisenstadt, Origins and Diversity, 2–3.

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Moreover, it is not merely differentiation, but specifically the distinction between the political and the religious domains that supposedly characterizes Axial traditions. Jan Assmann claimed that it was the attack on ‘cosmotheism’ – the complete embeddedness of religion in political life, as represented by the ancient Egyptian pharaohs, that characterized the ‘Mosaic distinction’.45 In a 2005 article entitled ‘What is Axial about the Axial Age?’, Robert Bellah answered this question by emphasizing, inter alia, the separation of religion from politics.46 Several points emerge from this brief survey. One is that the definition of the Axial converges with that of the secular, even though the former includes several traditions that have been labelled ‘world religions’. Both the Axial and the secular are premised on a differentiation of the political and the religious orders. Another point is that the notion of the Axial has been decoupled from a particular historical era; if Axial attributes are found also in contemporary secularism, then perhaps we are speaking of structural properties of certain social systems, rather than of a particular period of human history. Therefore, it is better to speak of ‘Axial traditions’ than of an ‘Axial Age’.47 Reinforcing this point, a number of scholars have emphasized that Axial religions never actually displaced the pre-Axial forms,48 but existed in complementary tension with these. Folk religions coexisted with disciplined modes of transcendence, Buddhist monastics benefitted from the gift-giving practices of laypeople and, for that matter, Christians preserved the Hebrew Bible as the ‘Old Testament’. Charles Taylor has invoked the notion of the Axial in describing secularization as a process of ‘disembedding’.49 The Axial traditions first released the individual from the tight grip of the social order in a quest for liberation that was generally personal. In Taylor’s description of early society, which sounds very much like Émile Durkheim’s, ‘religious life is inseparably linked with social life’.50 The world is also pervaded by divine powers. By breaking the hold that these social and cosmic forces had on the individual, the Axial religions, through a process of disenchantment, laid the foundations for the autonomy we associate with secularism – for a ‘buffered self’.51 However, in Taylor’s account, secularism has retreated from the radical mode of transcendence associated with Axial religions, with their idea of a good beyond mundane human flourishing. What he calls ‘Post  Jan Assmann, Moses the Egyptian: The Memory of Egypt in Western Monotheism (Cambridge: Harvard University Press, 1998), 3. 46   Robert Bellah, ‘What is Axial about the Axial Age?’, Archives européennes de sociologie 46 (2005): 70–72, 83. 47  This is substantially the conclusion reached by Arnason, Eisenstadt and Wittrock in their ‘General Introduction’, Axial Civilizations and World History, 7. 48   Bellah, ‘What is Axial about the Axial Age?’, 72; Assmann, Price of Monotheism, 8–11; Dumont, ‘On the Comparative Understanding of Non-Modern Civilizations’, 167. 49  Taylor, A Secular Age, 151–8. 50   Charles Taylor, ‘The Future of the Religious Past’, Religion: Beyond a Concept, ed. Hent de Vries (New York: Fordham University Press, 2008), 180. 51  Taylor, A Secular Age, 156; cf. 37–42. 45

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Axial’ religions (that is, those that emerged immediately upon the Axial Age) combined the discipline of liberation with more mundane forms of social and collective praxis in a complementary duality. According to Taylor, our ‘Secular Age’ has disrupted this balance. The very effort to bring the higher religion to earth, to universalize transcendence and to purify society of lesser modes of religiosity, led ‘[s]ocial life to be purged of its connection to an enchanted cosmos, and all vestiges removed of the old complementarities, between spiritual and temporal, between life devoted to God and life in the “world”, between order and the chaos on which it draws’.52 The Secular Age, on this account, represented the selfovercoming of Axial religion, and the flattening of transcendence into immanence, or even the return to a kind of paganism. This is history as irony, on a massive scale. Taylor’s account uses the notions of the Axial, of differentiation (and dedifferentiation) and of disenchantment to describe how a religious impulse gave birth to the secular, or to the space in which the secular could emerge. The ‘Axial’ Moment in Ancient India I want to use the notion of the Axial as the differentiation of the transcendental and mundane orders to shed light on some aspects of the secular that have been overlooked. To do this, however, I will need to develop this notion first by applying it to the case of ancient India. In ancient India, in the period beginning around 800–400 BCE in which movements of renunciation developed simultaneously in Hinduism and the nascent Buddhist and Jain traditions, ‘religious freedom’ meant nothing more nor less than total liberation from the bonds of ordinary society and of earthly life itself. ‘Freedom’ or ‘liberation’ is a literal translation of the term mokṣa used in the early Hindu Upaniṣads to describe the condition of the individual who has transcended the law of karma and rebirth. Other, more modern, concepts of religious freedom appear distinctly inappropriate as a description of the ancient Indian case. On the one hand, there was the social order based on the caste system, with its numerous rules and regulations according to one’s social status and gender, as elaborated in subsequent centuries by such texts as the Laws of Manu (c 200 BCE to 200 CE). On the other, there was the radical renunciation of the social order. Pluralism and religious diversity were certainly always there. But religious freedom meant, first and foremost, liberation from ordinary society. The standard versions of the Axial differentiation thesis break down as applied to the ancient Indian situation. Rather than the binary opposition between religion and politics – not to mention church and state, neither of which existed in our sense – there was something more complex. This something more is signified by the figure of the renunciant. T.N. Madan, for example, contends that traditional Indian society had something like the notion of the ‘secular’, as reflected in the Hindu notion of the puruṣārtha or ‘aims of the human’, which valued the pursuit   Taylor, ‘Future’, 188.

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of power (artha) and pleasure (kāma) together with religious duty (dharma), and in the complementarity between priests (Brāhmaṇa) and rulers or warriors (Kṣatriya), which resembled something like the complementarity between Pope and Emperor, the spiritual and temporal authorities in medieval Christianity.53 The difference, according to Madan, was that these castes and the goals they embodied existed in a hierarchical relationship in which the religious (the Brahmin) was valued more highly than the secular (the Kṣatriya). Conversely, he argued, the modern West has inherited from the Protestant Reformation an ‘ideology of secularism’ in which religion is no longer primary and has increasingly been displaced.54 The persuasiveness of Madan’s position obviously depends on the force of his analogy between the two binaries of Hindu Priest and Ruler, and Christian Pope and Emperor. However, this binary makes no room for the Indian renouncer (Saṃnyāsin) who rejected the caste hierarchy.55 This omission is repeated in the Postscript to Madan’s lecture, where he refers to ‘the triple goals of human endeavour (dharma, artha, kāma)’,56 but not to the fourth goal, mokṣa or liberation. This is a strange omission, and one that is actually fatal to his account. In his contribution to an early comparative study of Axial traditions, Louis Dumont pointed out that the concept of differentiation appeared in two different forms in ancient India: [A]s differentiation of the function of sovereignty into the functions of priest and king, and as differentiation – in an altogether less precise sense – from the relatively fluid or loose Vedic society of two opposed but complementary phenomena: the rigid caste system, on the one hand, and the extra-social role of the renouncer on the other.57

Dumont emphasized that the tension between movements of renunciation and the caste system was basic to ancient Indian society.58 He argued that the renouncer exemplified a form of individualism expressed against the constraints of the caste order. While this was not the same as the individualism associated in the Enlightenment West with freedom of religion, there are clearly some resemblances.   Madan, ‘Secularism in its Place’, 306–7, 319. On the parallel complementarity in Buddhism, see Frank Reynolds, ‘The Two Wheels of Dhamma: A Study of Early Buddhism’, in Gananath Obeyesekere, Frank Reynolds and Bardwell L. Smith, eds, The Two Wheels of Dhamma: Essays on the Theravada Tradition in India and Ceylon (Chambersburg, PA: American Academy of Religion, 1972), 6–30. 54   Madan, ‘Secularism in its Place’, 306. 55   See, however, Madan’s reference to the Buddhist renouncer, ibid., 303. 56  Ibid., 319. 57   Dumont, ‘On the Comparative Understanding of Non-Modern Civilizations’, 165. 58  Ibid., 167. See also Louis Dumont, Homo Hierarchicus: The Caste System and its Implications (Chicago: University of Chicago Press, 1981), Appendix B, ‘World Renunciation in Indian Traditions’, 273–8. 53

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Examination of the ancient Indian case raises some pointed questions. First, what is ‘religion’ in this context? Between these two basic divisions of society, namely that concerned with dharma (as well as artha and kāma) and that concerned with mokṣa, which corresponded to ‘religion’ and which corresponded to the ‘secular’? Like Madan, most commentators have identified the ritualistic, Brāhmaṇical system of castes and life-stages (varṇāśramadharma) as ‘religious’. However, it is the rejections or qualifications of this system represented by the various movements of renunciation that exemplify a different, more spiritual (or ‘Axial’) religion. Characterizing either the Brāhmaṇical ritual system or the movements of renunciation that opposed this system as ‘secular’ violates our sensibilities. Yet identifying both of these systems as ‘religious’ when they are so directly opposed (unlike the Priest-Ruler relationship, which often, as in Madan’s description, appeared quite cozy) does not make much sense either. Do we then need to invent a third category, beyond the two we already have, namely ‘religion’ and the ‘secular’? The Notion of Spiritual Economy We could dismiss ancient India as a special case. However, to do so would pose other problems, for there are too many parallels between ancient India and certain moments in the development of the West, some of which have been highlighted by Axial Age theorists. One parallel concerns the ‘repudiation of ritual’ that various scholars have identified as characteristic of secularism.59 Madan located the opposition between the religious and the secular within the ritualistic caste system. The central distinction of this system was that between ‘purity’ and ‘pollution’, or sacred and profane. It was such a distinction that certain Axial traditions specifically rejected, indicating that the more relevant opposition was not within the ritual system of caste, purity and pollution but rather between that system and what lay beyond it. Renunciant traditions in Hinduism opposed many of the purity laws of caste Hinduism. Such antinomian views were most strongly associated with later Tantric traditions, but appeared as early as the renunciant traditions themselves. For example, Br̥hadāraṇyaka Upaniṣad 4.4.22 states that the true self ‘does not become more by good actions or in any way less by bad actions’.60 Chāndogya Upaniṣad 4.14.3 contends that when someone   See, for example, Peter Burke, ‘The Repudiation of Ritual in Early Modern Europe’, in The Historical Anthropology of Early Modern Italy: Essays on Perception and Communication (Cambridge: Cambridge University Press, 1987), 223–38; Jonathan Z. Smith, To Take Place (Chicago: University of Chicago Press, 1992), 99–103; Catherine Bell, ‘Ritual Reification’, in Ritual and Religious Belief: A Reader, ed. Graham Harvey (New York: Routledge, 2005), 265–85; Talal Asad, ‘Toward a Genealogy of the Concept of Ritual’, in Genealogies of Religion (Baltimore: Johns Hopkins University Press, 1993), 55–79. 60   The Early Upaniṣads, trans. Patrick Olivelle (New York: Oxford University Press, 1998). Cf. Br̥hadāraṇyaka Upaniṣad 4.4.23. All translations are from this edition. 59

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knows this true self, ‘bad actions do not stick to him, just as water does not stick to a lotus leaf’.61 The metaphor is a reference to the new doctrine of karma, which appeared at the same time as the doctrine of mokṣa, or liberation from karma. Karma sticks to the person who lacks true knowledge, but the person who has been liberated by possessing that knowledge is beyond the quid-pro-quo of action and retribution. The economy of retribution was modelled on the ritual of sacrifice: karma is a word that refers paradigmatically to ritual action and, by extension, to all action in its ethical dimensions. The original quid-pro-quo was the gift exchange represented in sacrifice, in which the gods were expected to reciprocate.62 Those who are trapped within this sacrificial economy still experience karma, even if their actions are good; thus people who worship thinking that ‘gift-giving is offerings to gods and priests’ are destined for rebirth.63 Such ideas led to a gradual relativizing of Vedic sacrifice and an internalization of sacrificial practices in yoga. A similar displacement of a pre-existing ritual economy occurred in (at least) two moments in the development of Western traditions: at the beginning of Christianity and during the Protestant Reformation. The Apostle Paul’s distinction between the Gospel of ‘grace’ (charis) and Mosaic ‘law’ (nomos) and his assertion that the Gospel had abolished the rituals that separated Jew from Greek relativized or even discarded the pure/impure distinction.64 This was the basis for later antinomian tendencies in Christianity. Early Christians also rejected the Jewish practice of sacrifice and the notion of the quid-pro-quo on which this supposedly was based. Christ’s ultimate sacrifice on the Cross ended the cycle of retribution associated with the ‘old law’. Salvation was a freely given gift of God’s grace, which transcended the economy of ritual and sacrifice and was therefore beyond the law. During the Reformation, the Protestant valorization of grace over works, which reinterpreted Paul’s earlier distinction, affirmed the notion that salvation lay beyond the ritual economy and its laws. Luther objected to the mechanization of the sacraments and to the calculus of indulgences and other routinized techniques of salvation that had reached a high point on the eve of the Reformation. The Puritan doctrine of predestination insisted on the uncertainty of salvation. Although far from the Upaniṣadic idea that the certainty of liberation could be achieved  The strongest statement of this idea occurs at Chāndogya Upaniṣad 5.10.9–10, which claims that someone who knows the true meaning of the sacrifice will not be tainted even if he associates with thieves, drunkards, Brahmin-killers and fornicators. There are similar statements in the Bhagavad Gītā. 62   This aspect of sacrifice in many traditions has been summarized in the Latin formula do ut des – ‘I give so that you may give’. See Joseph Henninger, ‘Sacrifice’, in Encyclopedia of Religion, 2nd ed., ed. Lindsay Jones (New York: Macmillan Reference USA, 2005), 8002. 63   Chāndogya Upaniṣad 5.10.3. 64   Assmann argued that ancient Judaism combined two strands: one, pre-Axial strand based on the priestly tradition and its emphasis on purity, and another, Axial strand, represented by the prophetic tradition, which had transcended this. In my opinion, this is a biased reading of ancient Judaism from a Christian perspective. Price of Monotheism, 8–11. 61

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through knowledge, these Protestant soteriologies did resemble the Upaniṣads in other ways, specifically by rejecting or relativizing external ritual performances, the quid-pro-quo of the sacrificial economy, and the laws on which these were based. Several of these Reformation developments contributed to what we call ‘secularism’ and ‘freedom of religion’.65 That each of these movements rejected the pure/impure distinction shows that ‘differentiation’, in itself, is neither necessary to secularism nor sufficient to distinguish that movement from other movements that have been labelled ‘religious’. Each of these cases (ancient India, early Christianity and the Protestant Reformation) witnessed a certain levelling of social hierarchy associated with the minimization of the pure/impure distinction. In ancient India the distinction among castes – including Brahmins and Kṣatriyas – was relativized; in early Christianity, the ritual separation between Jew and Greek was abolished;66 and during the Protestant Reformation, the distinction between priesthood and laity decreased. Some of these tendencies in Christianity have influenced what we call ‘secularism’. Thus, Weber argued that Paul’s conversion of Christianity into a universalizing tradition was the birth of the Western notion of citizenship,67 and that the abolition of ritual separation enabled the rationalization of the modern economy.68 From this standpoint, it is universalism, rather than differentiation, that appears characteristic of secular modernity, as well as of some religious movements. In our secular polity, this universalism has proceeded in tandem with the relegation of ritual and religious particularity to the private sphere, or even to the inner conscience of the individual. Both of these parallel dynamics – universalization and privatization/spiritualization – can be interpreted as forms of ‘transcendence’.69 There was no ‘Axial Age’ or single historical moment in which this happened. Moreover, even in those cases that are thought to be most characteristic of the ‘Axial’, elements of earlier social systems are conserved and incorporated. The ritual economy and that which transcends it exist in a symbiotic, dynamic relationship. It is a curious fact that, in ancient India, the concept of mokṣa first appeared at the same time, and in the same precise texts, as the concept of karma. The Br̥hadāraṇyaka Upaniṣad announced karma as a comprehensive law for the mundane order at the very same time that it announced an ‘escape clause’ that exempts one from the operation of this law. The doctrine of karma developed out of a systematization of the quidpro-quo of the sacrificial economy of Vedic Hinduism. One might speculate that it was the very vision of a deterministic, cosmic law of fate or retribution that appears to have led, by way of compensation, to the hope of an escape from this same law. In   See esp. Yelle, ‘Moses’ Veil’.   Galatians 3:28. 67  Weber, The Religion of India: The Sociology of Hinduism and Buddhism, trans. H.H. Gerth and Don Martindale (New York: Free Press, 1958), 37–8. 68  Weber, The Religion of India, 112; Weber, The Sociology of Religion, trans. Ephraim Fischoff (Boston: Beacon Press, 1964), 207–8. 69   See Yelle, ‘Christian Genealogies’. 65 66

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the Reformation case, as well, it is almost as if the increasing rationalization of the Catholic sacramental economy of salvation had precipitated, as a counter-reaction, the Protestant doctrines of grace and predestination.70 As specifically anti-economic orientations, which in Weberian terms must be labelled ‘charismatic’, such soteriologies are inherently unstable unless somehow institutionalized or co-opted within a legal and economic order. The ‘opening’ made in the caste and ritual orders by renunciant Hinduism was more or less circumscribed by different traditions and sects. The Laws of Manu, reflecting a conservative reining in of the renunciant impulse, contend that the householder stage is best and that renunciation should be confined to those who have already lived through this stage, grown old and seen their grandchildren.71 The Buddha, on the other hand, not only as Siddhartha Gautama, but also in his penultimate incarnation as Prince Vessantara, abandons his family in the prime of his life. The Buddhist monastic community institutionalized this option. It was only a question of when, where and how the category of transcendence is located: in the afterlife, or in this life? Only when old, or in the prime of life? Similarly, the radical uncertainty provoked by the Puritan concept of predestination gave way to Arminianism, or to the Deist idea of a ‘natural law’ with which even God complied and which guaranteed the moral order. As Weber demonstrated, the displacement of salvation into the domain of grace, and of religion into the private sphere, expanded the territory into which the rationalization of the social and economic orders could proceed now according to secular motives. But this established a new complementarity between a ‘spiritual’ religion and a ‘secular’ world. Whether this displacement represented, as Taylor has suggested, the loss of transcendence, or simply a different mode of transcendence, remains an open question. I want to suggest that this analysis reveals a fundamental tension in our concept of the secular, a tension that has been inherited from Christianity, but that has clear parallels in other traditions. Christian antinomianism, which began with Paul’s definition of the grace (charis) of the Gospel against Jewish ritual law (nomos), not only purported to liberate religion from law, but also, at the same moment, suggested a law that would be free from religion.72 The dialectical tension between grace and law defined a holistic system or what we might call an ‘economy’. The orthodox Christian Church defended this economy against Gnostic efforts to jettison any connection with Jewish tradition. It was partly through a transformation of this economy during the Reformation that the concept of the secular emerged. 70   Gustavo Benavides, ‘Western Religion and the Self-Canceling of Modernity’, Journal of Religion in Europe 1 (2008): 93. 71   Manu 6.2ff. in Patrick Olivelle, Manu’s Code of Law (New York: Oxford University Press, 2004). 72  See Rémi Brague, The Law of God: The Philosophical History of an Idea, trans. Lydia G. Cochrane (Chicago: University of Chicago Press, 2007), 263 and discussion in Yelle, ‘Moses’ Veil’, 34–35.

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This brief account indicates the necessity of approaching the question of the secular from a comparative, holistic and integrated standpoint. One cannot understand the antinomian and individualistic tendencies of religion in the contemporary West without addressing how they complement the political, legal and economic dimensions of the social order.73 It will simply not do to compare one piece of a social system with one piece of another; we must compare total social systems. Similarly, the question of whether a social system is secular must examine the totality of that system. When we do so, what we find is that an ostensibly secular Western civilization, no less than ancient India, has its own concept of transcendence, defined as a liberation from the ritual system, a dynamic opposition that is calibrated differently in other social orders.74 To describe this general opposition, I would offer the phrase ‘spiritual economy’, which refers to the dialectical relationship between order and transcendence, or the norm and its transgression. This concept draws on Weber’s account of the tension between ‘charisma’ and ‘routinization’,75 as well as on his description of the various religions as so many salvation ethics or systems of disciplined conduct (‘asceticism’) oriented toward, and undertaken in the name of, some conceived transcendence (‘salvation’).76 The concept of spiritual economy also invokes older uses of the term specifically related to my theme, including Christian reinterpretations of the ‘Mosaick œconomy’77 or ‘Mosaic constitution’, beginning with Paul’s appropriation of the term ‘economy’ (oikonomia) to define the dynamic tension between grace (charis) and law (nomos).78 The concept of ‘spiritual economy’ is intended to replace the terms ‘religion’ and the ‘secular’, which, as has been recognized increasingly, may have outlived their usefulness. It is also intended to serve as a sociological model that may be more adequate than either differentiation theories of secularism, or theories of the Axial Age, while incorporating elements of each of these theories and remapping some of the terrain that they have covered.

73   That this is so is illustrated by the parallel trajectories whereby ‘religion’ has become increasingly freed from social constraints, at the same time that bureaucratic norms and techniques of economic rationalization have expanded exponentially. 74  In addition to Yelle, ‘Moses’ Veil’ and ‘Hindu Moses’, see Robert A. Yelle, ‘The Trouble with Transcendence: Carl Schmitt’s “Exception” as a Challenge for Religious Studies’, Method & Theory in the Study of Religion 22 (2010): 189–206. 75  Max Weber, Economy and Society, ed. Guenther Roth and Claus Wittich, 2 vols. (Berkeley: University of California Press, 1978), 1111–56. 76  Ibid., 529–76. 77   John Edwards, A Compleat History or Survey of All the Dispensations and Methods of Religion (London, 1699), 148. 78   Susan Buck-Morss, ‘Visual Empire’, Diacritics 37 (2007): 175–6. On the notion of an ‘economy’ in Christian theological tradition, see Giorgio Agamben, The Kingdom and the Glory: For a Theological Genealogy of Economy and Government, trans. Lorenzo Chiesa (Stanford: Stanford University Press, 2011).

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Conclusions This chapter has used theories and data drawn from the comparative sociology of religions to explore the meaning of secularism and freedom of religion. I have suggested that freedom of religion has often meant something far more radical than our contemporary notions of religious toleration, diversity or pluralism would suggest. In ancient India, early Christianity, and the early Reformation, freedom of religion meant an attack on the legal and economic dimensions of the ritual order. In none of these cases was the conflict initially between the ‘religious’ and the ‘secular’. It was instead between what we should regard as two very different modes of religion. The sacred/secular binary is, therefore, entirely inadequate as a structural description of these historical cases. Standard differentiation theories of the secular are incomplete and misleading. The notion of a spiritual economy, in which the strain toward transcendence exists in dynamic tension with the legal and political orders, affords a better description of not only a number of ‘Axial’ traditions, but also the secular itself, which has inherited and reconfigured certain oppositions and tendencies derived from earlier Christian movements toward transcendence. As comparative analysis suggests, it was only through a transcendence of existing norms, which continue to be preserved in a dialectical relationship or spiritual economy, that the space for something like what we call the secular was created.

Chapter 3

The Aesthetics of Religious Freedom Benjamin L. Berger1

The scope and nature of religious freedom is a matter of aesthetics. This is not to claim that all questions of religious establishment and religious liberty can be reduced solely to aesthetic considerations. Rather, this claim is intended to identify an under-examined and yet elemental component of what conditions and shapes religious freedom in contemporary liberal constitutional orders. The influence of aesthetics on religious freedom may not always be determinative, but it will never be absent. Yet the role of aesthetics in structuring both the doctrine and lived realities of the constitutional protection of religion in modern societies has gone without critical comment in the growing literature on secularism and religious freedom in the modern rule of law. The purpose of this piece is to explore the extent to which aesthetic commitments influence the manner in which religion is imagined and dealt with by the law. Religious diversity, multiculturalism, tolerance and accommodation are all subject, I will argue, to the force of law’s aesthetics. My claim is that institutional responses to religious difference are predicated on aesthetic reactions, reactions that will anchor the terms on which religious communities will either find acceptance within the legal order or will find themselves in seemingly intractable conflict with the law. To raise the issue of aesthetics is to gesture to a nest of possible topics. A substantial body of work has based its consideration of law and aesthetics in an understanding of aesthetics as the historical or philosophical study of the artistic or of judgements about the beautiful.2 Others concerned with law and aesthetics have considered the relationship between legal imagery and the authority of law.3 We are also currently faced with a number of questions involving the relationship between law and  Many thanks to Lori Beaman, John Borrows, Hamar Foster, Winnifred Sullivan and the participants in the Varieties of Religious Establishment workshop held at St Thomas University in Fredericton, New Brunswick, in November 2010, for their valuable comments on earlier versions of this chapter. Thank you also to Hannah Askew, Jessica Gagne, and Madison Robins for their outstanding research assistance. 2   Daniel J Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries (Gloucester: Peter Smith, 1973); Adam Geary, Law and Aesthetics (Oxford: Hart Publishing, 2001). 3   Costas Douzinas and Lynda Neal, Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago: University of Chicago Press, 1999); Costas Douzinas, Shaun McVeigh and Ronnie Warrington, ‘The Alta(e)rs of Law: The Judgement of Legal Aesthetics’, Theory, Culture & Society 9 (1992): 93. 1

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religion that seem to turn on aesthetics in this more conventional sense of ‘image’ or ‘representation’, including the French ban on ‘conspicuous religious symbols’ or the Canadian debate over the niqab and law’s desire to see the face of the witness. Although important and interesting, these analyses engage a very different and less basic sense of the aesthetic than this piece invokes. When one turns back to its etymological roots,4 the word ‘aesthetic’ refers to the basic elements of sense or perception. This is the meaning of aesthetics that Kant used in his discussion of the transcendental aesthetic in The Critique of Pure Reason,5 and it is this aspect of Kant’s thought that offers the conceptual vocabulary that frames this chapter. Kant argued that, In whatsoever mode, or by whatsoever means, our knowledge may relate to objects, it is at least quite clear, that the only manner in which it immediately relates to them, is by means of an intuition. To this as the indispensable groundwork, all thought points.6

Whatever conceptions or structures of thought might inform human reason and analysis, for Kant the starting point had to be the recognition that our sense of objects – phenomena – are given to us in the frame of intuitions. Certain of those intuitions, Kant argued, were empirical in nature, arising as they did from our engagement with specific objects in the world. But even these sensations must come to us arranged in some form, subject to some structure of reception. And so something in our minds must pre-exist our engagement with and sensations of a given object, something capable of giving form and order to these experiences of phenomena: And accordingly we find existing in the mind a priori, the pure form of sensuous intuitions in general, in which all the manifold content of the phenomenal world is arranged and viewed under certain relations. This pure form of sensibility I shall call pure intuition.7

As distinct from our empirical intuitions, which arise from our sensation of phenomena, pure intuition is that set of sensibilities that exist in advance of our perception of a given object, providing the basic framing of our reception of the world and, thereby, serving as what Kant called ‘principles of knowledge a priori’.8 All thought is grounded in these basic intuitions, and the study of these most basic intuitions Kant called ‘transcendental aesthetic’. The ‘aesthetic’, here, is that basic 4   Pierre Schlag makes a similar move in his piece, ‘The Aesthetics of American Law’, Harvard Law Review 115 (2002): 150. 5  Immanuel Kant, Critique of Pure Reason, trans. by J.M.D. Meiklejohn (New York: Dutton, 1934). 6  Ibid., 41. 7  Ibid., 42. 8  Ibid., 42.

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frame or architecture of thought and reflection, and Kant held that ‘there are two pure forms of sensuous intuition, as principles of knowledge a priori, namely, space and time’.9 For Kant, space and time – the essential aesthetic ingredients – are the conditions under which all of our intuitions take place. Although he gave Kant a cultural and symbolic turn, Ernst Cassirer nevertheless confirmed the aesthetic primacy of time and space, arguing that ‘[s]pace and time are the framework in which all reality is concerned. We cannot conceive any real thing except under the conditions of space and time’.10 Cassirer’s project was to develop a philosophy of human culture by exposing its ‘architectural structure’,11 and an exploration of the formative aesthetic categories of space and time would prove indispensable: ‘To describe and analyze the specific character which space and time assume in human experience is one of the most appealing and important tasks of an anthropological philosophy’.12 If we understand the constitutional rule of law as one way of encountering the world, as one system of symbols and meanings that comprise ‘a way of being in the world’13 – as, following Cassirer, a cultural form14 – then an analysis of the culture of law’s rule should explore its aesthetics of time and space.15 No exploration of the culture of law’s rule can dispense with an exploration of the shape of these basic frames for perception. In many respects one comes to the study of religion far more accepting of the claim that understanding a given religious culture will depend at some basic and indispensable level on wrestling with its framing intuitions about space and time. Yet as awkward as such questions might feel in the academic traditions of the study of law, they are no less central. And when one is specifically concerned with the cross-cultural encounter between the constitutional rule of law and diverse religious cultures,16 I suggest that these questions are particularly salient.  Ibid., 42.  Ernst Cassirer, An Essay on Man: An Introduction to a Philosophy of Human Culture (New Haven and London: Yale University Press, 1944), 42. 11  Ibid., 36. 12  Ibid., 42. 13   Paul W. Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago and London: University of Chicago Press, 1999), 36. 14   See also Benjamin L. Berger, ‘Law’s Religion: Rendering Culture’, Osgoode Hall Law Journal 45 (2007): 277; Desmond Manderson, Songs without Music: Aesthetic Dimensions of Law and Justice (Berkeley: University of California Press, 2000), 201: ‘Law is a cultural medium of expressive form, through which senses and symbols are combined, communicated, and interpreted’. 15   Paul Kahn has provided an account of law’s time and law’s space in The Cultural Study of Law. Many of his insights, particularly from the architectural components of his analysis (as opposed to his genealogy of law’s time and space), will inform this piece. The focus of this chapter, however, is on the implications of such conceptions for our understanding of religious freedom. 16   See Benjamin L. Berger, ‘The Cultural Limits of Legal Tolerance’, Canadian Journal of Law & Jurisprudence 21 (2008): 245. 9

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If intuitions frame our encounter with phenomena, and the basic form of intuition is the transcendental aesthetic, law’s encounter with religion and the resulting concepts and structures of thought about religious freedom will be conditioned by its basic intuitions – its unthought commitments – about time and space. Without at all diminishing the importance of the conventionally analysed sites of friction between law and religion – the particular demands of public reason, the hidden normative content of liberalism, the meaning of the ‘secular’, and so on – exploring the framing structures of legal thought and analysis seems essential to understanding the modern interaction between law and religion. In a volume fundamentally interested in the manner in which religion is understood in contemporary legal frameworks, this chapter asks about the role of law’s aesthetics in shaping religious freedom. Beneath the doctrine, subtending the jurisprudence, a priori assumptions about space and time have, I will argue, a formative impact on legal reactions to religious difference. Using Kant’s reflections on transcendental aesthetics as a touchstone for a piece that is centrally concerned with cultural and religious pluralism may be counterintuitive. His reflections on spatial and temporal intuitions were in service of identifying universal structures of human perception. To speak about varieties of framing intuitions about space and time operative in different cultural formations is perhaps, in this sense, in tension with Kant’s original project.17 His concept of the transcendental aesthetic nevertheless affords a uniquely convenient and illuminating vocabulary for exploring the framing intuitions that ground legal analysis; more than this, the hope is to draw out and exploit this very tension between the universalism of the original concept and the pluralist uses to which it is being put in this chapter, thereby methodologically underscoring another theme: that the close study of cultural and religious difference within the law frequently involves the realization that what we imagine to be universal, immutable, or natural is in fact surprisingly and challengingly plural. In what follows I will offer initial reflections about the peculiar intuitions or framing assumptions about space and then time that inform the culture of law’s rule, identifying ways in which each might have implications for the shape and nature of religious freedom and establishment. In each section I will offer examples drawn from the Canadian law on religious freedom that suggest the potency of these basic intuitions and, with it, the potential importance of a study of the aesthetics of religious freedom.

17  I am aware of elements in the philosophical literature on Kant that suggest a more pluralist reading of his ethics. See, for example, Thomas E. Hill, ‘Kantian Pluralism’, Ethics 102 (1992): 743, and Dermot Moran, ‘Hilary Putnam and Immanuel Kant: Two “Internal Realists”?’, Synthese 123 (2000): 83, in which Moran describes Hilary Putnam’s account of the ‘glimmerings of “conceptual relativity” and “pluralism”’ (83) in Kant’s ethical thought.

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Space and the Aesthetics of Religious Freedom They thought they could go back to find the same marked squirrels nesting in the walnut trees and that there would be some work to do, something useful and hard, and that they might please their own need to be doing. You know what they found. They found themselves standing in your yard awed by the gladiolus and the absence of something they knew. This had been free land, they said, but now it was yours who went in to call the law.18

The City of Outremont, a vibrant part of Montreal, is home to a large Orthodox Jewish population. On Shabbat, the weekly day of rest that is also the holiest day of the year, a piece of Rabbinic wisdom rings in the ears of Orthodox Jews – ‘The Jews did not preserve the Shabbas; the Shabbas preserved the Jews’. It is a day with deep temporal significance, marking off sacred time from the everyday business of the week, but the key admonition against work on Shabbat has profound implications for how Orthodox Jews move in the world. One can draw this sense of Shabbat being both a temporal and spatial event from the word used for observing Shabbat – one is shomer Shabbas. Shomer comes from the root ‘to guard’. One guards Shabbat. The home is the sacred space of Shabbat. The injunction against work includes a prohibition on carrying items outside one’s home. In a modern urban life, this prohibition poses certain serious limitations – one would be prevented from pushing a stroller, from carrying medication, or even from bringing keys outside the home in order to lock the door when one goes to synagogue on Shabbat or another Jewish holiday. The eruv has served as the solution to this halachic (legal) conundrum. The eruv is a barely visible wire erected in Jewish communities to extend symbolically the special space of the home across lanes and sidewalks, common areas and public spaces, turning them into a metaphorical extension of the home.19 The space bounded by the eruv is transformed into part of one’s home,   Philip Levine, ‘Possession’, Not This Pig: Poems (Middletown, Connecticut: Wesleyan University Press, 1968), 31. 19  For a description of the technical features of the eruv, see Roger Stump, Geography of Religion: Faith, Place, and Space (Maryland: Rowman & Littlefield Publishers, 2008), 3. 18

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allowing movement through the community on the holy days. The word eruv means ‘to mix or join’; the eruv mixes the home and the public, breaking down the distinction in service of sacrality and in recognition of the day of rest, a day that brings into each week the memory of the end of God’s creation of the world. The City of Outremont began dismantling the system of eruvin in 2000, objecting to their presence across city streets and public spaces. The City took these steps pursuant to its ‘duty to maintain the public domain accessible to all residents of Outremont on the same basis and without distinction’.20 One argument made by the parties supporting the removal of the eruvin was that ‘the erection of eruvin involuntarily place non-members of the Orthodox Jewish faith within what amounts to a religious enclave with which they do not wish to be associated’.21 To allow the eruvin ‘would inevitably create what amounts to an officially recognized religious territory’.22 A group of petitioners from the Jewish community sought relief from the Quebec Superior Court in 2001, claiming that the actions of the City interfered with their constitutionally protected right of religious freedom. The Court found that the City had a supervening public authority to regulate the erection of the eruv but that this should be done in a way that gave reasonable room for the members of the religious community to observe their private commitments. Some years before, also in Montreal, a number of Jewish members of a condominium association, the Syndicat Northcrest, erected a temporary booth, called a succah, for the eight-day festival of Succot. Jewish law and tradition requires that one eat meals and dwell as much as possible in the succah for the duration of this holiday. The very basic structures, covered with foliage but open enough that one can see the stars at night, are reminders of the fragile homes in which Israelites lived as they made that most crucial of territorial journeys over the span of 40 years, from slavery in Egypt, to their homes in Eretz Israel, the land of Israel. The succah is a compendious reminder of this journey, of the space of freedom, of the sacrality of home and of the promise of a homeland. A number of residents of the Syndicat Northcrest built their succahs on their balconies, considered common space under the condominium bylaws. These bylaws prohibited alterations to the external appearance of the building and the erection of structures in the communal spaces of the condominium. A negotiation between the Jewish residents and the building management ensued, with a compromise found for many of the residents: a single communal succah would be built on the grounds of the condominium. Certain of the residents could not agree to this, however, convinced as they were that each of them was under an obligation to have a personal succah and unsatisfied with a common succah that would require them to carry items through common space during the holiday in order to use this structure. Despite having signed the condominium bylaws when they purchased their units, Moïse Amselem and three other Jewish residents   Rosenberg v Outremont (City), [2001] RJQ 1556, QJ No 2858 (QL) at para 14.  Ibid., para. 18. 22  Ibid. 20 21

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insisted on the religious freedom to build their own succahs on their balconies. The case eventually found its way to the Supreme Court of Canada, where the Court held that, properly circumscribed, the applicants’ private religious beliefs could be accommodated within the regime of collective property rights.23 When such events come before the bar of the law, to what spatial aesthetic are they subject? The question matters because, as Kant and Cassirer suggest, space is one of those framing intuitions that conditions the manner in which a culture will receive and respond to phenomena. The developing critical geographical literature has similarly emphasized the role of spatial understandings and metaphors as foundational aspects of how both individuals and cultures interpret and understand their worlds and themselves.24 One can ‘see through’ spatial metaphors and territorial conceptions, understanding them ‘as implicating and being implicated in ways of thinking, acting, and being in the world – ways of world-making informed by beliefs, desires and culturally and historically contingent ways of knowing’.25 In this sense, these conceptions of space ‘are significant cultural artifacts of a rather special kind’.26 As Delaney writes, ‘[o]ne might go so far as to say that a cultural formation or social order is unintelligible without reference … to how it is territorially expressed’.27 As a particularly salient modern cultural formation, one should expect, then, to find the liberal rule of law informed by and expressed in a sense of space and territoriality. And as a component of the legal way of ‘worldmaking’, the imprint of this spatial logic will also be seen in the law’s treatment of religion and claims of religious freedom, an imprint that I am describing as one aspect of the aesthetics of religious freedom. ‘Morality’, Kahn writes, ‘may be without borders, but law’s rule begins only with the imagination of jurisdiction’.28 Jurisdiction is the guiding metaphor for law’s understanding of space, serving as the conceptual means of ‘mapping’ authorities within the legal world. As Valverde puts it, ‘the governance of legal governance is the work of jurisdiction’.29 Although the concept of ‘jurisdiction’ is not solely spatial – organizing, as it does, authority over objects, relationships, persons and topics – its function in organizing and interpreting territorial or spatial relations is what interests me here. Jurisdiction is ‘a way of speaking and   Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551.   David Delaney, Territory: A Short Introduction (Oxford: Blackwell, 2005). See also Nicholas Blomley, Law, Space and the Geographies of Power (New York: Guilford Press, 1994); Wesley Pue, ‘Wrestling with Law: (Geographical) Specificity V. (Legal) Abstraction’, Urban Geography 11 (1990): 566; Kai Raustiala, ‘The Geography of Justice’, Fordham Law Review 73 (2005): 2501. 25  Delaney, Territory, 12. 26  Ibid. 27  Ibid., 10. 28  Kahn, The Cultural Study of Law, 55. 29   Mariana Valverde, ‘Jurisdiction and Scale: Legal “Technicalities” as Resources for Theory’, Social & Legal Studies 18 (2009): 141. 23 24

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understanding the social world’,30 one that does so by charting the boundaries of the legitimate exercise of authority. The experience of the social space of the law is one of moving within multiple domains of authority. Space matters to the law precisely inasmuch as it is called upon to answer the question: ‘who has authority or jurisdiction here, and over what?’ Some articulations of this jurisdictional way of organizing space closely mirror the cartographic. National and international borders are emphatically and obviously a matter of territory and the reach of political authority. These borders are not just (or even principally) physical; rather, they are aspects of the legal imagination that make territory as much an ethical as a geographical matter. Cases concerning the extraterritorial reach of even our most fundamental legal principles – in Canada, the extraterritorial impact of the Charter31 – are such fraught questions precisely because the legal system is not solely a moral system, but also a jurisdictionally ordered social world. The same play of space and authority can be seen in Canada’s internal federal organization. The constitution (in all senses of the word) of the political community in Canada is based on the jurisdictional arrangement of competing legal authorities. The great spatial question of federalism is whether a matter is intra vires a province or a matter of federal regulation. Again, the lines on the political map of Canada are symbolic markers for the boundaries of legitimate authority. This is not to say that these lines aren’t real; it is, instead, to emphasize that, as Ford puts it, ‘they are constantly being made real’32 through the range of practices of authority that take place within the culture of law’s rule. Yet some the most influential aspects of the spatial intuitions of the law are not so literal, cartographic and largely writ. Indeed, as Delaney observes, ‘the microterritories of everyday life may be more significant – or at least more noticeable, than the macro-territories of global politics’33 and the legal imagination has much to say about these ‘micro-territories’. Like all other territorial imaginations, legal space ‘is as much a metaphysical phenomenon as a material one’,34 implicating basic ontological questions that help to constitute political and social relations within the culture of law. Perhaps the most potent example of this ontological and social work done by legal mappings of space is the law of property, one of the building blocks of Western legal culture. ‘Within the ongoing practice of law’s rule, any particular space appears first of all as property’.35 Property law is precisely the framing of space into competing authorities. It involves the legal parcelling of authority over space and objects in space. Whether one has a fee   Richard T. Ford, ‘Law’s Territory (a History of Jurisdiction)’, Michigan Law Review 97 (1999): 855. 31  See, for example, R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Canada (Justice) v. Khadr, [2008] 2 S.C.R. 125. 32   Ford, ‘Law’s Territory’, 856. 33  Delaney, Territory, 5. 34  Ibid. 35  Kahn, The Cultural Study of Law, 63. 30

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simple interest in land or merely a leasehold is a legal distinction about space that shapes one’s rights and entitlements within that sphere and, with this, one’s social relations with other subjects. To interpret and negotiate space through the legal idea of property involves internalizing a particular range of power relations and distinctive ways of imagining the subject’s relationship to the world and to other subjects; this is one respect in which the law does not merely act upon the world but ‘makes the world, helping to constitute the understandings and beliefs that make the world unfold this way, rather than that way’, providing ‘hegemonic categories through which social life is ordered’.36 As scholars of Indigenous legal traditions have suggested, cultural understandings of space that differ from those found in the Western legal tradition can engender very different social relations and political formations.37 The jurisdictions of everyday life created through the legal metaphysics of property are an important aspect of the way in which law, as a cultural formation, uses spatial and territorial conceptions to constitute a social and political world. Within the social and political world constituted by the spatial intuitions of legal culture, the division of the world into private and public domains is of utmost importance. This distinction is, of course, ‘[o]ne of the most consequential of categorical boundaries relating to the spatial order of property’,38 dividing the world into two spheres of ownership: public and private. Much ink has been spilled on the centrality of this division to the liberal rule of law and some of it has explored the way in which this manner of dividing up the world distorts or fails to reflect the experience of those subject to law’s rule. Yet law’s fealty to a manageable and real distinction between the private and public is deep, an artefact of the contemporary constitutional rule of law’s relationship to liberal political culture; as Blomley puts it, this distinction is ‘one of the crucial axes of liberal legalism’.39 The personal or private is protected space, the space in which interest and preference can guide conduct and, most crucially, the space over which the state has the weakest claim to authority. The public, by contrast, is the domain of state power and, concomitantly, governed by the demands of public reason over personal interest or preference. The influence of this ontological distinction is felt throughout the culture of law’s rule, shaping constitutional principles as much as it does property relations. One 36  Nicholas Blomley, ‘Flowers in the Bathtub: Boundary Crossings at the PublicPrivate Divide’, Geoforum 36 (2005): 282. 37   See, for example, Paul Nadasdy, ‘“Property” and Aboriginal Land Claims in the Canadian Subarctic: Some Theoretical Considerations’, American Anthropologist 104 (2002): 247; James (Sákéj) Youngblood Henderson, ‘Postcolonial Indigenous Legal Consciousness’, Indigenous Law Journal 1 (2002): 1; John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto; Buffalo: University of Toronto Press, 2002), esp. ch. 2, ‘Living Between Water and Rocks: The Environment, First Nations, and Democracy’, 29–55. 38   Blomley, ‘Flowers in the Bathtub’, 283. 39  Ibid., 283.

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need go no further than the law of search and seizure to find a pristine expression of this way of carving up space; the state has a claim of authority over that which is left in public space or available for public observation entirely distinct from the privacy enjoyed in one’s personal space – be it the hyper-private space of the body or the hallowed territory of the home.40 Even when it comes to the exercise of fundamental rights and freedoms, not all space is treated equally. The ambit of freedom of expression will differ vastly as between one’s home, a public school, a private school, a park, a legislature and an airport. These differences can all be traced to varying conceptions of the nature and locus of authority exercised in each of these spaces. Otherwise put, when the expressive event appears before the law, it appears subject to and within a preconception of space in which the salient and instinctive question is ‘who has what legitimate authority in this space?’ The accretion of these private/public distinctions does more than just formal legal work; it provides ‘a pervasive vocabulary through which the socio-spatial world is rendered intelligible’.41 The resulting complex maps of private and public spaces, and their political and social implications, are an important part of the ‘microterritories of everyday life’42 lived under the rule of law. The argument of this piece is that the peculiar spatial intuitions in the culture of the rule of law imprint on the management and analysis of issues of religious freedom. In this way it is possible to speak of a spatial aesthetics of religious freedom. In supporting this assertion, one temptation would be simply to invoke broad claims about the nature of space in religion and to show an inherent conflict between ‘religious ways’ of imagining space and what I have thus far described about the law. One might, for example, invoke Eliade and claim that, for religion, space is understood in terms of the sacred and the profane,43 a meaningful way of dividing up the world that is simply missed if law approaches space as a matter of jurisdictional authority. It is no doubt true that many religions will find the sacred/ profane division more true to their sense of movement through space. Where this is so, there might be a fundamental misunderstanding when law and religion meet on an issue that involves questions of space. Yet such sweeping claims on the religious side are not, ultimately, terribly edifying. My purpose is instead to suggest that the law of religious freedom has an aesthetic component peculiar to it that – quite apart from any particular doctrinal development or argument about the just in a given case – shapes the way in which such issues will be discussed and draws out particular terms as the salient terms for discussing freedom of religion. One

40  See, for example, R. v. Feeney, [1997] 2 S.C.R. 13, on the powers of the police to enter into a home; R. v. Patrick, [2009] 1 S.C.R. 579, on search, seizure and privacy rights on the borders between the home and public space. 41   Blomley, ‘Flowers in the Bathtub’, 284. 42  Delaney, Territory, 5. 43  Mircea Eliade, The Sacred and the Profane: The Nature of Religion (New York: Harcourt, Brace & World, Inc., 1959).

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ignores law’s intuitions about space and jurisdiction at one’s peril when advancing or analysing claims of religious freedom made within a liberal culture of law’s rule. Consider the cases explored at the outset of this section. The eruv was a problem for the law (and for the City of Outremont) because it sought to destabilize the border between the private space of the home and the space subject to public authority. In disrupting this border, the eruv challenged the liberal commitment to the privatization of religion, by evidencing a spilling-over of private religion into public spaces. In her assessment of debates about the eruv in one London neighborhood, Davina Cooper traces community hostility to the fact that the eruv ‘flaunted minority beliefs, practices and loyalties in a way that provocatively disregarded the liberal public/private divide’.44 In transgressing the private/public border, the eruv not only symbolically privatized public space, it ‘was seen … as also transgressing the divide by bringing inappropriate expressions of religious faith into the public domain’.45 The eruv ‘mixed’ or ‘joined’ the public and the private and, in this sense, was ‘an affront to ontological ordering principles’.46 Within the range of distinctive religious beliefs and practices within this community, the eruv became a contested site precisely because it came into conflict with the law’s orienting spatial intuitions. This is the aesthetics of religious freedom at play. Resolving the religious freedom question would require recognizing the impossibility of drawing lines between private and public, the realm of government authority and that of religious expression. The limit of a court’s ability to reconcile a religious practice within legal space is one boundary of religious freedom. Amselem, the case regarding the erection of a succah on a condominium balcony discussed above,47 displays a similar dynamic. Quite simply, the matter would not have been of constitutional or legal moment were it not for the transgression of law’s spatial aesthetics. Had Mr Amselem enjoyed a fee simple property interest in his balcony, the matter could not appear as a question of religious freedom – there would have been no legal issue because Mr Amselem’s religious expression would have conformed to the spatial categories imagined by the constitutional rule of law. As a purely private expression, there would be no issue of religious freedom. The fact that the balcony had a public – or at least, communal – quality is what lent the erection of the succah spatial relevance for the law, creating a constitutional issue. As with the eruv, the matter would turn on the Court’s ability to reconcile public (or ‘collective’) authority over this space with private interests; the case was ultimately about the management of spatial authority. The case of Chamberlain v. Surrey School District No. 3648 is a final example of the imprint of these spatial framings on matters of religious freedom. 44   Davina Cooper, Governing Out of Order: Space, Law and the Politics of Belonging (London and New York: Rivers Oram Press, 1998), 141. 45  Ibid., 130. 46   Blomley, ‘Flowers in the Bathtub’, 284. 47   Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551. 48   [2002] 4 S.C.R. 710.

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Chamberlain concerned a school board’s decision, based on religious objections of parents in the community, to prohibit the use of three books depicting same-sex parented families for use in a Kindergarten/Grade One curriculum. The Supreme Court of Canada quashed this decision on the ground that the School Board had failed to comply with the admonition in the legislation that all public schools be administered on ‘strictly secular and non-sectarian principles’.49 This decision can be fruitfully analysed as a case about the concept of the secular and the demands of public reason.50 Yet one might well understand the case in somewhat different terms: that prior to either of these questions, the issue engaged a spatial intuition suffusing the doctrines of religious freedom. Recall that Kant’s interest in the transcendental aesthetics arose from the proposition that, prior to the development of further conceptions and propositions about phenomena, we had to receive or perceive these phenomena in an organizing structure. Time and space were the constituent elements of this structure. How, then, were the events in Chamberlain received by the law? These phenomena appeared to the law within the grid of competing authorities that shape its spatial intuitions. At the core of the question of religious freedom raised by this case was the potent spatial fact that the events at issue were concerned with what happened in a public school. Had the books been suggested for use in a family’s home, it would not appear as a legal event. Had the books been banned for use in a religious school, the doctrinal shape of the questions asked about religious freedom would have been manifestly different. This spatial distinction might not have mattered one whit to the religiously motivated participants in the discussion. Indeed, the tensions and passions provoked by this case may well have been inflamed by the mismatch between the way in which space mattered for the law and its relevance – or lack thereof – for those arguing that the books ought to be banned. Yet the spatial reception of these events – the aesthetics of religious freedom – set the frame of relevance and the terms of debate for this case. Time and the Aesthetics of Religious Freedom Time present and time past Are both perhaps present in time future, And time future contained in time past. If all time is eternally present All time is unredeemable.51

  School Act, R.S.B.C. 1996, c. 412, s. 76.   See, for example, Berger, ‘Law’s Religion’. 51   T.S. Eliot, ‘Burnt Norton’, Four Quartets (San Diego: Harcourt Brace Jovanovich, 1971), 13. 49

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In 1763 the military hostilities between the British and French in what would later become Canada ceased with the signing of the Treaty of Paris. That treaty guaranteed the right of Roman Catholics in French Canada to carry on the practice of their religion. The Quebec Act of 1774, another crucial legal step in the development of the Canadian state, included similar provisions providing special protections and rights for the Roman Catholic Church. With Confederation in 1867, the modern Canadian state took form. The nation’s first constitution, the British North America Act, provided for the basic structures of government in Canada, defining the legislative, executive and judicial powers, and instituted the particular brand of Canadian federalism with the division of legislative authority between the federal government and the provinces. Also included in the BNA Act (which would later be renamed the Constitution Act, 1867) was section 93, a provision that gave authority to the provinces to legislate in respect of education. Yet this provision also carried forward the tradition of affording legally distinct status to religious education, reflecting the history of Protestant and Catholic minorities in French and English Canada, respectively, by protecting the rights and privileges of Protestant and Catholic minority schools. In the mid-1980s the Ontario government sought to introduce a Bill providing for full funding of Roman Catholic high schools in Ontario. Despite the recent introduction of the Charter of Rights and Freedoms, the Bill did not extend similar funding or protection to denominational schools of other traditions. The constitutionality of this bill was put to the courts and one of the questions posed was whether the privileging of Roman Catholic schools was consistent with Charter protections of freedom of religion, which also prohibited state endorsement of religion,52 and the equality of treatment on grounds of religion. In its judgement on the constitutionality of the schools bill, the Supreme Court of Canada discussed the nature and import of section 93 of the Constitution Act, 1867, describing it as ‘part of a solemn pact resulting from the bargaining which made Confederation possible’.53 The Court explained that, The protection of minority religious rights was a major preoccupation during the negotiations leading to Confederation because of the perceived danger of leaving the religious minorities in both Canada East and Canada West at the mercy of overwhelming majorities.54

In spite of the apparent conflict between such specific protection of a given religion’s educational interests over those of others, and the seeming awkwardness of holding this set of privileges together with the recently affirmed Charter commitment to the equal treatment of religious groups, Justice Wilson, writing for a majority of the Court, held that this privileging of Roman Catholic education   R. v. Big M. Drug Mart, [1985] 1 S.C.R. 295.   Reference Re Bill 30, [1987] 1 S.C.R. 1148 at 1173. 54  Ibid., 1173. 52 53

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was immune from Charter scrutiny. Section 93, ‘which represented a fundamental part of the Confederation compromise’55 was not subject to the claims of freedom of religion. This matter came back before the Supreme Court when a group of Jewish parents and a group of non-Catholic Christian parents sought a declaration that the failure to provide funding for Jewish and other Christian schools directly offended their section 15(1) equality rights and freedom of religion, guaranteed by section 2(a) of the Charter. Rather than seeking to declare the funding of Roman Catholic Schools in Ontario unconstitutional, these parents sought the expansion of the funding regime – equal funding of their schools, the litigants argued, would protect their religious freedom in the same manner as Roman Catholic education protected Catholicism in the Province. The majority of the Court confirmed that section 93 of the Constitution Act, 1867 served ‘to entrench constitutionally a special status for such classes of persons, granting them rights which are denied to others’.56 Yet when attention shifted to whether this offended the guarantee of freedom of religion, the Court again answered with an emphatic ‘no’. ‘Without this “solemn pact”, this “cardinal term” of Union, there would have been no Confederation’,57 Justice Iacobucci reasoned. ‘As a child born of historical exigency, section 93 does not represent a guarantee of fundamental freedoms’,58 but, rather, was ‘the product of an historical compromise which was a crucial step along the road leading to Confederation’.59 This status immunized it from the logic of freedom of religion; section 2(a) simply did not apply. While this case was being decided, Mr Arieh Hollis Waldman, the father of two Jewish children enrolled in a private day school in Ontario, brought a similar claim before the UN Human Rights Committee.60 He argued that Ontario’s policy of funding separate Roman Catholic Schools violated religious freedom and equality guarantees found in the International Covenant on Civil and Political Rights. The tribunal took account of the reasoning in the Bill C-30 case and the Adler decision, noting the special constitutional status of Roman Catholic education reflected in section 93 of the Constitution Act, 1867. Yet it reasoned that ‘the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective’:61 In the instant case, the distinction was made in 1867 to protect the Roman Catholics in Ontario. The material before the Committee does not show that  Ibid., 1197–8.   Adler v. Ontario, [1996] 3 S.C.R. 609, para. 25. 57  Ibid., para. 29. 58  Ibid., para. 30. 59  Ibid., para. 29. 60   Waldman v. Canada, HCROR, 76th Sess, Annex, Communication No 694/1996 (1996). 61  Ibid., para. 10.4. 55 56

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members of the Roman Catholic community or any identifiable section of that community are now in a disadvantaged position compared to those members of the Jewish Community that wish to secure the education of their children in religious schools. Accordingly, the Committee rejects the State party’s argument that the preferential treatment of Roman Catholic schools is nondiscriminatory because of its Constitutional obligation.62

The Human Rights Committee of the United Nations found Canada in violation of Article 26 of the International Covenant on Civil and Political Rights. Kant privileged time in his transcendental aesthetics, stating that ‘[i]n it alone is all reality of phenomena possible’.63 ‘Time’, wrote Kant, ‘is the formal condition a priori of all phenomena whatsoever’.64 If time is an a priori intuition that frames and gives form and order to all that is perceived, all sensation of or reflection on phenomena, can anything be said about the way in which distinctive framings of time condition the way that phenomena are understood and dealt with in the law? In particular, are there any ways in which such framings might shape the management of issues of religious freedom and the limits of legal tolerations? To identify such characteristics of time and temporality within the law would suggest another aspect of what we might call the aesthetics of religious freedom. In what follows I will describe certain potential features of this temporal aesthetic. One way that temporality may come to shape and structure issues of religious freedom is at points of substantial divergence between religious conceptions of time and secular legal understandings. To be sure, religion and the law may have fundamentally different framings of the relevance of time, a mismatch that can produce miscommunications that afflict the law of religious freedom. In those cases one sees very clearly the import of accounting for a tacit temporal aesthetic in the law of religious freedom. In such cases, the limits of religious accommodation may be traceable in certain instances to a basic aesthetic dissonance. Consider the case of A.(C). The case concerned an almost 15-year-old girl suffering from Crohn’s disease.65 Although her medical advice was that she was in life-saving need of a blood transfusion, as a devout Jehovah’s Witness, she had signed an advance directive expressing her wish not to have such transfusions. The Manitoba legislation presumed competence for those 16 years or older and provided that no medical procedure could be undertaken against these older children’s wishes unless this presumption was rebutted. A.C. was assessed, and all accepted that she was legally competent. She was, in essence, a mature minor. Yet as a child under the age of 16, the legislation vested the treatment decision in a judge who was to balance a range of factors, ultimately issuing the order that comported with the best interests of the child. A.C. challenged the legislation on the basis that,  Ibid.  Kant, Critique of Pure Reason, 48. 64  Ibid., 50. 65   A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181. 62 63

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as a competent minor who had expressed her wish to follow the dictates of her religion, the legislative scheme violated a number of her rights, including her right to freedom of religion. A majority of the Court held that the legislation was constitutionally valid but ruled that her religious views ought to be given weight in the analysis of what is ‘in the best interests of the child’ – the governing standard under the legislation. Justice Binnie, dissenting, would have found the legislation unconstitutional on the basis that, as a mature minor, she had the sole authority to make such decisions. Justice Binnie’s judgement is a model of perspicuity and modesty in the law of religious freedom, noting as he did that ‘[i]ndividuals who do not subscribe to the beliefs of Jehovah’s Witnesses find it difficult to understand their objection to the potentially lifesaving effects of a blood transfusion’.66 Nevertheless, he concluded as follows: The Charter is not just about the freedom to make what most members of society would regard as the wise and correct choice. If that were the case, the Charter would be superfluous. The Charter, A.C. argues, gives her the freedom – in this case religious freedom – to refuse forced medical treatment, even where her life or death hangs in the balance.67

Even with the greater constitutional margin that he affords for A.C.’s religious views, Justice Binnie’s decision discloses something important – indeed, indispensable – about the aesthetics of religious freedom. For both the majority and the dissent, the argument was about autonomy in the present and the impact of past authority. Despite their different conclusions, both decisions work within the temporal frame of the law, including the law of religious freedom. What is never on the table – what could never be on the table in matters of religious freedom – is the conception of time that actually framed A.C.’s experiences and her perception of her world. The eternal welfare of her soul was in the balance. Yet her eschatological aesthetic, that which informed the exercise of the autonomy that the Court fixed upon, could not be understood within the constitutional rule of law. Such sharp dissonances between religious and legal conceptions of time demonstrate one way in which religious freedom takes place within law’s aesthetic instincts. However, I want to explore a more subtle way in which the distinctive temporality of legal culture influences the shape of religious freedom and, indeed, the range of secularisms that one finds in various communities. Legal time – the time of the constitutional rule of law – is a compendious reception of all of those moments in the life of the community bound by law that might serve as authority for the present. Kahn identifies the ‘historicity of law’

 Ibid., para. 191.  Ibid., para. 163.

66 67

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as ‘its single most prominent feature’:68 ‘Law’s rule carries forward a past that makes a meaningful claim upon us’.69 The student of the common law will find this feature in the basic principle of stare decisis as the building block of the legal rule; the starting point for legal authority is fidelity to the past.70 As Kahn astutely observes, ‘[l]egal arguments do not begin by asking about “the best outcome, all things considered”. They begin from a commitment to the past’.71 This durable commitment to the past as the starting point for legal reasoning imprints itself on how law understands and interprets the social world. Constitutions express this relationship between time and the rule of law, with the formative documents and events that express both the is and the ought of a community at one point in history carrying forward to make claims upon us in the present.72 To the extent that it makes a meaningful claim upon us today, this past both communicates and constitutes political identity. The most striking feature of law’s time is its synchronicity. Like an individual’s life story, the historical narrative that frames law’s perception and reception of all events is the entirety of its past. ‘At any given moment, the law appears as the sum total of all that has been done and not yet undone’.73 The past remains present in its claims of legal authority, producing ‘a curious kind of temporal flatness in the relationship of legal tests and resources to each other’.74 This ‘temporal flatness’ inheres in the possibility that any legal event, any legal decision, may appear as influential in a given contemporary moment. As Martin Krygier observes, ‘the past of law … is not simply part of its history; it is an authoritative part of its present’.75 We don’t know at any given point whether the best or most relevant authority on the rule of law will be a case decided in 200776 or one decided in 1959.77 Neither is of greater or lesser authority. Except in the most Whiggish of views, the law is not on an arc of progressive discovery, nor  Kahn, The Cultural Study of Law, 43.  Ibid., 45. 70   For the centrality of tradition to the rule of law, see also Anthony Kronman, ‘Law as Precedent’, Yale Law Journal 99 (1990): 1029. 71  Kahn, The Cultural Study of Law, 43. See also Paul W. Kahn, The Reign of Law: Marbury v. Madison and the Construction of America (New Haven and London: Yale University Press, 1997), 19: ‘A critical element in our belief in the rule of law is that the future of the political order should be the same as its past. Law’s rule is an exercise in the maintenance of political meanings already achieved. It links the future to the past … To abandon the problem of interpretation of meanings already present in the legal order, and to ask only how we can best order the future, is to abandon the rule of law’. 72   See Hanna Fenichel Pitkin, ‘The Idea of a Constitution’, Journal of Legal Education 37 (1987): 167. 73  Kahn, The Cultural Study of Law, 43. 74  Ibid., 51. 75   Martin Krygier, ‘Law as Tradition’, Law and Philosophy 5 (1986): 245. 76   British Columbia (Attorney General) v. Christie, [2007] 1 S.C.R. 873. 77   Roncarelli v. Duplessis, [1959] S.C.R. 121. 68 69

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is it sequenced, with the past falling away into historical fact, making room for the authority of the present. This is what I mean by law’s time as a compendious reception of all of those moments in the life of the legal community that might serve as authority for the present. Seeing law’s time in this fashion raises an intriguing issue: can it be said that law possesses a sense of ‘history’? Considering the nature of history as a symbolic form in human life, Cassirer observes that, before it could be said that historical consciousness had truly taken up residence in human culture, myth was the prevailing view of time. ‘In myth’, Cassirer writes, ‘we find the first attempts to ascertain a chronological order of things and events, to give a cosmology and a genealogy of gods and men’.78 But he goes on to explain that this cosmology and genealogy is not properly ‘history’, and his explanation reflects provocatively on my description of law’s time. Cassirer distinguishes mythical time from historical time in that, in the former, ‘[t]he past, present, and future are still tied up together; they form an undifferentiated unity and an indiscriminate whole … From the point of view of the mythical consciousness the past has never passed away; it is always here and now’.79 Historical consciousness, by contrast, is diachronic; for the historian, ‘facts belong to the past and the past is gone forever’.80 In this light, law’s synchronic time appears to be a kind of mythical time, rather than a brand of historical time. The authoritative immanence of time past is part of a mythical vision in service of constructing a coherent national political story through law. Perhaps in this fact we find some explanation for the troubling ineptness evinced by law when forced to deal with redress for historical injustice and, poignantly in Canada, claims to Indigenous title. Despite professed attempts to take account of historical truth, the law always meets these compelling cases and claims in thrall to a mythic sense of time – the myth of the community as constituted by law – into which it awkwardly seeks to digest the facts of history. The US Supreme Court’s reasoning in an early nineteenth-century Indigenous land rights case is exemplary: However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.81  Cassirer, An Essay on Man, 173.  Ibid., 173. 80  Ibid., 174. 81   Johnson & Graham’s Lessee v. M’Intosh, 21 US (8 Wheat.) 543, 591, as cited in Eric Dannenmaier, ‘Beyond Indigenous Property Rights: Exploring the Emergence of a Distinctive Connection Doctrine’, Washington University Law Review 86 (2008): 53. Dannenmaier also points to the 1992 Australian High Court decision in Mabo v. 78 79

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Whatever we learn about promises made and broken in the political history of the country, the law is insistent on a story whose moral is its own legitimacy. The range of secularisms and varieties of religious establishment that one finds in modern Western traditions are constituted in part by the force of these mythic stories carried through the authority of law. With this tethering of authority and history, law’s time shapes the frame into which issues of religious and cultural difference are received, molding the sense of what is natural, possible or unthinkable as a matter of religious freedom. One sees the imprint of this approach to temporality very clearly in the religious education cases with which I began this section. Claims of religious freedom had to be disposed of within the mythic time of law, in which the purchase of a ‘solemn pact’ made in 1867, and its historical antecedents, was dispositive in a case heard in 1996, and despite the introduction of a Charter of Rights and Freedoms. The challenge to the Roman Catholic School funding scheme came to the courts already conditioned by the mythic time defining the Canadian community under its rule of law. The law of religious freedom could not be addressed outside of the frame of this temporal aesthetic, one in which the inter-religious compact reached in the eighteenth and nineteenth centuries had as much authoritative purchase as the claims of religious equality in the modern secular state. When the matter was freed from this temporal/mythic frame, when the matter was brought before the UN Committee on Human Rights – operating in its own mythic time – the analysis and result were both manifestly different. This is, perhaps, one way of understanding the claim that international law does not seem to be ‘law’ in a conventional sense. Law works by appealing to resources within the unfolding story of a particular community wrestling with justice issues over time. Still lacking a strong ‘us’ upon which past authority calls in a meaningful way, without a compendious mythical story of community, international law often seems to lack the authority of this feature of legal reasoning, appearing more aspirational than legal. In Waldman the past authorities were not present in the same way, present as part of a temporal identity, and so the Committee could state that ‘the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective’.82 True, but prior to the question of reasonableness and objectivity is the question of the aesthetics of religious freedom: the shaping of the boundaries of religious freedom in light of the history of a given community. There is an aesthetic intuition that informs religious freedom, imprinting on the varieties of religious establishment, of secularism and of doctrines of religious freedom.

Queensland, in which the tension between the facts of history and what must be assumed for the purposes of legal authority/sovereignty is clear on the face of the judgement. See also Kent McNeil, ‘The Vulnerability of Indigenous Land Rights in Australia and Canada’, Osgoode Hall Law Journal 42 (2004): 217. 82   Waldman v. Canada, HCROR, 76th Sess, Annex, Communication No 694/1996 (1996), at para. 10.4.

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Conclusion: The Indispensable Aesthetic Question I have explored the idea that time and space are two intuitions of the culture of law’s rule that sit at the foundation of the law of religious freedom. Appreciation for these aesthetic instincts is clearly not sufficient for understanding the legal response to deep religious difference. There is an important structure built on top of these and other basic and tacit commitments, a structure of concepts, doctrines, rules and provisions that combine to produce a textured law of religious freedom. But these frames, these aesthetic conditions, are never absent. Analysis of the variety of forms of secularism, of religious freedom and of religious establishment – or even reflection on a given claim of religious freedom – will be impoverished if regard is not given to these conditioning intuitions in the culture of law’s rule. While seeking to expose the temporal and spatial components underwriting law’s approach to religious freedom, I have gestured to ways in which these intuitive structures might be filled with different content in a variety of national contexts. Pursuing this line of inquiry may give traction to work exploring the range of ways that religious diversity and religious freedom appear in various societies around the world. With respect to the spatial, one can begin to see how, within the larger brush strokes that I have described, the local particulars of the way in which the complex map of authority is laid over legal space will affect doctrines of religious freedom. In Canada, I invoked the role of federalism as an important experience in this division of authority; this genealogy of spatial authority in Canada points to certain resources for thinking about managing conflicting claims of authority. The same is true of the Canadian experience of engagement with the Aboriginal peoples on this land, an experience in which competing sovereignties and the notion of treaty have played important roles. And so claims about managing religious diversity both drawing from and appealing to the spatial aesthetics of Canadian law begin to emerge. We might find federalist concepts, including the hyper-legal concept of jurisdiction, offered as a resource for managing religious difference,83 or a concept of treaty constitutionalism developed as an approach to speaking justly about cultural difference.84 Temporally, one might intuit a difference between revolutionary and evolutionary cultures of the constitutional rule of law. As Kahn shows in his work, the moment of revolution – the resetting of the legal time frame to begin again – has a profound impact on the content of law’s mythic time, even its basic structure. As we use genealogy to fill this structure, we see how a similarly revolutionary constitution in which that moment of fissure had religious dimensions will set the  Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights (Cambridge: Cambridge University Press, 2001). 84   James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995). 83

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‘downstream’ terms of religious freedom, as they have in France. The evolutionary constitutional culture in Canada brings a host of compacts and compromises forward to shape religious freedom and religious establishment quite differently. It is only with sensitivity to the basic temporal aesthetic of law’s rule – with the particular hold that the community’s mythic past has on what is just and right today – that the source and durability of these differences comes into clear view. When we ask what shape religious diversity under the rule of law will take in various societies, or when we ask about how a given claim of religious freedom will be perceived and received in a given polity, it will never be enough to gesture broadly to the aesthetic foundations of law’s rule. The inquiry will always have to be more specific, more fine-grained. If, however, one takes law to be a cultural form, one way of seeing and making sense of the world, then attention to these broad and basic facets of legal perception will never be dispensable. To ask about the varieties of religious establishment – indeed, to wonder about the possibilities open to us for responding to religious diversity through the law – requires first recognizing, and then wrestling with, the temporal and spatial aesthetics of religious freedom.

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Chapter 4

Varieties of Native Hawaiian Establishment: Recognized Voices, Routinized Charisma and Church Desecration Greg Johnson State of Establishment Hawai`i is a state of establishment. One cannot avoid the organs and limbs of the State even when – perhaps especially when – considering contemporary Native Hawaiian cultural and religious life.1 This is not to say that the State is particularly well designed, intentional, self-conscious or consistent. It is only to observe that the State is unavoidable and that forms of religious life are mediated by engagement with it, albeit in a range of ways. My aim in this chapter is to explore some religious consequences of this omnipresent state. Inspired by Lori Beaman and others, I will take an approach that considers ‘establishment’ issues in a broad sense.2 While some contributors to this volume take up establishment questions in a narrower legal and constitutional sense, my attention will be to the more general question of how the State regulates or shapes Indigenous religion in Hawai`i, whether by design, happenstance or negligence. By regulation I do not mean to imply only obvious acts of deliberate agency by the State; my aim is to explore the rippling regulatory effects of the State on religious expression. Laws, policies, funding apparatuses, educational programs and so forth establish religion in a range of ways, some more easily detected than others. In my framing of the issues, ‘establishment’ takes hold when  In this chapter I follow the convention of using the terms ‘Hawaiian’ and ‘Native Hawaiian’ as synonymous cultural labels designating people who maintain claims of genealogical connection to ancestors who inhabited the islands prior to the arrival of Captain Cook in 1778. A narrower category is ‘native Hawaiian’, which refers those Hawaiians with 50 per cent or higher blood relationship to pre-contact Hawaiian lineages. This category stems from the Hawaiian Homes Commission Act of 1921. On this act and Hawaiian blood politics in general, see J. Kēhaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Durham and London: Duke University Press, 2008). On contemporary Hawaiian identity and the politics of naming, also see Ty Kāwika Tengan, Native Men Remade: Gender and Nation in Contemporary Hawai`i (Durham and London: Duke University Press, 2008). 2   See, for example, Lori Beaman, ‘Beyond Establishment’, The Immanent Frame. http://blogs.ssrc.org/tif/2012/04/27/beyond-establishment/ (accessed 27 July 2012). 1

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the state shapes in some respect, however apparently minimal, the trajectory and expression of religious life.3 Recalibrating analysis of ‘establishment’ in this manner risks the possibility of losing track of our subject. In recognition of this, my analysis proceeds by way of three heuristic frameworks, each describing a specific modality of the establishment of Native Hawaiian traditions by the State: statutory establishment, structural establishment and naturalized establishment. Statutory establishment refers to specific legal mechanisms that enfranchise and constrict Native Hawaiian religious voices and evidence as, for example, in the context of the State’s burial law. Structural establishment identifies the way the State explicitly incorporates Hawaiian people and voices through employment in its manifold entities, which include the Office of Hawaiian Affairs, the Department of Hawaiian Home Lands and various educational institutions, including the University of Hawai`i. Naturalized establishment is a category signalling status quo establishment and its particular capacity to seem natural, self-evident and otherwise beyond common sense critique. In the US context, this last is the form of establishment that mainline Christian churches have long enjoyed, enabling them to receive public funding in various contexts and to enjoy privileged locations, for example within national parks. In Hawai`i, naturalized establishment of this sort extends to Native Hawaiians, at least to those who are included in the membership and leadership of certain historic churches. In what follows I will further define and provide examples of each of the three kinds of establishment outlined above. I will then turn to a contemporary dispute that illustrates these forms of establishment in their intersection, a burial disturbance controversy at Kawaiaha`o Church in downtown Honolulu. This dispute is unsettled and unsettling: as of mid-August, 2012, more than 570 individuals have been disinterred in the process of a Church construction project that began in 2009. For our purposes, the Kawaiaha`o crisis provides a revealing view of the relative capacities and shortcomings of the forms of establishment we will be considering. Furthermore, this particular case is telling for the way it bespeaks the kinds of allegiances and betrayals that emerge between various forms of establishment in moments of crisis. I will argue that such moments illustrate the fragility of certain statutory establishments, show how structural establishment can be neutralized when the charisma of its representatives is routinized or otherwise  In practice, the majority of Hawaiians I work with in repatriation and burial protection contexts assert – in line with their long-sedimented tradition – that Hawaiian cultural life is always already religious, insofar as the very fundaments of life (for example, breath, subsistence foods and the ancestors) are understood to be potentially endowed with mana and, ideally, deserve engagement by way of ritual protocol. Analytically, I follow this position, regarding Hawaiian cultural articulations and actions to be generally religious in nature (insofar as they rest on worldviews that presume non-human actors and forces that are non-falsifiable by Western, ‘secular’ means). While culturally and analytically consistent, such a collapsing of religion into culture bedevils law, of course. 3

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compromised by political turmoil and demonstrate how naturalized establishment enables some institutions to wax bellicose and commit outrageous acts without provoking wide-spread challenge. The Kawaiaha`o Church conflict brings into focus two key issues concerning the ‘establishment’ of Hawaiian religion. First, it foregrounds a central and persistent feature of Hawaiian religious life: care for ancestral burials. This is understood by many Hawaiians, past and present, as a core kuleana (responsibility) and the mechanism by which life itself – natural and cultural – is renewed and made pono (good, righteous).4 Second, the dispute draws attention to the effects of colonial history on the shape and expression of Indigenous religious sensibilities, which opens up a range of questions. How has a history of Christianization reconfigured Hawaiian concerns with mālama nā iwi (caring for the bones)? With reference to current Church and Court representations of the situation, what are the implications of attaching singular identities (for example ‘Christian’) to burials, as if they were material proxies for rather exclusive and exclusionary theological propositions? Might contemporary Native Hawaiian religious practitioners wish to minister to the remains of their ancestors and keep the bones from harm, regardless of the ancestors’ church affiliations and place of burial? Are the Church and State interfering with this religious dynamic? Is it possible that the various forms of establishment of Hawaiian religion by the State have resulted, vertiginously, in the silencing of central Hawaiian religious concerns? Is this dispute indicative of a larger crisis in the administration of Hawaiian burial law and, further, might it shed light on potential tensions and paradoxes in other contemporary attempts to protect Indigenous religions and cultures in a not-yet-post-colonial world? Historical Context Before turning to the three modes of establishment outlined above, I provide some context regarding Hawaiian cultural politics. For those unfamiliar with Hawaiian history, it often comes as a surprise that Hawai`i was ‘discovered’ by the West only in the late eighteenth century, when Captain James Cook sailed into Hawaiian waters in January of 1778.5 The subsequent 40 years were a turbulent, fascinating time in which Kamehameha came to power and united the islands, making use of European and American technology and people, incorporating Western weapons, for example, into his already formidable arsenal. Kamehameha was less open to Western forms of religion, remaining a steadfast adherent to the traditional  See, for example, Samuel Kamakau, Ka Po`e Kahiko: The People of Old, trans. Mary Kawena Pukui, ed. by Dorothy Barrère (Honolulu: Bishop Museum Press, 1964), 38–43. 5   For a classic anthropological account of Cook’s fateful voyages to Hawai`i, see Marshall Sahlins, Islands of History (Chicago and London: University of Chicago Press, 1985). 4

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Hawaiian akua (deities) and to the `aikapu, a ritual system that structured much of Hawaiian culture, including gender and class relationships.6 After Kamehameha’s death in 1819, the landscape of Hawaiian religion shifted dramatically. That same year several leading ali`i (royalty, elite), many of them directly related to Kamehameha, effectively ended the `aikapu system through a public display of male and female feasting. Some scholars and popular historians have overstated the significance of this ‘abandonment’, but it is true that many previous religious practices, especially visible celebrations of the primary akua, went unpracticed or underground after this time.7 However, family-based ritual life persisted, especially in the form of caring for the ancestors and their physical remains, a feature of Hawaiian religious life that remains robust to the present.8 This radical realignment of Hawaiian religious life was quickly followed by another defining event, the arrival of Protestant missionaries in 1820. The missionaries expeditiously converted many powerful ali`i to Christianity. By the 1830s, missionary pressures reconfigured much of Hawaiian life, from dress habits to the shape of the family and mortuary practices.9 Continued external pressures were brought to bear on Hawaiian religion, especially as thousands of Hawaiians were dispossessed of their land during the Mahele era of the mid-1800s and the subsequent emergence of macro-scale plantation farming.10 The second half of the nineteenth century saw an increasing influence of non-Natives in the Kingdom of Hawai`i government and thousands more Hawaiians alienated from their lands. In 1893 Queen Lili`uokalani was deposed, ending the Hawaiian monarchy. Territorial status, militarization, tourism-based economies and statehood soon followed.11 By the late 1950s the classic colonial irony had been realized: Hawaiians were enfranchised by the United States, but disenfranchised from government protection of their sacred places, burial sites and fragile resource base.

 On Hawaiian religion at the time of Kamehameha, see Valerio Valeri, Kingship and Sacrifice: Ritual and Society in Ancient Hawaii, trans. Paula Wissing (Chicago and London: University of Chicago Press, 1985). 7  On the cultural significance of the `aikapu and its abandonment, see Lilikalā Kame`eleihiwa, Native Land and Foreign Desires: Pehea Lā E Pono Ai? (Honolulu: Bishop Museum Press, 1992), 67–94. 8  For a sustained account of contemporary Hawaiian care for ancestors, see Greg Johnson, ‘Social Lives of the Dead: Contestation and Continuities in the Hawaiian Repatriation Context’, in Culture and Belonging in Divided Societies: Contestation and Symbolic Landscapes, ed. Marc Ross (Philadelphia: University of Pennsylvania Press, 2009), 45–67. 9  Sally Engle Merry, Colonizing Hawai`i: The Cultural Power of Law (Princeton: Princeton University Press, 2000). 10   Jonathan Osorio, Dismembering Lāhui: A History of the Hawaiian Nation to 1887 (Honolulu: University of Hawai`i Press, 2002). 11  Gavan Daws, Shoal of Time: A History of the Hawaiian Islands (Honolulu: University of Hawai`i Press, 1968). 6

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In the 1960s, cultural and political sensibilities shifted, and Native Hawaiians began to demand recognition and protection of religious and cultural resources and practices. The Hawaiian renaissance was in full flower by the 1970s. Its primary expressions at that time included revived open ocean sailing, revitalized traditional forms of hula, and a very visible and contentious movement to reclaim the island of Kaho`olawe from the US military, which had been using it as a bombing range.12 In this context of cultural resurgence, the State began to shift its engagement with Native Hawaiians and Hawaiian culture. In 1978, the year the federal American Indian Religious Freedom Act was passed, the State of Hawai`i amended its Constitution to address Hawaiian cultural rights, declaring that State agencies are ‘required under the Hawai`i Constitution to preserve and protect customary and traditional practices of native Hawaiians’, and created various state institutions to safeguard and promote Native Hawaiian wellbeing, including the Office of Hawaiian Affairs.13 In the late 1980s a large-scale burial disturbance at Honokahua on the island of Maui provoked revisions of the State burial law (HRS 6E-43), which resulted in the creation of island burial councils, about which I will say more below.14 Native Hawaiians also gained a place in the federal burial protection and repatriation law, the Native American Graves Protection and Repatriation Act of 1990. In 1993, the 100th anniversary of Lili`uokalani’s dethroning, President Bill Clinton signed the Hawaiian Apology Bill, which lent additional federal recognition to Hawaiian causes, though it offered little in terms of concrete mechanisms for effecting real change. Also in the 1990s, the Public Access Shoreline Hawaiˋi decisions ensured Native Hawaiian access to ‘under-developed’ properties and to shoreline for traditional practices.15 By the late 1990s efforts were made to amend Hawai`i’s environmental protections laws, adding a provision mandating that cultural impact assessments be included with environmental impact statements, stipulating that traditional Hawaiian authorities be consulted and creating an institutional mechanism by which Native Hawaiian cultural experts may become credentialed by the State for this purpose.16 The period from the early 1990s to the present has witnessed the playing out of many of these changes, with burials in particular receiving – until very recently 12  See, for example, Ben Finney, Sailing in the Wake of the Ancestors: Reviving Polynesian Voyaging (Honolulu: Bishop Museum Press, 2003); Mansel Blackford, ‘Environmental Justice, Native Rights, Tourism, and Opposition to Military Control: The Case of Kaho`olawe’, The Journal of American History 91 (2004): 544–71. 13   Hawai`i State Constitution, revised. Article XII, section 5. See Hawaii.gov/lrb/con/. 14   Dana Naone Hall, ‘Sovereign Ground’, in The Value of Hawai`i: Knowing the Past, Shaping the Future, eds Craig Howes and Jon Osorio (Honolulu: The University of Hawai`i Press, 2010), 195–200. 15   Public Access Shoreline Hawaii v. Hawai`i County Planning Commission, 79 Hawai`i 425, 449, 903 P.2d 1246, 1270 (1995). 16   HRS 343.

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– more protection than at any time since the arrival of the missionaries. It has also been a time of challenges to Hawaiian cultural and political gains. For example, the Native-only policy for board members of the Office of Hawaiian Affairs was successfully challenged in the US Supreme Court in 2000.17 Responding to this ruling, some Hawaiians began to push for federal recognition on the model of American Indian tribes. To this end, Senator Akaka sponsored various iterations of the Native Hawaiian Government Reorganization Act, none of which have made it through Congress. Now the Office of Hawaiian Affairs is taking another approach, promoting a Native Hawaiian Roll Commission as a first step in the direction of reformulating Hawaiian self-governance.18 Whatever the outcome of these processes, at present Native Hawaiian religious life is ‘established’ in a range of ways, especially when viewed in contrast to the situation 50 years ago. Let us explore this landscape in terms of the categories of establishment I have set out. Modes of Establishment However much the First Amendment may appear to place limits on naturalized establishment, even a modestly critical reading of US religious history reveals a different story. As is well known, Christian institutions and ideas, especially those that constitute and hew close to the normative morality of the majority, have enjoyed any number of protections, even celebrations – on coins, in courtrooms and on state seals, for example. Beyond surface expressions such as these, a signal trait of naturalized establishment is the assertion of church authority vis-à-vis laws and rules of general applicability, a trend that has recently received Supreme Court support in Hosanna-Tabor v. EEOC.19 The fact that church authority is regularly and readily naturalized and cemented in our erstwhile secular society is ample reason to interrogate this category further. This phenomenon may be instructively analysed as ‘myth’ in Roland Barthes’ sense.20 Myth in this usage is discourse that reframes contingent and historical matters as timelessly true, as the state of nature. The quintessence of any form of  See Rice v. Cayetano 528 US 495 (2000).   Treena Shapiro, ‘Commission Gets Registry Rolling’, Ka Wai Ola, 29 (2012): 5. 19   See, for example, Peter Danchin, ‘Hosanna-Tabor in the religious freedom Panopticon’, The Immanent Frame, http://blogs.ssrc.org/tif/2012/03/06/hosanna-tabor-in-the-religiousfreedom-panopticon/ (accessed 4 August 2012); Winnifred Fallers Sullivan, ‘The Church’, The Immanent Frame, http://blogs.ssrc.org/tif/2012/01/31/the-church/ (accessed 4 August 2012). 20  Roland Barthes, Mythologies, trans. Annette Lavers (New York: Hill and Wang, 1957 [1972]). See also Bruce Lincoln, Discourse and the Construction of Society: Comparative Studies of Myth, Ritual, and Classification (New York and Oxford: Oxford University Press, 1989). 17 18

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naturalizing discourse and practice is to appear as a matter of fact, to appear as ‘the way it is’. To state this in the inverse, it is precisely the magic of naturalizing discourses to disappear from view, to fail to generate commentary, to become so ingrained in perception as to never stand out. When viewed against the backdrop of the Constitution, and the Establishment Clause in particular, the existence and prevalence of naturalized establishment is perhaps best understood as a form of cognitive dissonance writ large. This general state of affairs of Christian establishment in the US has a long history in Hawai`i. Naturalized establishment provided the only significant protection of Native Hawaiian religious life through much of the period from the 1820s to the 1970s. To enjoy the protection offered by naturalized establishment, Hawaiians had to convert to Christianity, in particular to churches of the New England elites who controlled colonial realities. When missionaries arrived in Hawai`i, they did not hold back from insinuating themselves into the rapidly changing world of Hawaiian politics.21 Missionary families quickly emerged as the haole (non-Native) elite and soon controlled much of the economic life of the islands, including trade networks and plantation farming. They also worked their way into Hawaiian ali`i families and into government positions. By these means, the favoured churches of the haole elite became central to the social and political lives of Hawai`i overall. Coronations, royal weddings and funerals and other such events frequently took place at prominent churches. Foremost of these was and is Kawaiaha`o Church (United Church of Christ) in downtown Honolulu. Founded by the first wave of Congregationalist missionaries to Hawai`i in the 1820s, Kawaiaha`o Church eventually became the national church of the Kingdom of Hawai`i. The Church has maintained its celebrated status over time, if not the size of its congregation (now fewer than 150), and today is a US National Historical Landmark. To gain a sense of its status and self-conception, consider language from the Church’s website: ‘On July 21, 1842, 5,000 worshippers, led by Kamehameha III, gathered to dedicate this “Great Stone Church”. It became known as the “Westminster Abbey of the Pacific”, and during the days of the monarchy, it was called “The Church of the Ali‘i”. Today it is often referred to as “The State Church of Hawai‘i”’.22 The infrastructure of the Kingdom of Hawai`i grew up around the Church. For example, `Iolani Palace, the seat of the Hawaiian monarchy in the late nineteenth century, was built on an adjacent lot across King Street. The pattern has continued: today Kawaiaha`o Church is surrounded by city, state and federal buildings in the heart of the Capitol District. City Hall is immediately across from the Church, and many of the key offices of the State of Hawai`i are adjacent, including the offices of the Department of Land and Natural Resources, under which the State Historic Preservation Division operates. No other church in Hawai`i is similarly established, geo-politically speaking.  Sally Merry, Colonizing Hawai`i, 63–86.   Kawaiaha`o Church website, http://www.kawaiahao.org/ (accessed 15 October 2012).

21 22

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Also notable is the fact that Kawaiaha`o is led by a Native Hawaiian minister, has a significant Native Hawaiian membership and conducts some services and portions of services in Hawaiian. Thus the twists of colonial history yield an interesting result: one visible locus of contemporary Native Hawaiian religious life is a firmly ‘establishment’ church. Of course, one could respond that, because Kawaiaha`o Church is Christian, the religious lives of members of the Church cannot be described as Native Hawaiian. It is indeed the case that the Church leadership asserts its Christian bona fides in exclusion of Hawaiian spirituality when provoked,23 and it is also the case that this view of Kawaiaha`o congregants – alive and dead – as Christian in exclusion of Native Hawaiian aspects of their identities and sensibilities has recently been asserted by First Circuit Court judge Karl Sakamoto, as I describe below.24 Nonetheless, histories of Native Christianities illustrate that demarking such a clean dividing line between modes of religiosity – wherein church membership and coffin burials, for example, are taken to be sufficient grounds for indexing religious lives – denies the complexities of history and culture, not to mention their intersection. The effects of colonization were so profound in Hawai`i as to cause many subsequent Native cultural expressions to be articulated in a Christian idiom; at the same time, Hawaiian cultural sensibilities, comportment and ways of being remained so distinctive as to subject received Christianities to new a grammar, with novel conjugations and configurations. Thus to presume to tease apart ‘Hawaiian’ and ‘Christian’ identities – from the 1820s to the present – is historically misguided and analytically bereft. My point is not that modern Hawaiians have failed to establish clear identities; it is to insist that students of Hawaiian culture need not commit the error of the court in postulating a theory of culture that is rooted in discourses of authenticity and the value judgements such a position demands and produces.25 Structural establishment, as I mean it, refers to the fact that many culturally engaged and traditionally oriented Hawaiians are employed by the State of Hawai`i in a range of capacities. Hawaiian cultural life is in a better place than it was in the mid-twentieth century in part due to State employees advocating for culturally sensitive programs. This trend has continued – with multiple trajectories and implications, of course – and the visibility of Native Hawaiians in important governmental roles has increased in recent years. Currently Native Hawaiians head numerous key agencies, including the Department of Land and Natural Resources,   See, for example, Jon Conrow, ‘Cultural Grounds: Uncertain Future for Remains at Kawaiaha`o Church’, Honolulu Weekly, http://honoluluweekly.com/feature/2011/01/ cultural-grounds/ (accessed 10 April 2012). 24   Dana Naone Hall vs. Department of Land and Natural Resources et al. (State of Hawai`i First Circuit, Civil No. 09-1-1828-08), §21–4. 25  For a longer discussion of discourses of authenticity in the study of Hawaiian traditions, see Greg Johnson, ‘Authenticity, Invention, Articulation: Theorizing Contemporary Hawaiian Traditions from the Outside’, Method & Theory in the Study of Religion 20 (2008): 243–58. 23

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the State Historic Preservation Division and the Department of Hawaiian Home Lands. The Office of Hawaiian Affairs, which has a mandate to improve Native Hawaiian health, economic wellbeing and cultural standing generally, employs numerous highly credentialled Hawaiians in a range of capacities.26 Crucially, the University of Hawai`i has become a central site of Hawaiian cultural life in recent decades. At the Manoa campus, for example, the Kamakakuokalani Center for Hawaiian Studies and the Hawai`inuiakea School of Hawaiian Knowledge have numerous Hawaiian faculty and attract a robust Hawaiian student population. Few if any of the practices by Hawaiians in these positions run afoul of the Establishment Clause in a strict sense, though some have interesting duties that might provoke attention depending on the auditor. For example, one duty of the State Historic Preservation Division support staff of each county is to arrange for an opening prayer for its respective monthly burial council meeting. The prayer offering is typically made by a Hawaiian member of the council, which may constitute an establishment violation in a strict sense, especially in view of the power dynamics in play. Namely, such prayers establish the authority of, and demand at least superficial deference to the person giving the prayer and to his or her statements. The content of the prayers is usually religious in the basic sense that deities and spirits – whether Hawaiian, Christian, or both – are named and beseeched. The prayers are often in Hawaiian, though they do occasionally take place in English.27 Other examples of narrow establishment issues include certain activities of cultural experts at the Office of Hawaiian Affairs, who oversee rituals of various sorts on occasion and who occasionally offer religiously based testimony in legal proceedings concerning land access and repatriation. While the specific job duties of some State employees are intriguing for various reasons, my primary interest here has to do with the net effect of such a critical mass of cultural experts in the employ of the government. Sometimes it appears that these voices are enhanced and gain a broader audience than they would if uttered in unofficial contexts. I am increasingly persuaded, however, that these voices are sometimes diminished by State employment. There is no evidence to suggest that this is a result of explicit strong-arm tactics on the part of the State or interest groups. I suspect it has more to do with a fear of surveillance and concomitant neutralizing effects on radical speech and action. These government jobs come with considerable benefits and the promise of a safe retirement, but they also require employees to weather changes in political administrations and to calibrate their voices to this end. Of course the fact that persons are ethnically Native Hawaiian does not mean they are culturally informed or invested. And surely it has happened that some Hawaiians have been appointed to government positions precisely because those appointing them believe that they will be politically docile. I don’t focus on this group of government employees; rather, my interest is drawn to the incongruity  Office of Hawaiian Affairs, http://www.OHA.org (accessed 15 October 2012).  It is worth noting that Review Committee meetings in the context of the federal Native American Graves Protection and Repatriation Act entail similar dynamics. 26 27

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manifested when state-employed Hawaiians known for their cultural credentials do not exercise their voices in moments of intense cultural crisis, including in the Kawaiaha`o Church dispute I describe below. I have come to think of this situation as manifesting a macro-order routinization of charisma. Max Weber wrote of prophets not administrators, of course, but the dynamics at play are nonetheless similar: passionate voices tamed and subdued through the dailiness of bureaucratic realities.28 In a case of colonial vertigo, the more embedded in the State Hawaiians become, the less visible they appear.29 One could hope, of course, for structural change from the inside – that Hawaiians in the employ of the State are biding their time, waiting for the right moment to issue a manifesto. But some Hawaiians outside the walls of the State are starting to worry. Where are the voices? Who will hear theirs? Statutory establishment in my usage refers to the ways various state and federal laws make specific room for cultural and religious voices, usually in the context of consultation, but occasionally as evidence. Statutory establishment of Native Hawaiian religion is a limited affair, to be sure. Nonetheless, Native Hawaiian religious voices have been statutorily established in a few important ways over the past several decades. Two particular instances of this stand out. As noted above, one is the establishment of a process for the State to certify ‘cultural experts’ for the purpose of the cultural assessment component of environmental impact statements.30 In Hawai`i, as in many cultures, to be a cultural expert is to command religious knowledge and practice, or at least to purport to do so. Thus the State lending its authority to the certification of de facto religious experts is fraught with potential constitutional implications.31 The other clear example of statutory establishment is found in the State’s burial law and related rules and regulations.32 The burial law enfranchises Native Hawaiian religion in three basic ways. Two of these are forms of standing (lineal descent and cultural descent) which mirror mechanisms found in the federal Native American Graves Protection and Repatriation Act; as with the federal law, standing under these categories can be established in a range of ways, some of which include claims that are non-falsifiable by Western means of judging evidence, such as  Max Weber, Sociology of Religion, trans. Ephraim Fischoff (Boston: Beacon Press, 1963), 60. 29  For a related analysis, but with particular attention to resistant voices, see Greg Johnson, ‘Bone Deep Indigeneity: Theorizing Hawaiian Care for the Broken State’, in Performing Indigeneity, eds Laura Graham and H. Glenn Penny (Lincoln and London: University of Nebraska Press, forthcoming). 30  I am indebted to Isaac Hall for directing my attention to this point. See HRS 343. 31   A long-time critic of the Hawaiian movement is registered as a state-certified cultural expert, which suggests that this particular mechanism has been challenged externally. Within the Hawaiian community, registered cultural experts are not universally held in high esteem, but are sometimes regarded as sell-outs. This context deserves further attention, but in the interest of expediency I will move on. 32   HRS 6E-43; HAR 13-13-300. 28

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oral accounts of genealogy and genealogies that rely on connections not typically recognized by Western ways of reckoning kinship. In principle and frequently in practice, then, the standing mechanisms of the burial law make room for Native Hawaiian religious claims of connection to and responsibility for the ancestors. The other mechanism that establishes Native Hawaiian presence and voice under the law is its burial council provision. The law and its associated rules and regulations establish five burial councils: Ni`ihau and Kaua`i Islands Burial Council, O`ahu Island Burial Council, Moloka`i Island Burial Council, Maui and Lana`i Island Burial Council and Hawai`i Island Burial Council. The councils are administered by the State Historic Preservation Division, which is a branch of the Department of Land and Natural Resources. The councils meet monthly, allow public attendance and commentary and are subject to standard administrative sunshine rules, though they do have the authority to go into closed session when discussing sensitive information that might lead to the desecration of burial sites. The duties and responsibilities of the councils include the following: Duties and responsibilities. (a) The primary responsibility of the council shall be to determine preservation or relocation of previously identified Native Hawaiian burial sites as set forth in this chapter. (b) The council shall assist the department in the inventory and identification of Native Hawaiian burial sites by providing information obtained from families and other sources. (c) The council shall make recommendations to the department regarding appropriate management, treatment, and protection of Native Hawaiian burial sites, and on any matters related to Native Hawaiian burial sites … (f) In accordance with section 13-300-4, the council shall be authorized to deem department records relating to the location and description of Native Hawaiian burial sites sensitive and thereby exempt from the requirements of section 92F12, HRS. (g) In accordance with section 13-300-35, the council shall decide whether to recognize a claimant as a lineal or cultural descendant based on a written assessment provided by the department. (h) The council shall be authorized to take any other appropriate actions in furtherance of this chapter …33

  HRA 13.13.300§13-300-24.

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One key establishment issue concerning the councils is the fact that, in the course of discharging their duties, they solicit and evaluate religious testimony from lineal and cultural descendants. Another concerns the membership of the councils, which are made up of representatives from two groups: (1) Native Hawaiian regional representatives versed in cultural issues, and (2) developer and large landowner groups. Of particular interest is rule provision 13-300-22(g): ‘The councils shall have a minimum of nine and a maximum of fifteen members, and have a ratio of not more than three to one and no less than two to one in favor of regional representatives’ (emphasis added). In this way, the councils have a mandated majority of Hawaiian members whose credentials are cultural and whose duties include evaluating religious claims. The principal kuleana (responsibility) of the burial councils is to make recommendations regarding ‘previously known’ human remains, a category signalling that the burial sites in question are known through historical or contemporary description (including oral tradition), archaeological reports or state-mandated archaeological inventory surveys to be conducted at the expense of developers prior to modification of land. Responsibility for ‘inadvertent discoveries’ – human remains not ‘previously known’ and often discovered during construction activities – falls to the State Historic Preservation Division. This triage is a result of compromises worked out between Native Hawaiian burial protection activists and developer interest groups during the drafting of the burial statute; on the one hand, burial councils have real involvement prior to construction, but, on the other, the State Historic Preservation Division handles directly matters that emerge in the course of construction. When developers and the state proceed with due diligence and due process this system has considerable integrity. Over the past 20 years the councils and their recognition of lineal and cultural descendants have protected thousands of human remains. However, when the State fails to support the councils and when developers proffer inadequate archaeological inventory surveys or otherwise seek to circumvent the law, the results have been less satisfactory. Precisely this scenario has begun to unfold in recent years. Following the economic crisis of 2008, the State began to cut its support of the State Historic Preservation Division, which in turn has led to a series of crises at the level of burial councils and widespread lack of confidence in the State’s ability to live up to the promise of its own laws.34 The Kawaiaha`o Church conflict has taken shape in this context. The Crisis at Kawaiaha`o The concept of a building at Kawaiaha`o was approved in the early 2000s. Funding for the 17.5 million-dollar project was contributed from many sources, including a million-dollar grant from the Office of Hawaiian Affairs. Work began in earnest in   For more on this topic, see Johnson, ‘Bone Deep Indigeneity’.

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2007 with demolition of the former building on the site, Likeke Hall. Once construction finally commenced in 2009, human remains were encountered immediately.35 By April of 2009, 69 burials had been encountered. In the face of mounting pressure and protests, the Church temporarily halted construction at that time. The O`ahu Island Burial Council attempted to intervene, but was told that the State Historical Preservation Division was treating the burials as inadvertent discoveries, despite the fact that the Division had instructed the Church to complete an archaeological inventory survey for the project site in 2004. Had an archaeological inventory survey been prepared, the disposition of the burials would have been within the jurisdiction of the O`ahu Island Burial Council. Although the State Historic Preservation Division never withdrew its survey requirement, it nevertheless issued a letter stating that no effect on historical or cultural properties was expected, so the Church was clear to proceed. At this juncture two civil suits were filed to prevent the Church from moving forward with the project.36 One suit was settled out of court. The other suit, which included a request for a preliminary injunction to stop construction, was brought by Dana Naone Hall. Her injunction request was denied in early 2011.37 During this time the Office of Hawaiian Affairs sponsored a series of ho`oponopono (traditional Hawaiian alternative dispute resolution) meetings with the contending parties. These sessions failed to produce an agreement. Then, in June of 2011, the Church resumed construction at the site. In the following year the Church’s contract archaeologist discovered and removed 500 more burials. Protests continued at the Church, and Hawaiian burial protection activists and religious practitioners are scrambling to protect the remaining burials at the site.38 More than 570 human bodies have been disinterred from their burial locations over the past two years. Many have been removed from the grounds of the Church’s cemetery. However, the majority of the individuals have been exhumed from under a previous Church building and from beneath a road in the course of excavating for the placement of sewer and utility lines. Despite the manifestly obvious fact that the burials are not within an actively used cemetery, Kawaiaha`o Church has continuously and loudly asserted its ecclesiastical authority at every step down this path: the removal of the bodies has legally taken place within its grounds and with approval from the Department of Health and the State Historic Preservation Division. Burial rights activists, including Dana Naone Hall and Paulette Ka`anohi Kaleikini, insist that the Church is misrepresenting the situation and that various State agencies, including the Office of Hawaiian Affairs, are entangled in a number   Conrow, ‘Cultural Grounds’, 2.   Abigail Kawananakoa vs. Laura Thielen et al. (State of Hawai`i First Circuit, Civil No. 09-1-1633-07); Naone Hall vs. Department of Land and Natural Resources et al. 37   Andrew Gomes, ‘Kawaiaha`o Project Advances’, Honolulu Star Advertiser, 25 January 2011, http://www.staradvertiser.com/business/20110125_Kawaiahao_project_ advances (accessed 4 June 2012). 38  My account of this dispute in this chapter is necessarily limited due to the ongoing nature of the conflict and in view of space considerations. 35 36

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of inappropriate ways. Naone Hall has been especially precise in her criticisms of the situation, specifically regarding the failure of the State to uphold its own laws and policies regarding burial protection. Naone Hall’s diagnosis of the crisis should not be easily dismissed notwithstanding her familial ties to Kawaiaha`o Church. Few people know the State burial law in the way she does. She was centrally involved in the events at Honokahua that led to the burial law, and she has been active on the Maui and Lana`i Islands Burial Council as its Chair and Vice Chair for 17 years.39 The Kawaiaha`o struggle has been particularly saddening for her, not only for the reason that so many human remains have been disturbed, and not only because she may have family among them, but also because this dark episode has made all too clear the ways the burial law has been weakened to the point of breaking.40 The story of the bodies at Kawaiaha`o can be told as one of colliding and colluding modes of establishment. Naturalized establishment, in the form of the Church, has asserted its right to the dead, its right to define cemetery boundaries and its right to the religious-cum-legal high ground as a law unto itself. Structural establishment is present in the form of State agencies, captured by the Church, advancing its project through funding, in the case of the Office of Hawaiian Affairs, and through failing to require an archaeological inventory survey on the part of the State Historic Preservation Division.41 Structural establishment is also present in the absence of critique from agencies charged with protecting Hawaiian culture, including the Office of Hawaiian Affairs and the State Historic Preservation Division. Perhaps most importantly, political critique from the many high-ranking Native Hawaiian employees of the State has been noticeably absent. If matters do not change course soon, naturalized establishment will have prevailed, having neutralized structural establishment – what we might call deep colonization. Frustrated with this situation, in the fall of 2009 Naone Hall filed her lawsuit to stop the project, taking on the Church, the Department of Land and Natural Resources and the State Historic Preservation Division, among other individuals and entities.42 First District Court judge Karl Sakamoto ruled against Naone Hall, arguing that she lacked standing, and ruled that her expert witness, Edward Halealoha Ayau, one of the most experienced repatriation and burial protection   See Naone Hall, ‘Sovereign Ground’.  Ms Naone Hall has several direct ancestors who were prominent members of Kawaiaha`o Church at the turn of the twentieth century. Annual Church records from the period from 1900–10 list her relative D.K. Naone as the Sunday School teacher and as the Hymn Leader during this period and show that her family tithed with greater-than-average frequency and in relatively high amounts. See Kawaiaha`o Church, Hoike Makahiki o Ka Ekalesia o Kawaiahao (Honolulu: Paiia Ma Ka Paredaiso o Ka Pakipika, 1900–10). 41  See Dana Naone Hall v. Department of Land and Natural Resources et al. (CAAP12-0000061 in the Intermediate Court of Appeals of the State of Hawai`i, filed 9 April 2012), 16–21. 42   Naone Hall v. Department of Land and Natural Resources et al. (State of Hawai`i First Circuit, Civil No. 09-1-1828-08). 39

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activists in Hawai`i, was unreliable.43 Sakamoto’s verdict stands as another example of naturalized establishment, insofar as he seems to have taken it as common sense that the Church has authority over ‘its’ dead and its grounds and has good financial and religious reasons for moving forward with the project. Consider these paragraphs from his ruling: 122. As of October 31, 2010, Kawaiaha`o Church has expended seven million dollars on the MPC project. 123. Kawaiaha`o Church continues to incur significant expenses as a result of the delay of the MPC project. 124. The MPC project is essential to carry out the Kawaiaha`o Church’s religious mission.44

Judge Sakamoto seems not to have considered the burial law with an eye to its intent or its jurisdictional provisions and certainly not its provisions for standing. He was apparently persuaded by the Church’s argument that the burials are exclusively Christian, regardless of the ethnicity of the individuals, and that the burial law provisions regarding Native Hawaiians therefore are not applicable. Convinced that Sakamoto has failed to understand adequately the law, her claims and the character of Native Hawaiian tradition in the present, Naone Hall has filed an appeal, which is currently before the Court.45 Meanwhile she is hard at work attempting to get various State agencies to take up their responsibilities. Naone Hall is especially eager for the Office of Hawaiian Affairs to wash its hands of funding the Church and for it to establish a clear, pro-Hawaiian voice. On 16 August 2012, she testified before the Office of Hawaiian Affairs Board of Trustees, presenting them with information from missionary histories, oral tradition and even from the Church’s archaeological consultant, suggesting that the burials being unearthed likely include pre-contact human remains. Once again, her point was to insist that the O`ahu Island Burial Council be involved, that legal process be adhered to by all parties, and that the Office of Hawaiian Affairs live up to its mandate. She beseeched them to recognize that ‘Kawaiaha`o presents a moral, ethical, cultural, and spiritual challenge to us all’.46   Sakamoto, Finding 104.   Sakamoto, Findings §122–4. 45   Dana Naone Hall vs. Department of Land and Natural Resources et al. (Intermediate Court of Appeals of the State of Hawai`i CAAP-12-0000061, 9 April 2012). 46   Dana Naone Hall, ‘Testimony of Dana Naone Hall’, Office of Hawaiian Affairs Board of Trustees Meeting. Maui, Hawai`i, 16 August 2012. As this chapter was going to press, two rulings shed some light on the status of Hawai`i’s burial law in general and on the Kawaiaha`o conflict in particular. On 24 August 2012, the Hawai`i Supreme Court announced its decision in Kaleikini v. Yoshioka (SCAP-11-0000611), affirming the 43 44

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Conclusion The June and July 2012 agendas of the O`ahu Island Burial Council both had the Kawaiaha`o Church dispute listed for ‘discussion’. I attended both meetings in the hope of learning more about the situation and in the hope of seeing some action on the part of the Council. In the end, little of consequence concerning the Church emerged from these meetings, but they did constitute in nuce the drama of intersecting forms of establishment that I have attempted to describe in this chapter. Statutory establishment was present in the form of the Council. Unfortunately, the meetings were profoundly inefficient, starting late and ending early due to lack of a quorum. Few of the Council members seemed adequately trained in the law and regulations that define their jurisdiction, govern their authority and guide their actions. Public presenters were allowed to go on far beyond their three minutes allowed by the rules, and matters were tossed about with little direction. In short, statutory establishment had a few bad days, even without consideration of the way the Council’s role had already been diminished by the State Historic Preservation Division’s usurpation of their proper role regarding previously known burials at the Church. Structural establishment was both present and absent. It was present in the form of the administrative head of the State Historic Preservation Division, who offered little guidance when asked by the Council for assistance, and who seemed less than in command of the law and its mechanisms. Structural establishment was absent insofar as the many Native Hawaiians in the employ of the State who work in buildings adjacent to the site of the meeting made no showing. Naturalized establishment was there in the form of the Church’s contract archaeologist surveying the scene in silence. When asked to comment on a matter pertaining to the Church, he responded that he had been counseled to remain silent due to pending legal issues.47 In closing, I would like to point to comparative implications of my account of Kawaiaha`o and Hawai`i more generally. Primary among these is that ‘establishment’ has a range of manifestations, and that these may intersect and reinforce one another in peculiar and sometimes disturbing ways. Every place has its own history and politics, of course. Hawai`i is unique in a number of ways, even in the US context. The various manifestations of establishment in Hawai`i that I have described do not have precise corollaries elsewhere. But it is certainly a significance of archaeological inventory surveys under the law and underscoring the fact that HRS 6E-43 is clear in setting out the procedural priority of such surveys (that is, that they should be completed before any construction activities commence). On 28 September 2012, the Intermediate Court of Appeals of the State of Hawai`i granted Naone Hall’s second motion for preliminary injunction pending appeal in the matter of Kawaiaha`o Church (CAAP-12-0000061). Relying on the Supreme Court’s position in Kaleikini v. Yoshioka, the court ordered the Church to cease construction activities pending conclusion of the appeal process and indicated that Naone Hall’s appeal has a likelihood of prevailing on its merits. 47   Author’s notes, O`ahu Island Burial Council Meeting, 13 June 2012.

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shared reality that religious and cultural groups will exhibit a range of relationships with government entities. In a broad sense, then, I hope that my analysis is suggestive for a range of possible contexts. More specifically, I am hopeful that my approach may offer illumination for analysis of contexts where Indigenous peoples are agitating for protection of their religions, lands and ancestors. The more that post-secular states seek to make amends for the disgraceful moments of colonial history, the more we are likely to see a proliferation of ways these states accommodate, include and otherwise channel Native traditions and their representatives. Sometimes the results will fall in the category of ‘establishment’ proper, of the state lending support to a religious entity in some form or another. Such episodes will keep constitutional scholars busy. But the rest of us – historians, anthropologists, scholars of religion, sociologists, comparative legal theorists and others – should think in terms of a range of ‘establishments’, too, because the situation in Hawaiˋi suggests that much of what will emerge will be less obvious forms of establishment, with less than predictable consequences. The story of entanglement is one that is not straightforward by definition. It is difficult enough to define religion and the State, so it is all the more difficult to describe and analyse their points of intersection, imbrication and elision. I hope that my heuristic attempt to set out three kinds of establishment – naturalized, structural and statutory – has made some sense of the Hawaiian context, helped illustrate some dynamics behind current abuses of the burial law and provided motivation for comparative analysis of other places where establishment looms.

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PART II Retelling Religio-Legal Histories

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Chapter 5

Deprivileging Religion in a Post-Westphalian State: Shadow Establishment, Organization, Spirituality and Freedom in Canada Peter Beyer

Religious Establishment in Canadian History One way to understand the idea of ‘religious establishment’ is to say that it refers to a particular kind of relation between ‘religions’, necessarily in the plural, and a political ‘state’ or ‘states’. The state, or states, as a matter of collectively binding political regulation, grants to one or more religion a privileged place of power and precedence. ‘Establishment’ thereby implies that there are ‘other religions’ that are not so privileged, or even actively suppressed or disadvantaged, again through political regulation. From this broad perspective, ‘establishment’ of religion could be seen to have a very long and widespread history, but its contemporary relevance stems in large part from comparatively recent developments, namely the peculiar ways that ‘religion’ and ‘state’ were differentiated as institutional structures, independently but in relation to one another, first in Europe during the early modern period, but then gradually, and with highly significant particularizations and transformations, throughout the world in the wake of the globalization of human society since that time. Even more pointedly, the contemporary understanding and significance of establishment is a characteristic of what I will call the ‘Westphalian modelling’ of religion and state, which is to say the way that these two social entities and their semantic correlates came to be structured around the time and in the wake of the Peace of Westphalia in Europe during the middle of the seventeenth century. As understood today, Canada was an outgrowth of the same historical period and an expression of these same European developments. Therefore it should not be surprising that ‘religious establishment’ has been a significant feature in Canada throughout its modern history and even today, although in a progressively transformed way. Thus ‘establishment’ in Canada in this modern sense began during the French regime when, in 1627, the French crown issued a regulation forbidding all but Roman Catholics from operating within its embryonic newworld colony. After the British takeover in 1760, it was primarily the Church of England that received this officially privileged position, even though from the very beginning of this British era, privilege of a lesser and varied sort was also

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granted by regulation to the Roman Catholic Church and the Church of Scotland. During the middle of the nineteenth century, that arrangement yielded to the relative ‘disestablishment’ of the Church of England and its replacement by a denominational ‘shadow establishment’ in which a restricted number of Christian churches received more or less equal, if reduced, privilege and recognition.1 That regime lasted until about the 1960s, the period after which might be characterized by the progressive – but thus far not complete – removal of establishment, yielding in ambiguous fashion to what I will call a post-modern, post-Westphalian condition that is characterized, among other features, by a significant reduction in the mutual modelling of religion and state. Westphalian Modelling of Religion and State: Antecedent Theoretical Considerations Establishing a particular relation between religion and state assumes their differentiation, but also the pluralization of both sides of the equation. Sociostructural and corresponding semantic developments in Europe and then beyond accomplished just that during the period from the late medieval to the modern centuries. There were various important antecedent developments in the social world of the long period before, including the European conception and structuring of religion primarily as Christian church and of state as primarily monarchical, imperial and distinct from the religious church. The later medieval and early modern periods introduced a number of transformations, but three are key. First, rather than a new empire to succeed the Roman imperium, a variety of political units of shifting boundaries, number and duration arose, eventually producing the European state system consisting of a plurality of states. Second, especially in the wake of the sixteenth-century Reformations, religion also came to be structured and conceived as plural; as manifesting itself as religions and as confessions within a religion. Third, this differentiation and pluralization of the religious and the political occurred as a differentiation ‘out of’ or ‘within’ society, even though the semantics accompanying the process often expressed it as a division of society into two equally encompassing aspects, for instance in the ‘two swords’ doctrine, or the idea that church and state were each a societas perfecta. More broadly, state and church became self-descriptive terms for differentiated institutional systems for polity and religion within society alongside and in interdependence with other structurally analogous systems, notably for economy, science, law and eventually education, health, mass media, sport and others. None of these ‘was’ society, although, significantly, in the case of religion and state – and since the Marxist critique, also economy – such a foundational or overarching claim was always a 1   See Denise J. Doyle, ‘Religious Freedom and Canadian Church Privileges’, Journal of Church and State 26 (1984): 293–311; and John S. Moir, Church and State in Canada, 1627–1867: Basic Documents (Toronto: McClelland & Stewart, 1967).

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key part of the semantics accompanying their differentiation. One might surmise that the antecedent conditions to this development in Western society provided no other way of conceiving what was happening until such time as the differentiating developments were much farther advanced. Nonetheless, one result is that even today we commonly conflate the boundaries of states with those of societies; at least until recently we have had difficulty conceiving social order without religion as an overarching guarantor,2 and the dominant way of understanding global society under the heading of globalization has, since the 1990s, been as economy.3 The importance of insisting on this third aspect – its theoretical raison, as it were – is that it opens the way for seeing, first, that the relation between religion and state, between the religious and political systems in modern (and global) society is not, has not been or need not be, the most or only important sort of intersystemic relation involving either religion or state; that, second, the long-lived understanding that the church-state relation is of such importance itself demands explanation; and, third, that ‘establishment’ or ‘disestablishment’ bear no more than a contingent relation to whether or not a society is less or more ‘secular’, less or more non-religious. In other words, the secular/religious distinction does not and need not refer only or even primarily to the state/religion difference; varieties of disestablishment are not, therefore, the same as varieties of secularity (or secularism), and varieties of establishment are not the same as varieties of religiousness. A related plank in the theoretical scaffolding of establishment is that the relations among these systems, including that between the religious and political systems, will exhibit clear structural differences between any two systems, and at the same time structural similarities; these differences and similarities will have semantic correlates in each system. Another way of saying this is that any two systems can be expected to develop core structural features that identify a system as unique with respect to the others, but one should also expect a certain amount of mutual modelling of the one on the other because these systems developed in relation to one another and one might say in emulation and competition with one another. The idea of ‘establishment’ will in this context be an expression of the fact of such mutual modelling between the religious and political systems.4 ‘Disestablishment’, by contrast, should signal a lessening of such modelling, but it 2   Peter Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (New York: Doubleday Anchor, 1967). 3  See Jan Aart Scholte, Globalization: A Critical Introduction (London: Palgrave Macmillan, 2005). 4  Mutual modelling here is to be distinguished both from what Parsons, one noted social systems theorist, called ‘interpenetration’ of systems. Talcott Parsons, The System of Modern Societies (Englewood Cliffs, NJ: Prentice-Hall, 1971); or what Luhmann, another noted systems theorist, called ‘structural coupling’ of systems. Niklas Luhmann, Die Gesellschaft der Gesellschaft (Frankfurt/M: Suhrkamp, 1997). Modelling may play a role in both these circumstances as each thinker theorized them, but need not.

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cannot serve as a description for alternative developments, in particular, alternative modelling on other systems, or the characteristics of alternative structuring of either state or religion. I introduce these admittedly highly abstract theoretical considerations at the beginning of the analysis in order to gain some distance from concrete and particular understandings of what ‘establishment’ implies and therefore also of what both ‘alternative establishments’ and ‘alternatives to establishment’ might be. That said, however, a more concrete and historical description of establishment is still necessary in order to put flesh on the theoretical considerations and to prepare the analytic ground for its application to the Canadian case. Westphalian Modelling of Religion and State: Historical Narrative Discussions of the seventeenth-century Peace of Westphalia have usually focused on two very important features of this event: that it represented a political resolution to the European ‘wars of religion’ that had plagued the continent for over a century after the Protestant Reformation, and that it marked a key moment in the development of the modern European state system as a set of contiguous and formally sovereign states.5 The role of religion in these developments, while obviously always acknowledged, has equally normally been relegated to something that religion ‘underwent’: the Protestant Reformation in the sixteenth century had created internal Christian divisions where there was only the Catholic Church before; these divisions led to intractable violence because of what religion was deemed to be, and the Treaties of Westphalia simply dealt with the consequences of that new reality, chiefly in ‘recognizing’ it and attempting to ‘regulate’ it for the sake of overcoming social chaos. These understandings of Westphalia are certainly justified. The famous Westphalian formula regarding religion, cuius regio, eius religio, clearly put the active onus on the state ruler to determine or ‘establish’ religion, with the religious identity of his/her realm being the passive recipient of that action. Enabling state rulers in this way was a key expression of the idea that states were to be ‘sovereign’, namely with the right to control their ‘internal’ affairs without interference from other states, especially as concerned religion. What these observations usually ignore, however, is that structural and semantic transformations with respect to religion during this time went well beyond Christian unity yielding to confessional plurality and social conflict. Just as Westphalia marked but a moment in political developments that had begun much earlier and were to eventuate in  See, as examples from a vast literature, Olivier Christin, La paix de religion. L’autonomisation de la raison politique au XVIième siècle (Paris: Seuil, 1997); and Charles Tilly, Coercion, Capital and European States, AD 990-1992 (Cambridge, MA: Blackwell, 1992). 5

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more transformations in the future – for instance, the passage from the absolutist to the nation-state during the eighteenth and nineteenth centuries6 – so did these European centuries witness consequential antecedent and subsequent religious restructuring and reimagining in which Westphalia was but one key moment. More specifically, during these centuries European society passed from a dominant conception of religion that saw it as differentiated and systematic primarily with reference to religious specialists (monks, priests, nuns, bishops and so on) and a specialized religious organization, to one that carried forward religion’s systemicity, but applied it to society in general, now to include the entire population.7 The system was to be a societal system carried by everyone in society, not one carried primarily by virtuosi and specialists, with ‘lay’ support and from which ‘lay’ people benefitted. The Protestant Reformers were particularly insistent on this ‘purification’ and ‘generalization’ of religion. In this respect they were carrying further what had been happening for quite some time already. The difference was precisely in their rejection of the specialized and virtuoso organization of the ‘religious’. Moreover, and equally as critical, the resultant ‘confessional’ pluralization of Christian religion solidified the notion that this encompassing and systematic religion manifested itself as religions, in the plural, and that everyone had to belong to, had to ‘have’, a religion.8 This ‘having to belong’ points to a further feature in the understanding of religion, namely that religion was not just encompassing, but foundational to the cosmic and therefore human order. It provided a necessary unity and basis for human and social life. Yet here was a highly consequential contradiction: how could something so foundational and encompassing be plural? For most Europeans, logically and really, it couldn’t. Hence the wars of religion.9 Westphalia helped to provide both the socio-structural and ideational answer: a plurality of sovereign and thereby equally as encompassing political states would ‘regulate’ the contradiction in the interests of the ‘common good’ in each state. Such a close relation between religion and state was, of course, not unprecedented; rather the opposite was the case since the time of the later Roman Empire, at least. What was unprecedented was the transference of this solution to a system of multiple and mutually defining states that recognized one another  Reinhard Bendix, Kings or People: Power and the Mandate to Rule (Berkeley, CA: University of California Press, 1978). 7  See especially Jean Délumeau, Le Péche et la peur: La culpibilisation en Occident, XIIIe – XVIIIe siècles (Paris: Fayard, 1983); but also, more recently, Charles Taylor, A Secular Age (Cambridge, MA: Belknap Harvard, 2007). For possible antecedent developments that would then have gone into abeyance during the so-called European ‘Dark Ages’, see Daniel Boyarin, Border Lines: The Partition of Judaeo-Christianity (Philadelphia: Univesity of Pennsylvania Press, 2007). 8  Michel Despland, La religion en occident: Evolution des idées ed du vécu (Montreal: Fides, 1979). 9   And the continued search for ‘religious unity’, for instance in the idea of ‘natural religion’. See Peter Harrison, ‘Religion’ and the Religions in the English Enlightenment (Cambridge: Cambridge University Press, 1990). 6

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as sovereign. With the passage from the absolutist to the nation-state during the subsequent centuries, these states came to structure and conceive of themselves as encompassing political societies, each responsible for its own internal unity and ‘cohesion’, with (a particular) religion – or, as it turned out, a particular Ersatzreligion – playing a necessarily central role in this task. Nonetheless, these developments occurred in the context of a broader society in which the religious system was structuring itself also independently of the political system, and vice versa. In addition, other systems such as economy and science were differentiating and structuring themselves as well. Although it was possible to conceive and to some extent structure these systems as also coordinated with the boundaries of states – for example, as national science, national economy and so on – each of them also escaped such boundary coordination. With respect to religion, this partially independent structuring was most evident with Roman Catholicism, which continued to be ‘transnational’ even during a period when it became increasingly national in the states that established this Christian confession. To some extent, however, it was also evident in the Protestant branches in which Lutheranism, Calvinism and various not-so-clearly national movements like the Anabaptist, Pietistic, Methodist and Evangelical also broke well-respected national boundaries. A particularly important manifestation of this lack of religio-political isomorphism was the existence of religious ‘minorities’ in most states, minorities that raised the constant question of ‘toleration’, a term that acquired very particular meanings as the ‘other side’ of Westphalian ‘establishment’. ‘Minorities’ (or ‘dissenters’, ‘heretics’) especially had to be regulated as manifestations of the fact that the Westphalian solution managed, but did not do away with, the contradictions of a plurality of ‘foundational unities’. The twin ideas of the ‘establishment’ of religion and the ‘sovereignty’ of states thus point to a socio-structural situation of both differentiation and a peculiar kind of connection that I will call the Westphalian modelling of religion and state. In this modelling, states and religions are both deemed foundational, which is to say that they both identify societies or ‘peoples’.10 The state, however, takes relative priority because it can use precise geographical boundaries to translate competing foundationalisms into segmented contiguity. Hence the ‘secular’ (state) (and the rule of law – derived from Roman law) gradually takes ultimate precedence over ‘religion’, and in this sense the model is a ‘secularizing’ one. A further critical aspect of this arrangement, however, is that, just as states come to conceive themselves as foundational for societies, for ‘peoples’ or ‘nations’ – the state is a (national) society – so religions also come to be conceived as definitive of ‘societies’, ‘peoples’, or, in more recent terminology, ‘worldviews’ or ‘ways of life’. This particular understanding was not new to the modern centuries, dating at least to early Christianity and the founding era of Islam. What was new, as with states, is the (often grudging) recognition of a contiguous plurality of these religions in the 10  Tomoko Masuzawa, The Invention of World Religions (Chicago: University of Chicago Press, 1995).

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same broad geographical space that states also occupy, and the quite approximate putative isomorphism between the two pluralities. Correspondingly, individual persons, as ‘components’ of society, are deemed to ‘belong’ more or less exclusively to one society, that is, to one state as citizen and (normally) to the corresponding or ‘established’ one religion as adherent. Although it began in Europe, historically and geographically, this modelling, along with the system differentiation that underlay it, did not remain confined there. Such a limitation would have been extremely unlikely for two related reasons. First, the different institutional systems that began their development and rise to structural dominance in Europe did not have correlated boundaries and none of them was ultimately determinative in this regard: not the political states, including in their imperialistic aspect, not religion, not science and not the capitalist economy. Second, the character of these systems included a tendency toward the constant intensification and thereby the spread of the particular kind of social element that composed each of them: more and more economic production and consumption, more and more state action and regulation, more and more scientific knowledge and technological application, more and more faith and faithful and so forth for other such systems.11 The power that these systems gave the Europeans enabled them to impose themselves and their historically peculiar way of doing society on the rest of the world, albeit not in a process of straightforward diffusion. Just as in European society itself, the entire transformation was subject to quite a number of regional variations or particularizations – especially but not just in the form of ‘national’ differences – so did the process of expansion into and incorporation of different parts of the world into an eventually global system take the form of a great many regional particularizations. Put differently, global expansion was as much a matter of ‘local appropriation’ (glocalization) as it was of (initially Europeandominated) imposition and expansion. With respect to the main focus of this chapter, this observation brings us directly to the idea of ‘varieties of establishment’. Varieties of Westphalian Modelling: Varieties of Establishment The Westphalian arrangements did not dictate or even always eventuate in isomorphism between state and religion, although that was an underlying  The reasons for this peculiar feature of modern systems likely lie in the very basis of their differentiation, and therefore in their mutual emulation, competition and interdependence. In particular, they were all structurally and semantically defined by their peculiar ‘means’ or instrumentalities like money, power, truth, faith and so on; these qualities are their ‘goods’, that which they define as fundamental values to be pursued. Moreover, in the absence of an effective hierarchy among them, the boundaries of one could not effectively limit the others. Being oriented towards unlimited growth, of course, does not mean that unlimited growth was actually possible for any of these systems. 11

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assumption to the famous formula cuius regio, eius religio. Different states developed a number of variations of ‘establishment’, meaning the state’s way of determining ‘which religion’ was to be dominant and how. One simple contrast was between Roman Catholic and Protestant establishments: the former always meant dealing with the transnational Roman church, whereas the latter produced a series of mutually independent ‘national’ churches which had at most inner-church commonalities from one to the other if they were of the same Protestant family, such as Lutheran or Calvinist. Another strong factor of variation occurred in those countries that inherited both Catholic and Protestant populations; in the process of their consolidation as states these usually worked out ways of creating dual establishments in one form or another. Examples of these date from the nineteenth century, such as the united Germany, the Netherlands and Switzerland. What these point to is the degree to which ‘toleration’ of ‘minorities’ continued to be an issue after Westphalia and that the kinds and degrees of toleration varied a great deal from state to state and within any given state from era to era. ‘Establishment’, in fact, normally included some form of toleration of other religious identities, even if they were also marginalized to a varying extent. Correspondingly it also included significant latitude in how establishment expressed itself in terms of concrete institutional arrangements. A state church was one common arrangement, but it was not the only one, and even state churches varied in their kind and degree of privilege. Moreover, especially with the passage of state identities from ‘kings to people’, to borrow from Reinhard Bendix’s title,12 ‘establishment’ or state privileging could be and was in an increasing number of instances accomplished or perpetuated with less and less or without formal, legal establishment. Clear cases of such de facto or shadow ‘establishment’ are the British settler countries of North American and Australasia. Reflecting its dominant form, this sort can be called ‘denominational establishment’. Canada presents a typical example, as briefly noted at the outset. As official establishment ended during the middle of the nineteenth century, five denominations in particular were consolidating their demographic and organizational dominance such that by 1911, they could claim over 90 per cent of the population as adherents. In the absence of legal establishment, the churches responded through the consolidation and growth of large religious organizations that incorporated the vast majority of the population. Roman Catholics were the single largest group, and this church had an effective monopoly among the French-speaking population; Presbyterians and Methodists had consolidated their different versions to become the largest Protestant denominations (and the single largest with the further unification into the United Church of Canada in 1925), followed closely by the Anglicans. Most of the remaining Protestants were either Baptist or Lutheran. The end of the nineteenth and the beginning of the twentieth century witnessed a churchbuilding and membership boom in all these denominations with the result that they were by far the visibly, socially and demographically dominant religious presence;  Bendix, Kings to People.

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they incorporated the vast majority of the population as their exclusive adherents. Even after the period of massive immigration at the beginning of the twentieth century, this situation still obtained and lasted at the same level of dominance until the 1960s.13 During this time churches controlled or had a significant presence in the educational system at all levels; they were integral to the hospital sector; their leaders’ voices had a hearing in the halls of political power, and the legal regime was imbued with the moral orientations they espoused. It was a period when an expressly Roman Catholic nationalism dominated among the French Canadians in Quebec, and the idea that Canada was a (Christian Protestant) outpost of ‘His Dominion’ held sway among both Protestant elites and non-elites.14 Canada was not just a Christian country; it was a Christian country in highly particular, denominational ways. While this situation did not constitute formal establishment in the sense outlined at the outset, the practical consequences for religion within the Canadian state were in many ways the same. It is arguable that this regime has not lasted and is in the process of being hollowed out and dismantled. Since the 1960s especially – although many antecedent and preparatory developments have occurred since at least the earlier nineteenth century – Canada, like a wide range of other countries around the world, has moved substantially in a direction in which (even shadow) ‘establishment’ has progressively been disappearing to be replaced by what I will call a post-Westphalian condition, one characterized not just by a restructuring and reimagining of the relation between state and religion, but also the restructuring and reimagining of religion (and state) as differentiated systems within society. The rest of the chapter outlines some intimations of this transformation. Contemporary Canada: De-denominationalization, Religious Pluralization and Post-Westphalian Intimations Having analysed the Westphalian model and its development in the opening sections, I will now begin with the historical and concrete aspects of religious and societal change and then move to their theoretical interpretation. The idea is to provide a more visible continuity between the ‘Westphalian’ and ‘postWestphalian’ aspects of the discussion. Six inter-related sorts of change in the Canadian religious field since at least the 1960s can serve as indicators of a post-Westphalian situation. These include: (1) the hollowing out or decline of the Christian mainline churches;   Peter Beyer, ‘Religious Vitality in Canada: The Complementarity of Religious Market and Secularization Perspectives’, Journal for the Scientific Study of Religion 36 (1997): 272–88. 14   Jiwu Wang, ‘His Dominion’ and the ‘Yellow Peril’: Protestant Missions to Chinese Immigrants in Canada, 1859–1967 (Waterloo, ON: Wilfrid Laurier University Press and Canadian Corporation for Studies in Religion, 2006). 13

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(2) the greater individualization or ‘spiritualization’ of religious practice and understanding; (3) the pluralization and dispersal of religious organization; (4) the much greater pluralization of collective religious identification to include a gradual move to an at least formal equality of non-Christian religions; (5) the much greater instrumentalization and experientialization of religious practice with a corresponding decline of religious social ‘foundationalism’; and (6) the de-ethnicization or de-culturation of religion. The numbers tell the story. Since about the mid-1960s the number of people in Canada identifying with the old mainline denominations, the number of people who are formal members, the number of people who participate in these organizations, the regularity of the participation of those who still do, the physical presence of their buildings and their presence in public discourse have all declined visibly and dramatically. Those denominations that have not benefitted as much from post-1970 immigration, notably the Protestant mainline that emerged out of the Canadian context in the nineteenth century, have suffered the most. This decline does not mean that these denominations are disappearing, a fact attested to by the levelling off of most indicators of decline toward the late 1990s and 2000s.15 They have, however, unquestionably lost their dominant presence. Correspondingly, their role in other institutions such as education and health has diminished, and, where it remains, such as in the case of Roman Catholic hospitals and schools, the role of explicitly religious orientations and rationalities has been severely reduced. Corresponding to this hollowing out, the majority of those who remain in the churches, as well as those who have left or were never a part of them, believe and practice largely according to their own individual lights and selectivity.16 Less and less do they follow the collective dictates of their leaders: instead they are picking and choosing in a style that Bibby aptly labelled ‘à la carte’, and even here it is uncertain just how much the ‘menu’ from which they are choosing is still dominated by the organizations with which a great many of them still identify. In addition, and as a manifestation of this trend, it does seem that more and more people are identifying themselves as ‘spiritual but not religious’, meaning most often that the locus of religious authority has moved to the individual self and away from the organized institution.17 15   Reginald W. Bibby, Restless Gods: The Renaissance of Religion in Canada (Toronto: Stoddart, 2002). 16   Reginald W. Bibby, Fragmented Gods: The Poverty and Potential of Religion in Canada (Toronto: Irwin, 1987); Kurt Bowen, Christians in a Secular World: The Canadian Experience (Montreal & Kingston: McGill-Queen’s University Press, 2004); Andrew Grenville, ‘“For by Him All Things Were Created … Visible and Invisible”: Sketching the Contours of Public and Private Religion in North America’, in Rethinking Church, State, and Modernity: Canada between Europe and America, eds D. Lyon and M. Van Die (Toronto: University of Toronto Press, 2000), 211–27. 17   Siobhan Chandler, ‘The Social Ethic of Religiously Unaffiliated Spirituality’, Religion Compass 2 (2008): 240–256.

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This increase in the population that deems itself ‘spiritual but not religious’ does not, however, point to a deinstitutionalization of religion in the sense of a decline in organized religion. In fact, during this same period, the number of religious organizations has more than likely increased, but the increase is almost entirely in small and local organizations, in independent local congregational churches for instance, rather than in large organizations. Where Christian growth has occurred, it is in the independent churches and in those (relatively small) denominations that stress decentralized organization, local congregational independence, and the necessity of their members’ thorough incorporation through frequent ‘attendance’. One might also speculate, although hard data is missing on this question, that ‘membership’ in religious organizations is much more fluid than it used to be, that people are not so much ‘switching’ as they are treating their churches as a selection of outlets where they ‘shop’ for religion, rather than as ‘clubs’ to which they belong and are loyal. As of 1967, Canada changed its immigration rules to effectively eliminate place of origin, race, culture or even religion as criteria for admission of newcomers. A prime effect of that change was to bring in much greater numbers those who do not identify as Christian, above all Muslims, Hindus, Sikhs, Buddhists and those who consider that they do not have a single religious identity.18 Although in percentage terms, the numbers of adherents to these non-Christian religious identities is still rather small, their concentration in the largest cities gives them a much more visible presence, especially in the form of the physical appearance and behaviour of a good number (for example, Muslim women and also often men, Sikh men, or Hindus) and the increasing number of organizations and religious buildings that now dot the landscape of these large urban centres.19 It is now no longer only Jews who provide a counterpoint to Christian dominance. It cannot be said that these ‘minority’ religions receive equal treatment when compared to Christians,20 but they have already had the effect of further deprivileging Christianity in the   See Peter Beyer, ‘The Future of Non-Christian Religions in Canada: Patterns of Religious Identification among Recent Immigrants and Their Second Generation, 1981–2001’, Studies in Religion/Sciences religieuses 34 (2005): 165–96; and ‘Transformations et pluralisme: les données des recensements de 1981 à 2001’, in La religion dans la spère publique, ed. S. Levebvre (Montreal: Les Presses de l’Université de Montréal, 2005), 12–40. 19  Larry DeVries, Don Baker and Dan Overmyer, eds, Asian Religions in British Columbia (Vancouver, BC: University of British Columbia Press, 2005); John S. Harding, Victor Sogen Hori and Alexander Soucy, eds, Wild Geese: Buddhism in Canada (Montreal & Kingtson: McGill-Queen’s University Press, 2010); and Terry Tak-Ling Woo, ‘Chinese Popular Religion in Diaspora: A Case Study of Shrines in Toronto’s Chinatowns’, Studies in Religion/Sciences religieuses 39 (2010): 151–77. 20   See Lori Beaman’s work on this topic: ‘Aboriginal Spirituality and the Legal Construction of Freedom of Religion’, Journal of Church and State 44 (2002): 135–49 and ‘The Myth of Pluralism, Diversity and Vigor: Constitutional Privilege of Protestantism in the United States and Canada’, Journal for the Scientific Study of Religion 42 (2003): 311–28. 18

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following way: rather than confirming Christian hegemony or ‘establishment’ by arousing unease and prejudice from the established population and elites for being non-Christian – this is the older story – their visible presence and sometimes public assertiveness has tended to induce a more general anti-religiousness, or at least unease about religion, including Christian religion, that exerts or claims the sort of broad influence in societal life that was taken for granted in Canada not that many decades ago.21 Moreover, with the partial – and only partial – exception of Quebec, there is no coherent and articulate national Ersatzreligion or civil religion that can even claim to act as a secular alternative foundational vision. One might even say that the pluralization of religion in this way in Canada may be encouraging the more equal treatment of religions, but in the sense of a greater equality of restriction and regulation: this kind of ‘disestablishment’ tends toward treating all religions as ‘minority religions’, irrespective of the number of people that continue to identify with them. A further development entirely consistent with this trend can be termed the ‘de-foundationalization’ or the greater ‘instrumentalization’ of religion. On the one hand, this means that the value of religion is increasingly not a necessary condition for proper social order, for a cohesive, integrated and therefore ‘healthy’ society; its foundationalism, to the extent that it endures, retreats to the level of the individual or voluntary subgroup. Foundationalism becomes individual or sectarian, in other words. On the other hand, the perception of religion’s value – including religion as ‘spirituality’ – shifts in part from the expressive to the instrumental; religion is ‘good for you’ or at least good for many people.22 It makes one healthier, happier, more capable of dealing with life’s difficulties. It can combat depression, regulate the symptoms of mental illness, relieve or counter stress, increase the quality of interpersonal relationships and so forth.23 Correspondingly, like any ‘cure’, it has to be taken in proper and measured doses, lest it become dangerous and instrumentally dysfunctional. Its capacity to make one holy, the expressive aspect which says that the performance of religion is its own value, recedes in comparison. This relative loss of societal foundationalism is a key development toward a post-Westphalian condition. It undercuts the Westphalian modelling of state and religion by weakening one of the key bases of that modelling, which was that religion grounded and guaranteed social (and moral) order. As such it could not be a matter of ‘choice’ and had to be maintained as collectively binding.  Gérard Bouchard and Charles Taylor, Building the Future: A Time for Reconciliation (Quebec City: Government of Quebec, 2008). 22  See Jeremy Carrette and Richard King, Selling Spirituality: The Silent Takeover of Religion (New York: Routledge, 2005); Paul Heelas, Linda Woodhead, et al., The Spiritual Revolution: Why Religion is Giving Way to Spirituality (Oxford: Blackwell, 2005); and Wade Clark Roof, Spiritual Marketplace: Baby Boomers and the Remaking of American Religion (Princeton, NJ: Princeton University Press, 1999). 23  Meredith McGuire, Lived Religion: Faith and Practice in Everyday Life (New York: Oxford University Press, 2008). 21

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A final and very much related symptomatic transformation concerns the relative delinking of religion and national or ethnic culture. At the subgroup or sub-societal level, nothing prevents the overlap between religion and culture from continuing, as it continues to do in a great many cases.24 Historically, of course, religion and culture in this sense have not been coordinated at the supra-national or supra-state level, which is, as already noted, an important feature of the mutual differentiation of these two systems from one another and from society more generally. The entire Westphalian model, however, went in the opposite direction, that is, in trying to coordinate them. Therefore one symptom of a post-Westphalian condition would be precisely the decrease in the dominance of this model in the form of a delinking of religious and national identity. In contemporary Canada, as with much else, there is a difference in this regard between Quebec and the rest of the country, but only a relative difference. In Canada outside Quebec the ‘British imperial’ and usually ‘Protestant Christian’ religio-cultural identity has been progressively declining in prevalence and even importance since the end of the Second World War.25 Effectively, one might say, it has been progressively replaced, not by biculturalism along a French/Anglo-Saxon – Catholic/Protestant line, but by that peculiar multicultural identity that in many respects is not a clear identity at all.26 Important ‘traces’ of the old identity of course remain. Yet they are really only traces, one indicator of which is the difficulty of defending the old identity in public and in its own terms. In Quebec, in spite of frequent protestations to the contrary, the idea of ‘interculturalism’ appears to be playing a similar self-descriptive role,27 although there is no question that much more than ‘traces’ of the old religio-cultural Westphalian identity remain. Contemporary Canada: The Challenge of Post-Westphalian Disestablishment It could be argued that the transformations just described are not important enough to amount to a dismantling of the Westphalian model in Canada, that religion is still central to national and cultural identity – especially in Quebec but also in the rest of Canada – and that the modes of structuring and imagining religion and state still run in parallel. Although it is certainly the case that important features still have a certain 24   See, for example, Peter Beyer, ‘Differential Reconstruction of Religions among Second Generation Immigrant Youth in Canada’, Annual Review of the Sociology of Religion 1 (2010): 1–28. 25  N. Keith Clifford, ‘His Dominion: A Vision in Crisis’, Studies in Religion/Sciences religieuses 2 (1973): 315–26. 26  Michael Dewing and Marc Leman, Canadian Multiculturalism (Ottawa: Library of Parliament, Parliamentary Research Branch, 2006). 27   Gouvernement du Québec, Au Québec pour bâtir ensemble. Énoncé de politique en matière d’immigration et d’intégration (Québec: Ministère des Communautés culturelles et de l’Immigration du Québec, 1990).

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presence in all regions of the country, my reading is that, as with the Christian mainline, the end of the Westphalian regime is not so much marked by the disappearance of these features as their relativization and revaluation. They’re still there, but neither structurally nor ideationally are what they used to be. An important manifestation of the revaluation is the increasingly ‘optional’ nature of religious identification and involvement, an observation that is, for instance, at the heart of Charles Taylor’s argument that we live in a Secular Age. Furthermore, religious identity and national identity have little to do with each other except, as in Quebec, in such an anodyne way as to be saying more or less the opposite: for most Quebecers only the label remains, to say one is Catholic is mostly to say one is a Quebecer. Thus, for instance, religiously involved Catholic Quebecers are significantly less likely to be sovereignist, whereas those that are Catholic in name only are the most likely to be so.28 The religious system and the political system, through Westphalian modelling, developed somewhat in parallel, but also at the same time independently of one another. The parallelism expressed itself in the plural segmentation of each system: globally the political system manifests itself primarily as mutually exclusive states and the religious system principally (but not entirely, and there, already, is a difference) in the form of mutually exclusive religions. There was, moreover, an ambiguous and highly imperfect coordination of these two segmentations. At the individual level, this situation meant that people were implicated in religion in rough tandem with their implication in the state: as exclusive and faithful adherents and as exclusive and loyal citizens, again in highly imperfect coordination. Under postWestphalian conditions the two systems continue, and their segmentation continues, albeit not in the same way. As the post-Westphalian thesis has it among political scientists, states continue, but sovereignty, that core feature of the nation-state, is being rethought and restructured; sovereignty is not what it used to be. Similarly the world of religion continues to feature ‘the religions’ prominently but with two transformations: their boundaries have less and less to do with state boundaries29 – although not to the extent that state boundaries mean nothing at all – and the trend is away from exclusivity of belonging, identity and practice. If sovereignty isn’t what it used to be, neither is orthodoxy. Something similar could be said for their negations in concepts like ‘treason’ or ‘foreign’ and ‘apostasy’ or ‘heresy’. These concepts have in a great many states, including Canada, and many religions or their subdivisions lost their seriousness and boundary-marking capacity. In Canada, the redrawing of religious boundaries and the redefinition of religious belonging is quite evident. It is clearly evident among the non-Christian populations who are of comparatively recent arrival: unlike in some other countries, for example, there is not even talk of a ‘Canadian Islam’, let alone a ‘Canadian   Jean-François Laniel, ‘Dynamique d’une filiation sous tension: catholicisme, nation et nationalisme dans le Québec contemporain’, Département de Sociologie, MA thesis (Université d’Ottawa, Ottawa, 2010). 29   José Casanova, ‘Public Religions Revisited’, in Religion: Beyond the Concept, ed. H. de Vries. (New York: Fordham University Press, 2008), 101–19. 28

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Sikhism’, a ‘Canadian Buddhism’ and so forth. Yet under the old Westphalian regime, this would be expected of ‘minorities’, sometimes formally, and would even be seen as a reason for their ‘minority’ and therefore dis-privileged status. It is, however, among Christianities in Canada that the more clearly post-Westphalian structural transformations are taking place in the formerly ‘established’ religion and its various denominations. The change is fairly clear in Roman Catholicism, the active strength of which is no longer among French Canadians, but among Catholics in the rest of Canada (who are now even a majority of nominal Catholics), a sizeable portion of whom are post-Second World War immigrants and their offspring. Important boundaries may exist between ‘liberal’ and ‘traditional’ Catholics, but certainly not between Canadian Catholics and the Catholics of the rest of the world. The Anglican Church of Canada is finding more and more that transnational boundaries are the important boundaries, rather than national ones. Pentecostals, until recently the most rapidly growing Christian segment, have been transnational from the beginning and continue to be so. Perhaps most significant, however, is that the most rapidly growing segment of Christianity in the country is among independents and among what one can call ‘generic Christians’, those who identify with only a highly fluctuating and vague boundary.30 The entire denominational ‘establishment’, in other words, is either receding or redrawing the boundaries that count. What is more, although we have only partial evidence, even individual exclusive identification is waning among a great many Christians. In the context of such redrawing of what structurally operates as Christianity, the main structural planks of ‘establishment’ of any kind lose appropriate contours. The challenges that this progressively developing post-Westphalian situation presents are manifold. Moving away from structuring religion as mostly a set of mutually defined and more or less exclusive (that is, one cannot also be part of another) religions does not mean that ‘the religions’ will decline and disappear, far from it. The religions can and in all likelihood will continue to be major structural features of the global religious system. Yet the decline of ‘established’ religion de jure or de facto, the greater pluralization and even dispersal of religious organizations, the corresponding removal of the production of convergence or orthodoxy from religious organizations, the shift from ‘belonging’ to ‘consumption’ in the dominant pattern of religious involvement, the ‘spiritualization’ of the performance of religion and the greater and greater geographical and ethnic globalization of religions as religious subsystems have consequences. Religion is becoming a societal system less and less modelled on state (and, although a full discussion cannot take place here, the state on religion) and perhaps relatively more modelled on other societal systems like economy, mass media or art. These changes to religion mean that the relation between state and religion is changing, and most especially that the states’ regulatory regimes with respect to religion will change and are changing. In the absence of religious foundationalism 30   Brian Clarke and Stuart Macdonald, ‘Simple ‘Christian’: Canada’s Newest Major Religious Denomination’, Toronto Journal of Theology 23 (2007): 109–25.

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– a key characteristic in the Westphalian regime – religion as such may lose its privileged status in the eyes of the state in relation to other domains of regulation. Among the many possible concrete consequences may be the removal of ‘tax privileges’, of any regime of legal ‘state recognition’ of religions, of exemptions from human rights regulation which currently allow religious organizations to discriminate on a basis no other organization can (for example sexual orientation, gender), of ‘conscientious objection’ on religious grounds. On the other side, however, the loss of political privilege may have and be having the effect of broadening the ‘freedom’ of religion precisely because it is no longer understood as carrying foundational functions. This might mean, concretely, the further removal of Christian privilege or ‘default model’ status as the model itself changes, so that other religions may be treated as equally valid. It may mean the easier incorporation of religion into health, mass media and educational systems: easier inclusion of religiously based ‘medicine’, easier launching of religious programming, or easier founding (and public financing) of ‘religiously focused’ schools. Put in general and non-technical terms, if religion ceases to be so special because it is deemed foundational, then it loses its privileges as such, but also ceases to be a threat as such. From the perspective of the state, this implies changes in regulatory regimes concerning religion; from the perspective of religion, it means a certain ‘normalization’, effectively being more just one system beside the others. These indicators of transformation are of course to a large degree speculative at this point; I introduce them not so much because I am convinced that they are definitely happening, but more to illustrate what a post-Westphalian condition for religion might mean in Canada. The post-Westphalian thesis posits a period of transition, the end point of which is necessarily somewhat speculative because we currently find ourselves within the transition and therefore cannot as yet have the hindsight to analyse ‘what happened’. Conclusions Like most sovereign states around the world, Canada can trace its inheritance to the Westphalian mutual modelling of state and religion. In the case of Canada it was characterized by the creation of a Christian denominational establishment that featured a small number of large and privileged religious organizations which represented and put into practice the thus ‘established’ religion. These churches were implicated and deemed foundational in every domain of Canadian society, albeit to varying degrees, both in terms of domain and in terms of regions of the country. With antecedent developments already in the nineteenth century, the dismantling of that Westphalian model has been underway especially since the 1960s. There are a number of symptoms of this dismantling, but all of them do not as yet amount to a complete disappearance of this regime; many ‘traces’ remain. Many and perhaps most of the characteristics of the post-Westphalian situation still have yet to solidify and perhaps even to form, in Canada as elsewhere. Yet

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one characteristic, while still speculative, would seem to be definitive from a theoretical and eventually from an empirical perspective. This is the deprivileging of religion as a category, meaning the removal of societal foundationalism from among the understood defining features of religion and the corresponding restructuring of religion and the relations between religion and the other societal systems, including most especially the political in the form of the state. However the post-Westphalian regime or regimes eventually look, they present a challenge for religion, in Canada as in other states. That challenge can be subsumed under the twin ideas of ‘deprivileging’, on the one hand, but also a certain ‘normalization’, on the other: religion would be no longer an exceptional domain, but neither is it exceptionally worrisome and in need of special regulation. The hypothesis that I have tried to present here is that this sort of transformation is happening in Canada; it is both a theoretical and an empirical question as to whether or not that is actually the case.

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Chapter 6

Religion, Land, Rights Winnifred Fallers Sullivan1

Before Europeans came to Manhattan in the early seventeenth century, there was no private property – or religion – or rights – as we know them today.2 These are modern inventions. The Lenape Indians had long lived in the land bordering the Delaware River on the south and the Hudson River on the northeast. They were both hunters and planters. When Dutch traders arrived, they did not initially establish settlements. The Lenape sold them beaver pelts that were used to make waterproof hats for sale in Europe. In 1626, in a change of direction, the directors of the Dutch West Indies Company, a merchant monopoly chartered by the Netherlands governments to promote trade in West Africa and the Americas, purchased land from the Lenape and established a settlement known as New Amsterdam. After years of subsequent skirmishes with the English – and after the restoration of the English monarchy in 1660 – the Dutch colony was ceded to the 1   Winnifred Fallers Sullivan is Professor and Chair of the Department of Religious Studies, Affiliated Professor of Law, Maurer School of Law, Indiana University Bloomington. This chapter is a lightly revised version of a presentation, with slides, at the University of California, Berkeley, at a public forum to reflect on the controversy that developed in the spring and summer of 2009 about the building of a Muslim Center in lower Manahattan. An earlier version of this chapter is published as an Occasional Paper on the Institute for Advanced Study website: www.ias.edu. I wish to thank Gil Anidjar, Lori Beaman, Courtney Bender, Ben Berger, Clark Gilpin, Sally Gordon, Stan Katz, Fred Konefsky, Betty Mensch, Jack Schlegel, Joan Scott, Rob Steinfeld, Barry Sullivan and Marcia Zubrow for helpful conversations and advice on this chapter. 2  I mean here to draw attention to the peculiarly modern use of these terms. The Lenape, of course, had ways of life that would be denominated religion today by most scholars of religion, but those ways of life were not then recognized as religious by most Europeans. The Lenape also had legal ways of life that structured their lives, their relations with others and the use of land. Seventeenth-century European legal theorists did worry about what kind of ownership Indians might have in the land they wanted, and they worried about how to justify its taking. Among others, theories based in a doctrine of conquest and in the view that the Indians did not have settled, civilized communities that cultivated land and conferred ownership, were used to justify European title. (There is a remarkable online effort to reconstruct what the island looked like before the Dutch – as an exercise in re-imagining the land as Lenape. At the site you can type in a New York City address and see what that piece of property would have looked like in 1600: http://welikia.org/explore/ mannahatta-map/.)

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English in 1674 and renamed New York after the second son of Charles II, later to become James II, the last Catholic King of England. Another century later and New York would be caught up in the Revolution that would result in the formation of the new United States. Both legal and religious histories were rewritten in the changing population, ownership and governance of this island over these years – although certain themes and structures perdured. This chapter concerns a more recent chapter in the ongoing religio-legal story of this island. While in many ways today, at the beginning of the twenty-first century, all countries in the world are in a similar legal predicament with respect to addressing the multiplicity of religious ways of life in their midst, the US, partly as a result of its early history as a settler society self-consciously displacing and inventing new religious and political forms, has developed a distinctive religio-legal culture. A vigorous political and theological commitment to a particular imagining of religious liberty combines with a deep uneasiness and instability about what counts as religion and how it should be institutionalized, an uneasiness and instability that arguably continually subverts the broader commitment. In this chapter I consider two contemporary American legal forms of religious life, heirs to the earlier history, that were made apparent in the controversy over the building of a Muslim Community Centre two blocks from the former World Trade Center site in lower Manhattan, a site called Park51 by the developers. A raucous public debate about the advisability and legality of that Centre erupted in the spring and summer of 2009, much of which was articulated in terms of religious freedom or tolerance.3 US First Amendment jurisprudence today, popular and academic, understands the two clauses, the free exercise clause and the non-establishment clause, to have enabled together a distinctively American form of free religion. The nature and continued presence of forms of religious establishment is rarely fully acknowledged. What I will argue here is that this free religion is also ‘established’. I suggest that we can see new things in this controversy if, in US constitutional terms, we think of it as a contestation over rival religious ‘establishments’, rather than as a struggle for the free exercise of religion. I will further suggest that it is the distinctiveness of the US commitment to religious establishment that accounts for US exceptionalism in this area, rather than, as the usual myth would have it, the distinctiveness of its commitment to freedom. Or, perhaps, that the nonestablishment clause is not simply prior to free exercise in the ordering of the words in the text, but also that the naturalness of its religious establishment is foundational to an understanding of religious culture in the US more generally. 3   Since that time, the developer of the space, Sharif El-Gamal, has modified his original plans, extending his timeline, but he continues to envision the creation of a Muslim Community Centre patterned after the Jewish Community Center on the Upper West Side in New York. Anne Barnard, ‘Developers of Islamic Center Try a New Strategy’. New York Times (1 August 2011). http://www.nytimes.com/2011/08/02/nyregion/new-quiet-effortfor-big-islamic-center-near-ground-zero.html?ref=park51 (accessed 3 November 2012).

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The First Amendment to the US Constitution begins: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” Until 1947, the establishment clause was understood as limiting only the federal government. State arrangements with respect to religion were governed by state constitutions. Beginning in 1947, however, following on the federalization of other parts of the Bill of Rights, the United States Supreme Court announced that the establishment clause had been incorporated into the due process clause of the Fourteenth Amendment at the time of its adoption in 1868: thereafter the court began to articulate a jurisprudence of disestablishment that would extend to state, and local as well as to the federal, governments.4 After a now 60-year record of judicial interpretation, it is clear that many of the assumptions underlying that jurisprudence were founded in a largely mid-twentieth-century religious politics. Those assumptions have been increasingly challenged today by historians as well as by legal scholars.5 This chapter contributes to that rethinking of the possibility of disestablishment. US First Amendment jurisprudence depends on the notion that the religious transplants that came to the new world were ‘establishments’ of some sort back home. That is, they tied people, places and politics in a way that was mostly hierarchical and that was understood by Americans to be detrimental to both church and state. Arrival in the US was meant to be accompanied by a losing of that sense of ‘place’ in favour of reinvention as a portable religion, individual and chosen. How has that worked out? What precisely happened when these establishments came to the Americas? How were they transformed and in what ways did law inhibit, enable, or even force, such transformations?6 Today, after the globalization of human rights, the dominant formulation of what are sometimes called religious human rights typically qualifies the right to freedom of religion and belief with a recognition of the superior claims of the public good as envisioned and enforced by the state. US law with respect to religion has been curiously provincialized by this global process. US doctrine of legal sovereignty does not recognize the force of international law; US law about religion has developed in its own way. Rather than acknowledging the claims of the state to protect the public from undesirable forms of religion, the First Amendment seems to offer an unqualified guarantee of protection for disestablished religion. American religion, notwithstanding the ubiquity of Jefferson’s metaphor, ‘the wall of separation’, is, formally speaking, said to be disestablished – but it was never actually separate. In a sense, one might say, it could not be separated because it is never admitted to have been joined. It lacked the institutional form for separation. Let us consider how this disestablishment-without-separation works in the Park51 context by setting that controversy in a longer historical frame. If you   Everson v. Bd of Education, 330 US 1 (1947).  See, for example, Philip Hamburger, Separation of Church and State (Cambridge: Harvard University Press, 2004). 6   Evan Haefli, ‘Toleration and Empire: The Origins of American Religious Pluralism’, in The Oxford History of the British Empire (forthcoming 2011). 4

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followed the Park51 controversy, you may have noticed a story in The New York Times in October 2010 reporting on a remarkably similar set of protests that greeted the proposed building of a Catholic church in the very same neighborhood 225 years earlier – in 1785.7 Fear of an immigrant religion, suspicion of foreign funding and control and a demand on the part of those who opposed the church to move it away from the centre of things, characterized those protests as well. Today that church, St Peter’s Catholic Church, the oldest Catholic Church in New York City, is an entirely unexceptional part of the streetscape, and its parishioners accepted as Americans. There is a sense in which a pattern of initial skepticism and eventual assimilation is the long story of religious multiplicity in the United States. Perhaps no one has said it as well as Will Herberg in his 1955 book about immigrant religions, Protestant Catholic Jew.8 Herberg described what he called the dominant religion in the US – we might call it the established religion – as the religion of ‘the American way of life’. He saw that religion – in the middle of twentieth century – as coming in three flavours, but, in important ways, it was, he believed, by that time, the same religion. There are other stories to be told of American religion to be sure, but there is evidence in my view, notwithstanding much current hostility, elite and popular, toward Islam, that Herberg’s title could one day be updated to read Protestant Catholic Jew Muslim. Imagining such a possibility is one way of understanding the advent of the new Muslim community centre. In other words, while fear and loathing of Islam is much reported in the press, there are also a constant string of stories of the ways in which Islam is being normalized in the US in the same ways as earlier immigrant religions have been normalized: inclusion in local interfaith community projects and prayer breakfasts; representation on presidential bioethics commissions; hiring of government chaplains; redesigning of interfaith chapel spaces; issuance of ‘Eid holiday stamps by the US Postal Service; references to the faith of Muslims and visits to mosques by politicians; school cultural events; the extension of JudaeoChristian to ‘Abrahamic’. Many of these efforts are token or clumsy, but they are also real evidence of a certain kind of US religious accommodation/establishment. Among the speakers in support of the proposed centre at Park51 was Mayor Michael Bloomberg. He spoke passionately about US commitment to religious liberty, but he also framed the issue in terms of private property rights, as if they were two sides of the same coin. Bloomberg said: ‘The simple fact is this building is private property, and the owners have a right to use the building as a house of worship’.9 The right of the developer, Soho Properties, to the free exercise 7   Paul Vitello, ‘In Fierce Opposition to a Muslim Center, Echoes of an Old Fight’, The New York Times, 8 October 2010, A19. 8   Will Herberg, Protestant–Catholic–Jew: An Essay in American Religious Sociology (Chicago: University of Chicago Press, 1955). 9   Justin Elliott, ‘Mayor Bloomberg Delivers Stirring Defense of Mosque’, Salon. com (3 August 2010) http://www.salon.com/2010/08/03/mayor_bloomberg_on_mosque/ (accessed 3 November 2012).

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of religion is, Bloomberg implied, echoing earlier American assertions of rights, grounded in its rights as a property owner. Bloomberg went on to say that their right extended to the espousing of unpopular religion. Asked whether he would inquire into the religious views of the proposed leader of the new centre, Imam Rauf, he answered: ‘My job is not to vet clergy in this city’.10 How did American religious freedom become tied to private property? What is Bloomberg’s job? And what about the World Trade Center site? Is that private property? Is there also religious freedom at ground zero? Religious freedom is usually talked about in the US as something inhering in individuals.11 The assumption is that the protected religious feeling or experience or conviction is portable. It is understood to follow the person around, regardless of that person’s ownership of property. Of course, law about the incorporation of churches and the management of church property – and other buildings for worship – forms an important part of the development of US church-state law, but most American churches are also movable – and have been on the move since the beginning. Part of disestablishment, US style, has been that particular religious doctrine is not, by and large, tied to a particular piece of land. With few exceptions, the land is not understood to be inhabited by gods – or not since the destruction of Indian communities. There is no Temple Mount or Stonehenge or Ram Janmabhoomi in the US. There are no geographically located parishes that tie the individual to the church and the state as in these other places.12 But Americans do have an almost religious commitment to the rights of private property owners. One of the interesting things about the Park51 debate is the way in which a density of rights and history come together in a very small area. The origins of US understandings of the rights of property owners and of rights to religious freedom could be said to converge in the crucible of the building of lower Manhattan and the disestablishment of the Lenape. Both religious and property rights are often expressed as individual rights although both have communal aspects as well, rights which were asserted and expressed at various points during the controversy. Who can assert such rights and when they can do so is not obvious. Notwithstanding 10   Celeste Katz, ‘Mayor Bloomberg: Asking Mosque Developers To Move Project “Would Be Handing The Terrorists A Victory”’, Daily News (3 August 2010) http://www. nydailynews.com/blogs/dailypolitics/2010/08/mayor-bloomberg-asking-mosque.html (accessed 3 November 2012). 11  There are some interesting exceptions to this rule, including the privileges granted to religious organizations through the tax laws and the Court’s decisions in Wisconsin v Yoder, 406 US 205 (1972), and Hosanna-Tabor v EEOC, No. 10-553, (decided 11 January 2012). And the recent extension of free speech rights to corporations in Citizens United v. Federal Election Commission, 558 US 310 (2010) may portend a shift in the Court’s thinking and that of Americans more generally. 12  For an important and valuable account of the history and present working of the legal establishment of the church of England, see Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (Cambridge: Cambridge University Press, 2010).

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the admitted political and rhetorical power of Mayor Bloomberg’s remarks, private property owners do not have the right to do anything they want with their property. And religious persons do not have the right to do anything they want either. The future location of the proposed Muslim community centre at the time of the controversy was occupied by two buildings, one a former Burlington coat factory, now owned by Soho Properties, and the other a building which Soho is leasing and has an option to buy. The two buildings are internally open to one another. On 11 September 2001, after hijacked Flight 175 penetrated through a tower of the World Trade Center, part of the plane’s landing gear and fuselage came out the north side of the tower and crashed through the roof and two of the floors of the Burlington Coat Factory. The plane parts destroyed three floor beams and severely compromised the building’s internal structure. Soho Properties and their partners at the time, Imam Rauf and his wife Daisy Kahn, planned to replace these two buildings with a new building to serve as a community centre. Rauf and Kahn have told the press that they saw the intimate connection between these buildings and the events of 9/11as a primary selling point for them. As Imam Rauf explained, the planned centre ‘sends the opposite statement to what happened on 9/11 … We want to push back against the extremists’. Soho Properties does not, of course, have an unrestricted right to do whatever they want with their land as Bloomberg seems to suggest, even with respect to religion. The land does not even entirely belong to Soho Properties yet. The hearing that precipitated the protests was before the Landmarks Commission of New York, held to determine whether the Burlington Coat Factory had such architectural merit that it should be added to the 7,000 buildings already protected by landmark status in New York. The Commission found it not suitable for such protection. Before Soho Properties can exercise its right to purchase the other building, now owned by Con Ed, the sale must be approved by the Public Service Commission because it will be the sale of a property owned by a public utility, and New York law protects ratepayers by requiring that approval. New York real estate owners must, before building, comply with a dense thicket of zoning restrictions, municipal building codes, common law rights of neighbours, landmark laws and laws governing public utilities. Also, while there are both constitutional provisions and other laws protecting the free exercise of their religion, the religion those owners practice on their property must be acceptable to the government; as for example, to Homeland Security with respect to the monitoring of Muslim charitable activities, to the Internal Revenue Service and other taxing authorities if it is to qualify for tax exemptions, to local planning authorities if it is to qualify as a religious, rather than secular purpose and to municipal authorities with respect to parking restrictions, noise ordinances and so on. And yet Bloomberg’s words and the absolutism of the rights of property they imply resonate powerfully with Americans. Bloomberg’s words also echo those of Justice O’Connor in the Supreme Court case which denied a constitutional claim by Native Americans protesting a proposed logging road in California that would destroy high country sacred to Indians. ‘Whatever rights the Indians may have to use

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of such areas’, Justice O’Connor said, ‘those rights do not divest the Government of the right to use what is, after all, its land’.13 Its land. She too seemed to imply that property owners can do what they want with their land. That is bedrock in the United States. Religion follows property ownership for both Mayor Bloomberg and for Justice O’Connor. There is a sense, though, in which that ‘following’ replicates the very establishment Americans believe to have left behind, relinking religion, land and rights – in a new regime of exclusion and control rather than one of inclusion and freedom – a regime predicated on private rather than public ownership of land. What about the former World Trade Center site? Whose land is that? And what rights do they have? The World Trade Center site was acquired by eminent domain, and the World Trade Center built by the Port Authority of New York and New Jersey, an entity created through a compact between the states of New York and New Jersey. It was completed in 1973. In July 2001, just months before 9/11, management of the World Trade Center buildings was privatized in a lease to Silverstein Properties, who, since the destruction of the buildings, have been compensated for their loss, and the property returned to the Port Authority. The former World Trade Center site today is awash in religious imagery, crosses made of I-beams, invocations of sacrifice, talk of martyrs and miracles. It is spoken of as ‘hallowed ground’. So holy is it, in fact, that it is seen as offensive by some to locate a Muslim centre two blocks away. Some who spoke about ground zero seemed to propose extinguishing all private property rights at the former World Trade Center in favour of a permanent public memorial to those who died there on 11 September 2001. In that place the right to define the religious meaning of property was understood to inhere not in the owners, the Port Authority, but in the self-appointed keepers of the American flame. Suddenly it was not about private property or religious freedom, but about a single narrative that transcended the owners of the title altogether, a popular sovereignty founded, as law professor Paul Kahn suggests, in a political theology of sacrifice, not of contract: Modern political theory begins with the idea of contract – the social contract. The American political imagination begins with sacrifice. The community arises out of and is sustained by sacrifice … Already as a young man, Lincoln had identified the unique character of the American political-theological project, when he called for a ‘reverence for the Constitution and laws’ to step into the fading place of the scarred body of the revolutionary soldier who literally carried the stigmata of his faith. Lincoln himself becomes the iconic figure of sacrifice, linking law to death.14

In order to understand how rights to define the religious meaning of land in the US came to be understood sometimes to reside in the owner of that land, on the one hand, and sometimes in the people, on the other, a little history is in order.   Lyng v. Northwest Indian Cemetery Protection Association, 485 US 439 (1988).   Paul Kahn, ‘Sacrificial Nation’, The Utopian, 29 March 2010.

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Both of these pieces of property, Park51 and the former World Trade Center site, sit on property once owned by Trinity Church, the Episcopal church that famously dominates Wall Street. Trinity Church is today, and long has been, one of the largest landowners in Manhattan. It is certainly one of the wealthiest churches in the country. Its parish website has a hotlink titled Trinity Real Estate.15 The story of Trinity’s real estate dealings and Trinity’s disciplining by New York law over the last 300 years is intimately tied to the story of religion and property rights in the US. While most of the reporting about Park51 has spoken of its proximity to the former World Trade Center site, from the perspective of historians of New York City, both sites are readily identifiable as located on the original Trinity Church land grant from Queen Anne in 1705. Indeed the Burlington Coat Factory sits on a piece of land that Trinity gave to found Columbia College (then a Church of England college called King’s College) in 1754. It was sold by Columbia when Columbia moved uptown in 1857 – which is when the present building was constructed. This land has a long history as a part of the political and religious establishment in New York. With both the Dutch and the English settlers in the new world came their churches. These first churches were not the white clapboard congregational ones that dot the New England countryside today. The first churches in what is now New York City were outposts – extensions – of European religious establishments, establishments that had geographical and administrative ties to hierarchical church-state bodies that governed religion in England and the Netherlands. Both the Dutch and the English brought ecclesiastical institutions that linked a particular politics with a particular religion, top-down forms of religious governance that joined the state and church and forms of property ownership in a tight logic that was intended to sanctify the social order, ensure social control and provide for the welfare of the people through a concentration of wealth and power and worship. Over time the imported church forms adapted to their new contexts, and, as they adapted, they negotiated new religio-political arrangements, even before the Revolution. Old world hierarchical church ‘establishments’ competed with each other and with dissenting evangelical forms. These dissenting Protestants also had old world roots – in the radical reformation and in the complex fragmentation of the English reformation that was going on during the colonization of the Americas and which profoundly affected religious and legal developments there – but they also appealed to emerging democratic sensibilities in the new world. An array of church governance forms, or ecclesiologies, coexisted in the colonies – so many, indeed, that it is not inaccurate to say that the failure to establish a national church in the US, the dominant ecclesial form of the time, is better understood as the result of the practical impossibility of agreement, rather than as the result of a coalescence around religious freedom as we would understand it today.16   http://www.trinitywallstreet.org/about/ (accessed 3 November 2012).  Sam Moyn has argued that religious freedom as it is understood today, indeed the entire regime of human rights, are Cold War creations. Sam Moyn. The Last Utopia: Human Rights in History (Cambridge Harvard University Press, 2011). 15 16

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While each American colony was distinct in important ways, in comparative religious terms, and at some risk of oversimplification, there came to be in the new world, notwithstanding an ideology and constitutional commitment to disestablishment, an enduring competition between a ‘locative’ religion/politics and a ‘utopian’ religion/politics. ‘Locative’ religion/politics tied religion and state in a formal, albeit disestablished, geographically based partnership. In property terms this locative form was a hierarchical religious and property ownership model in which authority and title ultimately derived from crown grants and charters, but which in its US instantiation has consisted of various methods of religious governance and property ownership that reflected local politics and in which authority and title depended on community-based decisions. In contrast a ‘utopian’ religion/politics that was more portable and more fluid would turn out to be ideal for the Western expansion of both church and state. (I borrow these terms from historian of religions Jonathan Z Smith.)17 Both forms survived the Revolution and continue today, in new garbs. Title to land in colonial New York derived legally from a complex combination of Indian title deeds, assertions of ultimate ownership residing in the British crown or the Dutch West Indies Company, and usage. Usage meant that, under common law forms of property ownership, you were usually obliged to cultivate your land in order to have any right to it. Some kind of community benefit was implied in ownership in each form of claim to title. The king, for example, had a right to use your trees to build his navy; otherwise it might revert to the crown to be regranted. Also in English law, your real property was protected from creditors by laws of succession that restricted your freedom to alienate your property. These laws aimed at preserving large landed estates intact as a foundation for the social order. The transformation of these various old world forms of land title is one of the grand stories of American law.18 Trinity Church was the first Anglican (Church of England) church established in the New York colony. (The present church, built in 1846, is the third church building built on the site.) Trinity received a corporate charter from King William in 1697 establishing it as a parish under the jurisdiction of the Church of England. The church also received a series of large land grants, glebe land it is called. Glebe land is income-producing land intended to maintain the clergy and the parish and was attached to the property intended for the actual church building. The Church of England in the colonies, because of its close ties to the British crown, had a particularly fraught relationship with colonial governments, and increasingly so 17   Jonathan Z. Smith, To Take Place: Toward Theory in Ritual (Chicago: University of Chicago Press, 1992). 18   See Elizabeth Mensch, ‘The Colonial Origins of Liberal Property Rights,’ 31 Buffalo Law Review 635–735 (1982); Claire Priest, ‘Creating an American Property Law: Alienability and its Limits in American History,’ Harvard Law Review 120 (2006): 387–457; Carol M. Rose, Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Westview Press, 1994).

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as the Revolution approached. There were no Anglican bishops in colonial North America. Anglican churches were administered from England. It was only after the Revolution that American bishops were created for the newly independent church in the US, now called the Episcopalian Church. Pre-revolutionary members of the Church of England were often believed to have royalist sympathies. Trinity was also locally suspect because of the value of its property holdings and the politics of its influential members. As with other large property owners in New York, as the eighteenth century progressed and as the Revolution approached, Trinity Church’s form of governance and its title became vulnerable – because of local politics, because of its tie to the crown and because of new property ideologies that emerged in the American colonies and in the new United States. This is a long and complex story, but as legal historian Elizabeth Mensch tells it, the story of Trinity Church and its real estate holdings is at the heart of a remarkable eighteenth-century legal transformation that at least on one reading can be seen to have enabled the rich and powerful in the American colonies to create new understandings of private property that avoided both the overlordship of the king and the democratic demands of the rabble.19 In response to a series of challenges to its title to its property, as well as to accusations of corporate corruption and mismanagement, lawyers for Trinity and for other large landowners deftly invented an absolutist and abstract right to property and successfully limited claims of larger communal needs, whether those needs were to be found in royal reservations or local need for farmland. Trinity also participated in the long struggle to define corporate ownership and governance itself, whether by the City Corporation of New York or by churches. When Mayor Bloomberg speaks of Park51’s rights and his job, he speaks out of an understanding of property and government forged in these battles over competing republican and liberal understandings of property, as well as competing understandings of the rights and obligations of religious institutions.20 I will mention just four moments in Trinity’s fascinating and amazingly byzantine legal history. During the Revolution the first Trinity Church was burned and most of its Tory members fled. After the Treaty of Paris, all property titles were potentially up for grabs, large Tory estates in particular. Corporate legal structures such as the one that governed Trinity were under suspicion as constituting a form of private government. Nevertheless Trinity successfully petitioned the provisional council in 1784 for a revised charter, overcoming challenges on several grounds, including the disestablishment clause of the New York Constitution. An act was passed incorporating Trinity and confirming its title to all of its real property. The church was rebuilt. Trinity was rescued from expropriation by converting its real property   Elizabeth Mensch, ‘Religion, Revival, and the Ruling Class: A Critical History of Trinity Church’, Buffalo Law Review 36 (1987): 427–571. 20  Hendrik Hartog, Public Property and Private Power: the Corporation of the City of New York in American Law, 1730–1870 (Chapel Hill: University of North Carolina Press, 1983). 19

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from crown property to the private property of a new American elite, political and economic, an elite who also controlled the church through their membership on the vestry. While the church was understood to be formally dis-established by the separation from England, this new elite constructed new legal instruments that bound land, religion and rights. Several decades later another challenge was made to Trinity’s title from within the Episcopal Church by those who argued that the very valuable property belonged to all the Episcopalians of New York City, not just to Trinity. After lengthy hearings in the New York legislature, an act to alter the name of the corporation of Trinity Church was passed in January 1814, restricting voting rights to an inner circle of Trinity wardens and vestrymen. During the 1840s and 1850s the management of Trinity was again investigated by the New York State legislature, this time on the instigation of a group of dissident Episcopalians who sought to force Trinity to share its wealth to address the growing poverty of lower Manhattan. Detailed inquiry and accounting revealed that decision-making rested in a few hands and that the church had a very low rate of charitable gifts, in spite of Trinity’s claims to act in the public interest. While arguing, on the one hand, that separation of church and state and the rights of private property owners prevented such intrusion into the private corporate affairs of Trinity, Trinity also launched an extensive set of charitable good works in response to the hearings. Col John Dix, Trinity vestryman, US senator, secretary of the treasury, governor of New York and president of the Erie and Union Pacific railroads, testified at the hearing about Trinity’s proper role: What shall be our social condition if, in a large portion of the city, destitution and spiritual neglect shall combine with cupidity, to arm the hand of violence and stimulate it to still grosser outrage. What higher office can Trinity Church fulfill, what higher benefit can she confer on the classes which have the deepest stake in the security of property and life, than by devoting herself, as she is now doing, to make the lessons of religious and social duty familiar to those who, under the pressure of their physical wants, have the strongest temptation to forget them?21

In the course of defending these legal challenges, lawyers for Trinity and the Whig landowners who ran it made claims about the public value of their wealth, first about the need for the accumulation of the capital to fund industrialization – but also, as Trinity did in later in the nineteenth century – through new commitments to serve the immigrant poor who had come to live in lower Manhattan. In 1894 Trinity was again investigated – this time for its abysmal record as a slum landlord. Again Trinity argued that the ‘financial affairs of Trinity Corporation were no more concern of the general public than were the transactions of a private business corporation’.22 Again Trinity was victorious in law, but it also successfully reinvented   Mensch, ‘Religious Revival’, 519.  Ibid., 553.

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itself as a progressive church – part of the social gospel movement – devoted to the improvement of immigrant workers. Both property ownership and the nature of religion were reimagined and reinvented in these title and corporate governance battles. Neither were to be controlled by the king or by the people, but by a new aristocracy of wealth linked to a latitudinarian and paternalistic moderate theology. This is necessarily a broad-brush picture. There is much more work to be done filling in the pieces of this history. Religious and legal debates about the nature of the new society that was being created in the early republican period and thereafter were complex and subtle, not to be entirely reduced to the materialist picture I have drawn. Legal historians of the nineteenth century have detailed a long negotiation over property rights that were deeply marked by the evolving law of slavery and shifting federal/state divisions of labour. The religious history of the nineteenth century reveals a deep transformation of religion in the US Presbyterians and Congregationalists, the largest churches before the Revolution, were supplanted by Baptists and Methodists, evangelizers of the West and creators of a range of moral campaigns of reform, and by Catholic and Jewish immigrants. Many religious communal experiments were started, the longest lasting and most successful being the Church of Jesus Christ of Latter-day Saints. The century ended with the publication of The Fundamentals, a restatement of Christian theology in pamphlet form that addressed perceived accommodations of modern science by liberal Christians. Liberal theories of politics competed with republican and other collective political theories for dominance. But let us look briefly at the role of two of Trinity’s successors-in-interest. There is a sense in which the proposed community centre fit in the Trinity tradition – one that addresses fear of social unrest at home and fear of control from abroad, through assertions of private rights by powerful and wealthy individuals who get to define what good religion is. Good religion today is irenic, multi-faith, tolerant and free. Imam Rauf has said repeatedly that he wishes the new centre to serve a community purpose similar to that of the YMCA and the JCC, centres of family and cultural events, as well as a place for interfaith dialogue and Muslim worship. Just as Trinity’s ownership was conditioned on its willingness to comply with evolving social needs, so Soho’s ownership is conditioned on its use of its property for an acknowledged public purpose. The public purpose Soho Properties serves is recognizable as an expansion of the one Trinity was asked to serve in the nineteenth century, one that now addresses global publics well beyond the tenements of lower Manhattan, but one that also still serves a very US politics. What about the former World Trade Center site? Parts of the World Trade Center site are also on the land that formed the original grant to Trinity Church in 1705, a part that Trinity sold off as it consolidated its holdings. (Some of the World Trade Center site was actually under the Hudson River at the time Trinity was created. Much of the site is on landfill.) But in contrast to the strong link between private property and tolerant/charitable religion wrested from the wealthy Episcopalians who have run Trinity Church – and from their Muslim successors – the invocations of religious rights associated with the former World Trade Center site rest on a different US tradition.

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When speakers refer to a swath of lower Manhattan as ‘hallowed ground’, they are invoking a particularly American form of sacred property, one attached to places where Americans died, most specifically perhaps, as Paul Kahn says, the religious authority of Abraham Lincoln and the Gettysburg address. On that November afternoon, he said of the battlefield where he stood, We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this. But, in a larger sense, we cannot dedicate, we can not consecrate, we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract … we here highly resolve that these dead shall not have died in vain – that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.23

How did the former World Trade Center site come to be seen as equivalent to the field in Gettysburg? How did those who died there – singled out among the many who have died in the transformation of Manhattan Island into New York City – become posthumous conscripts in a war on terror? A free-floating language of the sacred – one that celebrates the innocent and the patriotic – seems to have descended on the site, transforming a ruined office building and victims of mass murder into something holy. We are a long way from the sordid history of Trinity church and its American oligarchs. This is a wilder kind of religion and a wilder kind of property regime. One might see this as a form of revolutionary apocalyptic appropriation by the people, a momentary triumph by the same rabble who tried to take back Trinity over the centuries. As Mateo Taussig-Rubbo discusses in an article about the property imagination invoked with respect to the building rubble from the destruction of the towers, the World Trade Center site was sacralized – nationalized, if you like. It was transformed from an icon of consumer capitalism to a place of sacrifice in a kind of suspension of the normal regime of private property in favour of another kind of sovereignty.24 Now – even if perhaps only briefly – the community’s interests, the republican ideology evident in the early battles over Trinity’s titles, trumped rights to private property. But not just anyone can exercise this kind of popular eminent domain. Native Americans in the US have been almost entirely  Abraham Lincoln, Speeches & Writings 1856–69 (New York: Library of America, 1989), 536. J. Peter Byrne, ‘Hallowed Ground: The Gettysburg Battlefield in Historic Preservation Law’ (December 2008), Georgetown Law: The Scholarly Commons, http:// scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1093&context=fwps_papers (accessed 4 November 2012). 24   Mateo Taussig-Rubbo, ‘Sacred Property: Searching for Value in the Rubble of 9/11’, in After Secular Law, eds Winnifred Fallers Sullivan, Robert A. Yelle and Mateo Taussig-Rubbo (Stanford, CA: Stanford University Press, 2011). 23

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unsuccessful in asserting that their sacred places, also arguably hallowed by sacrifice, even though formally owned by others, deserve protection under the First Amendment. As the earlier quote from Justice O’Connor suggests, in those cases, the regime of private property has trumped their claims of sacrality.25 What is wrong with the Indian claims to sacrality? What is wrong with their sacrifice? I suggest that the two forms of American property on display in lower Manhattan during the Park51 controversy are intimately related and interdependent – and not just because they were both once owned by Trinity Wall Street – although that history is significant. Looking a little more closely, one might say that the asserted sacrality of the former World Trade Center site and the kind of religious freedom asserted by Soho Properties are both distinct forms of American religious [dis]establishment, new forms of religio-political partnership and new ideas of property invented in a new land. There is no going back before the Dutch. The tension between the locative and the utopian has arguably been an enduring and productive way of establishing and maintaining what Herberg called the American way of life. Catholics and Jews and later immigrants have learned to adapt their theologies and their ecclesiologies to this new property regime, as innumerable ordinances, statutes and judicial opinions attest. An easy shifting back and forth between the rights of property and claims based in irruptive forms of the sacred pervade this legal history, set free as it was from old world hierarchies at the time of the Revolution. The shifts make possible the disciplining of challengers who would assert their own rights to dis-establish. In the old world hierarchies it would indeed have been Mayor Bloomberg’s job to vet the clergy. It still is in many countries the job of the government to do that work. But in the US, as historians of the corporation in the US have argued, private property and public purpose are differently configured. Both Mayor Bloomberg and Soho Properties are confirmed in their roles by a Constitution that is understood to protect their right to property and their limited rights to religious freedom. While they may not have to provide trees to build the navy, they must support religious freedom. It is worth noting that no one is suggesting returning any portion of lower Manhattan to the Indians or to the King of England – or distributing it to the poor. That was settled in the seventeenth and eighteenth centuries. In some ways this is a story very particular to lower Manhattan – to the interesting and distinctive configurations of public and private in city governance, property ownership and religion that have been specific to that time and place since colonial times. But seeing the controversy at Park51 in the context of a larger American story – as a conflict between versions of established religion rather than versions of religious tolerance, allows us to begin to see both the peculiarities of American arrangements with respect to religion as well as the continuities with larger global challenges in religious governance today. Separation of church and state is neither written in the words of the US Constitution nor is it, strictly speaking, possible. Always everywhere there is some form of establishment.   See footnote 13.

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Chapter 7

The Implicit Sharia: Established Religion and Varieties of Secularism in Tunisia Malika Zeghal

The Tunisian uprisings of 17 December 2010–14 January 2011, which resulted in the departure of President Ben Ali from the country, began a new political era for Tunisians. In particular the legal structures of the authoritarian regime now seemed ripe for deep transformations; soon after the departure of Ben Ali, street demonstrators asked for the election of a Constituent Assembly that would draft a new constitution. Slogans and posters read: ‘A Constituent Assembly to change the constitution’, and ‘Cancel the constitution: it is a duty’.1 During this extraordinary and ephemeral political moment, it seemed that Tunisians could reconfigure their legal structures and start anew, given that they were united in a consensus against the old structures of the authoritarian regime and the provisory government. For many Tunisians, Tunisia’s 1959 constitution had to be abrogated and replaced by a democratic one. In spite of diverging views on this matter among political and legal elites, on 3 March 2011, the interim president of the republic announced the election of a Constituent Assembly for the summer of 2011. If the desire for democracy seemed to be the most important aim uniting all Tunisians on and after 14 January, the question of what democracy meant involved more contentious matters, particularly with respect to religion. Remarkably absent during the uprisings, Islam came to the fore afterwards as a crucial factor in public deliberations on two fronts: the future constitution and family law. It seemed that the future of democracy could not be discussed outside of these two inter-related questions. More specifically, debates over the relationship between the state and religion and over the status of women in a democratic Tunisia brought Islam to the centre of the nascent political debate. Two questions raised high anxieties in the media and among the population, prompting news articles and even demonstrations in the street. The first was: would the emergence of a democratic system be accompanied by a separation of state and religion, hence leading to the elimination of the 1959 constitution’s Article 1 stating that ‘Tunisia is a free,  I thank Winnifred Sullivan, Lori Beaman, Lucette Valensi and Kirsten Wesselfhoeft for their insightful comments on an earlier draft of this paper. Céline Lussato, ‘La révolution tunisienne n’est pas terminée’, La Nouvel Observateur, 1 February 2011, http://tempsreel.nouvelobs.com/actualite/monde/20110221.OBS8387/ reportage-la-revolution-tunisienne-n-est-pas-terminee.html (accessed 6 June 2011). 1

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independent and sovereign state. Its language is Arabic, its religion is Islam, and its regime is the Republic?’2 Second, would democracy ‘bring back sharia’, and thereby endanger the advancements in women’s rights since independence? These two questions implicitly assumed that since the postcolonial reforms of family law had been imposed through authoritarian state policies, the advent of democracy would lead to the return of ‘sharia’. Among secularists, it was thought that religion, which the authoritarian state had repressed for a long time, could no longer be controlled and censored by a more democratic state and therefore posed a danger for social peace. For the secularists, since Islam had been repressed for so long, its comeback would certainly be somewhat violent and constitute a threat to all the progressive values that had been at the centre of policy-making, even if they had been enforced by a dictatorship. For the Islamists, this return of Islam to the public scene would not be an obstacle for democracy, but would rather allow for the public re-emergence of an Islamic identity that had been marginalized for decades. However, in the discussions that took place around this issue among prominent political activists, the concept of sharia as the foundation for legislation was rejected not only by secularists, but also by mainstream Islamists belonging to the newly legalized al-Nahdha party. Coming back to Tunisia after 20 years of exile, Rached Ghannouchi, the leader of the Islamist al-Nahdha, declared on 30 January 2011, that ‘sharia had no place in Tunisia’.3 In the election of 23 October 2011, al-Nahdha won 40 per cent of the seats in the Constituent Assembly and allied with two smaller parties of the centre-left to form a new government. In the middle of March 2012, while the Constitutional Committee charged with drafting the preamble of the constitution was tackling the question of Islam, tensions heightened in the streets. Islamists of all stripes – from members of al-Nahdha to Salafist groups – demonstrated in favour of including sharia law in the constitution. They expressed themselves against those who thought that Article 1 was sufficient because sharia was not needed and even posed a threat for democracy and women’s rights. This tension was in part resolved by a vote among the leadership of al-Nahdha in favour of keeping Article 1 without mentioning sharia law. On 26 March 2012, the Islamist party published a communiqué stating that ‘the formulation of the 1959 constitution’s article 1 … is clear and is agreed upon by all the components of society. This article preserves the Arab and Islamic identity of the Tunisian state. At the same time, it confirms the civil and democratic character of the state’.4 On the same day, Rached Ghannouchi called a press conference during which he 2  Tunisian Republic, Munāqashāt al-majlis al-qawmī al-ta’sīsī, Markiz al-buḥūth wa’l-dirāsāt al-barlamānīya, vol. 2 (Bardo, 2009), 355. 3   ‘Tunisie: L’islamiste Rached Ghannouchi ne briguera pas la présidence’, Le Parisien, 30 January 2011. http://www.leparisien.fr/flash-actualite-monde/rached-ghannouchi-levisage-de-l-islamisme-tunisien-rentre-au-pays-30-01-2011-1277385.php (accessed 22 July 2011). 4  Al-Nahdha Party, Bayān, Tunis, 26 March 2012.

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explained the choice made by al-Nahdha, a choice approved by 53 votes against 13 in the Founding Committee of the party: ‘these recent days, a controversy arose about the mention of sharia law in the future constitution, to the point that society almost split ideologically between the pro and anti-sharia. In reality, 90% of the Tunisian law is in conformity with sharia law’.5 Within the Islamist party, some disagreed with this decision. As Riadh Chaïbi, Chairman of the Organizing Committee of the ninth congress of al-Nahdha told me: It was quite difficult [to make this decision]. There is an emotional aspect about the issue of sharia. It is about affects. Of course, there is a tendency to become attached to names without paying attention to content. The word ‘sharia’ is a word deeply rooted in intellectual history, in the history of Islam. There is no one anymore who can say that they are against sharia if they claim an Islamic reference … We are not saying that Sharia is not part of our thought or that we do not recognize sharia. We only said that we would not mention it in the constitution. We want to search for new forms of the meaning of sharia (…) If sharia becomes the source of legislation, and if a secularist party wins the election with a majority, will the assembly take that party to the constitutional court? Would this contradict democracy? (…) These are very important questions for us.6

While it seemed logical for secularists to refuse sharia as the basis of the law, such a decision might seem surprising coming from Islamists. Al-Nahdha’s position was all the more surprising given that polls showed that the majority of Tunisian public opinion was in favour of sharia being a source, but not the only source, of legislation.7 Perhaps equally surprisingly, secularists accepted that Islam remain ‘the religion of the state’, thereby shunning the principle of the separation of state and religion as a prerequisite for democracy. For instance, Riadh Guerfali, a Tunisian specialist of public law, wrote in the Tunisian blog Nawaat, which played a crucial role during the uprising, that the statement ‘Islam is the religion of the state’ actually guaranteed secular democracy.8 I will come back to this line   Rached Ghannouchi, Press Conference, 26 March 2012. Quoted in Leaders, 26 March 2012, http://www.leaders.com.tn/article/pourquoi-ennahdha-a-accepte-le-maintiende-l-article-1er-de-la-constitution-de-1959?id=8023 (accessed 16 October 2012). 6  Interview with Riadh Chaibi, 30 May 2012, Tunis. 7   Gallup, ‘After the Arab Uprisings: Women on Rights, Religion, and Rebuilding’, Summer 2012. http://www.gallup.com/poll/155009/Uprisings-Women-Rights-ReligionRebuilding.aspx (accessed 29 October 2012). On the question of popular legal consciousness and Muslim legal theory, see Tamir Moustapha, ‘Islamic Law, Women’s Rights, and Popular Legal Consciouness in Malaysia’, forthcoming in Law and Social Inquiry. 8   See, for instance, Riadh Guerfali, ‘“L’islam religion d’Etat”. Disposition constitutionnelle garante du processus séculariste de la démocratie tunisienne’, 31 March 2011, http://nawaat.org/portail/2011/03/31/islam-religion-detat-disposition-constitutionnellegarante-du-processus-seculariste-de-la-democratie-tunisienne/ (accessed 22 July 2011). 5

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of reasoning later in this chapter. Here again the secularists and the Islamists from al-Nahdha broadly agreed on the project of democracy combined with religious establishment and secular law. While the issue of a return of sharia as a foundation for legislation was very present in the news in Tunisia during this time, no major political party or activist seemed inclined to challenge Article 1 of the Constitution or the advances made on women’s legal status through secular law since 1956. This concordance of views can partly be analysed as a political compromise reached by secularists and Islamists in order to survive a transitional period during which risks of instability might threaten all political groups. However, this chapter argues that there are also deep historical reasons for such a broad convergence, and describes the subtle and ambiguous ways in which secularists and Islamists continue to diverge in their views on Islam and the state. These two mutually antagonistic groups speak within a single framework whose principles shape the strategies and narratives of both sides. This framework is the end result of a radical transformation of the relations between Islam, sharia and the state during the nineteenth and twentieth centuries, a transformation that undermined the role of sharia and reduced it to an obscure and unstable place in conceptions of secular law. The gradually diminishing role of sharia under the aegis of the modern state explains why the notion of sharia as a foundation for law is illegible for the Islamists as well as for the secularists. The colonial and postcolonial Tunisian state progressively transformed sharia from a revealed source that operated as a guiding principle for adjudication by the jurist into an implicit point of reference regulating the interaction of two specific domains – the state and the family – that state elites saw as tightly connected. This shift from sharia as a guiding principle for the jurist to the ‘implicit sharia’ as a distant reference for the law is related to the growing role of the modern state as a legislator that uses the law to fashion the private lives of its subjects in order to make them ‘modern’ citizens who live in the shadow of a state whose identity is ‘Muslim’. As underlined by Wael Hallaq: The demise of the shari’a was ushered in by the material internalization of the concept of nationalism in Muslim countries, mainly by the creation of the nation-state. This transformation in the role of the state is perhaps the most crucial fact about the so-called legal reforms. Whereas the traditional ruler considered himself subject to the law and left the judicial and legislative functions and authority to the ‘ulama, the modern state reversed this principle, thereby assuming the authority that dictated what the law is or is not.9

In the case of Tunisia, during the eighteenth and nineteenth centuries, the fiction of the independent jurist was maintained in the official language of the law, whereas in reality the sovereign encroached on sharia law. After independence the state 9   Wael Hallaq, ‘Can the Sharia be restored?’ in Islamic Law and the Challenges of Modernity, eds Yvonne Y. Haddad and Barbara F. Stowasser (Walnut Creek: Altamira Press, 2004), 21–53.

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became the legislator, using the secular law as an instrument authoritatively to change family life from a patriarchal structure to a model of increased gender equality.10 Despite its narratives of ‘women’s rights’ and ‘women’s emancipation’, the authoritarian state was in fact far from ‘liberating’ women, since it was exercising its implacable authority on all citizens of Tunisia. This enterprise of social transformation was a project of domestication of practices and forms of life that had thus far escaped the state’s regulation. Sharia law, with its jurisprudential expressions, represented one of these forms. In a 1965 speech given in Ankara, Habib Bourguiba, president of Tunisia from 1957 to 1987, subtly described the transformation that had been at play before him and for which he would continue to advocate. He presented it as a compromise that would not lead to separation of state and religion: Let us not forget that for the Arabs, religion preceded the state. Before the state, religion legislated. By the side of the state, and with the state, religion must guide, inspire, and harmonize. We consider these two entities [the state and religion] to be complementary, not contradictory, and it appears to us more legitimate to unite them than to separate them.11

In this new framework characterized by the central presence of the modern state – and by the idea of a ‘unity’ of religion and state – the state took on the role of legislator. It relegated sharia – conspicuously absent from Bourguiba’s 1965 speech – to an uncertain and precarious role while making ‘Islam’ as a religion an object to regulate as well as the foundation of its own identity. After the uprisings of 2010–11, it was within this framework of religious establishment and secular law that all Tunisian political elites, including the leadership of al-Nahdha party, understood the marked role of Islam in the state – a by-product of colonial and postcolonial state interventions, rather than the result of the presence and the activism of the Islamists themselves. They all accepted the role of religion in the Constitution, but made sharia at most a ‘reference’ that had participated historically in the modern state’s formulation of the secular law, if not merely a thing of the past that had disappeared. To understand the common framework under which the al-Nahdha party and Tunisian secularists operate, I explain in Part I how, starting in the nineteenth century, a new legal regime made sharia progressively ‘implicit’ in Tunisia. In Part II, I examine the legal debates about the significance of sharia in Tunisian law in postcolonial times. In Part III, I show how, in post-Ben Ali Tunisia, religious establishment, rather than sharia law, provides the tools that the al-Nahdha Party uses to protect and reinforce the Islamic identity of the Tunisian state and society.  For a comparative analysis of these transformations in Northern Africa, see Mounira Charrad, States and Women’s Rights: The Making of Postcolonial Tunisia, Algeria and Morocco (Berkeley: University of California Press, 2001). 11   Quoted in Ahmed Mestiri, Preface to Nazli Hafsia, Le contrat de mariage en Tunisie jusqu’à 1956 (Tunis: Carthaginoiseries, 2005), 8. 10

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The Genealogy of Family Law Codification: The Implicit Sharia In nineteenth-century Tunisia, a movement for codification of the law was initiated and encouraged by state administrators and reformers such as Khayr alDin al-Tunisi and foreign agents, in particular British and French consuls. It was inspired by a deep dissatisfaction with the state of affairs of the legal system. The Europeans criticized the perceived disorder and arbitrariness of the legal system, which prevented them from conducting business in the country in the way they saw fit. They pressured the Bey of Tunis to proclaim the Security Pact (1857) and the Constitution (1861), which reformed the legal status of all residents of the Regency. The Security Pact of 1857 guaranteed the equality of all residents of the Regency regardless of their ‘religion’, their language and their ‘color’ (al-adyān, al-alsina, wa’l-alwān).12 The Constitution of 1861 established new tribunals that would adjudicate on commercial and criminal issues. These issues were thereafter taken out of the purview of the Bey’s personal judiciary and out of the sharia tribunals.13 Between 1856 and 1876, the Bey’s government reorganized the sharia tribunals by circumscribing their domain to that of family law, endowments and property, and by formalizing their operations in more official structures.14 Thus, before the occupation of Tunisia by the French, sharia tribunals were already limited to a domain that the French authorities would only shrink further during their presence in Tunisia (1881–1956). The French eliminated property rights and real estate issues from the purview of the sharia tribunals in order to control land more easily. Family law remained the domain of the qadis, however, who adjudicated through their traditional system of jurisprudence based on either Maliki or Hanafi law, while the rest of the legal system was subject to recently published codes. In the eyes of the French authorities and of many Tunisian jurists, this legal dualism had many faults: in particular the new context of the modern state made it necessary to formalize the institutions of marriage and divorce under the state’s own aegis and made Muslim law, which kept family matters regulated in informal ways and out of the control of the state, an anomaly.   Qānūn al-dawla (Tunis: Maṭba‘at al-dawla al-Tūnisīya, 1861), 6.  Therese Womble, Early Constitutionalism in Tunisia, 1857-1864: Reform and Revolt. PhD diss. (Princeton University, 1997). 14   A. Sébaut, Dictionnaire de législation tunisienne (Paris: Marchal et Billard éditeurs, 1888) 212. See also Bahri Guiga, Essai sur l’évolution du Charaa et son application judiciaire en Tunisie (Paris: Jouve et Compagnie Editeurs, 1930); Robert Brunschvig, ‘Justice laïque et justice religieuse dans la Tunisie des Deys et des Beys jusqu’au milieu du XIXème siècle’, Studia Islamica 23 (1965): 27–70. For a historical testimony on these legal transformations, see Ahmad Ibn Abi Diyaf, Itḥāf ahl al-zamān bi-akhbār mulūk tūnis wa ‘ahd al-amān, al-dār al-‘arabiyya lil-kitāb (Tunis: al-Maṭbaʻah al-Rasmīyah lil-Jumhūrīya al-Tūnisīyah, 1063–1966). The most detailed second-hand account is in Muhammad Bouzghiba, Harakat Taqnīn al-fiqh al-islāmī bi’l-bilād al-tūnisiyya (1857–1965), (Tunis: Markiz al-nashr al-jāmi‘ī, 2003). 12 13

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The Tunisian reformists at times conformed to European demands, since the legal texts of 1857 and 1861 intended to counter the sovereign’s despotism, but with a true dislike for the French and British attempts to dictate their terms to the Regency. Using the same narratives as other reformists such as Muhammad Abduh in Egypt, they denounced the obscurity of the shar’i legal process, its lack of standardization and its consequent arbitrariness. For the ulama who expressed their desire to reform the legal system and codify sharia, it was not that sharia was impossible to implement, but simply that the ad hoc process that characterized sharia courts was not legible anymore: it appeared disorganized and was viewed as corrupt and unjust. This, they explained, was not a result of the substance of the sharia but rather of the procedures through which it was implemented. There was a need to codify the law into a standardized text – as opposed to a stock of compendia written by medieval jurists and only known to and understandable by a few specialists – in order for it to be accessible to both judges and litigants. In his 1922 essay Martyr Tunisia, addressed to the French public as a request for full Tunisian sovereignty, Shaykh Abdelaziz al-Thaalibi dedicated a chapter to the justice system. He described the judicial organization of Tunisia as ‘a monstrous monument of insecurity and injustice … There is not one system of justice in Tunisia: there are five systems of justice: a French system of justice that represents French sovereignty, a Tunisian-Muslim system, a Jewish system, a secular system and a mixed (French-Tunisian) system’. Commenting on the Muslim sharia court (what he called the ‘Tunisian-Muslim system’) he described it as ‘archaic’. ‘Its difficult situation’, he wrote: is not caused by Muslim law itself, but by the poor organization of this court and the lack of codes … The procedure is dense and inextricable. The judge does not adjudicate according to his opinion and he has no power of appreciation. He is bound to a system of legal proofs … In order to prove a fact, as well as to challenge it, there is a need for at least two witnesses. Hence the number of witnesses in a trial might increase indefinitely … and the trial might last for years, sometimes generations! … Contrary to the exigencies of Muslim law, the judgments are never justified. There is no administrative organization, nothing is filed, the titles of the defendants are lost on the benches, at the judges’ homes, or in the notaries’ offices. And on top of all of this, there is no clerk at the hearings … At the hearings, nothing is registered in writing. Errors are easy to make for it is often difficult for the court to remember the meaning of its judgment … The [French] government follows with a passionate interest the decline of our system of justice. [The French government] holds in its power, through the most minute details of our family life and properties, the destiny of our society.15

15  Abdelaziz al-Thaalibi, La Tunisie martyre (Paris: Jouve et Companie éditeurs, 1922), 52–3.

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This was not an isolated criticism of the operations of the sharia courts – it echoed earlier objections both in Tunisia and in other Muslim societies in the Middle East.16 The colonial state was also in need of a more controllable system of justice. In 1948, Shaykh Abdelaziz Djait, who was minister of Justice and Shaykh al-Islam – the highest religious position in the realm – codified family law in order to integrate it in one text. In doing so he was both following the requests of French authorities and acting upon a desire to rationalize and standardize the law that seemed to be commonly shared among jurists, as illustrated by al-Thaalibi’s evaluation of sharia courts. The project was declared necessary to produce a standardized set of rules. Its stated aim was to remedy the poor situation of the sharia courts in which judges adjudicated according to their personal whims and defendants took advantage of the existence of two schools of law to maximize their interests.17 The ‘Djait Code’18 was drafted by a large committee composed of ulama, lawyers, journalists and intellectuals working under the patronage of the Ministry of Justice. It dealt with land ownership and personal status issues and summarized the principal provisions of the Malikite and Hanafite schools of law in these two domains. It was never applied under the French protectorate, but its form and content help make clear the transformation at play in Muslim law in twentieth-century Tunisia. The text was organized into two columns, one for the Hanafi interpretation – a remnant of Ottoman influence – and the other for the Maliki school of law, the principal school of law in Tunisia. The columns at times contained empty parts when one school presented specific provisions on one issue with which the other school did not deal. From this foundation the judges were supposed to draw their own judgments. They could chose to refer to either one of the two columns, since these were not to be read as two ‘competing’ interpretations, but rather as two collections of possible references that could be combined. While the Djait Code was never used in courts, it served as a template for the new Personal Status law drafted by the independent Tunisian state in 1956. In 1956, Bourguiba instituted the Personal Status Code (PSC, or majallat al-aḥwāl al-shakhṣīya). It was registered in the Gazette (al-rā’id al-rasmī) on 13 August 1956, five months after the independence of Tunisia, and began to be applied in January 1957. While the Constituent Assembly, which also operated as a legislative body, began to convene on 8 April 1956, the text of the Code was neither discussed nor presented to the vote of the members of the Assembly.19 Rather, it was imposed by Bourguiba and his closest aides outside of the deliberative arena of the  Muhammad Abduh, Taqrīr fī iṣlāḥ al-maḥākim al-shar‘īya (Cairo: Al-manār press, 1900). 17   The defendant could chose to be tried in a Hanafi or Maliki court of law, and even switch in mid-trial, especially if the outcome of the trial was becoming unfavourable. 18   Lā’iḥat majallat al-aḥkām al-shar‘īya (Tunis: Matba‘at al-idāra, n.d.). 19   Women’s voting rights were discussed during the 3 February 1958 session of the Constituent Assembly. After a long debate, women’s right to vote was approved by a bare majority. See Munāqashāt, vol. 2, 83–92. 16

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Constituent Assembly. However, the Code was in fact an object of deep contention. Had it been brought before the Assembly, discussion certainly would have been heated, as shown by the opposition to the new Code echoed by the press at the time. In particular the newspaper al-Istiqlāl voiced the strong disapproval of many conservative ulama from the Zaytūna University. Responding to a request for a fatwa on the new Code, Djait published his opinion in the fall of 1956 in al-Istiqlāl. Holding an official position within the state’s administration, he did not want to be perceived as frontally opposing the government and as a trouble-maker. In a style typical of ulama’s respectful but critical advice to the political authorities, he wrote: I say to those who requested a fatwā that it is not lawful for the sincere believer to cause discord, which spreads dissension, provokes hatred and resentment and destroys the nation’s unity. Indeed, it leads to public damage (adhrār ‘āmma) and surely to catastrophes that will harm our dear country most deeply. A request for a fatwa made for this odious aim is only bad deceit. However, if the objective is to know the truth and the divine law, in order to request from the popular government the revision of the articles contradicting the sharia’s regulation (ḥukm shar‘ī) and if the request is made in a way to avoid provoking disorder and trouble, then I want to reassure the authors of the request that I have done my duty and wrote to the Ministry of justice to ask for modification of articles 14–18–19–21–30–35–88.20

The provisions of these seven articles out of the 170 of the original 1956 Code were unacceptable in their substance to most Tunisian ulama except for a few who agreed to officially support the project on behalf of the state. The articles, which presented a significant departure from Muslim law, made repudiation a legal impediment to the remarriage of the husband, criminalized polygamy and mandated that all divorce requests go through the courts. On the whole, however, the PSC was in large part inspired by the Djait Code. The articles concerning descent, dowry and inheritance respected Muslim law. The PSC also abolished constraint in marriage (jabr), replacing it with the mandatory mutual agreement of the prospective spouses, a provision that Djait had accepted. Bourguiba was unwilling to put the matter of family law up for public deliberation, so the sharia courts were abolished, and their personnel integrated in the unified justice system by state decree in the autumn of 1956. He had to act quickly, because the nationalization of the justice system, still in the hands of the French administration, was at stake. He wanted to prove to the French that Tunisia could have a secular and ‘modern’ system of justice. The ulama felt that their own domain of activity was being threatened and indeed annihilated, and that the very substance of the sharia that they were supposed to interpret was disappearing from the law. Hence their opposition to the new Code was a defence of their professional body as well as a defence of the substance of the 20   Muḥammad al-‘Azīz Ja’ayyiṭ, ‘Jawāb ‘an al-istiftā’, Al-Istiqlāl 47, 14 September 1956, 1.

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law. Since, however, as Shaykh Djait said, the ulama preferred to avoid provoking public disorder and sought to preserve ‘national unity’ – and since Bourguiba had the upper hand – a compromise was reached. The discussions in the Constituent Assembly were leading towards the recognition that Islam was ‘the religion of the state’. Shaykh Muhammad al-Tahar Ben Achour, a high ranking scholar who had been appointed Dean of the Zaytuna University at the time, gave his approval to the Code: ‘We give our full confidence to a government that has declared itself a Muslim government in its first fundamental law, to proclaim laws that are accepted by the elite and the whole community’.21 A quid pro quo had been established between part of the official ulama and Bourguiba’s regime. On the one hand, Bourguiba agreed to make Islam constitutive of the state through Article 1 of the Constitution, which by and large satisfied the ulama. On the other hand, however, the ulama had to accept the breaches of Islamic law in the Personal Status Code. The compromise was nonetheless based on an unequal balance of power. If the Code was criticized by the ulama, the contentious articles were never modified towards a more ‘Islamic’ interpretation as Djait had hoped. In 1959, Article 1 of the Constitution became a symbolic compensation for those who wanted Islam to remain a marker of the nation’s identity. Sharia had been invoked at length in the 1861 Constitution of the Tunisian Regency. It disappeared from both the 1959 Constitution and the 1956 family law. This fading of sharia, imposed through an unequal compromise by Bourguiba’s new state, has left, as we will see, indelible marks on Tunisian debates regarding Islam and secularism. Indeed, if the Personal Status Code itself did not invoke sharia, the official state narratives justifying the PSC insisted on the Code’s roots in sharia law as well as on its progressive and modernist aspects. The Code was deemed necessary to solve the problems plaguing the legal system, such as the multiple jurisdictions and the dual Hanafi-Maliki system in family law. The preface to the 1958 edition of the Code stated that in the past the ‘mainstream opinions were to serve as a basis for judges and were even difficult to discern from the compendia written by the different theologians that diverged from one another on each issue’.22 In order to resolve this issue, the Code made law transparent, public and efficient: ‘Our modern times’, it read, ‘request that our litigations be adjudicated rapidly, and that an instrument that is easy to consult be put at the disposal of the judges and the litigants’. In addition, the same preface described the Code as the product of a specific interpretation of sharia: The venerable Islamic legislation (al-tashrī‘ al-islāmī) represents justice with its universal principles and is also faithful to the needs of the human person   Quoted in République tunisienne, Ministère des Affaires Religieuses, Le Code du Statut Personnel. Enracinement dans l’islam et modèle de partenariat effectif (Editions Ministère des Affaires Religieuses, (Tunis: 2008), 103–4. 22   Muhammad al-Tahar al-Sanusi, Dā’irat al-tashrī‘ al-tūnisī, Majallat al-Aḥwāl alshakhṣīya, 2nd edition, (Tunis: no publisher, 1958), 3. 21

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whatever the times and the conditions. The 1932 international conference of The Hague on comparative law has recognized with respect and admiration that [the Islamic legislation] can be one source of comparative law. Hence, the drafter of the Code has chosen from the depths of this Islamic legislation what can respond to all these needs (…) with a style that is easy and understandable in all its parts and that can be accepted by the elites and be clear for the masses.23

The ‘depths of [the] Islamic legislation’ were a reference to sharia, but also to the fact that the ancient Islamic legislation was difficult for the masses to access. Because of its opacity, it had to be ‘rewritten’ for clarity, and so that all of the members of the new nation would understand. However, once rewritten in a new language, sharia itself became even more unreachable. Sharia was still ‘venerable’ and admired by Western scholars, in the words of the introduction to the Code. But its social efficacy had to be attained by new means, that of a codified law whose process was entirely different from that of sharia law.24 Secular law was more able than sharia to be an instrument for the development and ‘modernization’ of society. Even in absentia, however, sharia was objectified in this official narrative as a legislation ‘faithful to the needs of the human person whatever the times and the conditions’, which echoed the ulama’s conception of sharia law. Therefore, sharia was not totally erased from the narratives about the new Code. It became implicit, but, even in its implicitness, it remained all-encompassing because it was described as able to deal with all needs, in all times. The new Code itself, in its secular form, was equally totalizing: it was readable and understandable by all, a universally recognized and applicable law for all Tunisians that would reorganize their family lives. The 3 August 1956 communiqué of the Ministry of Justice insisted on the legacy of the Djait Code as well as on the radically new format of the Code: ‘We avoided rare words, which only the jurists (fuqahā’) specialized in these disciplines use, as well as words that do not correspond to the current tastes and practices … We have dealt with broad questions and important issues and have neglected the details, which we left to the judge who will solve them by looking at the main reference books and fundamental texts, if need be’.25 Judges often understood that the ‘main reference books and fundamental texts’ meant that they could refer to Islamic law when the Code was silent on certain issues. The implicitness of sharia law allowed it to reappear in legal cases, which showed that its domestication was not complete.26 After 1956 the PSC gained a high legal status in the hierarchy of Tunisian laws, comparable to that of the Constitution. The official state narratives have 23   Muhammad al-Tahar al-Sanusi, Dā’irat al-tashrī‘ al-tūnisī Majallat al-aḥwāl alshakhsīya (Tunis: no publisher, 1958), 3–4. 24   Wael Hallaq, ‘Can the Sharia be restored?’. 25   Quoted in Ministère des Affaires Religieuses, 34. 26  On particular cases and their interpretations by judges using sharia law, see Nazli Hafsia, Le contrat de mariage en Tunisie jusqu’à 1956, Carthaginoiseries, Tunis, 2005.

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insisted on its ‘modernist’ dimension as well as on its ‘Islamic legacy’, and have underlined the exceptionality of the Tunisian case in the Arab world. In 2006, at a conference celebrating the 50th anniversary of the Code in Qayrawan, the religious capital of Tunisia, the Minister of Religious Affairs reminded his audience that it was based on the Djait project and that the PSC was ‘inspired by Islam, which is considered as a whole, vast, coherent and indivisible’.27 This meant that, according to him, the codification of family law had not fragmented Islamic law by drawing from it only partially, but was comparable to its full translation. In the same publication, an article by Mongia Souaihi, a female professor at Zaytuna University, explained articles of the PSC through Koranic verses, underlining the ‘Islamic’ character of the Code. The PSC had become itself a sacred creation of the state, neither because of its supposedly ‘religious’ inspiration, nor by virtue of being interpreted through the Koran as Souaihi had done, but rather because it had become politically untouchable. Since 1956 the dual insistences upon the ‘modern’ and the ‘Islamic’ characters of the Code have been shaped as the domain of the authoritarian state alone. Both modernism and Islam were instrumentalized by the regimes of Bourguiba (1956–87) and Ben Ali (1987–2011) in order to give meaning to shared values common to all Tunisians as well as in order to control political dissent. The Code was said to be modern because it emancipated women and gave them some of the rights and freedoms that women could enjoy in developed Western countries. At the same time, even though ‘modernity’ was inspired by the Western model of women’s emancipation and gender equality, Islam also had to be asserted as compatible with that model. Islam and modernity were combined to try to balance the Islamist and secularist positions. In particular Islamists were kept at bay through references to the threat they allegedly presented to the Personal Status Code. The most secular reformists who demanded absolute equality, in particular in the laws of inheritance, were also turned down as being insensitive to Islamic values. In the speech he gave on the 50th anniversary of the Code, the Minister of Religious Affairs said: ‘President Ben Ali elevated the Personal Status Law to the same rank as the principles inscribed in the Constitution of the Tunisian Republic, which means that he raised this sensitive branch of law up to the highest legislative level’.28 He was alluding to the fact that the adherence to the Personal Status Code by political parties as a condition for their legal existence was added to the text of the Constitution in 1997, justifying the exclusion of the main Islamist political movement, al-Nahdha, from the legal opposition.29 27   Mohamed Habib Chérif, ‘Le code du statut personnel entre authenticité islamique et modernité juridique’, in Ministère des Affaires Religieuses, République Tunisienne, Le Code du statut personnel. Enracinement dans l’Islam et modèle de partenariat effectif (Tunis: Editions Ministère des Affaires religieuses, 2008), 54. 28   Mohamed Habib Chérif, 46. 29   Constitutional law no. 97-65, 27 October 1997, in Al-rā’id al-rasmī li’l-jumhūrīya al-tūnisīya, no. 87, 31 October 1997.

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Sharia as a Site of Memory and the Predominance of Religious Establishment Participants in the 2006 Ministry of Religious Affairs conference did not note that, in contrast to the Djait project, the PSC had transformed sharia into an implicit category. On the one hand, Djait’s project was a summary of legal provisions from Hanafi and Maliki law arranged vertically in two columns. It provided a flexible set of tools from which the judge could draw his rulings. On the other hand, the new 1956 Personal Status Code’s first editions were set out in two horizontal parts: first, the text of the law with its numbered chapters and articles occupying the top part of each page, and second, footnotes at the bottom of the page explaining the articles of the law. Contrary to the columns in the Djait law project, where no hierarchy separated the Hanafi and the Maliki interpretations of sharia, the body of the text of the new Code had a higher status than its footnotes. The former was the law, while the latter was only a commentary of the law, formulated through the exposition of its sources, its interpretations and sometimes specific rulings that had occurred between 1956 and the second edition of the Code in 1958. This dual form of the 1956 PSC represented a domestication of the Islamic narrative and memory. On some pages, the footnotes occupied almost the totality of the space, leaving only one line to the law itself. The types of explanations provided were varied: they referred to treatises of fiqh and excerpts of the Koran, as well as to real cases in which the Code was applied. However, the footnotes did not only provide ‘explanation’. They also offered a context to the law, a background that helped one to read it in terms that differed from those of the newly codified rules. Indeed, they provided in part the religious ‘memory’ of the law: not necessarily its exact historical origins, but rather its ‘equivalent’ in the jurisprudential memory of the authors of the new Code. This memory constituted a layer of discourse that was explicit in the footnotes, but remained implicit in the personal status law itself. It was not practically usable as law, but was included to persuade the reader that the Personal Status Code was not foreign or exogenous to Tunisian and Muslim history. For instance, the first part of Article 5 stated: ‘each of the spouses must be pubescent and must not be in a situation of legal impediment (al-mawāni‘ alshar‘īya) to marriage’.30 This was accompanied by a footnote that read: Among the legal impediments to marriage is when the future husband is not Muslim and the future wife does not belong to one of the religions of the book or when she is an apostate (murtadda). This impediment is among the temporary ones according to the law (shar‘an), since it can be lifted by conversion. See Ibn Juzay p. 200.31 See His beloved book: ‘do not marry unbelieving women   Muhammad al-Tahar al-Sanusi, Dā’irat al-tashrī‘ al-tūnisī Majallat al-aḥwāl alshakhṣīya, 19. 31   This is a reference to Ibn Juzay’s (1321–57) manual of jurisprudence that emphasized the Maliki school of law, Qawānīn al-aḥkām al-shar‘īya wa masā’il al-furū‘ al-fiqhīya. 30

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(idolaters), until they believe; a slave woman who believes is better than an unbelieving woman, even though she allure you. Nor marry (your girls) to unbelievers until they believe: a male slave who believes is better than unbeliever, even though he allure you. Unbelievers do (but) beckon you to the fire. But God beckons by His grace to the Garden (of Bliss) and forgiveness, and makes His Signs clear to mankind: that they may celebrate His praise.32

In this case, the Islamic law explicitly served as a reference through the quote of Ibn Juzay, a Maliki jurist, and through the mention of the Koranic verse, even if the word sharī‘a was not used. However, the use of the word shar‘ (which means revelation as well as law) remained ambiguous, all the more so in the French version of the Code where al-mawāni‘ al-shar‘īya was translated by ‘empêchement légal’, and shar‘an by ‘au regard de la loi’.33 These formulations created ambiguity because they avoided responding to the following question: was the law referred to in the footnotes of the new Code the sharia or the secular law? It is worth noting that in subsequent printings of the PSC the extensive footnote apparatus disappeared, but that new and separate textual productions from official governmental sources continued to underline the Code’s origin in Islamic law. The use of shari‘a as a reference also produced a reification of the idea of sharia. It became a distant and obscure object, especially after its elimination from the late printings of the Code. Hence its presence as a reference had to be regularly reasserted in official publications, as if the PSC could not do without a site of memory (lieu de mémoire), reminding Tunisians of the historical relation of the Code to sharia.34 In Tunisian religious, legal and political history, sharia remains implicit and unstable. It haunts the margins of the PSC, always changing sites, from state official publications to jurisprudential interpretations. Tunisian secularists are well aware of the fact that asserting that the sharia is a reference for the Code makes sharia a renewed object of attention, and hence renders the Tunisian law susceptible to being viewed as ‘religious law’ or to accusations that it is not ‘religious’ enough. They often deplore even the implicit character of sharia, and therefore reject the idea that sharia is ‘a reference’ of the family law. For instance, Ali Mezghani, a Tunisian specialist of international private law, has reiterated that there is a radical gap between the PSC and sharia. In 1975 he wrote: ‘some authors still try to relate the solutions of positive Tunisian law to classical Muslim law or to fill the silences of the positive law with references to solutions offered by the different schools of Muslim law. Others, however, not being able to find a justification in Muslim law (for instance for the legalization of adoption or the prohibition of polygamy) attempt to establish these institutions with a reference to the spirit of Islam, which must be modernized. Islamic law is   Koran (2, 221), Yusuf Ali’s translation.   M.T. Es-Snoussi, Code du Statut Personnel annoté, 2ème édition (Tunis, 1958), 15. 34  I am referring to the ‘sites of memory’ invoked by Pierre Nora in Les lieux de mémoire (Paris: Gallimard, 1997). 32 33

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dead. Long live Islamic law’.35 For Mezghani the idea of a continuity between ‘Muslim law’ – whose existence he also questions, since for him what is usually called ‘Muslim law’ is not ‘religious’ – and the current Tunisian law is only a political argument used to build support of the positive law by the population. For him the reading of Tunisian law as having its formal source in Muslim law is mistaken, and one must recognize the disappearance of sharia, which exists only as part of the far historical origin of Tunisian positive law. According to Mezghani, when positive law is silent on certain issues, judges unfortunately often interpret cases following Muslim law. Judges should, on the contrary, rule on these cases with the ‘modernist’ and ‘progressive’ intent of the legislator in mind. The recourse to ‘the main reference books and fundamental texts, if need be’, which was evoked by the Minister of Justice in 1956 for cases where the Code was silent, should not allow judges to interpret cases following Islamic law. For Mezghani Tunisian family law, as positive law, should speak by itself for itself and should not be related to an incommensurable and radically different system of law, such as Muslim law, in order to be interpreted. Hence for Mezghani, as well as for the secularists among Tunisian legal experts, positive law cannot be a translation of Muslim law, because these two laws belong to two radically different legal universes. This rejection of legal pluralism – although adopted and invoked by the state – is in part due to the fact that Mezghani sees law as lacking ‘a proper history’.36 Because law – whether called sharia or not – is only the secular result of socio-economic conditions, he argues, law can only be positive law. Whereas historically Tunisian society produced a legal system called ‘sharia’, or shar‘ – literally revelation – the radical transformations of Tunisian society and economy due to foreign influence and colonization in the nineteenth century necessitated a shift to an entirely different legal system. Hence, while Tunisian secularists such as Mezghani posited a radical discontinuity between sharia and positive law, state narratives insisted on a religious genealogy of the positive law. They used this genealogy rooted in implicit sharia to attempt to reassert the state’s own religious legitimacy. They also emphasized the law’s progressive character in order to keep at bay the conservative ulama and later the Islamist political opposition. However, in the eyes of many Tunisians, the authoritarian foreclosing of any public debate on these issues only made the state’s efforts to characterize the law sound like empty rhetoric and drew secularists and Islamists even further apart. In the new context of the political transition of 2011–12, Rached Ghannouchi, the Islamist party al-Nahdha’s leader and main ideologue, participated in the paradigm produced by the postcolonial modern state, rather than countering this dynamic by focusing on the question of sharia. In his writings, he often associates secularism (‘almānīya) with authoritarianism and modernity (ḥadātha). 35   Ali Mezghani, ‘Réflexions sur les relations du Code du Statut Personnel avec le droit musulman classique’, Revue tunisienne de droit, 2ème trimestre (1975): 53. 36   Ali Mezghani, ‘Réflexions …’, 58.

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In an article published in 2011, he criticized the ‘secularist project’ and defined it as ‘the marginalization of religion and its estrangement from the struggles of life’.37 In his view the task of the Islamist movement is to ‘reestablish the relationship between religion and life and the leadership of religion over life’.38 For Ghannouchi, ‘modernization’, the hallmark of the secularists, cannot be acceptable within a secular environment, but only in an Islamic framework, since the Islamist project is one that embraces all aspects of life.39 Hence Islam, in order to avoid losing its own integrity, has to ‘penetrate’ (ikhtirāq) modernity, rather than the reverse.40 His critique of secularism is common among those who advocate for religious participation in public life. However, Ghannouchi’s project is not that of a liberal critique of secularism. José Casanova, in his discussion of public religions, envisioned the inclusion of religion in the public arena as legitimate in liberal secular democracies, as long as religion did not penetrate the state or political society.41 By contrast, Ghannouchi does not envision, in a future Tunisian democracy, a separation of religion and state: in the very words of Article 1 of the 1959 Constitution, Islam is for him and for his movement ‘the religion of the state’. Thus for Ghannouchi religion is public in its maximalist sense, as opposed to being ‘public’ in the liberal version of Casanova’s public religions. The mainstream Tunisian Islamist movement proposes religious establishment and democracy. Of course the insistence on the question of the state rather than on that of sharia is related to the fact that al-Nahdha is as much a political party interested in governing the country and participating in the administration of the state as it is a religious social movement. Hence its members are much more interested in policy-making than in reflecting on legal issues and on the question of sharia. This means that, for this movement, the issues related to the implementation of sharia are simply not relevant for its own mode of governance. This is not to say that the party, who came to power in the fall of 2011, did not craft policies and propose legislation based on religious principles. It means that the party operates in the framework of the modern state and insists on using more secular concepts than ‘sharia’ – such as popular will, democracy, and electoral participation – and modern concepts such as ‘religion’ to speak about its own political project.42 37   Rashid Ghannushi, ‘Is the Islamist movement’s project retreating?’ in Al-ḥaraka al-islāmīya, ru’ya naqdīya, al-intishār al-‘arabī, ed. Mustapha al-Habbab (Beyrout: Muʼassasat al-intishār al-ʻarabī: Ṣināʻat al-fikr lil-dirāsāt wa-al-tadrīb, 2011) 36–7. 38  Ibid. 39  Ibid., p. 37. 40  Ibid., p. 37. 41   Jose Casanova, Public Religions in the Modern World (Chicago: The University of Chicago Press, 1996). 42  On the modern concept of religion, see Talal Asad, Genealogies of Religion, discipline and Reasons of Power in Christianity and Islam (Baltimore: John Hopkins University Press, 1993).

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However, the relationship between the state and religion remains ambivalent in the thought of al-Nahdha’s activists. On the one hand, they clearly articulate a desire to liberate religion from state domination: the first 2011 post-revolutionary issues of their weekly journal al-Fajr contained several articles demanding ‘the liberation of the mosques’.43 On the other hand, they also insist that the state must organize (tanzīm) religion without controlling it.44 For al-Nahdha, liberation of Islam from the control of the state does not mean separation of state and religion, or even neutrality on the part of the state towards religion, in the way that liberal secularism is understood at least theoretically. The state Ghannouchi envisions is a civil and democratic state, but it must engage with religion in specific ways, to organize it, but also to implement it. Ghannouchi’s liberation of Islam from the state occasions no rupture between them. Rather, the state is put at the service of religion, and it is up to those democratically elected to govern the state and to define the ways in which this ‘service’ operates. It is striking that Ghannouchi does not speak of implementing sharia (taṭbīq alsharī‘a, a phrase widely used by other Islamist movements), but rather of ‘Islamic implementation’ (taṭbīq islāmī), a concept on which he does not elaborate and that allows him to avoid tackling the issue of sharia.45 Ghannouchi’s writings on the Personal Status Code are also brief, but they illustrate his focus on the issue of state establishment of religion rather than on legal matters. His critique of the 1956 Personal Status Code was not a critique of the substance of the law per se. As such, it strikingly contrasted with the criticism of the PSC by Shaykh Djait who focused on the content of specific articles of the Code. Ghannouchi developed a more sociological approach to what the PSC meant for Tunisian society broadly: Bourguiba’s regime, charmed with the West … violently destroyed the pillars of ancient society, without discerning the good from the bad. He was convinced that the emancipation of women was the best way to participate in civilization. Then came the Personal Status Code. It was not merely a set of laws that reformed the legal status of women, but it came accompanied and followed by a revolution that stormed ancient society in its entirety.46

Ghannouchi was not against the Code itself, but rather against the broader transformation of Tunisian society that the state had initiated with the PSC and other modernization policies. Although this critique of state policies is central in 43   For instance, Muhammad Chadhili Bukhari, ‘ḥattā lā tataḥawwala al-masājid ilā qamīs ‘uthmān’, Al-Fajr 3, 22 April 2011, 5. 44  Interview with Ajmi Lourimi, member of the Political Bureau of the Nahdha Party, Tunis, 9 June 2011. 45   R. Ghannushi, 32 and 45. 46  Rashid Ghannushi, al-mar’a bayna al-qur’ān wa wāqi‘ al-muslimīn (Tunis: Maṭba‘aṭ tūnis qarṭāj, n.d.), 18.

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the writings of al-Nahdha activists, it does not lead them to deepen their reflections about the legitimacy and the practical operations of religious establishment: how would their party, if it came in power, make the state ‘Muslim’? This question, rather than the issue of sharia and sharia’s content, has animated the debate between secularist and Islamist activists after the uprisings of 2010–11 and the departure of Ben Ali. In that sense, sharia has remained as implicit as it used to be. Varieties of Religious Establishments in Post-revolutionary Tunisia During the weeks following 14 January 2011, the interim government charged the Committee for Political Reforms (CPR) with proposing a path for the political transition. Ben Ali had announced its creation in his speech to the nation on 13 January. Its tasks included drafting any necessary new legal articulations, such as amendments to the Constitution or laws on political parties, elections and the press. Headed by Yadh Ben Achour, a well-known Tunisian expert on public law and Muslim political theory, the CPR was a small and independent committee of experts. On 3 February 2011, commenting on the tasks of the CPR in a televised interview, Yadh Ben Achour declared that he approved the election of a Constituent Assembly and the foundation of a ‘second republic’.47 According to Ben Achour the laws organizing politics were in need of a radical transformation since it was under a well-tailored legal apparatus that authoritarianism had operated since independence. In particular the previous regimes successively revised the Constitution and the laws regulating the press and the political parties to further their authoritarian agendas. There needed to be ‘a new state’, a concept that al-Nahdha’s Islamists agreed with. The point was reiterated to me by Ajmi Lourimi, a member of al-Nahdha party’s Political Bureau, during our meeting on 9 June 2011. However, Ben Achour added, one law remained central, and could not be put into question because it was ‘the real constitution of Tunisia’: the 1956 Personal Status Code. It was, he insisted, the first legal text of independent Tunisia and became law before the Constitution of 1959 was proclaimed. Its principles constituted a ‘republican gain’ (maksab jumhūrī). But the Tunisian people were ‘not yet at the level of the PSC’: ‘How can we improve relationships within the family? We need decades! The Code is comparable to the first Tunisian constitution. It would be a mistake [to change it]. What if a [political] party obtained the majority of seats and wanted to change it? We should say: there are principles we cannot change’.48 Ben Achour, grandson of Shaykh al-Tahar Ben Achour, who had acquiesced to the Personal Status Code in 1956, looked at the PSC as more progressive than the people it sought to change and regulate. For him the Code had been established by Bourguiba in

  Yadh Ben Achour, interview on Nessma TV, 3 February 2011.   Yadh Ben Achour, interview on Nessma TV, 3 February 2011.

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order to transform Tunisian family and society. It had to serve as a tool for social engineering, but had not entirely accomplished its task yet. According to Yadh Ben Achour, the PSC’s ‘primeval’ status in the chronology of the legal history of independent Tunisia and its comparability to a constitutional text made it an inalterable law that needed to remain a solidly and broadly legal foundation in post-Ben Ali Tunisia. It is noteworthy that in the same interview Ben Achour also declared that Article 1 of the 1959 Constitution stating that Islam is the ‘religion of the state’ should remain in the future constitution. While he did not elaborate upon his understanding of this article’s meaning, he insisted on what he viewed as two central pillars in the legal future of Tunisia: women’s rights and Islam as the state’s religion, a position that converged with the state reformist options that President Bourguiba and his entourage had chosen since the independence of Tunisia. During the year 2011, a period of political instability and uncertainty, when politicians and activists were looking for and vigorously debating possible paths to democratic transition, the themes of the Personal Status Code and of ‘the relationships between religion and the state’ were at the forefront of public debates. They seemed tightly connected and were becoming at least as prominent as issues such as the economy, the independence of the justice system, the separation of powers or human rights. Opinion articles, televised debates, street demonstrations and opinion polls expressed deep-seated anxieties about these two issues. Women’s rights and the relationship between state and religion were seen as interconnected and as central to the definition of the constitutional and political future of Tunisia. This was because the postcolonial state had originally defined and shaped ‘Islam’ and ‘women rights’ as two domains essential for its authoritarian fashioning of society. The PSC in particular was seen as ‘exceptional’ by Tunisian politicians and legal scholars. It was seen as standing out among all other family codes in the Arab world.49 Women’s progress and Islam, as expressed in legal narratives, were indeed two foundational elements in the construction of the postcolonial state. There were continuities with the French colonial endeavours to reform law and liberate women from traditional Tunisian mores such as the wearing of the veil and seclusion.50 From the modernist and secularist Tunisian state elites’ point of view, the state drew its identity from Islam and protected women’s rights through its legislative enterprises. During the postcolonial period, this progressive agenda went hand in hand with an authoritarian one: Islam was under the regulatory control of the state, which shaped its meaning and the authorized locations of its manifestations. Feminism was also a narrative that was the prerogative of the 49   Sana Ben Achour, ‘Le code tunisien du statut personnel 50 ans après: les dimensions de l’ambivalence’, L’Année du Maghreb II (2005–06): 55–70. 50   See Malika Zeghal, ‘Veiling and Unveiling Muslim Women: State Coercion, Islam, and the “Disciplines of the Heart”’, in The Construction of Belief. Reflections on the Thought of Mohammed Arkoun, ed. Aziz Esmail and Abdou Filali-Ansary (London: Saqi Books, 2012), 127–49.

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state whose elites mobilized women at its service.51 It was not just that these two domains had to be protected, but, more essentially, they fell under the control of the state, which guaranteed their permanence through an exercise of authority. Each of these domains defined the limits of the other: women’s rights countered conservative interpretations of Islam, and Islam limited women’s rights. The state, as guardian of both domains, could therefore control each one of them with the help of the other. After the revolution of 14 January 2011, as the state’s authority was weakened and often put into question by a recalcitrant civil society, the principles at the foundation of the PSC and Article 1 of the 1959 Constitution were at stake. The Islamists, in particular, drew the public’s attention to the fact that the modernist character of the previous regimes’ state policies had been, for more than 50 years, related to authoritarianism. However, it is quite remarkable that the issue of sharia law was purposely marginalized by the dominant political elites in favour of the larger idea of ‘Islam’ as the ‘religion of the state’. Since democracy is now the declared project of both Islamists and secularists, it is important to address how they all envisioned religious establishment in a democratic state. A few months after the departure of Ben Ali, the responses to this question varied, but it is possible to differentiate between the two camps’ positions. Among al-Nahdha’s Islamists the prevailing and official view was that ‘Islam is the religion of the state’ in the sense that the identity of Tunisia as a country is Islamic, the majority of its citizens being Muslim. According to Ajmi Lourimi, We found this article [Article 1 of the 1959 Constitution] in front of us. It does not pose a problem. There is little contention around this. There is a minority that is afraid that if the government changes and if there is a new majority that takes over, article 1 will be used to change the laws. These fears have no basis, because this article only gives an identity to the Tunisian people, to the political aspect of Tunisia, and to Tunisian society. Even in France there are discussions about the identity of the people. We see that on television. European politicians discuss it. They discuss the flag, the values, their own history … In the end, when we speak about identity, Europe remains Christian in its history, Christian in its civilization, in particular when defining itself vis-à-vis Islam. This is a matter for discussion: how is the regime of Republican France going to deal with Muslims? Is there going to be integration? What about the religious symbols of Islam? This is what is discussed. There is a way in which the French Republic will adapt. And this happens even in regimes that are secular.52

According to Lourimi, Article 1 defined the identity of Tunisia. Lourimi asserted that any state, even a secular one, necessarily engages with religion when dealing with identity matters: ‘In the end, when we speak about 51 52

  Sana Ben Achour, ‘Le code tunisien’.  Interview with Ajmi Lourimi, Tunis, 9 June 2011.

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identity, Europe remains Christian’. In particular, for Lourimi, the Tunisian state must organize Islam administratively; it must continue to provide and maintain religious structures such as mosques, religious education in public schools, the administration organizing the pilgrimage to Mecca and so on. However, it should not have its say in the content of religious narratives and interpretations, which should be freely produced. For example, religious authorities should be dissociated from the state, and even elected by the people, according to Lourimi.53 For him, since al-Nahdha envisions the state as a civil state and not a theocracy, democracy and religious establishment should lead to a ‘liberated’ public Islam, with no religious monopoly by the state or by any political party. Lourimi presented a liberal conception of religious establishment that allows space for individual religious and political rights, but diminished with a certain irony the secularists’ own insistence on their liberty to conduct their personal lives – which he reduced to their alimentary habits and their dress – in the way they see fit: I am interested in Habermas who has written on these issues. He says that secularism diminishes the religious perspective and excludes (iqṣā’īya) religion from the public space … In Israel, it is not the case that citizenship is separated from religion. There are religious parties and secularist parties. All have the same status. They can even collaborate and ally. If society is pluralist, this can work and religious parties can be legal and legitimate. We have the legal and political framework. There is a set of values that are not negotiable: the individual’s right to life, expression, political participation, and work. These are the main basic principles that will prevent us to go back, to go back to barbarism, to tyranny (zulm) … This is why the fears [on the part of the secularists] are not legitimate according to me. The Islamist movements are afraid for Islam, and the secularists are afraid of Islam. And the secularists are afraid for their own individual way of life. They are afraid for their own individual rights. But their fears are not about political rights, or citizenship rights, or religious rights. They are afraid not to be able to buy their wine, not to be able to dress the way they want.54

This characterization of secularists as not interested in defending individual political rights is certainly an exaggerated description, especially coming from Lourimi, who collaborated in the 18 October movement, a coalition started in 2005 between members of secular left parties and al-Nahdha. Indeed, in the same interview, he also described to me al-Nahdha’s political alliance with the activists of the secular left before the revolution and his respect for the latter. However, it is instructive that the Islamists see the secularists as not protecting human rights in general, but rather as safeguarding a way of life that Islamists often associate with Western modernity, in particular French culture and mores (alcohol consumption and Western dress).

53 54

 Ibid.  Ibid.

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Tunisian secularists, on the other hand, want a ‘secular establishment of Islam’ – that is, a secular society without separation of state and religion. For them true democracy, in the context of establishment, will be enough to guarantee that religion does not contradict individual rights. Riadh Guerfali, whom I quoted earlier in this chapter, drew a difference between laïcité and secularism that echoed Lourimi’s comparison between the French and Israeli systems. He also distanced himself from the French model of laïcité: Laïcité is a total rupture between the state and religion. Contrary to laïcité, secularism needs, in order to succeed, the affirmation of a relationship between state and religion … What will be the meaning of ‘Islam religion of the state’ in the future constitution of Tunisia? We still doubt that this phrase could be defined precisely. Since January 14, 2011, we know what it cannot be: it must not go against what Tunisians died for … that is the demand that the dignity of persons be respected. This dignity cannot be detached from the respect of fundamental freedoms and from the guarantees that protect the citizen in a democratic state. To summarize, the meaning that we give to the statement that Islam is ‘the religion of the state’ does not matter. What is non-negotiable after January 14 is that this principle’s meaning must not contradict these freedoms. And this is already a crucial definition … There is no need to eliminate from the constitution the statement that will allow the state to control the religious field, but there is a need to consolidate the necessary laws that will allow us to have a secularized democracy.

To make even clearer the secularist project of a religious establishment in a democratic Tunisia he wrote, ‘By appropriating religion, we will keep a more or less tight control on the religious field so that it does not contradict the democratic project’.55 Very few politicians in Tunisia envision the possibility of separating religion and the state. However, as we saw, there are two different perspectives on religious establishment in Tunisia. The Islamists’ vision is that of an establishment that liberates religion from the tight control of the state but keeps it under its protection. This vision will leave open spaces for narratives on the continuity between the secular law and sharia, similar to those of the previous regimes. It is noteworthy that Rached Ghannouchi, right after coming back from exile, declared that he accepted the Personal Status Code because it mostly derived from sharia. However, when the Islamists came to govern the state in November 2011, sharia was not made more explicit. Al-Nahdha envisioned religious establishment as protective of ‘sacred values’ (muqaddasāt) when one of the party’s representatives in the   Riadh Guerfali, ‘“L’islam religion d’Etat”, Disposition constitutionnelle guarante du processus séculariste de la démocratie tunisienne’, 31 March 2011, http://nawaat. org/portail/2011/03/31/islam-religion-detat-disposition-constitutionnelle-garante-duprocessus-seculariste-de-la-democratie-tunisienne/ (accessed 22 July 2011). 55

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Constituent Assembly drafted a bill in favour of penalizing offenses to ‘sacred values’. In that sense they were in perfect continuity with the press law of 1975, used by the previous regime, which stated that ‘belittling the dignity (nayl min karāma) of an authorized religion’ was a criminal offense (article 48).56 For the Islamists, freedom has its limits, which are set by Islamic values. For the secularists, on the other hand, the interpretation of establishment is one that will allow control of religion by the state and the silencing of any sharia-based project. In that sense secularists do not differ much from either of the previous political regimes of Tunisia in their definition of religious establishment. Even though they agree with Islamists on the project of democracy, they still envision the state as the strongest regulator and restrainer of religion. While they want establishment to take place in a democratic framework, they do not seem to think that state control of religion can impair democracy. This does not mean that secularists are anti-democratic, but rather that they are not ready to accept all the consequences of religious freedom. That is, they are not prepared to embrace the effects of a liberal secularism that would allow the nation’s whole range of religious actors and organizations to operate freely in the public sphere. This Tunisian brand of secularism is at odds with a vast literature that describes secularism as necessarily coextensive with ‘liberalism’.57 Indeed, as the Tunisian example shows, the exclusion of religion from the public sphere can take place through religious establishment and this even under an authoritarian regime such as before 14 January 2011. What is even more striking is that Tunisian secularists, who declare their attachment to democracy, are not ready to ‘liberalize’ the religious sphere in the name of individual freedoms for fear that it would threaten the very existence of a secular society. Hence projects of secularism can be expressed in many institutional and political forms. They can be found in separation or establishment, in liberal democratic forms and in more authoritarian forms of governance. Over the long term, the political transformations spearheaded by the Arab uprisings will reveal new forms of relations between the state and religion and will display new varieties of secularism that will be produced not just by the traditional ‘secular’ segments of these societies, but also by the so-called ‘Islamists’. If we define secularism merely as the organization and regulation of any type of religious presence through specific institutional arrangements, then religious establishment is in itself a form of secularism, whether it is establishment as interpreted by the secularists or by the Islamists.

  Law no. 1975-32 (‘majallat al-ṣaḥāfa’) published in al-rā’id al-rasmī li’ljumhūrīya al-tūnisīya, 29 (29 April 1975), 992–9. 57  See in particular Talal Asad, Formations of the Secular. Christianity, Islam, Modernity (San Jose, CA: Stanford University Press, 2003). 56

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Chapter 8

Church of the Air: Roman Catholics, Religious Programming and Regulation in Canadian Broadcasting, 1918–2008 Mark McGowan

Introduction There has never been a formal separation of the Church and state in Canada. Historically the first colonial establishments in both New France and, later, British North America imported the European idea that the ‘the religion of the Prince is the Religion of the Region’. Thus, during the Ancien Regime, New France witnessed a wedding between altar and throne that made Roman Catholicism the established Church in the northern half of North America. With the fall of the French Regime in 1760, and the incorporation of former French Colonies and territories into the British Empire, the Anglican Church was established in Nova Scotia, Newfoundland, New Brunswick, Prince Edward Island and Upper Canada. Anglicans were also quasi-established in Lower Canada, now Quebec, but had to share official status with the majority Roman Catholics, who enjoyed liberty to maintain their church establishments under the terms of the Quebec Act in 1774. Although the last vestiges of Anglican privilege were stripped away with the dissolution of the clergy reserves in Upper Canada in 1854, state-sanctioned collective rights for religious groups in British North America continued to be recognized after the creation of Canada in 1867. In fact the constitution of the new dominion, the British North America Act, in Section 93, legally enshrined the rights of religious minorities to educational rights that they enjoyed at the time of Confederation. Subsequently state-funded religious schools spread west to the newly settled territories and were enshrined in Term 17 of Newfoundland’s joining Confederation in 1949. Under the terms of the Confederation agreement, however, the federal government in Ottawa was granted residual powers, and it is here, in this federal jurisdiction over things unanticipated by the Fathers of Confederation, where the lines between Church and state become more complicated. The religious presence in broadcasting and the ownership of the ‘air’ by specific religious groups is one case in point. It is not possible within the context of this chapter to explore the contours of the relationship between religious groups and the development and regulation of radio and television in Canada in any appreciable detail. However, many of the salient issues in the debate over religious programming and control of broadcast outlets can

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be observed in the way in which Canada’s Roman Catholics approached the new technology and navigated their way around government regulations that soon came to apply to ‘the Churches of the Air’. Catholics were part of the free market conditions that marked the early years of radio; Catholics were one of the catalysts that brought about public broadcasting in Canada; Catholics were featured in the onset of regulation of religious groups on the public radio and television networks; Catholics also became adept at getting their message out in creative and imaginative ways that often circumvented the letter of broadcasting regulations; finally, Catholics provided challenges to restrictions upon religious broadcasting when Canadian markets became open to cable services and digital television options. The experience of the Catholic Church in the realm of broadcasting – in both official languages – illustrates the Canadian state’s growing pre-occupation with providing balance and equity between competing religious views in the public sphere, and the state’s increased effort to shed ties with any specific religious group. While there still may be no formal separation of the churches from the state in Canada, the experience of religious broadcasting indicates clearly that ‘separation’ was sought and jealously guarded as an unwritten policy of federal government activity in contemporary Canada. Origins of Religious Broadcasting by Canadians From the time it was first developed, wireless radio transmission became an electronic pulpit for inspirational programming and for use by the churches. As early as 1906, when Reginald Fessenden sent the first voice radio broadcast from Brant Rock, Massachusetts, to the ships of the United Fruit Company, it is said that his selections were primarily Christmas hymns, including his own violin rendition of ‘O Holy Night’.1 When commercial radio licenses were first issued by the Canadian Department of Marine and Fisheries in 1922–23, religious programming began to appear in a variety of forms. In the 1920s, while Canadian radio was still in private hands, churches were offered free broadcasts of their religious services, live from their places of worship. The precedent was set in February 1923, when CKCK in Regina set up the first remote Sunday broadcast from Carmichael Presbyterian Church.2 Other churches cooperated with local radio stations, offering their facilities for concerts, organ recitals, choral performances and educational lectures.3 Several churches were eager to lend their ministers and priests to local stations for the broadcasts of sermons, usually on Sunday evenings, 1  Sandy Stewart, From Coast to Coast: A Personal History of Radio In Canada (Toronto: CBC Enterprises, 1985), 9. 2   T.J. Allard, Straight Up: Private Broadcasting in Canada, 1918–1958 (Ottawa: The Communications Foundation, 1979), 22. 3   Library and Archives Canada (LAC), RG 97, vol. 154, file 6206-176, Program Report, CKUA, Edmonton, University of Alberta, 15 June 1928 (broadcasts from St Stephen’s United Church College and St Joseph’s Catholic College). University of Alberta

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with some of the most noted preachers including Protestant William Aberhart on CFCN Calgary, Anglican Canon JE Ward and Catholic priest Charles Lanphier in Toronto, and Father F.R Wood in Winnipeg. Several denominations went so far as to build their own stations and purchase their own broadcast licenses, including the First Congregational and later United Church in Vancouver (CKFC),4 the Christian and Missionary Alliance in Edmonton (CHMA)5 and the Wesleyans in St John’s (VOWR).6 Phantom licenses, which allowed independent stations to use the facilities of another station for broadcasting, were issued to St Michael’s Cathedral in Toronto (CKSM), Jarvis Street Baptist Church, also in Toronto (CJBC)7 and Toronto’s International Bible Students Association (Jehovah’s Witnesses), who also operated their own stations in Vancouver, Edmonton and Saskatoon. Phantom licenses were designed specifically for religious and non-commercial broadcasters and, in the case of churches, were intended for use only on Sundays.8 If Canadians preferred, however, and many did, they could listen in to broadcasts from American stations, whose strong signal strength often bombarded the Canadian airwaves at night. Canadians had their choice of numerous Protestant preachers or the controversial broadcasts of Father Charles Coughlin, who transmitted his political and social talks from WJR, a CBS affiliate in Detroit.9 Although sacred music, Church services, devotional hours and Sunday evening preaching from all denominations became common fare on Canadian radio in the 1920s, there was little scandal, controversy or complaint about broadcasts to the Department of Marine and Fisheries, Radio Division, the regulator of the airwaves in Canada. In 1927 this relative calm was shattered when there was significant public protest about broadcasts made by the stations owned by the IBSA, or Jehovah’s Witnesses.10 While in Toronto for an ISBA convention in 1927, Judge Joseph F. Archives, CKUA Papers, Broadcast Schedule, 1 October 1928 to 30 June 1929, ‘Affiliated Colleges Program’, Mondays, 8:20pm. 4   LAC, RG 12, Ministry of Transport Fonds, vol. 605, f.6206-144, v.1, CP Edwards to EJ Haughton, Division Superintendent, BC, 23 August 1924 and Memo To Minister, 3 October 1930. 5   RG 97, v.152, f.6206-132, R Ainslie, Radio Inspector, to Director, Radio Branch, 11 October 1929. 6   Encyclopaedia of Newfoundland and Labrador, vol. 1, (St John’s: Newfoundland Book Publishers, 1981): 270. Jeff A. Webb, The Voice of Newfoundland: A Social History of the Broadcasting Corporation of Newfoundland, 1939–1949 (Toronto: University of Toronto Press, 2008), 17–20. 7   RG, 42, Marine Branch, v.493, f.209-32-97, CP Edwards, Director of Radio Branch to SJ Ellis, Inspector, 27 September 1927. 8  Ibid., Alexander Johnston to TT Shields, 6 December 1924. 9   Globe, 13 January 1936. Donald Warren, Radio Priest: Charles Coughlin the Father of Hate Radio (New York: The Free Press, 1996), 23. 10   James Penton, The Jehovah’s Witnesses in Canada: Champions of Freedom and Worship (Toronto: Macmillan of Canada, 1976), 94–110; almost every history of broadcasting in Canada makes mention of the case, although Penton’s is the most thorough

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Rutherford, President of the Witnesses, made derogatory remarks about the Catholic and mainline Protestant churches during a speech to his followers, a speech that was covered live on local radio.11 Many members of the listening public, regardless of denomination, were unimpressed. Nor were listeners in Saskatchewan enamoured with the Witnesses when their station CHUC allowed J.J. Maloney, Grand Wizard of the Ku Klux Klan, to make speeches over their frequency. Similarly some listeners in Toronto were outraged when local phantom ISBA station, CKCX, cut into the shared CFRB 580 frequency, just as the Reverend William A. Cameron, one of Toronto’s most gifted and popular Baptist preachers, was reaching the climax of his Sunday night sermon from Loew’s Theatre.12 By 1928, letters critical of the IBSA stations from Vancouver, Toronto, Saskatoon and Edmonton led to Fisheries Minister, P.J. Arthur Cardin, a Catholic, to refuse license renewal to all the Witness’ stations.13 Other religious stations were permitted to remain on the air. While Cardin was within his rights to refuse arbitrarily the renewals under the terms of the regulations for radio and in his capacity as Minister of Marine and Fisheries, his decision did not sit well with either opposition politicians or some clergy.14 In the rather heated debate that took place in the House of Commons, 31 May 1 June 1928, most speakers, including leftist member J.S. Woodsworth, expressed no sympathy for the views of the Jehovah’s Witnesses, but they were deeply troubled that the religious views of one group would be ‘censored’ by the government, while other groups, seemingly those who enjoyed the Minister of Marine’s favour, were untouched. According to Woodsworth, ‘If Bible Students are to be put out of business because they condemn alike Catholics and Protestants, I do not see why the Sentinal and The Catholic Register should not be suppressed’.15 What emerged from this parliamentary debate was a growing consensus among Canadian politicians that no religious group be favoured or discriminated against on either the ‘Canadian airwaves’ and helpful account, despite his underlying assumption of a Catholic conspiracy between Minister Arthur Cardin and Deputy Minister and Radio Director, Alexander Johnston. RG 14, Parliamentary Papers, v.184, Unpublished Sessional Paper 254, file 254, p. 112, J Macklem to Director of Radio (Johnston), 2 July 1926. 11  Ibid., file 254, pp. 74–6, Toronto Star, 21 July 1927. 12   RG 42, Minister of Marine and Fisheries, v.493, f.209-32-97, Managing Editor of the Toronto Star, John R Bone to CP Edwards, 12 April 1924. 13   RG 42, v.493, f.209-32-97, SJ Ellis to Director, 29 June 1927; RG 14, v.184, file 254, p. 105, PR Millner, Whitby, to Director, 1926 and pp. 101–2, TH Whitelaw, Medical Health Office, Edmonton, to Director, 23 November 1926, and p. 35, Greater Vancouver Radio Association to Minister of Marine and Fisheries, 2 February 1928; RG 42, v.493, file 32-1012, contains petitions and letters of protest regarding the IBSA stations. Many Saskatoon letter writers wanted the alternative to ‘“jazz’ offered by CHUC. Margaret Prang, ‘The Origins of Public Broadcasting in Canada’, Canadian Historical Review 46 (March 1965): 1–31. 14   RG 42, v493, f209-32-101, pt 1, J Macklem, Inspector for Saskatchewan, to CP Edwards, 17 April 1928; Hansard, Debates of the House of Commons, 18 Geo V 1928, volume 3, 12 April 1928, pp. 1951–2. 15  Ibid., 3619-20, 31 May 1928.

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or any other facet of national life. In the end the politicians, supported by letters and petitions from the public, seemed to wish for a more level playing field when it came to the ideas and controversy generated by religion on the radio.16 The controversy prompted Cardin to call a Royal Commission to investigate all of Canadian Radio and recommend procedures and regulations regarding more controversial programming. Although it had been religious controversy that had sparked the creation of the Aird Commission, the finished report in 1928, one year later, described the relationship between broadcasting and religion in only a general way. The commissioners emphasized the importance of Canadian content on Canadian radio, while envisioning radio as a potential agent for national unity. They recommended the creation of a national publicly funded network akin to that of the BBC.17 When it was time to discuss religion they simply recommended that: [t]he representative bodies … advise upon the question of programs … to deal with religious services, and it would be for them to decide whatever might be deemed expedient in this respect. We would emphasize, however, the importance of applying some regulations which would prohibit statements of a controversial nature and debar a speaker making an attack upon the leaders or doctrine of another religion.18

Despite this aspiration that the nation’s religious groups would work in tandem with a new publicly owned radio network, there was no such clause in the legislation that created the Canadian Radio Broadcasting Commission in 1932, nor its successor the Canadian Broadcasting Corporation in 1936. Only Section 90 of the CRBC’s Broadcast ‘Rules and Regulations’ (1933) prohibited ‘defamatory statements with regards to individuals or institutions’, which presumably included religion.19 What the Aird Commission had suggested and the W.B. Bennett Government had created was a distinctive Canadian solution to the radio question. The CRBC assumed control of the Canadian National Railways’ network stations and provided publicly owned, commercial broadcasting in competition with the commercially licensed private stations. The CRBC acted as both a provider of programming and as the regulator of all radio, both public and private. This was a hybrid between the free market in radio broadcasting that existed in the United States and the state monopoly of the BBC in the United Kingdom. This unique ‘Canadian way’ of delivering radio services was critical to the development of religious broadcasting.20  Ibid., Mr Irvine, 36345-6.   ‘Aird Commission Report’, in Documents of Canadian Broadcasting, ed. Roger Bird (Ottawa: Carleton University Press, 1988), 42, 48, 50. 18  Ibid., 50. 19  Ibid, CRBC ‘Rules and Regulations, 15 April 1933’, 130. 20  Mary Vipond, The Mass Media in Canada (Toronto: Lorimer, 2000), 39–40; Albert A Shea, Broadcasting the Canadian Way (Montreal: Harvest House, 1963), 104–6; Prang, ‘The Origins of Public Broadcasting in Canada’, 1–31. 16 17

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The new world of Canadian radio broadcasting sought to bring balance to Canada’s religious groups and invite ecumenism to the airwaves. First the CRBC and later the CBC refused to grant licenses to single-faith-based radio stations a regulation that passed into the era of television in Canada by the 1950s. Second, in 1936, due to the heated and acrimonious interplay between two Toronto radio preachers, the Director of the CBC, Major Gladstone Murray, created regulation 7c to prohibit any broadcast that might contain ‘abusive comment on and race, religion, or creed’.21 One of the antagonists, Morris Zeidman, a scion of both the Presbyterian Church and the Loyal Orange Lodge, claimed (with some exaggeration) that his program regularly could claim an audience of 250,000 listeners, including thousands of Orangemen.22 His arch-nemesis was Charles Lanphier, a 35-year-old Catholic priest who had been broadcasting on radio for nearly a decade and had been fired from the Toronto Star station, CJCA, in 1926, for making controversial remarks. Lanphier first broadcast his ‘Catholic Hour’ on phantom station CKSM and then on the CBC-owned CRCT (later CBL). The program, sponsored by the Radio League of St Michael’s, was transmitted live from St Michael’s Cathedral, and consisted of a broadcast of Sunday Mass followed by a weekly news and review program.23 At its height in the late 1930s, it has been estimated that Lanphier drew between 400,000 and 800,000 listeners of the Trans-Canada CBC Network.24 Regulation 7c, which was created in the context of the air wars between these Catholic and Presbyterian broadcasters, not only forced the suspension of both Zeidman and Lanphier, it created a precedent that remained in force until reinterpreted in the broadcasting act that gave birth to the Canadian Radio-Television and Telecommunications Commission (the CRTC) in 1968. The government of Canada made clear that the airwaves of the Dominion would not provide a bully pulpit for any religious group attempting to bludgeon any other religious community. The third innovation, and again, one brought about in the wake of the ZeidmanLanphier affair, took place in August 1938, when Gladstone Murray created the National Religious Advisory Council (NRAC) at the CBC. Focused on religious programming in the English language, the Council would meet monthly in Toronto and be composed of two representatives each from the major denominations in Canada, based upon the size of each according to the most recent Canadian census.25 The CBC would appoint the director of the Religious Programming Department as the liaison between the NRAC and the Corporation. The first meeting of the NRAC, in September 1938, consisted of two Anglican clergy, one 21   RG 41, v.146, file 9–10, Acting Secretary M Landry to All Broadcasting Stations in Canada, 23 December 1936. 22   Globe, 2 August 1935. 23   Catholic Register, 13 July and 2 November 1933. 24  Robert Fortner, Radio, Morality, and Culture in Britain, Canada, and the United States, 1919–1945 (Carbondael, IL.: University of Southern Illinois Press, 2005), 175. 25   Catholic Register, 4 August 1938.

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of whom, Canon JE Ward, was named chair of the Council, two United Church ministers, one of whom, JR Mutchmore, became secretary of the Council, two Presbyterians, one Baptist, and two Catholic priests. Interestingly one of the two priests named to the Council was none other than Charles Lanphier, who served as a popular member of the group until just before his death in 1960. Although the inaugural Council did not represent smaller denominations directly, the founding members promised that they would take into consideration the views of smaller groups and, in time, the Council was expanded to include Lutheran and Jewish representation.26 The Council was responsible for reviewing applications for religious programs to be aired on a ‘free-time’ basis for the CBC, monitor the regulations regarding religious programs and supervise the division of air time on Sundays for broadcasts from all denominations in all regions.27 In time the NRAC was producing two major religious initiatives on Sunday afternoons: The Catholic Hour for 20 consecutive weeks, followed by the corresponding Protestant Hour or Devotional Hour, which shared the same timeslot for another 20 weeks, and the Protestant Church of the Air, which ran later on Sunday afternoons from October to May.28 Each series broadcast from different regions of Canada each week, using the facilities of the local CBC station or an affiliate; for example, The Catholic Hour might run five consecutive weeks from one location – Halifax, Toronto, Winnipeg or Vancouver – and then another for the next bundle of five-week programs. Church of the Air and the Devotional Hour would alternate between the major denominations and the Salvation Army, Lutherans, Reform and Orthodox Jews or Christian Science, and move from region to region.29 The NRAC was meticulous in its attempts to strike a denominational balance on the English-language airwaves while ensuring that Regulation 7c was respected. The NRAC was one safeguard in ensuring that the air wars would be a thing of the past; it upheld the principle of religious balance and provided a modicum of corporation control over the kinds of English language programming that aired on the publicly funded, national broadcasting network. Catholic Canada While Catholics were responsible team players on the English language publicly funded network (at the beginning they actually gave up hours for the inclusion of more Protestant air time), Catholics were equally ‘creative’ in the way they approached religious broadcasting on the French- and English-language private stations, in television and on the publicly funded French-language Radio-Canada.   RG 41, v.223, f.1-23, part 2, Memo from CR Delafield, Program Division, 15 February 1939. 27  Ibid., Reverend JE Ward to Msgr. Edward Michael Brennan, 24 November 1939. 28   RG 41, v.223, f.1-23, part 2, Meeting Minutes, 15 September 1938. 29  Ibid., Memo WO Finlay, CBC, 28 December1938. 26

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Three examples from three different regions of Canada attest to the way in which Catholics could ‘get the message out’ to those who were ‘listening in’ on radio or ‘viewing’ on television, sometimes without audiences even knowing that a Catholic message was in play on a seemingly neutral transmission. In Quebec, because the overwhelming majority of listeners to francophone radio were Roman Catholic, the Catholic Church had far greater influence on programming both overtly and implicitly. The same held true when French-language television services began broadcasting in the 1950s. In Quebec it was much harder for nonCatholic religious groups to make claims for balance in the francophone media, given the demographic power of French Roman Catholics in the Province.30 In the 1950s one of Montreal’s most listened to radio programs was Cardinal Paul-Emile Leger’s weekly recitation of the Rosary on CKAC.31 In the 1960s the Vice-President of CBC Programming, E.S. Hallman, was quite clear in his internal memos that there were already, in Quebec, numerous religious programs that provided a ‘a variety of clerical and lay opinions’. In fact Hallman was exasperated to learn that Cardinal Maurice Roy of Quebec was given a regular air time on a local Quebec City station in which he could say whatever he wanted, without recourse to guidelines or regulation. There was simply no equivalent of the NRAC in Quebec to give advice to Radio-Canada or to become an engine of balanced religious programming.32 It would not be until 1968 that Radio-Canada would create the National Consultative Committee (Comité consultatif national) for religious programming in Quebec, consisting of 12 members – ten Catholic and two non-Catholic. Thus it was, within the context of the Quiet Revolution,33 that yet another of the Church’s public roles would be more carefully scrutinized and in this case regulated. On private stations, however, the Catholic Church in Quebec could continue to create an influence in implicit ways. Perhaps the most notable case in point was the radio serial: Un homme et son péché (A Man and His Sin), which ran   Canadian Conference of Catholic Bishops, Archives (CCCBA), File 1956–65, Robert Elie, Director, Presse et d’information to Rev Jules Godin, 26 June 1956. The formation of Radio-Canada is outlined in Alain Canuel, ‘Les avatars de la radio publique d’expression française au Canada 1932–1939’, Revue d’histoire de l ‘Amérique française 51 (1998): 327–56. 31   Leger also celebrated the first Christmas Eve Mass televised on CFTM, Montreal in 1962, marking a formal Catholic liturgical invasion on the eve of Vatican II. La Semaine religieuse de Montreal, vol. 121, 51 (1962): 1006. Afterwards, La Semaine advertised the radio and television broadcasts of the proceedings of Vatican II and its religious leaders. 32   LAC, RG41, volume 910, Comité consultif national pour les emissions religieuses, 1962–67. Internal Memo from ES Hallman, VP Programming, to President and others, 29 June 1967; Hallman Memo, 11 September 1967; Memo on CCN, E. Michaud, 14 March 1968. 33  In the 1960s and early 1970s the Province of Quebec experienced a transformation of its institutions and the secularization of health care, social services and education, all of which had formerly come under the supervision of the Catholic Church. In the space of 25 years the once prominently conservative and Catholic Quebec became a much more inclusive, secularized and profoundly nationalistic society. 30

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nightly from 1947 to 1964. Based on Claude-Andre Grignon’s book of the same name, Un homme was set in a French Canadian Catholic village in the Laurentians, and became a microcosm for Quebec society and its values. The lead character was heroine Donalda Laloge, who was deeply in love with a penniless lumber jack called Alexis; when her father’s debts were insurmountable, she was forced to marry Seraphin Poudrier, the village miser and a Quebecois archetype for Ebenezer Scrooge. Even today in Quebec, to refer to another person as ‘Seraphin’ should not be interpreted as referring to one’s angelic characteristics. Keeping the balance in the village was left to Curé Raudin, who bore an ironic twist of a name, since in French radin can mean stingy or miserly. Father Raudin was the foil to the evil Seraphin, who deprived Donalda of food, children and eventually caused her to wither away and die. Each night, after supper, this radio romance captured over 60 per cent of listeners in the Montreal district, with its morality plays that extolled the Catholic-inspired virtues of ‘God, Church, Family, and County’.34 In an interview this author was told by one native Montrealer how he never missed the program, even if he was away from home. He could not miss it because walking down any street, when the windows of homes and apartments were open, Un homme could be heard in the streets.35 The program became an effective vehicle for the Catholic Church, erecting moral certitudes in ways that could scarcely be topped by the rhetoric of any priest or preacher.36 Elsewhere in Canada different means were used to convey an implicit Catholic message. In the 1920s and 1930s, the priest professors at St Francis Xavier University in Antigonish, Nova Scotia, developed an extension program that brought the university’s curriculum to the industrial workers, farmers and fishermen of the Maritimes. Under the auspices of the ‘People’s School’ and in our own time, the Coady Institute, Father Moses Michael Coady and Jimmy Tompkins initiated study clubs across the province, stimulated the growth of cooperative stores, canneries and credit unions, built public lending libraries and brought literacy and numeracy skills far beyond the pale of the St Francis Xavier campus.37 Known colloquially as the Antigonish Movement, these priest-professors became Canadian pioneers in cooperative education, seeing it as a middle way between what they considered the excesses of capitalism, on the one hand, and the 34   LAC, RG 41, Vol. 170, Ratings Books, 1938–55 and vol. 493, 11-15-5, Program Statistics, ratings & Elliott Haynes Ratings; vol. 510–512, Montreal, 1953 to 1959. 35  Interview with Dr Jacques Monet, SJ, Archives of the Society of Jesus, Upper Canada Province, 4 December 2007. 36   A good discussion of the radio-romance and religion in Quebec can be found in Reneé Legris, ‘L’institution ecclésiale et les structures de l’idéologique chrétienne dans les radioromans et les dramatisations historiques (1935–75)’, Société canadienne d’histoire d’ église catholique, Etudes d’histoire religieuse 68 (2002): 41–56. 37   Moses M. Coady, Masters of Their Own Destiny: The Story of the Antigonish Movement of Adult Education Through Economic Cooperation (New York: Harper & Row, 1939).

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shortcomings of socialism, on the other. The Movement had been inspired by the Catholic social teaching evident in Pope Leo XIII’s landmark Rerum Novarum (On the Conditions of the Working Classes), in 1891, and the more recent updated teaching of Pope Pius XI in his Quadragesimo Anno, published in 1931. The priest-professors at Antigonish had simply given these encyclical letters legs. Late in the depression, these same priest-professors were looking for more innovative ways to undertake distance education and the medium of radio was considered. With the help of J Clyde Nunn, a layman, and Father Joseph A MacDonald, St Xavier University President Father D.J. MacDonald envisioned a way in which the Catholic university could move beyond its current limitations and bring the cooperative message to a world mired in a ‘pagan philosophy of life’. According to the president, ‘we could do our bit to counteract this pernicious philosophy by a fairly strong broadcasting station’.38 Using the argument that the existing AM station in Sydney, CJCB, could not consistently deliver its signal because of signal interruption and distortion due to the Cape Breton Highlands, the St Francies Xavier group formed Atlantic Broadcasting Limited, a joint stock company that pooled the resources of the priest-professors, the Sisters of St Martha and local stock holders who included common workers, Jewish theatre owners in Sydney and ordinary citizens of the region. No one was permitted more than five shares, which cost $100 each. When Atlantic Broadcasting approached the CBC regulators in Ottawa in 1940, they made clear that the station, soon to be named CJFX, was to offer programming of a ‘broadly educational character’ and be directed in making its listeners ‘more appreciative of the spiritual, social, and economic advantages of our democratic way of life’. They promised programs for fishermen, industrial workers, miners, farmers and homemakers that would ‘vastly increase the field of action for social progress’.39 On 25 March 1943, with a license in hand (with help from two St Francis Xavier alumni – Angus L MacDonald, a cabinet minister, and Dr Alexander Johnston, the former Deputy Minister of Fisheries in charge of radio), CJFX went on the air. From all external appearances and broadcasts its programming day appeared like any other private radio stations: news, weather, sports and special events coverage, local music and culture and even a few overtly religious programs and devotional minutes (balanced between Catholic and Protestant programming).40 More to its original purpose, it broadcast such programs like ‘Life in these Maritimes’, a cooperative education program, modelled on the   St Francis Xavier University Archives (SFXUA), RG5/10/1882, Dr D.J. MacDonald, President, to Dr. Alexander Johnston, 25 September 1940. Mark G. McGowan, ‘The People’s University of the Air: St Francis Xavier University Extension, Social Christianity, and the Creation of CJFX’, Acadiensis XLI, no. 1 (Winter/Spring 2012): 5–20. 39   CJFX Archives, ‘Application for a License to Build and Operate a Transmitting Station by St Francis Xavier University in Antigonish, Nova Scotia’, 16 November 1940. 40   CJFX Archives, Broadcasting Program Logs, 25 March 1943 to 27 March 1943 and 25 February 1950 to 27 February 1950. These are random samples of the log books dating back to 1943. 38

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Extension departments curriculum directed to farmers, and ‘the People’s School’ an adaptation of cooperative curricula for industrial workers and miners.41 Through CJFX the priest professors of Antigonish created an example of applied Christianity – they successfully brought their courses, inspired by Catholic social teaching, into the public via a new medium. While CJFX was for all appearances a private broadcaster affiliated with the CBC’s Dominion Network, Clyde Nunn became station manager, and close to 20 per cent of the shareholders of the station were priests. A potential 185,000 listeners in eastern Nova Scotia, Prince Edward Island, the Magdalen Islands and southern Newfoundland were listening to a form of religiously inspired radio within the regulations created by the Canadian Government.42 Perhaps the most creative way in which Catholics might elude regulation on television came from an American source: Bishop Fulton J. Sheen. A 20-year veteran of religious radio in the United States, Sheen had become one of the most popular religious television figures in America by means of his weekly program, Life is Worth Living. Airing first on the Dumont Network and later on ABC amidst stiff competition, Fulton Sheen’s program knocked Frank Sinatra’s variety show off CBS and cut deeply into the ratings of ‘Texaco Star Theatre’, starring Milton Berle, or, as he was known, ‘Mr Television’. Sheen’s formula was simple: sweep on to the stage in full bishop’s regalia and speak on an important issue of the day, seemingly extemporaneously, using only a blackboard, which was featured as part of a simple set made to look like a parson’s study. He was a hit. Admiral television acquired the commercial advertising rights to the program, and in 1952 Sheen won an Emmy Award for Best New Television Personality. While winning an Emmy may not immediately be a signal of excellence to some critics of this medium, it is worth noting that those he defeated were among the stars of early television: Lucille Ball, Jimmy Durante, Edward R Murrow and Arthur Godfrey. Sheen was television gold, and, for Catholics, one of their clan.43 The CBC saw the matter of Sheen broadcasting in Canada differently. When Catholics and CBC producers in Toronto approached the Corporation with the possibility of broadcasting Life is Worth Living in Canada, they were denied.44 The   SFXUA, RG 30-3/11/2005-10, CJFX The People’s Station, Nomination of Life in These Maritimes for a Radio Award, 1950. 42   SFXUA, RG5/12/255a, President Somers Papers, Atlantic Broadcasters, CJFX Advertising Flyer indicating the listenership reach. C.1952-4; RG 50-1/1/4064-5, CJFX and Coady Insititue, J. Clyde Nunn to Shareholders, 15 May 1963. His general letter indicates that CJFX had the largest listening audience of any non-metropolitan station in the Maritime Provinces. 43   Thomas C. Reeves, America’s Bishop: The Life and Times of Fulton J Sheen (San Francisco: Encounter Books, 2001). 44   A more detailed analysis can be found in Mark G. McGowan, ‘The Fulton Sheen Affair: Religious Controversy, Nationalism, and Commercialism in the Early Years of Canadian Television, 1952–58’, Canadian Catholic Historical Association Historical Studies 75 (2009): 21–38. 41

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CBC claimed that their regulations stipulated that no commercially sponsored religious programs were permitted on the public air waves. In 1952 this meant all Canadian television airwaves because the CBC held a monopoly over broadcasts in all major Canadian urban broadcasting markets. In the opinion of the CBC, Sheen’s program was a Catholic program, sponsored by an American television company, which raised serious questions about denominational balance on a publicly funded network, the commercialization of religious broadcasts (which would mean that only those who could pay would be seen and heard) and, finally, the encroachment of American programming in Canada.45 For Sheen’s detractors on both sides of the border, the CBC’s refusal was tantamount to containing Catholic broadcasting which was masquerading as something ‘neutral’. Dr James W Kennedy, Executive Secretary of the National Council of the Episcopal Church rejoiced: ‘We feel that Bishop Sheen’s program has done real harm to the general policy of free broadcasting time for religion. You have certainly helped strengthen our stand down here’.46 American broadcasters and Catholics saw the situation differently. Dumont claimed that Sheen’s program was educational, not religious. In fact, it was pointed out, it aired on Tuesday evening not Sunday – had it been otherwise, Admiral would have regarded it as a religious program and withdrawn its sponsorship. Buck Lyford, of the Dumont network claimed it was a philosophical show and ‘this particular philosopher happened to be a Catholic churchman’.47 Catholic supporters, including Dr J.F. McCaffrey SJ of Loyola College in Montreal regarded Sheen’s message as a political bulwark needed in the context of the Cold War: ‘The war against communism is not only to be fought in Korea but right here in Canada and in the hearts and minds of Canadians … The CBC can ill-afford to deprive its audiences of the help of Bishop Sheen without running a very grave risk of being misunderstood’.48 The battle over Sheen lasted for two more years. In 1955 the CBC finally relented and allowed the broadcast of the Sheen program, with all of the advertising edited out. This meant the program would be recorded by ABC on Kinescope, with Admiral’s advertisements deleted and a short acknowledgement appended to the end of the program crediting Admiral with the program’s sponsorship (something akin to sponsorship credits on PBS today).49 The problem for the CBC broadcasters, however, was that the program would air   LAC, RG 412, CBC Fonds, vol. 223, file 11-23-1, part 1, Minutes, 12 December 1952; ‘Life is Worth Living File’, E.L. Bushnell Memo to CBC Board of Governors, 21 November 1952; Memorandum from the NRAC to the Corporation, circa December 1952. 46   LAC, RG 41, vol, 223, file 11-23-1, James W Kennedy to the CBC, 17 December 1952. 47   LAC, RG 41, vol. 223, file 11-23-1, Buck Lyford to Fergus Mertie, Director of CBC Television, 2 June 1953; John Dunlop to CBC Chairman, 5 March 1953. 48   RG 41, v. 223, file 11-23-1, part 2, Father J.F. McCaffrey, SJ to Davidson Dunton, Char, 9 December 1952. 49   Catholic Register, 26 September 1953 and 8 January 1955; RG 41, vol. 223, file 11-23-1, part 2, Teletype from John Dunlop to C. Jennings, 25 October 1954; Memorandum from John C Dunlop, 2 July 1954; NRAC, Minutes, 24 June 1954. 45

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in Canada a week or more after the live broadcasts in the United States, thereby reducing the Canadian audience share in Southern Ontario, where many viewers close to the border could pick up American signals with ‘rabbit-ear antennas’ on their television sets or by aerials attached to their houses. In any event, the alleged ‘educational, philosophical, and political’ Sheen aired in Canada on the new commercial CBC network. Fergus Mertie, then Director of CBC Television, thought it naïve that one could argue that the program was not religious. Here was a Catholic bishop, in shimmering crimson, pacing a stage and just ‘teaching’, or writing JMJ (Jesus, Mary, and Joseph) on the top of his blackboard, all of which was done in camera-shot of a baroque statue of the Madonna. His colleague John Dunlop, Director of CBC’s Religion Department, was more forthright: ‘it was the opinion of this Council [NRAC] that the program was definitely a religious one and Roman Catholic’.50 Once again, religious programming could enter the public airwaves, this time on the public broadcaster, in the most imaginative of ways. Maintaining Balance on the Canadian Airwaves More explicit Catholic programming and Catholic ownership of stations outright for the purposes of overtly Catholic programs, however, met with little or no success. From the advent of the CRBC in 1932, new broadcast licenses were simply not issued to religious groups, nor could religious programming be sponsored by commercial-corporate interests.51 In this way the government ensured that religious broadcasting would not be dominated by those groups that had the ability to pay and that through sustaining programming (free time broadcasts) and self-sponsored programs, there would be denominational balance on the airwaves, public and private. On the CBC and Radio-Canada networks, the public broadcaster would carefully sponsor the production of non-controversial religious programming through the NRAC and CCN, allow for special broadcasts of religious events or liturgical celebrations and produce religious documentary programs. Thus, English Canadian viewers of the CBC were treated to Hymn Sing (a generically Christian half-hour of choral music produced in Winnipeg), Meeting Place (a Sunday morning liturgy that provided balance between regions and religions) and Man Alive (a weekly half-hour documentary that explored religion, spirituality and morality).52 Private radio and the CTV network (1961) were governed by the CBC and later BBG regulations, although local stations engaged in some religious programming by means of using sustaining time and locally self-sponsored programming.   RG 41, vol. 223, file 11-23-1, part 2, Marginal notations on Lyford to Murtie, 2 June 1953; part 1, Dunlop to Dunton, 5 March 1953. 51   Dorothy Zolf and Paul W. Taylor, ‘Redressing the Balance in Canadian Broadcasting: A history of religious broadcasting policy in Canada’, Studies in Religion 18 (1989): 157. 52   LAC, RG 41, vol. 827, file 131, Hymn Sing; vol. 829, file 162, Man Alive, 1970–75. 50

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By the 1980s the success of cable television and the advent of pay television threatened to reopen the struggle for religious groups to take control of broadcast outlets. The Canadian Radio and Telecommunications Commission (CRTC) was clear that as far as the 13-channel analogue dial and basic cable services were concerned, only balance in religious programming was to be acceptable.53 In this new world, VISION-TV was created by a private consortium in order to give voice to as many religions and spiritualities as could be expressed by Canadians.54 On VISION, programmers would be entrusted with covering the entire spiritual spectrum with non-controversial programming. Crossroads Communication was also licensed on the basic cable system with its promise to provide balance.55 While today CTS offers specialized programs for Hindus, Muslims, Jews, Sikhs and Catholics, the preponderance of religious programming is evangelical Protestant, tucked amidst reruns of wholesome family programming: Leave it to Beaver, Happy Days, Laverne and Shirley, and 7th Heaven. Similarly, licenses have been granted to JOY TV in Vancouver (CHNU) and Winnipeg (CIIT) when each proved to the satisfaction of the CRTC that it could maintain a balance in its Christian-inspired broadcast environment. However, when Catholics asked for US-based traditional Catholic station, EWTN, (Eternal Word Television Network, founded in 1981) to be broadcast on basic cable, the answer was a flat rejection: no single-denominational broadcaster need apply. With only Catholic content, and that of a more traditionalist character, EWTN ran afoul of the religious balance required by the government of all broadcasters.56 The digital television and pay-per-view world of the 1990s and early 2000s has changed the landscape of religious television broadcasting for Catholics. Shortly after World Youth Day in 2002, WYD co-ordinator, Father Thomas Rosica, CSB re-employed some of his staff and created Salt & Light Television, a Catholic station that broadcasts on these expanding digital services. Since viewers who wanted Salt & Light paid for it, and no one who might be offended by its allCatholic content would be forced to watch it, it was far easier to procure a license. The service has now been packaged with a recently approved EWTN57 and is now subscribed to by about two million Canadian homes. In this user-pay world,   Dorothy Zolf, ’he Regulation of Broadcasting in Canada and the United States: Straws in the Wind’, Canadian Journal of Communications 13 (1988): 39. 54   Zolf and Taylor, 154 and 161. 55   Broadcasting Decision, CRTC, 2004-379, Crossroads Television System, Hamilton, Ottawa and London, Ontario, 27 August 2004. www.crtc.gc.ca/eng/archive/2004/db2004379.htm (accessed 23 October 2010). See also Peter G. Cook and Myles A. Ruggles, ‘Balance and Freedom of Speech: Challenge for Canadian Broadcasting’, Canadian Journal of Communications 17 (1992). 56   CRTC, Decision, Allan J Darling, Secretary General to Father A. Darveau, Brochet, Manitoba, 29 August 1991. www.crtc.gc.ca/archive/ENG/decisions/1991/DB91-682.HTM (accessed 3 October 2010). The Commission encouraged the incorporation of VISION-TV into Father Darveau’s broadcast plans. 57   Western Catholic Reporter, 20 August 2001. 53

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Canadian broadcast regulators avoid the question of balance that appeared to be so pressing in a broadcasting environment where there was less choice and few, if any, pay options. In the twenty-first century, religious programming is reemerging, albeit in a less accessible format, but all the same in a manner that is less threatening to the balance and moderation so long sought by the CBC and its successor regulators the BBG and CRTC. With no official separation between Church and state historically in the Canadian constitution, one may wonder why the state attempted to curtail religious broadcasting in a more stringent fashion than the FCC in the United States or the BBC in the United Kingdom. Perhaps the answer may be found partly in the historic relationships between churches in Canada and its predecessor colonies. With a history that witnessed two types of sectarian struggle – the battle between voluntarism and established churches in the colonial period, and the subsequent battle between Catholics and Protestants in Canada preceding Confederation both sustained by bigotry and intolerance for generations – governments were intent to keep the lid on sectarianism. Therefore, it is not surprising that, when in the pioneering days of radio, a free-market religion unleashed a new wave of intolerance, this time between the Jehovah’s Witnesses on one side and every other religious group on the other, the state scrambled to maintain the peace. The policy became even more refined and entrenched after Father Charles Lanphier and the Reverend Maurice Zeidman used their microphones to bludgeon one another on theological and political issues. One suspects that had they been in a remote or rural radio market, they might have been ignored and forgotten. But these two radio preachers were in the largest radio market in the country and thus became stars on a national stage. Through regulation 7c and the NRAC, the state carved out its position: the public airwaves would be a place for a balanced, not-for-profit, non-controversial exchange of religious ideas. While Catholics proved themselves to be creative in finding loopholes in which to get their specific message out to the listeners and viewers, by and large the state’s policies prevailed and Canada’s airwaves appeared to mirror the idea of ‘the peaceable kingdom’ that characterized what many Canadians believed their country to be.

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Chapter 9

The Five Worlds of Religious Establishment in Taiwan André Laliberté Introduction This chapter argues that the concept of religious establishment1 should not be limited to situations of church-state relations and develops this argument by looking at a variety of religious establishments in a society influenced over centuries by Chinese tradition. It starts with the premise that the history of relations between religion and state in China and societies that have been under its influence have characteristics that make the modalities of these relations different from the modalities of church-state relations in the West, but argues that these differences are not obstacles to crosscultural comparisons, and they should not exclude the possibility of cross-cultural transmission of institutional norms, broadly defined, such as those of the secular state. It is my view that the secular state is an alternative mode of religious management to a state with a religious establishment or establishments, even in a society where there is no or little church-like religion, which is the case for almost half of the world’s population. I define the ‘secular state’ as a structure of government that proclaims in its foundational documents, such as its constitution, a commitment to avoid interference in the affairs of religious institutions and also a will to prevent the interference of religious institutions in government. By ‘single religious establishment’, I mean a form of institutional arrangement where the state proclaims or practices supremacy in deciding on religious matters, namely one in which religion deserves protection or support from the state. Finally, when I use ‘multiple religious establishment’, I describe a particular variant of the above where the state, aware of the religious pluralism of society, asserts its prerogative to protect and even promote a limited number of different religions, where specific criteria must be met in order to benefit from the status of a religion deserving a privileged status. The institutional history of relations between religion and state in China, as well as in countries that were either dominated by China, such as Vietnam and Korea, or borrowed influence from it, such as Japan, shows considerable variation over centuries. Japan, South Korea and Taiwan have instituted a variety of secular  I use ‘religious establishment’ to mean state support, in the form of official recognition of a specific religion or a limited number of religions. State recognition for more than one religion does not mean the same thing as the secular state’s neutrality towards religion, because with multiple religious establishment the state refuses to recognize many others, and, at worst, it bans them and persecutes their adherents. 1

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states at different periods in the post-Second World War era. Before 1945 Japan supported a religious establishment promoting the national tradition known as Shinto (the Way of the Gods). Korea and Taiwan, which were Japanese colonies from the end of the nineteenth century until 1945, have institutions partly shaped by this tradition. But prior to that period, both Korea and Taiwan had long and distinct religious histories, and therefore their precolonial conditions also contributed to their postcolonial evolutions as societies with different and changing forms of religious establishment and secular states. This chapter will elaborate on this point by using Taiwan as an illustration. Taiwan is a society influenced by Chinese culture for at least four centuries, and the relationship between religion and state has changed dramatically through that time. Its government since the onset of democratization appears committed to making the Republic of China (ROC, as Taiwan is officially known) a secular state, a decision that represents a decisive break from a long and complex history of relations between state and religion that could often be described as that of multiple religious establishment. This chapter will first discuss the concept of multiple religious establishment and its relevance to culturally Chinese societies, and then review the five periods of relations between state and religious institutions through which Taiwan went in its four centuries of recorded history. The first period, which preceded the island’s incorporation into the Qing Empire in 1683, was a period in which different political entities each had their own approach to religious institutions. In the period that followed, Taiwan became part of an empire that was a multiple religious establishment. Between 1895 and 1945, Taiwan became part of another empire, but one that evolved into a single religious establishment. From 1945 until the 1980s, Taiwan became officially a secular state, but in effect remained a state with multiple religious establishment. Only with the decisive steps towards democratization in the late 1980s did Taiwan formally cease to have a religious establishment. I. Variety of Religious Establishments and Secular State with Chinese Characteristics East Asian countries have in common the following characteristics: they seldom went through periods where a single religion prevailed, and the state rarely supported a single religious establishment. They have in common another important characteristic: the spheres of politics and religion, from ancient history to now, are intimately intertwined.2 States in the region all had institutions that imposed what Baker aptly

 Anthony Yu, State and Religion in China: Historical and Textual Perspectives (Chicago: Open Court Press, 2005); Mattias König, ‘Religion and the Nation-State in South Korea: A Case of Changing Interpretations of Modernity in a Global Context’, Social Compass 47 (2005): 551–70; Helen Hardacre, Shinto and the State 1868–1988 (Princeton, NJ: Princeton University Press, 1991). 2

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termed a ‘monopoly of rites’.3 This state monopoly of rites, however, did not exclude state support for more than one religious institution. In some cases, like the People’s Republic of China (PRC), the Socialist Republic of Vietnam and the Democratic People’s Republic of Korea, governments still enforce this regime. In the democracies of Japan, the Republic of Korea and the ROC, governments have moved away from this authoritarian approach and have overseen the development of secular states. II. Before Qing Authority: A Variety of Religious Establishments until 1732 The first period of time examined in this chapter is a stage of state formation during which Taiwanese had little contact with the outside world. The first Chinese settlers from the neighbouring provinces of Fujian and Guangdong arrived before the seventeenth century but left little trace. When the first Europeans arrived there in 1624, it was populated by aboriginal communities speaking Austronesian languages.4 There were only a few Chinese traders because crossing the Taiwan Strait to settle in the island was not considered safe or attractive.5 The major powers surrounding Taiwan, Ming China (1368–1868) and Tokugawa Japan (1603–1868) considered the island unimportant, and their cultural influence on the island was minimal. This attitude gradually changed after the Manchus defeated the Ming and established a new dynasty, the Qing (1644–1911). The new empire paid attention to Taiwan because Ming loyalists, who had sought refuge in the island and established the Kingdom of Tongning (1662–83), hoped to retake control of China from there. Other countries had used the western coast of the island as a base from which to trade or launch pirate raids into the southern coast of China.6 Despite these incursions, however, Taiwan was an outpost rather than a hub. The main political entity in the island was a confederation of different aboriginal people, the Kingdom of Datu 大肚王國, which was established around 1540 from an alliance between the Papora巴布拉族, Pazeh 巴則海族, Hoanya 洪雅族 people, and others, and existed until 1732.7 Our knowledge of the Kingdom is based on records of the Dutch East India Company, which came into contact with it in the seventeenth   Don Baker, ‘World Religions and National States: Competing Claims in East Asia’, in Transnational Religion and Failed States, eds Susanne Hoeber Rudolph and James P. Piscatori (Boulder, Colorado: Westview Press, 1997), 144–72. 4   Michael Stainton, ‘The Politics of Taiwanese Aboriginal Origins’, in Taiwan: A New History, 2nd ed., ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 2007), 29. 5   Eduard B. Vermeer, ‘Up the Mountains and Out to the Sea: The Expansion of the Fukienese in the Late Ming Period’, in Taiwan: A New History, 2nd ed., ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 2007), 66–7. 6  Tonio Andrade, How Taiwan Became Chinese: Dutch, Spanish and Han Colonization in the Seventeenth Century (New York: Columbia University Press, 2008). 7  Ong Ka-yim翁佳音 〈被遺忘的原住民史–Quata（大肚番王）初考， 《臺灣風 物》 42 (1992): 188. 3

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century, and after 1662 it came from contacts with Ming loyalists fleeing Qing rulers, followed by Qing troops dispatched to the island to quell a rebellion by aboriginal people. The observations gathered by Montgomery-McGovern suggest that there was no unified religious belief among the aboriginal people,8 and there is little evidence of the cosmology of the first inhabitants of Taiwan and the ordering of relations between religious views and the political structure. However, the historiography of Taiwan left by the Dutch documents instances of coercive conversion in areas that fell under European influence. Hence historians note that there were women who claimed the ability to communicate with the supernatural world, known as Inibs, but once the Dutch established control in the communities where these women were influential, they were persecuted to prepare the way for conversions to Christianity.9 In many regions of the island outside of Datu’s influence, Taiwan fell under the sway of three different outsiders before the Manchu rulers imposed their authority. The Dutch East India Company established a trading post in Southern Taiwan from 1624 to 1662.10 They expelled the Spaniards, who had established their own settlements in the Northern part of the island between 1626 and 1642. These settlers were defeated by Ming loyalists coming from China who were fleeing the armies of the Qing.11 The Chinese settlers established their own Kingdom of Tongning (1662–83) and in the process absorbed the Dutch colony. The Dutch, who were emerging from 80 years of conflict and were struggling to gain their independence from Spain, had established a regime of multiple religious establishment and religious tolerance in the Republic of the United Netherlands, but as mentioned above with respect to the Inibs, they did not extend this acceptance of difference to the customs and traditions of the local population. The Spaniards, for their part, experienced a rigorous and intolerant regime of religious establishment under the influence of the Catholic Inquisition and tried to impose it in the colonial area under their control. The Spanish settlements in Taiwan, however, were not considered important enough for the authorities in Madrid and their legacy on the island was minimal.12 The Kingdom of Tongning was a different matter. When Ming loyalist Koxinga (or Zheng Chenggong, as he is known in Chinese) and his followers came to Taiwan in 1662, they put an end to the Dutch outpost and established a Kingdom that reproduced the Chinese religio-political structure

8   Janet B. Montgomery-McGovern, Among the Head-Hunters of Formosa (Boston: Small Maynard and Co., 1922), reprint (Taipei: SMC Publishing, 1997). 9  Andrade, How Taiwan Became Chinese, 10; Leonard Blusse, ‘The Eclipse of the Inibs: The Dutch Protestant Mission in 17th Century Taiwan and its Persecution of Native Priestesses’, in History, Culture and Ethnicity: Selected Papers from the International Conference on the Formosan Indigenous Peoples, ed. Yeh Chuen-Rong (Taipei: SMC Publishing Inc, 2006), 71–88. 10  See Andrade, How Taiwan Became Chinese, chapter 3. 11  Ibid., chapter 11. 12  Ibid., chapters 4, 5.

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that prevailed under the Ming dynasty.13 That structure, which was preserved in the areas of the Qing Empire populated by Han Chinese, represented a particular form of multiple religious establishment that was more abundantly documented than the political-religious structure of the Datu Kingdom.14 As Yang Ching-kun described in his classical study of religion in China, local deities were approved by the state, while the three traditions of Confucianism, Taoism and Buddhism either existed side by side or in a variety of forms as diffuse syncretic religions organically related to social, economic and political structure.15 At the apex of that system, the emperor was responsible for the execution of rites that only he could perform. That structure was preserved in the areas populated by Han Chinese, but, as the discussion below of the Qing period will make clear, it later became subordinated to the new multiple religious establishment imposed by the Manchus. In Taiwan the Tongning Kingdom was more successful than Europeans traders at influencing the belief systems of the aboriginal people, many of whom adopted the practices of Chinese religions.16 After the Qing forces absorbed the Kingdom of Tongning in 1683, they represented the only external influence on the island and, after the conquest of the Datu Kingdom in 1732, the only political power of importance. During that first period, we lack the data to understand fully the nature of religious life in Taiwan among the aboriginal populations. However, we know more about the societies that were established by outsiders who tried to impose their own forms of religious establishment. Western settlers in the Dutch and Spanish outposts tried to impose rigid and narrow religious establishments, but ultimately failed to achieve their aims. The Chinese settlers were more successful in putting in the area they controlled the multiple religious establishment existing in China. They succeeded where Europeans had failed and managed to acculturate some of the aboriginal populations. III. Under Qing Authority, 1732–1895: Substantive Multiple Religious Establishment During the 1732–1895 period, Taiwan was incorporated into a multinational, multicultural and multi-religious empire. Taiwan was gradually integrated as a 13   Ralph C. Croizier, Koxinga and Chinese Nationalism: History, Myth, and the Hero (Cambridge, MA.: East Asian Research Center, Harvard University Press, 1977). 14   Daniel Overmyer, ‘Attitudes Toward Popular Religion in Ritual Texts of the Chinese State: The Collected Statutes of the Great Ming’, Cahiers d’Extreme-Asie 5 (1989): 181–221; Thomas Shi-yu Li and Susan Naquin, ‘The Baoming Temple: Religion and the Throne in Ming and Qing China’, Harvard Journal of Asiatic Studies 48 (1988): 131–88. 15   Ching-Kun Yang, Religion in Chinese Society: A Study of Contemporary Social Functions of Religion and some of their Historical Factors (Berkeley: University of California Press, 1961). 16   John R. Shepherd, ‘Sinicized Siraya Worship of A-li-tsu’, in Bulletin of the Institute of Ethnology, Academia Sinica 58 (1986): 1–81.

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peripheral region of the Qing Empire and became a province which replicated the structure of other provinces within China only in 1885. The incorporation of Taiwan to the Qing Empire, viewed from the capital in Beijing, meant little to Manchu rulers, however, as it affected a remote periphery of little economic and strategic importance up until the eighteenth century. A reflection of the Qing Empire’s lack of interest for Taiwan was the poor degree of enforcement for its policy of restriction on emigration to Taiwan. There were two indicators that this policy was not implemented. First, as Chen noted, after the prohibition against emigration to Taiwan was lifted in the 1760s, the aboriginal population was acculturated to Chinese culture.17 The other indicator was demographic: the number of Chinese residents, which was below 100,000 after the Qing vanquished the Kingdom of Tongning in 1683,18 grew dramatically afterward, with Chinese settlers and assimilated aboriginal people living in the plains numbering 450,000 in 1735.19 For the Chinese settlers on the island, the end to the prohibition against migration meant an increasing degree of competition for land and more frequent conflicts. For Taiwanese aboriginal people, the effects were even more dramatic: the influx from the mainland meant absorption within a broader and alien polity and the withering away of their culture. The Qing Empire was multinational because the polity established by the Manchu rulers incorporated the former Ming Empire as a distinctive Chinese entity with its own administration, alongside other territories with their own institutions under the authority of the central government in Beijing. Hence Tibet and Mongolian lands were administered by a separate Lifan Yuan until 1861,20 and Eastern Turkestan was subjected to intermittent military rule before being turned into a Chinese province in 1884.21 It was also multicultural to the extent that aboriginal and nomadic people coexisted with sedentary populations in the vast periphery of the empire, from the Mongolian lands in the North to Yunnan in the southwest, to the islands of Hainan and Taiwan to the southeast. Even when the Qing authorities accepted Chinese migrations in Taiwan, they put a prohibition, weakly enforced, against settling in the central and eastern part of the island, lest that would create conflicts with the aboriginal populations.22   Chiukun Chen, ‘From Landlords To Local Strongmen: The Transformation Of Local Elites In Mid-Ch’ing Taiwan, 1780–1862’, in Taiwan : A New History, ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 1999), 142. 18   Denny Roy, Taiwan: A Political History (Ithaca, NY: Cornell University Press, 2003), 12. 19   John R. Shepherd, ‘The Island Frontier of the Ch’ing, 1684-1780’, in Taiwan : A New History, ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 1999), 126. 20  Gray Tuttle, Tibetan Buddhists in the Making of Modern China (New York, NY: Columbia University Press, 2005) 21   Christopher I. Beckwith, Empires of the Silk Road: A History of Central Eurasia from the Bronze Age to the Present (Princeton: Princeton University Press, 2009). 22   Mark A. Allee, Law and Society in Late Imperial China: Northern Taiwan in the Nineteenth Century (Princeton, NJ: Princeton University Press, 1995), 26–7. 17

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Finally the Qing Empire was multi-religious to the extent that Chinese traditional religions coexisted with Tibetan Buddhism, which was the religion of both the rulers and their Tibetan and Mongol subjects. Under the emperor Kangxi (1662–1722), religious tolerance also included acceptance of Islam and Christianity. On the other hand, throughout that dynasty some organized religions were persecuted because they were seen as threats to the religious-political order. In some cases mere rumours sufficed to warrant persecution from the state.23 The Chinese multiple religious establishment that became the norm in the area controlled by the Qing in Taiwan endured nominally until the Japanese asserted control. But the religious establishment that prevailed throughout the empire had little in common with the religious establishments in post-reformation Western Europe and the British colonies in the New World. There was no institution that could compare to the Catholic Church or any of the reformed churches in Europe. The closest to such a religious establishment in China were the Tibetan Buddhist institutions, which were considered important to the Qing emperors who wanted to stress their Inner Asian heritage.24 The Catholic Church, another institutional religion of importance for the court, had made a good impression on the Ming emperors and the early Qing rulers, but that changed from Yongzheng emperor’s prohibition of foreign Christian missionary activities on Chinese soil in 1724 until the era of the unequal treaties in the middle of the nineteenth century.25 These religious developments did not influence Taiwan at that time. Most of the Chinese settlers in Taiwan came from regions in China where the influence of Tibetan Buddhist rites was absent. Moreover, for Buddhist clerics Taiwan was seen as a frontier region of little interest to them.26 From around 1680 until 1770, the Qing administration of Taiwan was in a ‘pioneering stage’, during which a bureaucratic administration of the island was put in place, an export economy developed and relations with aboriginal people were relatively peaceful.27 During the following period, which extended into the 1860s, immigration to the island surged. The immigrant population moved from over 600,000 in 1756 to 1,700,000 in 1824.28 At the end of that period of greater integration into the Qing Empire, China was ravaged by a devastating conflict in which religion played an important role, the Taiping Rebellion (1850–64). Spreading   Philip A. Kuhn, Soulstealers: The Chinese Sorcery Scare of 1768 (Cambridge, MA: Harvard University Press, 1990). 24  Natalie Köhle, ‘Why Did the Kangxi Emperor Go to Wutai Shan?: Patronage, Pilgrimage, and the Place of Tibetan Buddhism at the Early Qing Court’, Late Imperial China 29 (2008): 73–119. 25  Lars Peter Laaman, Christian Heretics in Late Imperial China: Christian Inculturation and State-Control, 1720–1850 (London: Routledge, 2006). 26   Charles Brewer Jones, ‘Religion in Taiwan at the End of the Japanese Colonial Period’, in Religion in Modern Taiwan: Tradition and Innovation in a Changing Society, ed. Philip Clart and Charles B Jones (Honolulu: University of Hawai’i Press, 2003), 15–16. 27   Chen, ‘From Landlords To Local Strongmen’, 134. 28  Ibid., 136. 23

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from southeast to east-central China, that uprising followed the expansion of a new religious movement whose eschatology promised to address the many grievances of people who had experienced discrimination or deprivation following economic downturn. Even though most non-aboriginal Taiwanese had ancestors from Southern China, and the island had become by then more deeply integrated culturally and economically into the Qing Empire, it was not affected by these turbulences. The situation of Taiwan in the periphery, however, did not mean that it was cut off from other outside influences. After 1872, for example, a few inhabitants of the island, and in particular many of them aboriginal people, had converted to the Presbyterian Church.29 In sum, during this period of Qing rule consolidation in Taiwan, the island became part of an empire that had ruled with a multiple religious establishment. Because of the island’s location near southern China, the dominant cultural influences in language and religion reflected primarily the traditions of the neighbouring provinces of Fujian. The language spoken in the southern part of that province, Minnanhua or Hokkien, still represents today the mother tongue of 75 per cent of Taiwan’s population. The religions practiced in Taiwan reflected both the origins of the settlers in South China as well as the conditions of a settler society in which the institutions of the empire had yet to entrench an enduring presence. IV. Taiwan under Japanese Rule, 1895–1945: A Short-lived Shinto Establishment The marginal interest that Taiwan represented for the leaders of the Qing dynasty is reflected in the ease with which they relinquished control of the island after they lost a war against the young Japanese Empire over the future of Korea. The incorporation of Taiwan into the new polity represented for Taiwanese ‘sudden and unexpected changes, opportunities, setbacks, and hardships’.30 After the incorporation of Taiwan into the Japanese Empire, the island went through another period of acculturation that unfolded in different stages. From 1895 until a major uprising by aboriginal people in 1915, the Tapani incident, Japan’s control was limited. The new imperial power wanted to make the island a showcase as a model colony and ruled the parts of the island populated by the descendants of settlers   Christine Louise Lin, ‘The Presbyterian Church in Taiwan and the Advocacy of Local Autonomy’, Sino-Platonic Papers 92 (1999), http://www.sino-platonic.org/ complete/spp092_presbyterian_church_taiwan.pdf; Murray A. Rubinstein, The Protestant Community on Modern Taiwan: Mission, Seminary, and Church (Armonk, NY: ME Sharpe, 1999), chapter 1. 30   Harry J. Lamley, ‘Taiwan under Japanese colonial rule, 1895–945: The Vicissitudes of Colonialism’, in Taiwan: A New History, ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 1999), 202. 29

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from China according to the norms used in China, while the larger area sparsely inhabited by aboriginal people remained under the control of local authorities. In the two decades that followed, coinciding roughly with Japan’s Taisho democracy period (1923–37), the colonial policy, paradoxically, promoted ‘integration’, or the assimilation of Taiwanese to Japanese culture. The use of Japanese language was rewarded, and Taiwan was considered an extension of Japan’s mainland. In the third period, when the military became ascendant in Japan and the country waged war in Asia, the authorities in Tokyo actively sought to transform Taiwanese into Japanese. The Japanese presence in the island meant a new set of distinctions between metropolitan Japanese (naichijin) and subordinate islanders (hontojin). While the Qing rulers had looked at Taiwan as a marginal and inhospitable land, the Japanese authorities in the island sought to use the resources of the island for their immediate interests and for the long-term benefits of Japan.31 Japanese were in the beginning unsure of the best approach to adopt in ruling their new colony, some advocating a policy of assimilation comparable to that of the French, others preferring the British approach, which left more room for the preservation of local culture.32 Assimilation appeared unrealistic during the first years of the colonial period when the population actively resisted Japanese rule and there were many uprisings throughout the island. However, the policy was embraced by liberals in the 1920s, on the grounds that assimilation required the elimination of discrimination and was advocated as a measure favouring equality.33 This policy was not limited to ethnic Chinese: colonial authorities also sought to assimilate aboriginal people.34 Before and during the Second World War, the colonial authorities increased Taiwan’s integration to Japan, but they also sought to industrialize it to serve the Japanese military needs.35 These different policies had obvious consequences for the regulation of religion in Taiwan and its institutions of multiple religious establishment. During the three stages of colonial rule, Jones noted, the Japanese authorities adopted different sets of regulations. During the first stage, the authorities had adopted a laissez-faire and paternalistic approach. During the Taisho era, they were more interested in regulating and investigating religions. Finally, during the last stage, they enforced a ‘Japanization’ movement that aimed at eliminating the practice of native religions.36 This latter policy affected both foreign religions like Christianity, as well as native religions such as Taoism, but less so Buddhism, which was also widely observed in Japan. But even that religion was the target of government intervention. Seeing  Ibid., 203.  Ibid., 204. 33  Ibid., 221. 34  Ibid., 228. 35  Ibid., 237. 36   Charles Brewer Jones, Buddhism in Taiwan: Religion and the State, 1660–1990 (Honolulu: University of Hawai’i Press, 1999), 19. 31 32

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the temples as a form of extra-governmental institution, the colonial authorities expropriated local temples to assert their control.37 Concurrently, and observing the weak development of Buddhism in the island prior to their arrival, Japanese Buddhist institutions sent their own monks to Taiwan to perform missionary and educational activities.38 During the three stages of Japanese rule in Taiwan, the island experienced two different forms of institutional arrangements with respect to relations between state and religions. During the first stage of colonial rule, Taiwan kept its own form of multiple religious establishment, which was not seen as too different from the Japanese mode of governing religious affairs.39 During the second stage of colonial rule, Taiwan was expected to abide more closely to the Japanese rules and therefore to comply with the institutions of a secular state.40 This happened at a time when the multiple religious establishment in China was being questioned, following the abolition of the Qing regime in 1911. During the third period of Japanese rule, however, the situation changed dramatically: Taiwanese were now expected to conform to a new Shinto religious establishment.41 This was an unusual form of religious establishment because it portrayed itself as a national ideology rather than an official religion.42 During the first two stages of Japanese rule, the colonial government believed that Buddhism could increase the chance of Taiwanese assimilation into Japanese society and therefore encouraged the growth of that religion. During the third stage, however, the authorities changed their view and, in accordance with their policy of assimilation, promoted Shintoism and imposed constraints on the other beliefs, even destroying temples and harassing local religious specialists.43 Many Taiwanese had then no reason to believe that the experience of colonial rule would not endure, and few found China an attractive political model, because of that country’s divisions and poverty. For the aboriginal people, who had been increasingly pushed away from the plains in the West Coast and into the mountain by Han settlers, and forced to assimilate to Japanese culture in the last two decades of colonial rule, this was just another instance of displacement at the hands of outsiders. Taiwan moved from multiple religious establishment to a single religious establishment during Japanese colonial rule. Set in the longue durée, however, this non-Chinese colonial era was relatively brief, and the imposition of a Shinto single religious establishment, which lasted less than a decade, was even shorter.  Ibid., 35.  Ibid., 35. 39   Jones, ‘Religion in Taiwan at the End of the Japanese Colonial Period’, 20–21. 40  Ibid., 21–4. 41  Ibid., 24–6. 42  Hardacre, Shinto and the State 1868–1988. 43   Paul Katz, ‘Religion and the State in Post-War Taiwan’, The China Quarterly 174 (2003): 401. 37 38

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V. Taiwan and the Republic of China, 1945–87: A Multiple Religious Establishment The fourth period of Taiwan’s history of church-state relation covers the period between the assumption of control by the Nationalist Party (Kuo Min Tang, hereafter KMT) in the island and the lifting of martial law by President Chiang Ching-kuo. It is understood to be a period of refoundation because Taiwan became part of the Republic of China (ROC), a state that was founded when the island was a Japanese colony. The KMT efforts to eradicate the legacy of Japanese rule and impose on the islanders Chinese cultural norms went along with a heavy-handed and corrupt political rule. This culminated in an uprising on 28 February 1947 that was followed by a massacre of elites and the imposition of martial law for four decades.44 Once the KMT was defeated by the Communist Party in 1949, it relocated its government to Taipei, in effect making the island almost coterminous with the boundary of the radically contracted ROC. The KMT sought during these four decades to radically transform the island society into a ‘free China’ and to ensure that Taiwanese would think of themselves as Chinese first.45 At the end of that period, social and political change had accelerated significantly, to the point where popular and international pressure compelled the regime to make changes, giving substance to the claim of representing a democratic society.46 Through that period the state supported a regime of multiple religious establishment that moved in the direction of increased pluralization. The legal framework that governed relations between religion and state in Taiwan after the end of the Japanese occupation differed dramatically from that of the previous period. The laws of the Republic of China applied to Taiwan as soon as the KMT asserted its control over the island. This was again a structure imposed from the outside, and also a legal framework designed for a polity that was multinational (that is, the vast state that encompassed – theoretically – all the area inhabited by ethnic Chinese, as well as Tibet, Xinjiang and Inner as well as Outer Mongolia). This imposition was theoretical because even during the short period when the KMT was nominally ruling China, the government did not rule the territory in its entirety because of the ongoing civil war against the Communist Party and the divisions caused by many warlords.47 44  Tse-han Lai, Ramon Myers and Wei Wou, A Tragic Beginning: the Taiwan Uprising of February 28, 1947 (San Jose, CA: Stanford University Press, 1991); George Kerr, Formosa Betrayed (London: Eyre & Spottiswoode, 1966). 45   Peter Wang Chen-main, ‘A Bastion Created, A Regime Reformed, An Economy Reengineered, 1949–1970’, in Taiwan: A New History, ed. Murray A. Rubinstein (Armonk, NY: M.E. Sharpe, 1999), 320–338. 46  See Roy, Taiwan: A Political History; Shelley Rigger, Politics in Taiwan: Voting for Democracy (London: Routledge, 1999). 47   James E. Sheridan, China in Disintegration: The Republican Era in Chinese History, 1912–1949 (New York: Free Press, 1977).

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A three-tiered structure of regulation for religion was worked out on the island in this period. The first tier was recognition of a number of religions by the Ministry of Interior, a recognition the KMT made a point of presenting to the outside world as proof that the ROC respected religious freedom. The second tier was a number of religious practices that state elites considered superstitions and that were harassed on the grounds that they were considered wasteful practices.48 Finally a third tier of religions were deemed illegal and persecuted by the government because they were suspected of being clandestine fellow travellers of the communist party, or of indulging in seditious activities because of their peace advocacy and of engaging in ‘immoral’ behaviour.49 From 1945 until 1987, Taiwan became a quasi-establishment state under the façade of a secular state. In 1945, immediately after Japan’s defeat, the state quickly ensured that Shinto temples and shrines were either abandoned or their property transferred to Taiwanese. The Constitution of the ROC adopted in 1947 proclaimed in Chapter 13 that ‘people shall have freedom of religious belief’, and no provision proclaimed that the state promoted one religion. However, KMT policies with respect to religious practice and the recognition of religious institutions showed that not all religions were equal. The state established a monopoly of representation for every sector of society, including religions.50 Although the state did not proclaim an official state religion and did not favour one in particular in the school curricula, it did discriminate against some religious practices. This policy changed, however, in the course of these four decades, reflecting changes in Taiwanese society. During the 1950s even adherents of the recognized religions, such as Buddhism, could be subjected to police harassment because the security apparatus was concerned about infiltration from the CCP. During the 1970s and 1980s, adherents of religions such as Yiguandao were harassed because the authorities considered the association’s eschatological beliefs as subversive.51 Throughout that period the government attempted to shape acceptable beliefs and discourage pan-Taiwanese religions.52 However, the state was relatively liberal: the number of religions recognized by the state moved from five in 1945 to 11 before the lift of martial law in 1987.   Emily Martin Ahern, ‘The Thai Ti Kong Festival’, in The Anthropology of Taiwanese Society, eds Emily Martin Ahern and Hill Gates (Taipei: Caves Books, 1987), 397–426. 49   Ho Fang-jiau (He Fengjiao) 何鳳嬌, Taiwan Sheng Jingwu Dang’an Huibian: Minsu Zongjiao Pian 台灣省警務檔案彙編:民意宗教篇 (Documentary Collection of Taiwan’s Police Administration: Folklore and Religion) (Hsintien 新店, Taipei County: Academia Historica, 1996). 50  Hung-mao Tien The Great Transition: Political and Social Change in the Republic of China (Taipei: SMC Publishing, 1989). 51   Joseph Bosco, ‘Yiguan Dao: “Heterodoxy” and Popular Religion in Taiwan’, in The Other Taiwan: 1945 to the Present, ed. Murray A.Rubinstein (Armonk, New York: M.E.Sharpe, 1994), 423–44; David K. Jordan and Daniel L. Overmyer, The Flying Phoenix: Aspects of Chinese Sectarianism in Taiwan (Princeton, NJ: Princeton University Press, 1986). 52   Katz, ‘Religion and the State in Post-War Taiwan’, 400–401. 48

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One important aspect of KMT rule that went through a major change during that period is the views of its leaders on religion. Many KMT leaders in China shared the views of fellow modernizers in France, Mexico and Kemalist Turkey, according to which religion was the expression of traditional views that needed to be superseded by science. As Duara and other historians of the Republican period have documented, this view of religion, which later informed the communist party’s attitude to religion, inspired a number of campaigns against popular religions in China in the 1920s.53 Although such campaigns in Taiwan did not occur on a large scale, many KMT leaders shared this negative attitude towards popular religion. Moreover, some targeted popular religions because they felt they were not sufficiently ‘Chinese’ and therefore undermined their project of creating a Chinese identity in the island.54 There were other religious sensibilities in the KMT, however. The Christian affiliations of Sun Yat-sen, Chiang Kai-shek and Lee Teng-hui, whether sincere or opportunistic, ensured that anti-religious attitudes could not prevail for long. The difference between the beliefs of political leaders and the variety of religions practiced in the population made it unlikely that anyone could impose a religious establishment on the island. VI. Taiwan Since Democratization, 1987–Present: Secular State The current period of relations between state and religion in Taiwan has unfolded during another transformative period for the island’s population. The ROC has broken away from the façade of unity as a polity rallying around the idea of ‘free China’. It has also emerged in the period of democratic consolidation as a divided society, in which promoters of the status quo have to contend with a significant proportion of the population supporting the right to Taiwan’s self-determination, if not independence as a Republic of Taiwan.55 The KMT leadership itself has been divided over the question: President Lee Teng-hui (1988–2000) supported de facto independence of the ROC, others within his party advocated a more conservative line avoiding any reference to self-determination for Taiwan, lest this would encourage the leaders of the PRC to believe that the KMT supports Taiwanese independence. Chinese leaders have made their views on the subject very clear: they consider the proclamation of Taiwan’s de jure independence, or even a move to raise this possibility in a referendum, to be a casus belli.56 Most of 53   Prasenjit Duara, ‘Knowledge and Power in the Discourse of Modernity: The Campaigns against Popular religion in Early Twentieth-Century China’, Journal of Asian Studies 50 (1991): 67–83. 54   Katz, ‘Religion and the State in Post-War Taiwan’, 403. 55  Roy, Taiwan: A Political History; Rigger, Politics in Taiwan. 56   Ralph N. Clough, Cooperation or Conflict in the Taiwan Strait? (Lanham, MD: Rowman & Littlefield Limited Publishers, 1999).

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the partisans of de jure independence support the Democratic Progressive Party (DPP), whose leader Chen Shui-bian (2000–08) was elected President of the ROC. Under Chen’s presidency, relations with China were tense, but democratization became entrenched. After eight years of tumultuous government, the KMT has returned to power with Ma Ying-jeou as ROC President. During that period of democratization, the system of multiple religious establishment has become too unwieldy to be sustained and has quietly been abandoned. The legal framework of Taiwan has gone through dramatic changes in the last decade. In 2010, the Religious Affairs Section in the Ministry of Interior’s Department for Civic Affairs recognized 29 religions, in comparison to the 11 that it recognized in 1987. The laws, regulations, and directives inherited from the previous period appear increasingly dated, and the government has preferred not to intervene in religious affairs. While there have been many controversies surrounding religious institutions such as the Zhongtaichan temple and religious entrepreneurs such as Song Qili, there have been no interventions from the government, despite strong pressures from some sectors of the media and some religious institutions. Through the 1990s politicians and representatives of different religions have entered discussions over the need to legislate on religious affairs and religious associations, but they have failed to agree on a common position. The authorities have been remarkably shy of going forward, despite the demands to regulate religion by a variety of actors. They did not want to appear as if they were reneging on commitments to guarantee freedom of conscience.57 In sum, with the process of democratization, religion has not declined in importance; on the contrary, it plays a greater role.58 There is a broad consensus among Taiwanese politicians today to avoid giving the impression that one religion is favoured over other ones. All politicians routinely court religious personages of all traditions during elections, at all levels. The few politicians who have appeared too closely related to one religion have been handicapped and paid the price electorally. This was the case of the candidate Chen Li-An, who ran for the 1996 presidential election. Chen was a close lay disciple to a well-known Buddhist monk, Hsing Yun, and was criticized by the media for giving the impression that religion and politics were too closely intertwined.59 Meanwhile, the religious belief of a candidate, even when it is the belief of a minority, is not a handicap. For example, Peng Ming-ming, the second most successful candidate for the 1996 election, was supported by the Presbyterian Church, but so was the incumbent candidate Lee, who was also a Presbyterian. Seventy-six per cent of the electorate voted for either Lee or Peng, but this number far exceeded the number of Presbyterian believers in Taiwan, who represent barely 220,000 followers, or 1 57   André Laliberté, ‘The Regulation of Religious Affairs in Taiwan: From State Control to Laisser-faire?’ Journal of Current Chinese Affairs 2 (2009): 53–84. 58   Katz, ‘Religion and the State in Post-War Taiwan’, 395. 59  André Laliberté, The Politics of Buddhist Organizations in Taiwan, 1989–2003: Safeguarding the Faith, Building a Pure Land, Helping the Poor (London: RoutledgeCurzon, 2004).

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per cent of Taiwan’s population.60 In sum, the religious beliefs of candidates do not influence voters as long as they don’t seem to be too closely dependent on religious institutions; voters seem to be voting independently of their own beliefs, and religion itself is not an issue around which politicians compete. These legal and political changes have happened while Taiwan appears to be more religiously diverse than before, and many religions make their influence felt in social welfare, culture and even politics.61 While the Religious Affairs Section of the Ministry of Interior recognizes 28 religions, it registers hundreds of religious associations, most of which are affiliated with the recognized religions. There are 24 Christian denominations alone, and thousands of registered Taoist temples and shrines. Some of the religious associations number more members than some of the smaller religions. For example, the Buddha Light Mountain (Foguangshan) Monastic Order claims over four million followers, which is more than the total number of adherents to all religions except for Buddhism and Taoism. This diversity has an institutional expression as well. Most observers of Taiwanese culture and society have noted the remarkable expansion of Buddhism, whose lay associations operate hospitals and universities, as well as media.62 Another aspect of religiosity in contemporary Taiwan that contrasts with the situation during the period of martial law is the positive appreciation of folk religion by the cultural and political elites. For example, intellectuals and government officials now proudly celebrate folk religions, which are considered a part of the national heritage worthy of preservation. Taiwan has become a state without any religious establishment as the process of democratization has deepened, albeit one that still counts many regulations on religious affairs. Although the politically imagined community is congruent with the real political community of the majority of Taiwanese who identify with the island, the spiritual imaginaries of most religious communities embrace a far larger realm than the political one. The transnational ethnic networks of Taiwanese include kin in China, Southeast Asia and elsewhere throughout the globe, and their beliefs included ancestor worship, Buddhism and Christianity. Popular religions serve to connect overseas Taiwanese with the land of their origins in the island or even in Fujian, and their religious imaginaries, while not universalistic like those of the adventitious religions, are nevertheless transnational. Conversely, for the transnational religions, which are nominally universal, the imagined spiritual communities do not always overcome the boundaries of language and culture, and, in the case of China, the community is even smaller, because the differences between Chinese and Taiwanese are often emphasized.  Rubinstein, The Protestant Community in Modern Taiwan.   Cheng-tian Kuo, Religion and Democracy in Taiwan (Albany: State University of New York Press, 2008); Richard Madsen, Democracy’s Dharma: Religious Renaissance and Political Development in Taiwan (Berkeley: University of California Press, 2007). 62   Julia C. Huang, Charisma and Compassion: Cheng Yen and the Buddhist Tzu Chi Movement (Cambridge, MA; Harvard University Press, 2009); Stuart Chandler, Establishing a Pure Land on Earth: The Foguang Buddhist Perspective on Modernization and Globalization (Honolulu: University of Hawai’i Press, 2004). 60 61

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Conclusion As long as we limit our understanding of religious establishment to a mode of relations between church and state, it is difficult to see any form of religious establishment in China and societies culturally influenced by China because neither churches nor church-like institutions are important institutional actors of the religious sphere in these societies. There was no legal framework within which ‘church-state’ relations could be imagined in Taiwan simply because there were no distinctions between the two realms of the profane and the sacred. Politics and religion were mutually constitutive and their imaginaries, institutions, and practices were linked. This was the case during the first three periods of Taiwanese history when it was at the periphery of three different empires: the Chinese Ming, the multicultural Manchu and the Japanese. During the first two of these periods, religious communities constituted themselves in a context of gradual integration within Chinese culture, while in the third, Japanese cultural influence was suddenly imposed. In these three cases, the religious imaginary of religions in Taiwan was coinciding in many cases with those of the large polities into which the Taiwanese society was forcibly integrated. The last two periods of Taiwanese history saw radical changes. First, the modernizing state enforced a regime of multiple religious establishment. This was imposed during the period of martial law, and represented an authoritarian version of secularism premised on a definition of religion that was imported from Western worldviews and that put into place a regime of corporatist regulations that considerably limited the development of religious institutions. This approach to secularism, which was a multiple religious establishment, gradually gave way to a liberal version of secularism that broadened the acceptance of a greater variety of religious practices. New religions are entering the realm of public consciousness and recognition, and the state legal structure has yet to find a framework that can encompass all the different ways in which religious practices, customs and rituals are understood as religions. The transitions through which Taiwan has gone have some important implications for China: the regulation of religion in that vast country need not fall within a rigid framework because of a so-called natural and national characteristic. Taiwan, which has historically shared much of China, shows that within Chinese culture considerable diversity and change are possible.

PART III Rethinking Law’s Capacities

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Chapter 10

The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa Peter G. Danchin† In the metaphor of logonomocentrism, ‘the claim of the unity of self and others in absolute reason of the law’ is made. Logonomocentrism promises the truth of reason and the reason of law, which are both games of figurality and rhetoricity. If, however, there is asymmetry between the practices of religious persons and the reasons of the state (nomos), then the only way logonomocentrism deals with these relations is to ‘other’ and delegitimize these practices as aberrant and illegal.1

Introduction Each of the chapters in this volume addresses different aspects of the same basic puzzle: what is the relationship between ‘religious establishment’ and the closely related category of ‘religious freedom’? Conventional wisdom has it that the former is a contingent political issue addressed to the relationship between religion(s) and the State, while the latter is a universal moral issue addressed to the relationship between individual rights-bearers and the State. As understood in Anglo-American legal history, establishment or non-establishment are merely the particular forms of institutional relation that developed between England and the newly separated English church in the mid-sixteenth century and between the newly independent United States and a variety of religious arrangements, including state establishments, in the former colonies in the late eighteenth century. We can thus speak today of an ‘established church’ or ‘official or dominant religion’ as an enduring feature of modern national constitutions. But beyond the culturally and historically limited category of ‘establishment’, we can also see today a tremendous variety of constitutional arrangements in the world prescribing different forms of 1   † I wish to thank Waheeda Amien, Saba Mahmood and Winnifred Fallers Sullivan for comments and suggestions as well as the participants in my South African Constitutional Law and Comparative Public Policy and Law Reform seminars for helpful discussions on the Muslim Marriages Bill. Ebrahim Moosa, ‘Tensions in legal and religious values in the 1996 South African Constitution’, in Beyond Rights Talk and Culture Talk: Comparative Essays on the Politics of Rights and Culture, ed. Mahmood Mamdani (New York: St Martin’s, 2000), 133.

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relation between the State and religion(s).2 This includes a variety of forms of recognition of and formal relation to both majority and minority religions.3 The distinction between religion-state relations, on the one hand, and the right to religious freedom, on the other, allows us to see that there is no intrinsic or necessary correlation between the degree of ‘establishment’ and the protection accorded to religious liberty. The United Kingdom, for example, has an established church, but at the same time accords robust legal protection to the individual right of religious freedom, while China has an avowedly secular public sphere but comparatively weak legal protection of the right.4 There are, however, at least two apparently intrinsic connections between the categories of establishment and right/freedom. The first is that these categories rest on an underlying assumption of secularism or ‘the secular’. Whether and to what extent a religion is ‘established’, and where and how to demarcate the lines between religion and politics, are ultimately questions for the state to decide. This is the defining feature, indeed essential paradox, of modern secularism.5 The second is that, while there may be no necessary correlation between establishment and the right to religious freedom, where the right is recognized by the State, its meaning and scope will be dynamically interrelated with the nature of the public sphere in a particular society. This last point is a source of great confusion today. Contemporary religious freedom discourse is shaped by two interrelated features: first, a conception of political authority not in terms of any formal relation between the state and religion(s), but in terms of secular neutrality, and second, a conception of the right in terms of freedom. The discourse is able to maintain its simultaneous, and ultimately paradoxical, claims to uniqueness (because neutral towards religion) and universality (because securing the right to freedom of religion) by defining each concept in terms of the other. The constantly oscillating 2  On relations between religion and State in various national constitutions, see Peter G. Danchin, ‘Of Prophets and Proselytes: Freedom of Religion and the Conflict of Rights in International Law’, Harvard International Law Journal 49 (2008): 249, 297–307. 3   Spain and Italy, for example, have established ‘concordat’ systems of recognition that provide different rights and privileges to religious communities which are characterized by the use of negotiated agreements between the State and federations of religious institutions often formed for the purpose of concluding and administrating the agreements. See Gloria M. Morán, ‘The Spanish System of Church and State’, Brigham Young University Law Review (1995): 544; Silvio Ferrari, ‘The Emerging Pattern of Church and State in Western Europe: The Italian Model’, Brigham Young University Law Review (1995): 428–9. 4  See W. Cole Durham, Jr, ‘Perspectives on Religious Liberty: A Comparative Framework’, in Religious Human Rights in Global Perspective: Legal Perspectives, eds Johan D. van der Vyver and John Witte, Jr (Cambridge, MA: Kluwer Law International, 1996), 1–44. 5   Thus even the case of a constitutional provision such as Article 2 of the Egyptian Constitution which provides that ‘Islam is the religion of the State and shari’a is the main source of legislation’ reflects the extent to which Egypt is embedded within the problem-space of modern secular power. See Hussein Agrama, Questioning Secularism: Islam, Sovereignty, and the Rule of Law in Modern Egypt (Chicago: University of Chicago Press, 2012).

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dialectic between neutrality and freedom ensures that the nature of the public sphere is dynamically related to the scope of the right to religious freedom.6 What this conceptual structure means is that the political nature of the public sphere (that is the relation of actually existing religions and religious communities to the state) is, in practice, understood and configured in terms of a moral theory of individual rights (that is the relation of rights-bearers as legal subjects to the State). Conversely, the actual meaning accorded to the right to religious liberty in any particular case or controversy is, in practice, understood and configured in terms of the political nature of the public sphere. In this way, what was first a political question becomes a moral question, and what was first a moral question becomes transformed into a political question. Both nomos (the public sphere) and logos (the right) are ineliminably contextual and interconnected. Any account of nomian neutrality will quickly devolve into hypostasis or reification of an historically specific political order and thus a particular definition of ‘religion and belief’ and specific form of demarcation between ‘public and private’ spheres. Any account of the right, when viewed historically, will reveal that rival intellectual traditions and normative dissonances and conflicts are internal to the right itself. The right, in other words, is simultaneously historically relative and normatively plural. The thesis of this chapter is that the category of ‘religious establishment’ has been gradually transformed in modern liberal secular discourse into the category of moral right – the right to religious liberty. What today is viewed as ‘established’ is not actually existing, politically negotiated relations between the State and particular religious communities or institutions (for example ‘the church’), but rather the legal category of ‘right’. Legal and religious obligations are redescribed as rights of the subject in order to protect a normative conception of freedom. As legal subjects, religious individuals and groups thus assert claims of right which the state must then decide through legislation or adjudication to recognize or restrict. This makes contestation over rights claims an increasingly political process and further increases the power of the state. Two key issues remain: first, who is the proper subject of the right? Are only individual persons, or may religious groups, communities and institutions also properly be regarded as entitled to claim the right to religious freedom? Second, what is the scope and meaning of the right? Does it encompass merely a right to non-interference in the so-called ‘private sphere’ (and, if so, non-interference into what exactly?), or does it extend to various forms of public recognition and accommodation by the State (and, if so, to which claims and religious practices exactly and with what legal effect)? This chapter explores the normative dissonances and antinomies generated by the politics around religious establishment by examining post-apartheid law reform efforts in South Africa to recognize Muslim marriages. Since the late 6  See Peter G. Danchin, ‘Islam in the Secular Nomos of the European Court of Human Rights’, Michigan Journal of International Law 32 (2011): 663.

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1990s, the South African Law Reform Commission (SALRC) has initiated various projects to recognize the claims of and redress past discrimination against different religious communities, including tribal groups living under customary law and religious minorities with their own family and personal status laws. It is striking how the norms and assumptions underpinning this debate differ from engagements involving the claims of religious communities in Europe and North America today where broadly Protestant genealogies of the right to freedom of conscience have become naturalized. The value-pluralist nature of the post-apartheid constitutional order is transforming the politics between religious communities and opening new spaces for legal and social reform. We are thus seeing new and intense debates on questions of legal pluralism and the tensions between individual and group rights and identities. This dynamic provides important insights into the meaning and scope of religious freedom as a human right. After a brief overview of the history of Muslim communities in South Africa and the reasons for the non-recognition of Muslim marriages, I describe the efforts undertaken by the SALRC to prepare a draft bill recognizing Muslim marriages as a matter of state law and the politics which has subsequently emerged around competing claims to and understandings of recognition of Muslim personal law (MPL), and I offer reflections on the reasons for and implications of these antinomies and divergences. The law reform efforts in South Africa have exposed critical ambivalences and normative resistance to the two great transformations which together define the modern politics of religious freedom: the first relating to the emergence of a ‘secular’ public realm imagined to be independent of and in some new relation to ‘religion’, now viewed as solely a matter for private life (the so-called public/private divide), and the second relating to the redefinition of religion itself as conscience or belief in an age of what we might term secular equality where the unstable convergence between conscience and autonomy has gradually reversed in the secular imaginary such that religious liberty is today viewed as autonomy. History of Muslim Communities in South Africa There have been Muslim communities in southern Africa for more than 300 years.7 The heterogeneity of these groups is a product of the history of settlement and colonialism in southern Africa from the mid-seventeenth to the mid-nineteenth centuries. Malay Muslims first came to the Cape as servants of the Dutch as early as 1658. Southeast Asian Muslims came as political prisoners, convicts and slaves starting in 1667, and Indian Muslims began arriving in the mid-1850s, first as indentured labourers imported to work on British sugar plantations in Natal and

7   Ebrahim Moosa, ‘Prospects for Muslim Law in South Africa: A History and Recent Developments’, Yearbook of Islamic and Middle Eastern Law 3 (1996): 130.

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later voluntarily.8 Today, these communities are the largest religious minority in the country, comprising approximately 1.5 per cent of the total population.9 State recognition of Islamic law and the organization of Muslim legal affairs generally was limited during the first couple of centuries, and the extent to which Muslims in the Cape resorted to the official (secular) courts in matters of family law and succession is unclear.10 What is known is that, following the founding of the first mosque in the Cape around 1805, imams began to assert authority over family law matters and by the early nineteenth century ‘some form of community judicial structures were in place which dealt with religious matters of a legal nature’.11 In the early twentieth century, the practice of Muslim personal law over matters of marriage, divorce, custody and succession began to be administered judicially and socially by Ulama Councils (Muslim clergy).12 By 1935, the Jamiatul Ulama of Transvaal was established, the Muslim Judicial Council followed in 1945 and the Jamiatul Ulama of Natal was founded in 1955. Subsequently other ulama bodies emerged including the Majlis Ashura al-Islami in 1969, the Islamic Council of South Africa in 1975, the Sunni Jamiatul Ulama of South Africa in 1978, the Majlisul Ulama in 1976 and the Sunni Ulama Council in 1994.13 The state, however, consistently refused to recognize Muslim personal law, and thus Muslim marriages contracted according to Islamic law were not recognized, causing hardship and injustice to Muslim communities, especially women and children. The doctrinal rationale for non-recognition was stated as early as 1860 when the Cape Supreme Court refused to recognize an applicant as a legitimate child on the grounds that a Muslim marriage was ‘recognized concubinage’ because 8  Through conversion these communities also include members of the indigenous African and European (white) communities. See Waheeda Amien, ‘Overcoming the Conflict between the Right to Freedom of Religion and Women’s Rights to Equality: A South African Case Study of Muslim Marriages’, Human Rights Quarterly 28 (2006): 731; Moosa, ‘Prospects for Muslim Law in South Africa’, 131. 9   Amien, 730. 10   With the advent of the Dutch East India Company between 1652 and 1795, the Commander’s Court accorded limited recognition of Islamic law to ‘non-slave Moslems with regard to matters of family law and succession’, but otherwise ‘all inhabitants, regardless of colour or status, came under Roman-Dutch law and such statutes as were of local operation’. Moosa, ‘Prospects for Muslim Law in South Africa’, 132. 11   While from the 1860s to 1900 many cases involving disputes over mosque leadership and property disputes were taken to the Cape Supreme Court, ‘very few cases of divorce, custody and succession were reported to have reached the secular courts and there is every reason to believe that the community organs had successfully handled these’. Ibid., 133–4. 12  The ulama provided religious services at mosques, instructed children and adults about religious doctrine and applied ‘informal’ personal law in the community. Ibid., 134. 13  Ibid.

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potentially polygynous and thus contrary to public policy.14 This rationale remained in effect in South African law to the present day. As recently as 1983, the Appellate Division reaffirmed that an Islamic marriage was contra bona mores, that is, ‘contrary to the accepted customs and usages which are regarded as morally binding upon all members of our society’.15 This close nexus between monogamy and ‘civilized’ marriage can be traced to the complex entanglement of Christian norms and doctrine within South African law and culture. In the 1860 Bronn case, for example, the Cape Supreme Court stated that: … marriage is a condition Divine in its institution … and it is only by the development of Christianity that the sacred and mysterious union has been clearly revealed to mankind, and has enjoined a strict observance of its requirements, and one of the first of these requirements is, amongst all Christian nations, that polygamy is unlawful, and that marriage is only good when contracted with a man who is not already married to another woman.16

This statement offers a classical legal conception of marriage as status – universal and fundamental to civilization and to law.17 As Janet Halley has observed, marriage as status is still today understood as ‘an institution, public not private, controlled by the will of the state, not that of the parties’.18 The effect of this law was essentially threefold: first, South African Muslims as a community were discriminated against on the basis of their religion and treated as second-class citizens; second, Muslim personal law evolved and was applied by ulama bodies in isolation from both the obligations and rights accorded by state law; and third, unjust consequences resulted for Muslims who were denied legislative rights and benefits available to marriages recognized by civil law. A Muslim wife therefore could be unable to enforce her right to mahr (dower) due to strict interpretations of shari’a by the ulama in her community, while at the same time being unable to enforce a claim for maintenance under civil law due to nonrecognition of her Muslim marriage.   Bronn v. Frits Bronn’s Executors (1860) 3 Searle 313 at 318. In Seedat’s Executors v. The Master 1917 AD 302, the Court refused to recognize a Muslim widow as the surviving spouse for the purposes of the Natal Act which would have exempted her from estate duty. 15   Ismail v. Ismail 1983 (1) SA 1006 (AD) at 1026. The Court stated that potential polygyny is tantamount to actual polygyny and any agreement (tacit or otherwise) between the parties cannot alter this. 16   Bronn (1860) 3 Searle 313 at 318. In Seedat’s Executors v. The Master 1917 AD 302, at 307–8, the Appellate Division confirmed that polygamy is ‘reprobated by the majority of civilized peoples, on grounds of morality and religion’. See Amien, 733. 17   Janet Halley, ‘What is Family Law? A Genealogy: Part I’, Yale Journal of Law and the Humanities 23 (2011): 1–109. 18   Janet Halley, ‘Behind the Law of Marriage (I): From Status/Contract to the Marriage System’, Unbound 6 (2010): 4. 14

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While some of the more deleterious effects of these judgments have begun to be ameliorated by courts in the post-apartheid era,19 and while judges have begun to recognize certain aspects of Muslim personal law in the form of civil contracts,20 Muslim marriages remain unrecognized and thus potentially illegal as a matter of South African law. It was this unsatisfactory situation that led to the establishment of a Project Committee of the SALRC in 1999, which started an investigation into Islamic Marriages and Related Matters.21 Legal Recognition of Muslim Marriages Section 15 and the Right to Freedom of Religion and Belief Section 15 of the 1996 Bill of Rights introduced the following provision into South African constitutional law: Everyone has the right to freedom of conscience, religion, thought, belief and opinion. This section does not prevent legislation recognizing marriages concluded under any tradition, or a system of religious, personal or family law; or systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.22

The distinctive normative structure of Section 15 is instructive. The subject of the right is said to be ‘everyone’ (presumably every ‘person’) while the scope of the right is said to extend to ‘freedom of conscience, religion, thought, belief and opinion’. It is not clear on its face whether this includes marriages concluded  See Ryland v. Erdos, 1997 (1) BCLR 77 (C); Amod v. Multilateral Motor Vehicle Accidents Fund, 1998 (4) SA 753 (CC). 20   Following Ryland and Amod, the proven terms of a civil contract such as ‘the husband’s unilateral duty of support, his obligation to nafaqah (maintain) his wife during marriage and iddah, and payment of mahr, are legally enforceable’. Amien, 736. 21   South African Law Reform Commission, Project 59: Islamic Marriages and Related Matters, Report, July 2003, 1–2. 22   S. Afr. Const. 1996 ss. 15(1) & (3)(a). Section 15(3)(b) also stipulates that ‘[r]ecognition in terms of paragraph [3](a) must be consistent with this section and the other provisions of the Constitution’. In addition to Section 15, Section 31 of the Constitution provides that ‘[p] ersons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community (a) to enjoy their culture, practice their religion and use their language’. Section 235 further provides that the ‘right of South African people as a whole to self-determination … does not preclude … recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation’. 19

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under systems of personal or religious law or the systems of personal or family law ‘adhered to by persons professing a particular religion’ themselves. Section 15(3) simply states that ‘[t]his section does not prevent legislation recognising’ such marriages or systems of personal or family law, with the proviso set out in Section 15(3)(b) that any such legislative recognition ‘must be consistent with this section [i.e. the right in Section 15(1)] and the other provisions of the Constitution’. How should we interpret these provisions? Clearly Section 15(3) both anticipates and authorizes forms of legal relation between the State and South Africa’s different religious communities, including groups living under customary law and religious minorities with their own family and personal status laws. Indeed, Section 15 expressly states that the right to religious freedom itself as embedded in the new Bill of Rights cannot be read to prevent the legal recognition of such religious practices and institutions (for example Muslim marriages) or systems of law (for example Muslim personal status law). In contrast to the Establishment Clause in the First Amendment to the US Constitution providing that ‘Congress shall make no law respecting the establishment of religion’, Section 15 says that the national government may not prevent laws establishing forms of recognition of religion and religious doctrine and practice. Given that the title of Section 15 is Freedom of Religion, Belief and Opinion, it is clear that the prohibition in Section 15(3) expresses an important aspect of this freedom. The category of religious establishment is employed here to define and protect a particular normative conception of freedom while the category of right is identified as a potential limitation on that conception. Courts and legislatures are instructed by the Bill of Rights to read Sections 15(1) and 15(3) together, that is, as entrenching a conception of the right that both allows space for and accommodates diverse forms of both collective religious practice and identity as well as non-state systems of personal or religious law. Any resulting recognition or accommodation, however, cannot be inconsistent with the right to religious freedom itself in Section 15(1) or any other fundamental constitutional rights such as the right to equality in Section 9. The political questions of non-interference in or recognition by the State of religious norms and practices are ultimately held to be subject to the normative (moral) constraints of the right. At the same time, the subject and scope of the right are each ambiguous, allowing space for forms of (political) contestation and recognition of religious norms, identities and practices. The question then becomes how these obvious antinomies and contradictions on issues of legal establishment, freedom and pluralism, and individual and group rights and identities are to be navigated and, if only provisionally, resolved. The Recognition of Muslim Marriages Bill In July 2003 the SALRC released its report on Islamic Marriages and Related Matters, including a draft of the Muslim Marriages Bill. The basic structure and purpose of the Bill was to make provision for the recognition of existing

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Muslim marriages (whether monogamous or polygynous) as well as existing civil marriages to a second wife.23 The Bill specifies the requirements of a valid Muslim marriage and provides for registration of such marriages.24 It further specifies that the proprietary consequences of Muslim marriages will be automatically out of community of property, unless the parties agree otherwise by registered ante-nuptial agreement.25 In relation to termination of Muslim marriages, the Bill specifies that this can be by faskh (dissolution by a court on the application of the wife), talaq (right of the husband to terminate) or khula (dissolution at the instance of the wife), but the consequences of such termination have to be confirmed by a court.26 The Bill also contains further provisions dealing with custody and maintenance.27 It is interesting to note that the Bill does not provide for independent shari’a courts, but rather seeks to implement Muslim personal law in the existing court system with the requirement that a Muslim judge or advocate and two Muslim assessors be appointed to assist the Court.28 Court decisions are then subject to appeal to the Supreme Court of Appeal with the proviso that decisions are submitted to two accredited Muslim institutions for written comment on questions of law only.29 Waheeda Amien has described the two main benefits of the Bill as allowing Muslim parties to enjoy similar civil benefits as afforded to legal spouses while also allowing women to enjoy the positive benefits of a Muslim marriage. This includes the provisions which: (1) oblige parties to provide for mahr; (2) recognize the husband’s unilateral obligation to maintain his children and wife during the marriage and iddah; (3) oblige the husband in cases of divorce to provide a separate residence for the wife when she has custody of the children; (4) entitle the wife to be separately remunerated for breast-feeding purposes for two years from the birth of the child; (5) enable the Court to make an equitable division of assets where a party has assisted in the family business or contributed to the estate; (6) enable a surviving spouse to lodge a claim against her deceased husband’s estate for unpaid mahr and any contribution recognized by shari’a that she makes to his estate; (7) provide a minimum marriageable age of 18 years applicable to both parties; (8) recognize different forms of divorce available to women such as faskh, khula and talaq, rather

  Section 5 (Requirements for validity).   Section 6 (Registration). 25   Section 8 (Proprietary consequences and contractual capacity of spouses). Section 8 contains further provisions (sub-sections (4)-(10)) dealing with the equitable regulation of the proprietary consequences of polygynous marriages. For further discussion, see Part IV.D. 26   Section 9 (Termination). 27   Section 11 (Custody of and access to minor children); section 12 (Maintenance). The Bill ensures legal recognition of spouses married according to Islamic law by further calling for amendments to the Deeds Registries Act 47 of 1937, the Intestate Succession Act 81 of 1987, and the Maintenance of Surviving Spouses Act 27 of 1990. 28   Section 15(1)(a) and (b). 29   Section 15(4). For further discussion, see Part IV.C. 23 24

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than simply talaq as the exclusive domain of the husband; and (9) recognize polygyny, but only in a limited form regulated to protect the interests of women.30 The negative aspects of the Bill from Amien’s perspective include: (1) the traditional Muslim approach to matrimonial property in the form of an out of community of property regime (although with an opt-out provision); (2) the fact that husband and wife are equal in human dignity, status and capacity, but are not equal in rights (for example the husband only is allowed to take multiple wives and the wife is under a unilateral obligation to observe iddah); (3) the exclusive right of men to unilaterally repudiate the marriage (talaq); and (4) the placing of interpretation and implementation of these provisions in the hands of Muslim judges and assessors required to have ‘specialized knowledge of Islamic law’ which makes the Bill susceptible to conservative interpretations of shari’a.31 In order to see what is at stake in these competing positions, let us turn to consider the politics surrounding these issues which has evolved during the law reform process. The Politics of Religious Establishment As early as 1975, efforts were made to begin recognizing certain aspects of the legal consequences of Muslim marriages in South African law. The main supporters of these early initiatives were the established ulama groups. Others opposed these efforts as they suspected they ‘had more to do with the attempt to purchase legitimacy for the disgraced tricameral parliament following the resistance that many Muslim groups offered the National Party government’.32 As Moosa acutely observes, Muslim responses to the overtures made by the apartheid state reverberated in ‘several registers of discourse’ at the same time, and in them ‘one can discern the texture of colonial and racial discourses which run concurrently with the variety of Muslim discourses’. These multiple discourses were ‘fractured and incomplete’ and enfolded within themselves ‘conflicting and subterranean discourses’, with the result that ‘discrimination, resistance, religion and culture to mention a few issues, appear as moving categories whose political saliences shift in relation to one another’.33 In the turbulent politics of the 1980s, the strongest resistance to SALC reform initiatives came from Muslim youth activists and students who ‘suspected that the state with its array of intelligence and security networks in collaboration with quietest and reactionary Muslim elements were planning to neutralize the Muslim community with MPL’.34   Amien, 743–4.  Ibid., 745–6. 32   Moosa, ‘Prospects for Muslim Law in South Africa’, 135–7. 33  Ibid., 136. 34  Ibid., 138. Consistent with policies regularly employed by the apartheid state, ‘[s] tate propagandists continuously distinguished between the “good” subject and the “bad” 30 31

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In response to the post-apartheid law reform proposals, it is possible to identify four distinct yet deeply entangled normative positions staked out by the various groups (both Muslim and non-Muslim) supporting or opposing legal recognition of Muslim marriages. Let us consider each of these before turning to address the justifications and practical implications of each position. Four Perspectives and Reactions to the Bill Support for the Bill has come from two camps. First are human rights organizations and activists, including ‘secular’ Muslim groups and politically liberal organizations as well as the SALRC which together support legal recognition as a means to remedy the history of injustice, prejudice and discrimination in South Africa against Muslims. The Bill, it is argued, would bring South African law more in line with the values of freedom, equality, and pluralism enshrined in the new constitutional order and, despite inevitable and legitimate challenges on grounds of gender equality, will provide more protection for the rights of Muslim women than the status quo. In line with contemporary constitutional jurisprudence, this is a position grounded in notions, not of formal, but substantive equality. The second camp are so-called ‘progressive’ ulama and other Muslim civil society organizations, which recognize the social and political reality of Muslims as a religious minority in the new constitutional order, and see the Bill as a reasonable way to protect Islamic values and norms by incorporating Muslim personal law into South African law and seeking a balance and compromise with constitutional rights and imperatives. Despite opening Muslim personal law to state regulation, these groups argue that legal recognition will paradoxically provide Muslims input and a degree of influence over any state interference while simultaneously elevating Muslim personal law to a more equal status in the public sphere, thus remedying both symbolically and substantively the historical mistreatment of Muslims as second-class citizens. Opposition to the Bill has also fallen into two broad camps. First are the more stridently secularist and comprehensively ‘liberal’ groups, who oppose the Bill as excessively entangling the State with questions of Is’lamic law and unconstitutionally enacting regressive and discriminatory Islamic norms and practices into state law. Prominent women’s rights activists have thus argued that the drafting process was ‘manipulated to appease the Muslim clergy’ and that, if enacted, the Constitutional Court will need to decide ‘how to deal with the conflict between the right to freedom of religion and women’s rights to equality’.35 Excessive entanglement, however, also includes concerns about religious freedom. For constitutional lawyers such as Ziyad Motala, the draft Bill is thus ‘an unwise,

subject, counterposing them as “peace-loving” versus “radical” Muslims and Christian clergy and their followers’. 35   Moosa, ‘Prospects for Muslim Law in South Africa’, 146.

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improvident and questionable constitutional exercise’.36 Religion is a matter of voluntary choice, and the State should not transgress into the sphere of private belief or interfere with the autonomy of religious institutions. Conversely, the State should not endorse or become entangled in matters of religion, and the right to religious liberty should be understood as protecting inner conscience, belief, or opinion, not religious conduct falling into the sphere of legitimate legal jurisdiction. This kind of negotiated and contingent modus vivendi is dangerous for both the State and religion – which should be kept separate. Paradoxically, many of these concerns mirror those voiced by the second major opposition camp comprised of the more traditional ulama bodies and ‘conservative’ Islamic organizations. These groups have opposed state regulation of Muslim personal law by a non-Islamic state and have argued for maintenance of the status quo where ulama institutions and officials both interpret and administer Muslim personal law within their communities. Indeed, the notion of legal recognition has been argued to be against shari’a as it risks state interference with basic tenets of Islamic law precisely on the basis of the new constitutional values of freedom, equality and pluralism. For this reason some of these groups have advocated for full exemption of ‘Muslim family law legislation from the human rights provisions of the new constitution, arguing that these values conflicted with their version of Islamic law’.37 It is striking to observe how the main fault-lines of disagreement correspond to the two issues discussed at the beginning of this chapter, religious establishment in the public sphere (nomos) and the right to religious freedom (logos), and the paradoxical ways in which each category is contested and defined in terms of the other. Thus both camps opposing the Bill can be seen to be resisting the interrelation of this dialectic. The traditional ulama bodies seek robust recognition from the State as collective legal subjects with a broad right to non-interference (liberty). Their co-oppositionists oppose the Bill paradoxically for exactly the opposite reason: they seek to deny any broad notion of a group right to religious freedom and argue instead for a more substantively ‘secular’ account of the public sphere premised on a narrower conception of individual right. This still entangles the State in concerns of ‘religion’, but now only in relation to a significantly narrower conception of individual ‘conscience’, ‘belief’ and (private) ‘practice’. This normative conception both requires a redefinition of what constitutes religion and a proper religious subjectivity38 and at the same time empowers the State to   Ziyad Motala, ‘The Draft Bill on the Recognition of Muslim Marriages: an unwise, improvident and questionable constitutional exercise’, Comparative and International Law Journal of South Africa XXXVII (2004): 328. 37   Moosa, ‘Prospects for Muslim Law in South Africa’, 139. 38   Saba Mahmood notes that ‘contrary to the ideological self-understanding of secularism (as the doctrinal separation of religion and state), secularism has historically entailed the regulation and reformation of religious beliefs, doctrines, and practices to yield a particular normative conception of religion (that is largely Protestant Christian in its contours)’, and 36

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intervene more aggressively for regulatory purposes in any communal, traditional, customary or religious spheres of life currently under non-state forms of authority. Indeed, the very purpose and rationality of such regulation is to ‘liberate’ individuals from oppression or backwardness of traditional forms of authority. On this view it would be preferable for Muslim personal law ultimately to wither way as an anachronism or greatly be reduced in its scope and social power by being replaced with a system of uniform civil law.39 We see a mirror opposite in the camps supporting the Bill. Like the traditional ulama bodies, political, liberal, and secular Muslim groups argue for a broad collective right to religious freedom, but not for the purposes of non-interference. What they seek is public recognition. The public sphere should be open to and engage with different collective religious identities and norms, but should be subject to the overriding secular discipline and normative constraints of the Constitution itself. From an opposite vantage point, moderate ulama and ‘progressive’ Muslim civil society groups argue similarly for public recognition, engagement and access to justice, but subject to the normative demand of reasonable accommodation by the State of Islamic norms and practices. What makes consideration of these issues so difficult and divisive is that these four positions are often run seamlessly together, confused by proponents and opponents alike, or are considered in isolation from each other. We can see, for example, how supporters of the recognition of Muslim personal law, especially those within Muslim communities, are concerned not only with the right to freedom of religion or belief, but also with issues of women’s rights and gender equality (especially as these rights have historically been violated by state action). Polemical portrayals of the patriarchal nature of Islam and of aggressive Islamist politics in the public sphere and the framing by Muslim leaders of their claims in the name of religion and religious freedom only combine to obscure this more subtle dialectic. Conversely we can see how the arguments of secular opponents of recognition implicate not only on issues of gender equality, but also the scope and meaning of the right to religious freedom. Critical judgments made by law reformers and rights activists regarding the justice of Islamic norms on the grounds of divergence from assumptions internal to liberal theory obscure the degree to which these claims rest on contingent and contested accounts of the right to freedom of religion or belief itself. In this type of situation, where a minority asserts claims of right against the majority while at the same time asserting the legitimacy of certain internal that ‘[h]istorically speaking, the secular state has not simply cordoned off religion from its regulatory ambitions but sought to remake it through the agency of the law’. ‘Religious Reason and Secular Affect: An Incommensurable Divide?’ in Is Critique Secular: Blasphemy, Injury, and Free Speech (Berkeley, CA: Townsend Center for the Humanities, 2009), 87. 39  See Susan Moller Okin in Is Multiculturalism Bad for Women, eds Joshua Cohen, Matthew Howard and Martha C. Nussbaum (Princeton, NJ: Princeton University Press, 1999), 22–3.

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communal restrictions, we then face a far more complex and multifaceted dialectic than is often supposed. Such situations compel us to take seriously the plurality of whole ways of life complete with their associated conflicting moralities and often exclusionary allegiances. This, in turn, requires us to confront conceptions of the good that resist legal privatization and relegation to the private sphere of voluntary association which is their fate under the neutrality of the liberal state. The type of modus vivendi pluralism we see emerging in South African seeks a priori not to suppress or deny these types of demands, but rather to create a diversity of jurisdictions or normative domains for the various contending communities to reach (provisional) settlements. This is a distinctly ‘mixed’ conception of political order, with all the conflicts of jurisdiction that such plural inheritances give rise to in the laws of marriage and the family, and in this way it complicates the neat public/private divide imagined in liberal theory. It further illustrates how the right to freedom of religion is not a singular notion, but rather a complicated bundle of entitlements, each made up of a diversity of claims, and thus protects a range of human interests that are often at odds. When conflicts arise, as they inevitably do, these can reasonably be settled in different ways, making a general or universal theory impossible. Legislative Recognition Versus Judicial Adjudication There are three further important implications that follow from this conception of the relationship between religious establishment and religious freedom. The first is the important practical difference between recognition via legislative reform as opposed to via judicial process and adjudication. While both involve a conception of religious establishment in terms of religious freedom, the mode and practical terms of engagement are quite different. The reform process seeking legislation recognizing Muslim marriages is clearly not a concordat or formal legal agreement between the State and a religious community.40 It does, however, contain some similarities. Since 1996 the SALRC has engaged in a far-reaching and ongoing process of outreach, requests for submissions, hearings and negotiation on reform proposals with South Africa’s Muslim communities and ulama organizations. This has required the State to engage directly with affected communities and thus with the conflicts and divergent politics that any such engagement entails. For all its contradictions and perceived weaknesses, the 2003 Bill is a reflection of this substantive political engagement. It is instructive to compare this with the religious freedom jurisprudence of the Constitutional Court during the same time period. The Court has decided three major cases under Article 15 since 1996.41 Despite its rhetoric of religious pluralism, associational autonomy and reasonable accommodation, and despite  See note 3.   S. v. Lawrence; S. v. Negal; S. v. Solberg, 1997 (4) SA 1176 (CC); Christian Education South Africa v. Minister of Education, 2000 (4) SA 757; and Prince v. President, Cape Law Society, 2002 (2) SA 794. 40 41

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the explicit collective rights provisions in the Bill of Rights, the Court has decided each of these leading Section 15 cases in favour of restricting claims to religious freedom and against challenges to unfair discrimination on the basis of religion. This supports the contention that the moralizing politics of religious freedom diverge in important respects from the messy politics of religious establishment as represented by the SALRC project to recognize Muslim marriages. The adjudication of rights claims assumes the form of a techne or technology of liberal governance which, paradoxically, serves to increase the power of the State by restricting or dismissing the claims to religious freedom and collective identity of actually existing religious communities. This obscures the extent to which South African law and the public sphere remain entangled both directly and indirectly with Christian norms, symbols and practices,42 and illustrates how a majority of the Court has been willing to interpret the right to religious freedom and the prohibition on unfair religious discrimination to give priority to the values of the majority religious culture.43 Shari’a as Muslim Personal Law in the Spaces of Modern Secular Power A second striking feature of the 2003 Bill is Section 15, which provides for disputes relating to ‘the interpretation or application of any provision’ to be referred to a court for adjudication, but on the proviso that a ‘Muslim judge from that court’ or, in the alternative, a senior ‘Muslim advocate or attorney’, is appointed to hear the dispute at first instance.44 The court is then to be ‘assisted by two Muslim assessors who shall have specialized knowledge of Islamic law’.45 Any decision can be appealed to the Supreme Court of Appeal, but the decision must also be submitted to two accredited Muslim institutions ‘for written comment on questions of law only’, which must be lodged within 60 days with the Registrar of the appeal court.46 Here again we can see the various ways in which this mixed institutional arrangement tracks the four dynamics discussed above. The courts may not apply a uniform civil law of marriage to all spheres of social life, nor may they apply (even if it were possible) shari’a to the exclusion of existing state law. The courts may further not deny recognition of Muslim personal law as in the past, leaving the social practice and regulation of Muslim marriages to ulama bodies. Rather the Bill requires the Court to apply a statute that both recognizes and regulates  See Jerry S. Ismail, ‘South Africa’s Sunday Law: Finding a Compromise’, Indiana International and Comparative Law Review 12 (2001): 563–86. 43  As discussed in Part II, the secular and religious spheres were intimately linked during the apartheid era, and issues such as Sunday closing laws reflect this continuing entanglement. Christof Heyns and Danie Brand, ‘The Constitutional Protection of Religious Human Rights in Southern Africa’, Emory International Law Review 14 (2000): 760–761. 44   Section 15(1)(a). 45   Section 15(1)(b). 46   Section 15(3) and (4). 42

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aspects of Muslim personal law. This hybrid normativity is reflected in both the procedural and substantive structure of the Court itself, which requires Muslim judges to interpret and apply both Islamic law (as incorporated in the statute) and constitutional rights and values in relation to Islamic norms and practices. This dialogic and mediating conception of both law and the role of legal officials is also apparent in the appeal structure. Final authority is vested in the Supreme Court of Appeal, which has the power to overrule legal interpretations by Muslim judges assisted by two specialist assessors (that is to overrule judgments concerning the proper relationship between different sources and jurisprudential schools of both state and Islamic law).47 But before doing so, the Court must consider and expressly overrule the opinions of two ulama bodies. What Robert Cover once termed the ‘jurispathic power’ of the state – the state’s domination of autonomous paideic communities under a unitary law – must in this way justify any coercive suppression of the ‘fecundity of the jurisgenerative principle’.48 This dialogic hybrid conception of adjudication sits uneasily between shari’a courts presided over by qadis engaged in ijtihad, on the one hand, and secular courts enforcing Muslim personal law norms as encoded into statutes, on the other. The question is how Islamic norms are to be incorporated into state law and how legal officials are to interpret those norms once codified. Certain Muslim legal scholars, for example, have criticized the definition of mahr in the Bill, which they argue departs from classical Islamic law.49 Similarly scholars have questioned how  It is instructive to compare South Africa and India on this issue. Parties to a Muslim marriage in South Africa are required to opt-in to the provisions of the Act (section 2(1)), and the Supreme Court of Appeal retains final adjudicatory authority regarding disputes (section 15(4)). In India, by contrast, the parties to a Muslim marriage must expressly opt-out of relevant Muslim personal law provisions if they wish a dispute to be adjudicated according to uniform civil law (see the Muslim Women (Protection of Rights on Divorce) Act, 1986, sect. 5 and the Shariat Act of 1937, which provides that in all matters of family, including divorce and maintenance, courts will decide such questions in the light of the Shariat). Following Shah Bano, the Supreme Court of India has been cautious on the question of overriding Muslim personal law provisions in favour of uniform civil or criminal laws. 48   Robert Cover, ‘Nomos and Narrative’, in Narrative Violence and the Law: The Essays of Robert Cover, Martha Minow, Michael Ryan and Austin Sarat, eds (Ann Arbor: University of Michigan Press, 1995), 57. 49   Section 1 of the Bill states that mahr is payable by the husband to the wife ‘in order to establish a family and lay the foundations for affection and companionship’. The Quranic definition, however, is as follows: ‘And give unto the women, (on marriage) their dower as a free gift; but if they of their own accord remit unto you a part thereof, then you are welcome to absorb it (unto your wealth)’. Quran Chapter 4:4. As Agherdien observes, the Section 1 definition appears to imply ‘some sort of obligation on the wife to use her mahr/dower to benefit the family unit’, whereas under the Quranic definition, ‘the wife has full control over her dower, with absolutely no strings attached’ and is thus on the part of the husband ‘an admission of the independence of the wife’. Wesahl Agherdien, ‘Muslim Personal Law in South Africa’, South African Journal on Human Rights Conference, July 5–7, 2004, 18–19. 47

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Muslim judges and assessors are to choose between and apply different schools of Islamic jurisprudence in cases involving different claimants.50 Finally, there is the question of what ‘Islamic law’ is exactly and how it is to be identified.51 While these are complex and contested questions, they are the kinds of normative dilemmas that a value pluralist theory of law both anticipates and celebrates. The logic of Section 15 is that the very presence of Muslim judges and assessors on state courts combined with the advisory role of ulama bodies has the potential to create dynamic opportunities for interpretation and development of the law in dialogue between the courts and South Africa’s Muslim communities. This is hoped to avoid the otherwise ossifying effects of shari’a being codified into state law in the form of Muslim personal law.52 Regardless of these jurisprudential debates, this clearly represents a different normative conception of freedom, religion, community and the individual to that imagined in classical liberal theory with its rigid insistence on state neutrality mediated by a scheme of individual rights. Finally, the Bill reflects the extent to which shari’a today has taken on distinctly liberal characteristics and sensibilities under the secular framework of the South African Constitution. As Saba Mahmood has suggested in the Egyptian context, shari’a has been fundamentally transformed and now inhabits the spaces of personal status or religion-based family law under the regulatory discipline of the state, which grants religious groups certain juridical autonomy over family affairs. As we have seen, this dynamic is reflected in the fourth position responding to the Bill as the traditional ulama bodies have resisted the proposed legislation on the grounds that Muslim personal law comprises the core of Islamic tradition and identity. Again Section 15 seeks to respond to these concerns by ensuring that both Muslim judges and ulama bodies are integrally involved and consulted in any judicial changes to Muslim personal law. Section 13 further requires compulsory mediation between the parties before an accredited Mediation Council prior to adjudication. For the ulama this provision was seen as an important medium

50   As observed again by Agherdien (ibid. 21): ‘The body of Muslim law used in South Africa dates back to the nineteenth century Muslim law schools of the Middle East, namely the Hanafi and Shafi schools of jurisprudence. Thus, the present Bill seems to be a hopscotch combination of those schools … [and] remains silent on how it will deal with a conflict of schools’. 51   The 2010 version of the Bill includes a definition of Islamic law as ‘the law as derived from the Holy Qur’an, the Sunnah (prophetic model), the consensus of Muslim Jurists (Isma), and analogical deductions based on the primary sources (Qiyas)’. For comments, see Waheeda Amien, ‘Politics of Religious Freedom in South Africa’, The Immanent Frame, 24 July 2012, available at: http://blogs.ssrc.org/tif/2012/07/24/politicsof-religious-freedom-in-south-africa/ (accessed 21 October 2012). 52   The irony here being the recurrent caricature of Islamic law as ‘a stagnant entity and, hence, impervious to change’. Ebrahim Moosa, ‘Colonialism and Islamic Law’, in Islam and Modernity: Key Issues and Debates, eds Muhammad Khalid Masud, Armando Salvatore and Martin van Bruinessen (Edinburgh, UK: Edinburgh University Press, 2009), 165.

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through which to manage and resolve disputes regarding marriages and divorce outside of State courts and law. The latest version of the Bill reflects the continuing anxiety and political tensions between the four camps over these issues. Reflecting the concerns of its secular opponents, the 2010 Bill now no longer contains Section 15 requiring a Muslim judge or the need for Muslim assessors, and the requirement of binding mediation has been replaced with a proposal for voluntary mediation. Reflecting the concerns of its ulama opponents, however, the Bill now contains an explicit definition of the sources of Islamic law which is likely to limit the discretion of judges in interpreting and changing Muslim personal law norms.53 Family Law and Muslim Personal Law A final striking aspect of the politics surrounding the Bill has been the question of the relationship between ‘family law’ and ‘Muslim personal law’. Criticisms of the Bill by gender equality advocates have often been premised on the assumption that recognition of Muslim personal law is antithetical to the guarantee of gender equality in family law. For example we have seen how the Bill codifies the default position regarding the proprietary consequences of marriage in Islamic law by providing that, unless an ante-nuptial contract is entered into by the spouses and registered, a ‘Muslim marriage to which this Act applies shall be deemed to be a marriage out of community of property, excluding the accrual system’.54 This differs from the civil law position where the default rule is ‘in community of property’.55 The Bill further specifies that in registering a Muslim marriage the marriage officer must record ‘the dower agreed to’.56 The term ‘dower’ or ‘mahr’ is then defined as ‘the money, property or anything of value, including benefits which must be payable by the husband to the wife as an ex lege consequence of the marriage itself in order to establish a family and lay the foundations for affection and companionship’.57 These provisions have attracted criticism for codifying discriminatory differences between men and women: the husband only is required  For discussion, see footnote 51.   Section 8(1). Thus the spouses maintain their own estate, and any growth accrued during the marriage is not divided between them. This is subject to Section 9(7)(b), which allows the Court to make an order for the equitable division of assets where a party has assisted in the operation of the family business or contributed to the maintenance or increase of the other’s estate. 55   Marriage Act 25 of 1961. 56   Section 6(3)(c). 57   Section 1(vi). In relation to maintenance, the ‘husband is obliged to maintain his wife during the subsistence of a Muslim marriage according to his means and her reasonable needs’. In the case of dissolution or divorce, ‘the husband is obliged to maintain the wife for the mandatory waiting period of “Iddah”’, and, if she has custody of minor children, ‘to remunerate the wife, including providing a separate residence if the wife does not own a residence, for the period of such custody only’. Section 12(2)(c)(i) and (ii). 53 54

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to pay the mahr and to maintain his wife both during and after the marriage; upon the dissolution of marriage, the wife has property rights only out of community of property (without accrual), and her right to maintenance is only for the period of iddah (three months). Such differences are argued to violate the right to equality, and gender rights advocates have thus viewed this form of legal recognition of Muslim personal law a priori as a threat to women’s rights. While space precludes detailed consideration of these questions, there are a number of reasons why such critiques rest on often problematic assumptions that serve to exacerbate rather than address the otherwise genuine concerns they raise. The first is what may be termed the ‘incomplete secularization of family law’ thesis. As Mahmood has suggested in the context of postcolonial states in the Middle East, the ‘continuing persistence of religion-based family laws … is often seen as a sign of the incomplete secularization of these societies and the failure of the postcolonial state to draw a firewall separation between religion and the state’.58 Viewed as an outdated and pre-modern remnant, such religionbased family laws ‘are understood to exhibit an ossified and recalcitrant quality that should have been remedied by the secularizing force of civil law’.59 But as many scholars have shown, this account fails to appreciate how ‘the telescoping of religious law into the domain of the family is not so much a violation of secular principles as it is the product of the simultaneous relegation of religion, family, and sexuality to the private sphere under the regime of modern governance’.60 The result of this privatization under the modern power of political secularism is that [f]amily law as a distinct legal domain is a modern invention that did not exist in its present form in the premodern period. Classical sharia jurisprudence did not, for example, entail a separate domain called ‘family law’ … [and] what is now associated with the core and essence of religion (Christian and Muslim alike), that is, personal status or family law, is an amalgam constructed from a variety of customary and religious jurisdictions that came to acquire an autonomous and distinct character in the modern period.61

Once this historical genealogy is recognized, the notion that complete secularization of religion-based systems of family law will lead to increased gender equality becomes inherently problematic. Indeed, as the family has become ‘a key site of intervention for projects of social reform undertaken by the state’ in the modern period, this has in many cases served to increase gender inequality, especially in relation to the institution of marriage.62   Mahmood, 57.  Ibid. 60  Ibid., 58. 61  Ibid. 62  Ibid. See Judith E. Tucker, Women, Family, and Gender in Islamic Law (Cambridge and New York: Cambridge University Press, 2008). 58 59

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Viewing family law and the institution of marriage as sites of inequality and exceptionalism63 can help us to see the extent to which the existing system of family law in South Africa is deeply entangled with Protestant genealogies and understandings of the family.64 The extent to which marriage as an institution remains an established status that is implicated in the functions of both social order and personal freedom generating its own inherent inequalities will further be apparent.65 Following Janet Halley this would suggest that we should pay more careful attention to the marriage system as a whole – including its various ‘drop-off’ and ‘form-pluralism’ elements – and the complex ways in which it paradoxically intertwines both status and contract.66 This would allow us critically to examine the multifaceted, exclusionary and unequal effects of the South African marriage system which now includes civil, common law, customary, same-sex, domestic partnership, Muslim and (currently under consideration) Hindu marriages. Conclusion The chapter has argued that the law reform effort to recognize Muslim marriages and Muslim personal law more broadly in South Africa allows us to locate these dilemmas within the problematic space of modern secular power and the various anxieties and contingencies this gives rise to regarding the limits of liberal neutrality and liberal rights. In this respect South Africa’s response to the claims of its Muslim communities sheds light on the two main dilemmas haunting modern liberal accounts of the right to religious freedom. The first concerns the neutrality of the public sphere and the insistence that religion is properly a matter for private life, where religious faith, identity and ritual are to be simultaneously contained and protected and excluded from public life where rational secular discourse is similarly to be construed and secured. The second concerns the universality of the right to religious freedom and its justification in liberal political morality in terms of competing accounts of autonomy. 63   See Janet Halley and Kerry Rittich, ‘Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies if Family Law Exceptionalism’, American Journal of Comparative Law 58 (2010): 753–76. 64  See Mary Anne Case, ‘The Peculiar Stake US Protestants Have in the Question of State Recognition of Same-Sex Marriages’, in After Secular Law, eds Winnifred Fallers Sullivan, Robert A. Yelle and Mateo Taussig-Rubbo (Stanford, CA: Stanford University Press, 2011), 302. Case notes in the US context that there’“is simply very little air between marriage as the state defines it and marriage as Protestants can define it to their flock’. 65  See Halley, ‘What is Family Law?’. Carole Pateman argues that ‘the social contract presupposed the sexual contract, and that civil freedom presupposed patriarchal right’. The Sexual Contract (Cambridge: Blackwell, 1988), x. 66   Halley observes that ‘form-pluralistic systems have an ascriptive character … [and] are less emphatic about choice, more regulatory, more governmental in the Foucaultian sense than a real menu of options’. Ibid., 32.

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The South African case has been shown to complicate these narratives. It allows us to see that the neutrality of the political order is always an abstract particularism comprising contingent settlements and negotiated religion-state establishments. It further allows us to see how the existing contours of the public sphere reflect the ‘private faith’ of communities which have historically embodied the Christian and European traditions of South Africa’s colonial past. If correct, the challenge is not further to exclude the claims of religious communities, but to ensure that the public sphere reflects and recognizes the diversity of South Africa’s actually existing religious communities. The South African case also allows us to see that the universality of the right to religious freedom is always a concrete universal claiming normative authority. A value pluralist, group-differentiated account of freedom of religion or belief requires the state to recognize a limited sphere of collective autonomy or nomian separation – a space for ‘associational self-realization in nomian terms’. Such a Coverian view of normative and legal pluralism challenges the state’s domination of autonomous communities under a unitary law and seeks for the polynomia of legal meaning to be extended to the domain of social practice and control. Thus rather than circumscribing the nomos in a single, statist ‘Spartan eunomia’, it invites in new worlds in the form of a complex nomos of ‘equally dignified communal bases of legal meaning that constitute the array of commitments, realities, and visions extant at any given time’.67 The old adage of ‘one law for all and no exceptions’ on this view gives way to ‘plural laws for different communities with certain exceptions’.

  Robert Cover, ‘Nomos and Narrative’, 57.

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Chapter 11

Thinking about Cooperation and Collaboration between Diverse Religious and Secular Community Responses to Domestic Violence Nancy Nason-Clark1 and Catherine Holtmann

Preamble Many religious people look to their communities of faith when crisis happens – especially when crisis occurs within the context of family living. Whether a woman or man is assisted first by their congregation, or through a communitybased agency, it is imperative that those who are first responders to domestic violence understand both the dynamics of religious faith and the persistence and impact of abuse. Offering practical and emotional assistance without reference to the journey of faith can jeopardize a religious woman’s resolve to seek safety and solace in the aftermath of domestic violence. Offering spiritual support without reference to the practical and emotional assistance she will need to ensure her safety can jeopardize a religious woman’s life. The stakes are high. So too for those who are abusive – communities of faith have the potential to call religious men (and women) who are abusive to accountability, justice and changed behaviour. Since working with very religious clients is something that many community-based agencies and their workers find particularly frustrating, the collaboration of those who speak the same language of faith as those they seek to help becomes a vital piece of a community-coordinated response to domestic violence. Cooperation and collaboration between diverse religious and secular community responses to domestic violence incorporates best practice at many levels – but unfortunately such interweaving of resources is often considered optional: something that would be good to do if there were sufficient personnel,  Nancy Nason-Clark would like to acknowledge the agencies that have funded her research program over the past 20 years, including the Louisville Institute for the Study of Protestantism and American Culture, the Social Sciences and Humanities Research Council, the Lawson Foundation and most recently the Lilly Endowment who provided a five-year grant to enable the development of the RAVE Project. 1

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sufficient time and sufficient political goodwill. But there is never sufficient personnel or time in the crisis work of domestic violence – and often there is a lack of enthusiasm for inviting religious leaders (of any tradition or persuasion) to the collaborative table. Despite this lack – no, because of this lack – we want to argue here that religious and secular voices must be co-mingled in any community response to the prevention of domestic violence or services offered in its aftermath. It is simply dangerous to women and children to suggest that religious voices be kept silent or muted in the struggle to highlight the prevalence and severity of abuse in the family and support for those who are impacted by it – victim and perpetrator alike. Co-mingling secular and sacred responses to violence in the family context is not without controversy. Criminal justice, therapeutic, advocacy and religious voices differ in their conceptualization of the problem and what ought to occur when violence strikes at home. Understanding the broad parameters from which various constituencies operate is no small feat. Building bridges of collaborative action must respect diverse and sometimes conflicting voices both within and beyond the various disciplines and constituencies represented. At a broader level, the research and social action initiatives described in this chapter hint at the social, cultural and legal contexts in which religious freedom unfolds. Looking at the experiences of religious abuse victims, perpetrators and those who assist them – from a variety of disciplinary perspectives – highlights some of the dynamics impacting how the religious/secular dichotomy is imagined and bridged in daily life at the community level. Introduction Across the globe, research and writing on domestic violence has been mounting.2 So too have the statistics as to its continued prevalence, documented by the World Health Organization, the United Nations Secretariat, governmental agencies and individual academic researchers.3 For some time now, both advocates and survivors have mobilized at the community level and beyond to challenge all sectors of society to join together in condemning abuse and offering safety and resources in its wake. Yet, since the earliest days of the transition house movement, there has been a reluctance to conceptualize religious leaders or faith communities as anything other   Walter S. DeKeseredy and Linda MacLeod, Woman Abuse: A Sociological Story (Toronto, ON: Harcourt Brace, 1998); Nicky Ali Jackson, ed., Encyclopedia of Domestic Violence (New York, NY: Routledge, 2008); Holly Johnson and Myrna Dawson, Violence against Women in Canada: Research and Policy Perspectives (New York, NY: Oxford University Press, 2010). 3  For a review of the latest data, see Catherine Clark Kroeger and Nancy Nason-Clark, No Place for Abuse: Biblical and Practical Resources to Counteract Domestic Violence (Downers Grove, IL: IVP, 2010). 2

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than part of the problem of abuse.4 However, religious women often seek out religious advisors when violence impacts their lives and their homes. In large measure the social support network offered from one woman to another through congregational life is unsurpassed.5 And yet it operates beneath the radar screen of many religious leaders and many in those same congregations. Abusive men, too, who are religious, look to their religious leaders for help as they enter into the downward vortex that their decisions create – for them personally, for their victims and for their entire families.6 In fact clergy report substantial experience offering support to abused women, abusive men and families caught in the web of violence.7 Yet the assistance that is provided by religious leaders to families impacted by domestic violence is often disappointing to those who have sought their help.8 For some time our research has been documenting how poorly equipped religious leaders feel when it comes to responding to families in the aftermath of violence at home,9 a pattern we are also observing amongst current seminary students.10 Notwithstanding the fact that some clergy are reluctant to refer abused women and other family members who seek their assistance to professionals in the community or community-based agencies:11 when religious leaders are proactive in preaching a message condemning abuse, discuss violence in their premarital 4   Joanne Carlson Brown and Carole R. Bohn, eds, Christianity, Patriarchy, and Abuse: A Feminist Critique (Cleveland, OH: The Pilgrim Press, 1989). 5  Nancy Nason-Clark, The Battered Wife: How Christians Confront Family Violence (Louisville, KY: Westminster. John Knox Press, 1997). 6  Nancy Nason-Clark and Barbara Fisher-Townsend, ‘Acting Abusively in the Household of Faith’, in Responding to Abuse in Christian Homes: A Challenge to Churches and their Leaders, eds Nancy Nason-Clark, Catherine Clark Kroeger and Barbara FisherTownsend (Eugene, OR: Wipf and Stock, 2011), 101–16. 7  Nancy Nason-Clark, ‘Woman Abuse and Faith Communities: Religion, Violence and the Provision of Social Welfare’, in Religion and Social Policy, ed. Paula D. Nesbitt (Walnut Creek, CA: Rowman & Littlefield Publishers, Inc., 2001), 128–45; Nancy Nason-Clark, Lois P. Mitchell and Lori G. Beaman, ‘Building Bridges between Churches and Community Resources: An Overview of the Work of the Religion and Violence Research Team’, in Understanding Abuse: Partnering for Change, eds Mary Lou Stirling, Catherine Anne Cameron, Nancy Nason-Clark and Baukje Miedema (Toronto: University of Toronto Press, 2004), 223–48. 8  Nancy Nason-Clark and Catherine Clark Kroeger, Refuge from Abuse: Hope and Healing for Abused Christian Women (Downers Grove, IL: InterVarsity Press, 2004). 9  Nancy Nason-Clark, ‘Shattered Silence or Holy Hush: Emerging Definitions of Violence against Women’, Journal of Family Ministry 13 (1999): 39–56; Nancy NasonClark, ‘When Terror Strikes at Home: The Interface between Religion and Domestic Violence’, Journal for the Scientific Study of Religion 42 (2004): 303–10. 10   Steve McMullin and Nancy Nason-Clark, ‘Seminary Students and Domestic Violence: Applying Sociological Research’, in Responding to Abuse in Christian Homes: A Challenge to Churches and their Leaders, eds Nancy Nason-Clark, Catherine Clark Kroeger and Barbara Fisher-Townsend (Eugene, OR: Wipf and Stock, 2011), 231–46. 11  Nancy Nason-Clark, ‘Making the Sacred Safe: Woman Abuse and Communities of Faith’, Sociology of Religion 61(2000): 349–68.

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counselling, offer referral suggestions and ongoing encouragement to a battered woman and hold men (and women) who act abusively accountable for their actions, the evidence reveals that the impact is profound.12 Exploring the intersection between religious faith, gender and domestic violence across boundaries – religious and secular, disciplinary, geographical and ethnic/racial – to name a few, is complex. Yet diversity offers opportunities as well as challenges. This is especially true in the struggle to raise awareness on the subject of domestic violence and to ensure that safety and best practices are offered to victims, their families and also to those who act abusively. Working with partners from criminal justice, advocacy and religious and therapeutic communities in regional sites in Canada, the US and beyond, we are learning some of the ways to translate social science research on domestic violence and religion outside the boundaries of the academy. For the last five years, funded by the Lilly Endowment, we have been immersed in what has become known as the RAVE Project, an acronym for Religion and Violence e-Learning. It began as the development of a collaborative, community-integrated model for training religious leaders to respond to abuse and to build bridges to community-based services. Our goal was to partner for change. The project was conceptualized and designed to develop, evaluate, modify and implement a web-based model for bringing religious leaders and their congregations into the conversation about domestic violence at the community level. Like many social problems, abuse demands a multi-disciplinary approach. Clergy and other religious leaders have a major, though often undervalued, role to play in responding to violence in the home that is both prophetic and priestly. As a vital link in the community-based fight to end violence, pastors and congregations speak the language of the spirit, and in so doing bring this perspective to the collaborative table, using their spiritual and moral authority to offer empathy, empowerment and guidance to victims; correction, justice and renewal to perpetrators; and hope to families caught in the web of abuse. Domestic violence crosses boundaries of class, ethnicity and religious persuasion. Approximately one in four women in the United States and Canada has experienced an abusive act that includes behaviours such as throwing objects, punching, kicking or uttering death threats. In families of strong faith, many of the patterns that are observed within the mainstream culture are intensified: the fear, the vulnerability, the isolation and the promise to stay married forever. Often 12  Barbara Fisher-Townsend, Nancy Nason-Clark, Lanette Ruff and Nancy Murphy, ‘I Am Not Violent: Men’s Experience in Group’, in Beyond Abuse in the Christian Home: Raising Voices for Change, eds Catherine Clark Kroeger, Nancy Nason-Clark and Barbara Fisher-Townsend (Eugene, OR: Wipf and Stock, 2008); Catherine Clark Kroeger, Nancy Nason-Clark and Barbara Fisher-Townsend, eds, Beyond Abuse in the Christian Home: Raising Voices for Change (Eugene, OR: Wipf and Stock, 2008); Nason-Clark, ‘When Terror Strikes at Home’.

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religious victims look to their congregation and its leader for help in the aftermath of abuse at home. Often that religious leader is ill-equipped to respond to either the practical or spiritual needs that victims, perpetrators and their families are experiencing. When religious victims look outside their faith community for assistance, their spiritual angst is often overlooked, and sometimes they are encouraged to leave behind both the abuse and their faith as they journey towards healing and wholeness. For intervention to be effective, there needs to be a multi-disciplinary response that is swift, compassionate, coordinated and equipped to meet the various needs of both victims and abusers. Partnering for Change, the title of our grant application for funding, was both our strategy and our goal. We proposed a web-based training initiative to assist religious leaders and their congregations in responding to victims, abusers, their families and the various professionals, friends, families and agency workers who walk alongside them after the impact of abuse. It was to be integrated and bidirectional so that bridges could be built between churches and community resources, paving the pathway between the steeple and shelter. The content of the web-based resources was intended to offer something for every religious leader, irrespective of whether they knew a lot or a little about the subject of abuse; the process of its development was to be collaborative, based on teams of professionals (religious, criminal justice, therapeutic and advocacy) in four location sites (Charlotte, NC; Eugene, OR; Columbia, MO; and Calgary, AB); and the structure was to incorporate a variety of learning and resource models, many of which were interactive and technologically advanced. The RAVE Project The RAVE website, www.theraveproject.org, was officially launched on 27 September 2007. The learning initiatives and resources it contains were developed with the support of a series of specialists, including creative designers, e-learning experts, stained glass artists, flash experts, computer software personnel and our own content team, who had been researching and publishing in the area of religion and domestic violence for over 20 years. We had learned from religious victims of their desire for spiritually enriched resources to assist women on their journey towards healing and wholeness in the aftermath of domestic violence. We had learned that often clergy were ill-equipped to provide such resources, either because they did not understand the nature, severity and impact of domestic violence, or because they were unable to harness some of the features of their religious tradition in ways that could assist victims to move on with their lives. We were prompted to study the impact of batterer intervention programs because religious women in particular were so optimistic that if only their abusive partners could be offered help, the violence would stop and peace would be restored to the family unit.

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Through the years of our fieldwork with victims, perpetrators, religious leaders, ordinary men and women of faith, congregations and the plethora of professionals who work with families impacted by abuse, we had learned about how difficult it is for awareness to be raised in religious contexts and about the unease many community-based workers feel servicing very religious clients. Sometimes this even prompted us to wonder whether religious leaders and houses of worship were safe places to disclose the reality of violence, and whether community agencies were safe places to disclose the reality of deep religious convictions. Other times, and through other studies, we learned of the resilience of women of faith when violence strikes home, and we learned of the strong and persistent women-based support structures offered under the umbrella of many congregations, where women respond to the needs of other women in confidence, offering practical and emotional help. We learned of contexts where sacred and secular workers and communities joined hands in the fight to end violence and to provide safety and support in its aftermath. Perhaps what we learned most of all over the last 20 years of research on violence and religion is that the stories of victims and offenders have many layers, as do the responses from both community-based and faithpermeated providers. Working together can make a difference. Based on our research over the years, it was clear that religious clients had some unique needs in the aftermath of domestic violence and that religious leaders had some unique resources to offer any community-coordinated response. In order to develop resources for religious leaders in North America and beyond, and to help secular workers understand some of the unique needs of religious clients and how to work collaboratively with religious leaders, the RAVE Project needed to develop and evaluate resources with different constituencies in various places. Four location sites were incorporated into the project for the purpose of consultation, testing and bridge-building in particular community contexts. In Charlotte, North Carolina, our site coordinator was a well-known advocate and religious survivor of domestic violence (whose ex-husband is serving a prison sentence for attempting to murder her and her father – a Presbyterian pastor). With her support we had access to the emotional, intellectual and practical currency that advocates offer to any community-based response to domestic violence. Working with the state coalitions in this context augmented our credibility in the secular domain, whilst our religious credentials augmented our work with the African American churches. Here amongst African American religious women, we received our strongest endorsement of the impact of the RAVE website’s use of the stained glass story of abuse – as a vibrant and therapeutically enhanced way to tell the story of pain and despair – leading to hope and renewal. Through this and many other examples, we were affirmed in our effectiveness in translating social science data to therapeutically enhanced resources for social justice and healing. Every six months for several years, we met face-to-face with advocates, police, religious leaders, survivors, members of faith communities, therapists and workers in the criminal justice system. In the intervening months, we used

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social networking strategies to keep in touch, incorporating the various nuances of location, discipline and religious persuasion as we continued to develop resources. In part we had chosen Charlotte because it was a highly religious area of the United States and because the African American churches were strong. In this location building bridges between the advocacy and religious communities was mediated by workers who themselves were personally connected to local churches. In Columbia, Missouri, we worked closely with academic partners in an area of the country that is known as the ‘Heartland’. Our site coordinator was a woman of Mennonite background who had worked for many years as a domestic violence advocate prior to returning to university for further graduate studies. We learned from the shelter staff in that context about some of the local challenges they faced in connecting with religious organizations, and in turn we learned of the discomfort of some religious leaders in finding ways to collaborate with the domestic violence advocates. It was in this site that we first became aware of the enthusiastic response of some mega-churches to our technologically sophisticated website – which eventually led to referrals and collaboration with them – in Columbia and elsewhere. The shelter staff in Columbia differed in many respects from the advocates in Charlotte. They were less diverse, reflecting the community, and their ties were more strongly associated with the university and the community and less so with the churches. The presence of a number of women clergy who were employed full-time in pastoral charges offered us some unique training opportunities in this context. We were able to observe some of the ways that gender impacts religious leadership, particularly as it relates to comfort with and experience in providing support to families impacted by domestic violence. Over many years, and many visits, we worked closely with criminal justice and advocacy personnel in Columbia, incorporating their individual and collective responses to our emerging website. We listened to their frustrations and noted some of the challenges of working in an environment that is religiously more homogenous than other parts of the country. The religious landscape in Columbia was very different from Charlotte where the impact of the African American churches was so obvious in the interface between religion and abuse. In Columbia abuse did not appear to be on the radar screen of religious leaders or the churches, unless that leader was a woman. Collaboration between religious and secular agencies was possible in Columbia, but it took longer to take root. Yet here, too, faith-enriched staff employed by community-based agencies (professionally trained workers who themselves were members of various religious organizations or congregations) played a key role in building the collaborative links. In Eugene, Oregon, we developed relationships between treatment providers, court personnel and community agencies. We worked closely with one of the few faith-permeated intervention programs in North America – Christians as Family Advocates (CAFA). Another essential service in this local context was WomenSpace, a secular organization offering drop-in facilities for women, a shelter, legal aid and advocacy services and a myriad of support groups and

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educational programs. At first blush there would be little to suggest that CAFA and WomenSpace might work together. Yet the two executive directors forged a pathway in order to respond to the needs of their individual constituencies. In this context we observed how the various partners attempted to use a language that facilitated bridge-building and a strategy that was cautiously optimistic, with a healthy dose of skepticism. We learned the degree to which hope for change is mediated by a series of criminal justice, therapeutic and advocacy-enhanced reality checks. But we also witnessed the way in which faith-enriched staff offered a language to talk about change, particularly in the lives of those who had acted abusively and were now being called to accountability within the criminal justice system and within mandated intervention services offered by the therapeutic community. The interweaving of optimism and reality was powerful both for those personally impacted by violence and the workers who attempted to support them in their journey towards changed thinking and behaviour. In Eugene we had a lot of contact with the therapeutic community and in particular with batterer intervention programs. Staff in these programs, which were faith-based but not receiving monies from the state, had a long history of working in a collaborative fashion within both the criminal justice and advocacy communities. The credibility of the agency was strong and, because Eugene is a relatively small community, workers in a variety of other organizations had years of experience to assess its impact and their working relationship with those employed by the agency. All of these factors enhanced our attempts at bridge-building. For several years, we met with staff at various faith-based and community-based agencies, observed their interaction with each other and benefitted from the challenges and successes of their experiences in cooperating and collaborating with each other and difficult clientele. Calgary, Alberta, our final site, was home to a unique faith-based organization (appropriately named FaithLink) promoting sacred/secular collaboration on issues of sexual and domestic abuse. Here FaithLink was an important part of the community initiative, blending spiritual insights from the Jewish, Christian and Khmer-Canadian communities. In Calgary we observed faith-enriched workers in secular organizations (whether criminal justice or therapeutic) offer to bridge the gap between spiritual needs and practical problems. Calgary is a large, multicultural city with all of the complexities of religious and ethnic diversities. As we will discuss later, while there are no faith-based intervention programs in this city, the two large secular batterers’ intervention programs have therapeutic staff available for both victim/survivors and perpetrators of abuse who wish to address religious issues specifically. Interestingly, in Calgary, intervention programs have responded to issues surrounding faith as a cultural issue, reflecting the experiences of agency workers in this city in responding to the unique needs of First Nations clients. Over the three years that the RAVE website has been ‘live’ we have witnessed its growth and stabilization. Each week, approximately 1,500 unique IP addresses visit our site, viewing approximately four different pages per view. Over the

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course of its development, we have been able to assess its design and delivery impact, pilot a coordinated seminary response incorporating its resources and begin to produce an innovative resource for youth, entitled the Dating Game – an educational interactive game for youth participants. Understanding Diversities – Specific Opportunities and Unique Challenges Gender Different religious groups have different understandings of gender both theologically and practically. For example, the conservative Protestants and Catholics that we work with often understand gender in terms of complementarity. This means that while women and men are understood to be equal before God, it is held that they have different roles to fulfil in the family and in church. Evangelical and Catholic women therefore must deal with the tension of secular gender egalitarianism in their work lives and the gendered hierarchies in their religious lives – in theory, if not in reality.13 Extolled as wives and mothers, women feel a particular sense of responsibility for the family and an acute failure when their family is characterized by unhappiness, conflict or abuse. The assumption is that women are more responsible for ‘the tone’ of family life and should be able to sense disappointment and angst amongst family members and then be in a position to do something about it.14 This may be part of the reason why women of deep faith tend to remain in abusive marriages longer than non-religious women. The focus in conservative churches on the sacredness of the family unit serves to underscore the malaise that is felt when violence strikes at home or relationships fail. This malaise is augmented by the convictions of both Catholic and conservative Protestant clergy as to the undesirability of divorce. While members of mainline churches do not seem to struggle with traditional gender roles to the same extent, they are often disillusioned when confronted with the fact that research shows that domestic violence is also a problem among same sex couples15 or members of liberal denominations. 13   Sally K. Gallagher, Evangelical Identity and Gendered Family Life (New Jersey, NY: Rutgers University Press, 2003); R. Marie Griffith, God’s Daughters: Evangelical Women and the Power of Submission (Berkeley, CA: University of California Press, 1997); Elaine Howard Ecklund, ‘Different Identity Accounts for Catholic Women’, Review of Religious Research 47 (2005): 135–49; Christel J. Manning, ‘Women in a Divided Church: Liberal and Conservative Catholic Women Negotiate Changing Gender Roles’, Sociology of Religion 58 (1997): 375–90. 14  Nancy Nason-Clark and Catherine Holtmann, Religion and Social Action: Catholic and Evangelical Women (Unpublished manuscript: Baltimore, MD, 2010). 15   Janice L. Ristock, No More Secrets: Violence in Lesbian Relationships (New York, NY: Routledge, 2002).

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Religion Across the Christian traditions, there is condemnation of violence in principle, but often silence – a holy hush – from behind the pulpit. Since religious institutions, beliefs and practices continue to play a significant role in the lives of many people in our world, and since religious groups have regular access to all family members in their community, there is the potential of developing lifetime bonds. These lifetime bonds can help to help bring abusers to accountability and victims to safety and healing. Harnessing the religious tradition and employing the moral authority of its leaders is a central component of offering a place at the collaborative table to communities of faith. Each religion brings specific strengths in this regard. We have found that the Protestant church’s emphasis on scripture has provided a wealth of interpretive perspectives on texts that can challenge the ways in which power is abused and can change how hope is offered to those experiencing injustice.16 The Catholic Church’s heritage of social teachings brings religious values into direct conversation with public policy seeking to promote the common good.17 While religious people have often failed to live up to their own teachings about the importance of relationships built on love, compassion and peace, nevertheless these traditions contain a wealth of resources that can be utilized in condemning domestic violence and facilitating a religious victim’s journey to healing and wholeness. Focusing their efforts on addressing a specific social problem that affects their own members as well as non-religious families in society can enable diverse traditions to work together on issues of violence. Since the start of the RAVE Project, we have made hundreds of presentations to clergy and laity across a wide range of religious traditions – as well as criminal justice, therapeutic and advocacy workers employed in secular contexts. We seek to use a language about family violence and frame the issue in ways that does not alienate either progressive or conservative groups. While we want to focus on what we perceive as a social problem requiring attention of religious groups and secular professionals, many religious and non-religious leaders think of domestic violence as either a merely private concern of a small minority of families or something that is happening within families outside of their constituency. Among conservative Protestant groups, our use of technology has been an effective way in moving forward. Our website and its sophisticated use of visual and audio resources fits in with the way they choose to deliver religious messages to congregations in a postmodern society.

  Kroeger and Nason-Clark, No Place for Abuse.   Cathy Holtmann, ‘From the top: What does it mean when Catholic bishops speak out on issues of family violence?’ in Strengthening Families and Ending Abuse: Churches and their Leaders Look to the Future, eds Nancy Nason-Clark, Barbara Fisher-Townsend and Victoria Fahlberg (Eugene, OR, Wipf & Stock, 2013), 139–159. 16 17

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Professions The process of developing the RAVE Project website has been collaborative, with teams of professionals in each of the four research sites located throughout Canada and the US. As a result we have been able to provide a rich array of perspectives on different aspects of the cycle of violence and abuse depending on the location of the person responding to questions or on scenarios based on the results of our research findings. What we have observed over the years of the RAVE Project is that the effectiveness of this coordinated approach ebbs and flows over time depending on the context and the players involved. This presents a real challenge in terms of sustaining momentum and maintaining critical players. For example, one of the more sophisticated approaches we found had been developed in Calgary by FaithLink, which is a partner in the Calgary-based Alliance to End Violence. However, the retirement of two of the founders of FaithLink, an Anglican dean and a faith-enriched social worker, led to decreased cooperation on the part of religious leaders in the area. In contrast, our work in Charlotte, North Carolina, illustrated that within the culture of African American communities, religion is understood to play a pivotal role in the response to all social problems. Therefore it did not matter who was representing either the churches or the community agencies because the principle of a coordinated response that included religion did not depend on the conviction or efforts of particular individuals. Geography Beyond the opportunities provided by the distinct approaches to domestic violence that we have observed in the four research sites related to the RAVE Project in North America, our wider research has also taken us to Europe and the Caribbean. Here the differences in church-state relations have offered us the opportunity to reflect on how these differences impact religious participation in a community response to family violence. For example research on Catholic resources for domestic violence in Germany highlighted the important role that church and church-related welfare agencies play in a system in which the independent provision of social services is legislated by the state.18 Catholic Caritas agencies are funded through church taxes collected by the German government, and they are able to deliver social service programs contracted out by the state free of charge to people of all religious backgrounds as well as those without confessional ties. Conversations with Caritas staff revealed that the existing network between Catholic and Protestant agencies, government social services and faith-based and   Annette Leis-Peters, ‘The German Dilemma: Protestants Agents of Welfare in Reutlingen’, in Welfare and Religion in 21st Century Europe: Configuring the Connections, eds A. Anders Bäckström, Grace Davie, Ninna Edgardhm and Per Pettersson (Surrey, UK: Ashgate, 2010), 95–112. 18

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autonomous women’s shelters, was being threatened both by cuts to funding for social services as well as declining church membership. On the other hand, the situation in Croatia was characterized by an open hostility between religious organizations and the state. The general lack of social services available to Croatian families suffering from violence and abuse in a post-communist context is similar to the economic situation we found in Jamaica. However, the churches there were not being excluded from the community’s attempts to respond to social problems. Like the African American churches, it was acknowledged that religion was an integral component of culture, yet our fieldwork in Jamaica revealed that neither the state, nor religious, institutions, nor community-based agencies were able to take responsibility for changing the delicate and difficult situation of the prevalence and severity of domestic violence in this Caribbean context.19 Race/Ethnicity Our research in multiple geographic locations indicates the opportunities that a multi-racial and multi-ethnic perspective provides for interdisciplinary work on domestic violence. Cheryl Townsend Gilkes asserts that it is precisely the experience of racial oppression that has equipped black church women with the analytical tools and the activist skills to advocate both within their churches and within their communities for social change.20 Our work with African American women in Charlotte, North Carolina, has shown that, for them, a safe future for their sisters and their children is a top priority and is informed by religious values. The community response to family violence in Calgary is sensitive to the need for culturally appropriate services for both victims and perpetrators.21 An important example of incorporating culturally relevant materials and services in the intervention process is provided by a Calgary-based treatment agency whose specialized program was formed in recognition of the fact that the cultural differences of Aboriginal abusive men require culturally appropriate and responsive services.22 The 18-week domestic violence group counselling program is grounded in the teachings of the Medicine Wheel and is informed by Aboriginal culture, identity, traditions and values. A significant challenge that we see for immigrant societies is working to include members of new ethnic religious groups at the community table on family violence. For example, among Catholics in Canada, ethnic parishes or churches  Nason-Clark, ‘Where Terror Strikes’.   Cheryl Townsend Gilkes, If It Wasn’t for the Women…: Black Women’s Experience and Womanist Culture in Church and Community (New York, NY: Orbis Books, 2001). 21  Nancy Nason-Clark, Catherine Holtmann, Barbara Fisher-Townsend, Steve McMullin and Linette Ruff, ‘The RAVE Project: Developing Web-based Religious Resources for Social Action on Domestic Violence’, Critical Social Work 10 (2009). 22   Evelyn Zellerer, ‘Culturally Competent Programs: The First Family Violence Program for Aboriginal Men in Prison’, Prison Journal 83 (2003): 171–90. 19

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in areas with significant immigrant populations are experiencing growth.23 While interviews with marriage tribunal personnel, shelter and agency workers provided numerous stories of dealing with religious victims of abuse, most of whom had been married prior to arriving in Canada, none of the priests with new immigrants in their parishes had preached a message about the unacceptability of intimate partner violence, nor did they have information about the issue readily available to members of their congregations.24 Concluding Comments Translating social science research into evidence-based activity that impacts both community agencies and communities of faith is no small feat. Through the RAVE Project, we offer a research-driven online series of resources to effect awareness, training, best practices, strategic planning for collaborative ventures and hope for change in the aftermath of domestic violence. Yet despite the opportunities for cooperation, there are many challenges. These include the sheer diversity of religious, gender, disciplinary, geographical and racial ethnic perspectives. The multidirectional links that our work has established with advocates, criminal justice workers, therapists and religious leaders across North America has enabled us to translate the peer-reviewed research of our team to an interactive web-based system of training and resources for religious and secular professionals. Achieving social justice on issues of domestic violence mandates that we learn to work together across boundaries. The strengths that each constituency brings are in its particular perspective and approach to the problem of domestic violence, and this tends to be articulated using language and symbols developed and well-understood within the constituency itself. As we think about cooperation and collaboration between diverse religious and secular community responses to abuse, we are compelled to think outside the boxes of our own ideological comfort zones. A key strategy is for everyone to stay focused on the immediate safety of those entangled in violent relationships. This is a common interest based on the fact that we can all agree that violence and abuse in families is never acceptable. As we enlarge our collaborative ventures, we help to usher in a day when every house of worship will be a safe place to disclose family violence, every religious leader will have ears to hear women’s cries for help and every community-based agency will be a safe place to disclose religious faith.

23   Terence J. Fay, New Faces of Canadian Catholics: The Asians (Ottawa, ON: Novalis, 2009). 24   Holtmann, ‘From the top’.

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Chapter 12

Legal Pluralism and Shari’a in Western Societies: Theories and Hypotheses1 James T. Richardson and Victoria Springer

Introduction Legal pluralism is a complex and multifaceted concept that raises important issues when considering the notion of establishment, which is the theme of this volume. There is a huge scholarly literature from many different fields focused on legal pluralism, but little attention has been paid to how the concept might relate to the historically important idea of establishment. This chapter represents a beginning effort to relate these two concepts in a way that sheds light on both. Sally Merry’s much-cited article says that ‘[l]egal pluralism is a central theme in the reconceptualization of the law/society relation’.2 Merry discusses the academic field of legal pluralism in two major periods: the ‘classical period’ that deals with results of efforts to impose legal systems of colonial powers on colonized societies, and the ‘new legal pluralism’, cognizant that all societies have varying degrees and types of legal pluralism. Accepting legal pluralism as a social fact, then, Brian Tamanaha describes the legal pluralism extant in the Middle Ages in Western Europe, reminding us that the social conditions often defined as illustrating legal pluralism did not begin exclusively with the colonial period. Tamanaha also discusses legal pluralism in the colonial period, as well as in the late twentieth century, offering suggestions for further research.3 Paul Berman, in ‘Global Legal Pluralism’, develops a concept of ‘hybrid legal spaces’ to describe what happens in a ‘world of multiple normative communities’.4 Berman presents a number of ‘procedural mechanisms, institutional designs, and discursive practices for managing “hybridity”’.5 Yuksel 1   This chapter is a much revised version of a paper that appeared in 2011 entitled ‘The Social Construction of Legal Pluralism’, Democracy and Security 7 (2011): 390–405. Permission to use some of that material has been granted by the publisher Taylor and Francis of the Routledge Group. 2   Sally E. Merry, ‘Legal Pluralism’, Law and Society Review 22 (1998): 869. 3   Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, University of Sydney Law Review 30 (2009): 375–411. 4   Paul S. Berman, ‘Global Legal Pluralism’, University of Southern California Law Review 80 (2007): 1157–8. 5  Ibid., 1196–234.

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Sezgin argues for the changing nature of legal pluralism within societies and offers a ‘technique of quantification that could capture variances in legal pluralism over time and across localities’.6 In 2008 the International Council on Human Rights published a report of its ‘Research Project on Plural Legal Orders and Human Rights’ that examined various aspects of plural legal orders and the role that Non-State Legal Orders (NSLO) play in working with host states to promote protections for human rights. The report lists a number of different ways that states ‘enable’ plural legal orders, all of which imply the existence of an established secular or religious authority granting or implementing the multiple legal enclaves. In addition, the predatory, discriminatory, weak, ineffective and/or inaccessible nature of the state’s legal institutions, or indeed their ‘inappropriate’ form or substance may lead to the further strengthening and growth of a range of local legal orders. These may be entirely endogenous or indeed hybrid versions/improvisations of traditional mechanisms that communities, especially those that are poor and vulnerable, rely on to settle disputes and conflicts.7 Understanding the nature of legal pluralism is newly salient today in part because of interest in understanding the legal implications of the growth of migrant Muslim communities in a number of nations. Nearly everywhere that minority Muslim communities develop there are efforts to institutionalize some aspects of Shari’a law, especially with respect to such matters such as divorce, custody, inheritance, but also in areas such as food preparation and finance. Shari’a law may be formally sanctioned by statute, allowed to exist without formal sanction, or even repressed completely, and the pattern of reactions to attempt to establish enclaves where Shari’a law prevails varies greatly. How and in what manner such enclaves of legal pluralism develop, how those developments impact individual rights of community members and the implications such developments have for traditional understandings of establishment is poorly understood. A number of interrelated structural variables, processes and historical contexts that influenced the development of concern for human and civil rights, including religious freedom, have been discussed in previous work.8 These same considerations are germane to 6   Yuksel Sezgin, ‘Theorizing Formal Pluralism: Quantification of Legal Pluralism for Spatio-temporal Analysis’, Journal of Legal Pluralism 50 (2004): 101. 7  International Council on Human Rights Policy, ‘Research Project on Plural Legal Orders and Human Rights: An Approach Paper’ (June 2008). 8   See a number of James Richardson’s works, including Regulating Religion: Case Studies from Around the Globe (New York: Kluwer, 2004); ‘The Sociology of Religious Freedom: A Structural and Socio-legal Analysis’, Sociology of Religion 67 (2006): 271–294; ‘Religion, Law, and Human Rights’, in Religion, Globalization, and Culture, eds Peter Beyer and Lori Beaman (London: Brill, 2007), 407–28; ‘Religion and Law: An Interactionist Perspective’, in The Oxford Handbook of the Sociology of Religion, ed. Peter Clarke (Oxford: Oxford University Press, 2009), 418–31; and, with Jennifer Shoemaker, ‘The European Court of Human Rights, Minority Religions, and the Social Construction of Religious Freedom’, in The Centrality of Religion in Social Life: Essays in Hounor of James A. Beckford, ed. E. Barker (Aldershot, UK: Ashgate, 2008), 103–16.

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understanding how the development of Shari’a enclaves affects human and civil rights, religious freedom and establishment.9 Theoretical Considerations Of persistent relevance in the study of legal pluralism within a particular society are the particular characteristics of legal and judicial systems, the characteristics and history of a society, including its cultural values, how those values are implemented in the regulation of various minorities within the society and the implications of that regulation for the concept of citizenship.10 Also important are issues of status, intimacy, third party partisanship, as well as evidentiary processes and production.11 We have found the work of William Chambliss delineating the dialectic processes of law development useful in understanding how legal pluralism affects human and civil rights, as well.12 Characteristics of Legal and Judicial Systems Legal and judicial systems vary greatly in their pervasiveness and centralization, the type of system (adversarial or inquisitorial), the amount of autonomy and discretion afforded the judiciary and, relatedly, the normative role played by the judicial system in a given society.13 In some societies with more pervasive legal systems, many aspects of life are influenced by formal legal considerations. In other societies citizens can go about their daily lives without much intrusion from   Andrea Bianchi, ‘Globalization of Human Rights: The Role of Non-state Actors’, in Global Law without a State, ed. G. Teuber (Aldershot, UK: Dartmouth Publishing, 1997), 179–212; Peter Beyer, ‘Constitutional Privilege and Constituting Pluralism: Religious Freedom in National, Global, and Legal Context’, Journal for the Scientific Study of Religion 42 (2003): 333–9; and Sue Farran, ‘Is Legal Pluralism an Obstacle to Human Rights?’, Journal of Legal Pluralism 52 (2006): 77–105. 10   See Bryan S. Turner’s work: ‘Citizenship and the Crisis on Multiculturalism’, Citizenship Studies 10 (2006): 607–18; ‘Managing Religions: State Responses to Religious Diversity’, Contemporary Islam 1 (2007):123–37; Religious Diversity in Civil Society: A Comparative Analysis (Oxford: Bardwell Press, 2007). 11   Donald Black, The Social Structure of Right and Wrong (New York: Academic Press, 1999). See also Mark Cooney, ‘Evidence as Partisanship’, Law and Society Review 28 (1994): 833–58. 12   William Chambliss and Marjorie Zatz, Making Law: The State, the Law, and Structural Contradictions (Bloomington, IN: Indiana University Press, 1993). 13  In deference to the overall theme of this volume, the relationship of legal systems to religion is assumed throughout. For a discussion of the ways in which religious traditions have influenced legal systems see James T. Richardson, ‘Religion and Law: An Interactionist View’ and ‘Law, Social Control, and Minority Religions’, in Frontier Religions in Public Space, ed. P. Cote (Ottawa: University of Ottawa Press, 2001), 139–68. 9

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official legal and judicial institutions. These latter societies offer much opportunity for the development of legal pluralism and informal methods of social control, as citizens of the society seek other ways to settle disputes and interact with each other. In some societies there is one formal governmental structure, with all citizens bound by the edicts of those who control that structure. Other societies may be more decentralized in terms of legal authority, with a more federated approach to governing, or even a legally pluralistic situation in which the centralized legal structure exercises little if any authority. In some societies the judicial system has considerable autonomy with judges being appointed for life, or being very difficult to remove once in office.14 Judges in such situations usually can exercise considerable discretion with relative impunity. The rise of constitutional courts in many societies around the world is a move toward a more autonomous judiciary.15 In some regions of the world national sovereignty has been eroded by transnational judicial systems being granted power over national legal structures. The Council of Europe with its European Court of Human Rights is by far the best known example of such a regional court system, but there are others. The interaction of the European Court of Human Rights with constitutional courts and the judicial systems of the 47 Member States of the Council of Europe is a fascinating example of the ‘judicialization of politics’ and the growing prominence and autonomy of judicial systems in the modern world.16 In other societies the judicial system has little autonomy granted internally and is not subject to any external judicial system. The judiciary may be completely dominated by other institutional structures   Linda Camp Keith, ‘Judicial Independence and Human Rights Protection around the World’, Judicature 85 (2002): 194–200; Linda Camp Keith, C. Neal Tate and Steven Poe, ‘Is the Law a Mere Parchment Barrier to Human Rights Abuse?’ The Journal of Politics 71 (2009): 644–60. 15   James T. Richardson, ‘Religion, Constitutional Courts, and Democracy in Former Communist Countries’, The Annals of the American Academy of Political and Social Science 603 (2006): 129–38 and ‘Protection of Religious Minorities in States with Dominant Religions: The Role of the Courts’, in Quo Vadis Eastern Europe? Religion, State, and Society after Communism, ed. Ines Murzaku (Bologna: University of Bologna Press, 2007), 107–21; Wojciech Sadurski, Rights before the Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (New York: Springer, 2008); Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago: University of Chicago Press, 2000). 16   Wojciech Sadurski, ‘Partnering with Strasbourg: Constitutionalization of the European Court of Human Rights, the Accession of Central and East European States to the Council of Europe, and the Idea of Pilot Judgments’, Human Rights Law Review 9 (2009): 397–453; Richardson and Shoemaker, ‘The European Court of Human Rights, Minority Religions, and the Social Construction of Religious Freedom’; Helen Keller and Alec Stone Sweet, A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford: Oxford University Press, 2008); Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford; Oxford University Press, 2003). 14

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such as a political party, the military, the executive or legislative branches of government or even a religious regime which has managed to firmly ‘establish’ itself as the supreme authority of the society. In such situations judges may be compelled to act out the directives of others as they make decisions for fear of losing their position or even their life. All these variables play a role in how much concern for human and civil rights, including religious freedom, exists within a society, as well as whether one particular religious tradition might be accepted as established. Legal and judicial systems impact citizens, and those systems can, under certain conditions, act with impunity to protect such values. However, those same legal and judicial systems can also impede the development of freedoms within a society, for example when those legal institutions support a dominant position of one particular religious tradition. Examining the actual patterns that develop within specific historical contexts is an empirical question that should be addressed in future research. Characteristics and History of a Society The amount and type of religious pluralism and ethnic and racial heterogeneity within a given society affects its capacity to guarantee religious freedom.17 The cultural values of a society are crucial as well, as is the manner in which those values are reflected in formal documents such as constitutions and statutes. The establishment and presence of a strong state apparatus is important, as is the manner the state chooses to regulate minority groups within the society. Often states choose to establish formal methods of regulating religion and other minorities through official hierarchies, which are given the force of law that grant graduated privileges to certain groups, depending on that group’s placement on such a hierarchy.18 Obviously, those religions occupying the top level of any hierarchy of religions within a society may have grounds to claim or be defined as the established religion(s). If a society is not very differentiated in terms of race, ethnicity or religion, then there may be little concern about human and civil rights, including religious freedom, and the question of whether there is an established religion may be moot. But when different ethnic and racial groups and religious traditions are present in a society such issues become salient. Indeed, how a society treats its minorities seems an ultimate test of whether that society values rights and freedoms for its citizens. Those in control of a society may welcome other ethnic groups and religious traditions and even value diversity, or, at the other extreme, a society may attempt to repress and stamp out certain minority groups and expressions. 17   James Beckford, Social Theory and Religion (Cambridge: Cambridge University Press, 2003). 18   See Richardson, ‘Law, Social Control, and Minority Religions’, 147–9. Also, see W. Cole Durham, ‘Perspectives on Religious Liberty: A Comparative Framework’, Religious Human Rights in Global Perspective: Legal Perspectives, eds J. van der Vyver and J. Witte (The Hague: Kluwer, 1996).

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The cultural values of a society, as expressed in its historical governing documents, will reveal much about the situation within that society regarding personal rights and freedoms. Many constitutions for modern nations include expressions of support for various freedoms such as speech, the press and religion, but those expressions may be honored in the breach, or the phrases in the governing documents may be ambiguous on some crucial issues, such as whether the freedom considerations enshrined in the documents refer to organizations (and if so, which ones), or whether they are focused on the freedoms and rights of individuals. A strong state apparatus is of great importance in terms of implementing (or deterring) various rights of citizens. If the state’s political leadership chooses to bolster or condone cultural values that encourage personal rights and freedoms, those values may be understood as important within that society. But the reverse might also be the case, and strong states can repress rights and freedoms as well. This may be particularly evident for participants of minority faiths, an indication that the state many favour one religious tradition over another. Thus it appears that the interaction of a strong state with cultural values determines much about the level of freedoms available to citizens and groups within a society. As indicated, one manner in which states regulate various minority categories is to establish hierarchies of such groups, either formally through official registration mechanisms and processes, or informally using less obvious methods. This approach can be applied to racial and ethnic groups, as well as religious minorities. For example, in the United States the regulation of religion is limited somewhat by the First Amendment of the Constitution, but ends up being left to agencies such as the Internal Revenue Service (IRS), which has developed criteria that it applies when a group requests tax exempt status as a religion. In many nations there is an official ‘ministry of religion’ that vets applications for official recognition of a religious entity and places the group according to criteria developed within that state. Such hierarchies are often multi-level and include officially sanctioned organizations, some of which might even have special status as the official religion of the nation. Further down the hierarchy are tolerated groups with some legal privileges and the right to function openly. Toward the bottom are placed groups that are not tolerated or allowed to operate openly and which have few or no legal privileges. Obviously the presence of these hierarchies within a society has immense implications for personal rights and freedoms of the citizenry within a given society. The very presence of groups that are not officially tolerated raises the ironic possibility that such groups, when forced underground, might develop their own methods of social control that would exemplify a form of legal pluralism.19 19  The concept of citizenship has been a focus of Bryan Turner’s work. Turner is concerned that allowing various minorities to develop and maintain their own relatively autonomous enclaves within a society works against the idea that all are citizens of society, sharing a common set of values and goals for that society. He suggests that the development of parallel minority enclaves undermines the idea that all citizens are part of a society and that the potential consequences of this situation are problematic. Bryan S. Turner,

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Sociology of Law Variables and Processes Donald Black has proposed that variables such as social status and prestige and personal and cultural intimacy play crucial roles in determining who prevails when matters are dealt with by legal and judicial systems.20 He and Baumgartner also have developed the concept of third party partisan to discuss how judicial systems function and how it happens that sometimes those low in status and intimacy can prevail in legal battles.21 William Chambliss proposes a continual dialectic process model to explain how major legal developments occur and how temporary legal and political resolutions are developed to respond to the contractions and conflicts that can arise within a society, given the immense differences in power and access to resources that exist in most societies.22 Also germane to how legal systems operate are rules of evidence and decisions made about what evidence is to be produced and admitted in legal proceedings. The theories of Black and of Chambliss, when taken together, offer much to an understanding of the development of legal systems, how they function and which entities usually prevail when they are used to settle disputes or as a device of social control. Chambliss is mainly interested in what he terms ‘points at which laws are produced that provide a new approach to a problem’ and cases which ‘strike out in a new direction’ and ‘constitute important turning points in the historical process’.23 Certainly the development of ideas involved with human and civil rights, including religious freedom and separation of church and state, exemplify such major turning points in jurisprudential history. Instances where protections and freedoms for specific minority groups and individuals are legally established and enforced might also qualify as a significant turning point. Black is more focused on ‘who wins and why?’ when legal systems are used to settle disputes or exert social control over individuals and groups. He notes that those of high status and prestige not only usually prevail within the legal system of the society in which they reside, but they even help develop the legal system itself in ways that serve their interests. This may particularly be the case when a dominant religion is formally or informally established in a society, thus granting high status and prestige to its functionaries and allowing them influence over how a legal system operates. Black emphasizes that those using the legal system have more success when they share cultural values and personal characteristics, and perhaps even personal intimacy, with decision-makers in the system. And when a ‘Citizenship and the Crisis on Multiculturalism’; ‘Managing Religions: State Responses to Religious Diversity’; and Religious Diversity in Civil Society. 20  Black, The Social Structure of Right and Wrong. 21   Donald Black and M. Baumgartner, ‘Toward a Theory of the Third Party’, in The Social Structure of Right and Wrong, ed. D. Black (New York: Academic Press, 1999), 95–124. 22   Chambliss and Zatz, Making Law. 23  Ibid., 5–6.

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party prevails unexpectedly, Black suggests that some ‘third party partisans’ who do share important characteristics with decision-makers have entered the fray on behalf of the unexpected winner. This latter concept is useful in helping clarify situations where minority groups prevail in disputes and in fending off efforts to exert control over the group. One very important aspect of how judicial systems operate concerns what counts as evidence in a legal action. Who has the standing to present evidence to the court is at issue, since societies vary greatly on what they deem to be acceptable rules or procedures in this regard. Mark Cooney, a student of Black, has demonstrated that the production of evidence is a social process, subject to understandable influences that will usually determine who prevails in a legal action.24 Richardson has examined the amount of discretion concerning evidence production and acceptance in cases involving minority religious groups, including famous cases from Australia (the ‘dingo case’ involving Lindy Chamberlain and the ‘Hilton bombing’/ Ananda Marga group case), as well as ‘brainwashing’ cases from around the world).25 Focusing on evidentiary rules reveals that when unpopular minority groups are involved in legal actions, decision-makers (judges) may admit otherwise weak or unacceptable evidence, or fail to force the production or allow admission of exculpatory evidence. Such decisions are often determinative of the outcome of the legal action. Clearly this area of how legal systems operate is of great moment when trying to understand the amount of influence available to representatives of dominant religious groups and the level of personal freedoms available in a society. Note that the failure of the justice system to grant a modicum of freedom and fairness to minority groups and their members encourages the development of other more informal social control methods to operate within such entities. Thus it should be noted again that an ironic outcome of a lack of perceived fairness in treatment of minority religious and ethnic groups encourages some forms of legal pluralism, a topic to which we now turn. A More Sociological Approach to Legal Pluralism The analyses of legal pluralism briefly discussed above are but a few of the efforts to develop the concept in a more analytically useful manner. These studies offer useful descriptions and categorizations of what is to be found around the globe in terms of examples of legal pluralism and how such legally pluralistic situations operate. However, those treatments do not offer a systematic sociological examination of legal pluralism that attempts to explain why it occurs, when it   Cooney, ‘Evidence as Partisanship’.   James T. Richardson, ‘Discretion and discrimination in legal cases involving controversial religious groups’, in Law and Religion, ed. Rex Ahdar (Aldershot: Ashgate, 2000), 11–132. 24 25

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does and what variables affect the form that it might take in specific social and historical contexts. Some discussions exist of the relationship of legal pluralism to concepts such as religious freedom or human rights. Treatments that cover these issues have focused on the potential conflict between allowing religiously based normative systems to dominate when doing so may limit the personal freedom of individuals within the group, particularly women. While very important, this singular concern should not distract from a more thorough examination of the relationship between human and civil rights and legal pluralism. Notable in their absence are treatments of legal pluralism that deal with the issue of religious establishment. Hopefully our efforts will offer some insights into this potentially significant interaction. What follows is an application of concepts and ideas from earlier efforts to explain the sociological and historical circumstances that foster religious freedom and human rights,26 and an examination of those concepts within a context of legal pluralism. This approach treats legal pluralism as something of a mediating variable between the structural and socio-legal concepts used previously as independent variables, and the dependent variable of human and civil rights, including religious freedom, as well as attitudes toward citizenship. The theories and hypotheses presented herein attempt to shed light on the ways in which personal freedoms might be fostered (or hindered) in today’s legally pluralistic world, as well as on the role of legal pluralism in fostering or hindering positive attitudes toward citizenship. Before beginning this effort, the issue raised earlier about the distinction between religious freedom for individuals and for groups or organizations needs further comment. Sometimes these two foci of religious freedom clash, and some examples of legal pluralism clearly demonstrate this possibility. If a religious group is allowed to exercise the full range of its norms and values in an informal legal system sanctioned (or ignored) by the state in which it resides, doing so may interfere with the rights of individual members of the group who might prefer not to be bound by those norms and values. As noted, this issue has been raised particularly concerning the role of women in some religious traditions,27 but it can impinge on other aspects of individual personal freedom, such as the prerogative to change religious affiliations or leave an ethnic group and change personal identity. Thus this important distinction between forms of freedom must be taken into account as we proceed with a discussion of the impact of selected variables on legal pluralism and hence on personal freedom for those affected when legal pluralistic solutions are allowed within a society. 26   Richardson, ‘Law, Social Control, and Minority Religions’; ’he Sociology of Religious Freedom’; and ‘Religion, Law, and Human Rights’. 27   Linda McClain, ‘Marriage Pluralism in the United States: On Civil and Religious Jurisdiction and the Demands of Equal Citizenship’ (Boston University School of Law Working Paper No. 10–14, 24 May 2010); Natasha Bakht, ‘Were Muslim Barbarians Really Knocking on the Gates of Ontario? The Religious Arbitration Controversy – Another Perspective’, Ottawa Law Review 69 (2006): 67–82.

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Turner’s concerns about the implications of legal pluralism for development of a shared idea of what it means to be a citizen of a given society also need to be considered. Legal pluralism might seem on its face a worthy goal for a society to seek, allowing all its citizens maximum freedom to develop as they please within their own subculture. However, if the cost of this approach is that citizens end up not defining themselves as members of the greater society, the long-term consequences could be immense. This crucial issue must be addressed with sound empirical work if any discussion of the pros and cons of legal pluralism is to bear fruit. Hypotheses Though the scholarly literature attests to the underpinnings of legal pluralism and the forces that should influence its development in a given society, the empirical exploration of this subject is largely absent. We propose a broad research question and additional hypotheses that might provide a foundation for exploratory empirical work: How do the factors and processes identified by scholars influence how, when, what form, and what degree of legal pluralism develops in a given society for minority religious groups? Specifically how have these factors and processes influenced the development of legally pluralistic enclaves involving Shari’a law for Muslim communities in modern non-Muslim societies?

Even though research of this kind would be largely exploratory, a number of possible hypotheses are derivable from the theoretical analysis presented above. What follows are some major hypotheses that we believe to be testable, particularly in developed Western nations in which the conditions for legal pluralism are present, arranged according to variables which have been discussed. Characteristics of Legal and Judicial Systems If a legal system is pervasive and affects the lives of most citizens of a society, this would probably operate to limit legal pluralism within the society. Such a situation might exist in a society with a dominant established religion which had helped shape the legal system in that society.28 It is theoretically possible, of course, for a pervasive legal system to be applied differentially, thus allowing a sociologically defined enclave to operate somewhat differently than the dominant society. Indeed some theorists (such as Donald Black) would expect different applications of law depending on where a person is located in social space. However, generally one would hypothesize that:   See Richardson, ‘Religion and Law: An Interactionist View’.

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1. The more pervasive the legal system, the lower the presence of legal pluralism within a society. Similar comments can be made about centralization of legal systems. Generally it could be hypothesized that: 2. The more centralization that exists within the legal system of a society, the less legal pluralism will flourish. However, the amount of legal pluralism that exists in a society is an empirical question, as shown by the report of the International Council on Human Rights, which noted many different arrangements which allow some form of legal pluralism.29 Leaders of a society with a highly centralized legal system could decide to allow legally pluralistic enclaves and enforce such accommodating edicts by virtue of its centralized control. Therefore if Hypothesis 2 is not supported, explanations involving other variables would be required. Judicial systems vary greatly in terms of autonomy, discretion and impunity of decisions made by the judiciary, and such variations can affect personal freedoms as well as the development of legal pluralism within a society. It seems a truism to state that, unless the judiciary is itself protected, it cannot protect freedoms of politically weaker and unpopular minority groups and their members.30 Thus we would hypothesize that: 3. Societies with more autonomous judicial systems usually will afford more protections for personal freedoms and rights of various kinds. However, even if judges are protected and the judiciary in a country has considerable autonomy and discretion, the values implemented in decisions of the judiciary can work either for or against personal freedom for minority groups or their members, and for or against the development of legal pluralism. If a constitution or statutes of a nation protect minority entities, and even allow them to operate in legally  International Council on Human Rights Policy, ‘Research Project on Plural Legal Orders and Human Rights: An Approach Paper’ (June 2008). 30   This could occur if an established religion had such power and influence as to dominate a society, including its legal and judicial structures. See Marat Shterin and James T. Richardson, ‘The Yakunin v. Dworkin Trial and the Emerging Religious Pluralism in Russia’, Religion in Eastern Europe 22 (2002), 1–38 for one such example. But also see the discussion of the strong ‘courtocracy’ that protected minority religions in Hungary in the 1990s in Kim Lane Scheppele, ‘Declarations of Independence: Judicial Responses to Political Pressure’, in Judicial Independence at the Crossroads, eds S. Burbank and B. Friedman, (Beverly Hills: Sage, 2002), 227–79. For a comparison of Russia and Hungary in this regard see James T. Richardson and Marat Shterin, ‘Constitutional Courts in Postcommunist Russia and Hungary: How Do They Treat Religion?’ Religion, State, and Society 36 (2008): 251–67. 29

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pluralistic ways, judges will have a basis on which to allow such independent actions within a minority group, even if such groups are unpopular with most members of the dominant society. Thus we would hypothesize that: 4. Legally defined pluralism can be enforced by the judicial system of the society if it is sanctioned by the State and the judiciary is adequately protected as it makes decisions that allow such legal pluralistic situations to exist. Characteristics and History of a Society The more minority groups that exist within a certain geographic area, the more likely some of them will seek to develop informal rules about how to deal with certain issues among the membership. Thus we would hypothesize that: 1. If a society is pluralistic in terms of ethnicity, race, and religion, more legal pluralism, both formal and informal, will exist within the society. Political leaders of the dominant society could decide to expend resources to enforce societal norms,31 but they might decide that it is more efficient and less troublesome to allow informal legal systems to develop. Indeed some societies may even officially sanction such legal enclaves, or they may just turn a blind eye to them and allow a minority group to function as it chooses within the confines of the dominant society, perhaps with some overarching restrictions. Family matters (divorce, custody, inheritance, division of property and so on) are particularly prone to be a target of minority groups as they attempt to govern or at least influence the lives of members. Thus we would hypothesize that: 2. Where legal pluralism is allowed to exist in a society, it will usually focus on family matters of various kinds. Somewhat related to the discussion of the centralization of a legal system, a society with a strong state apparatus may seek to impose its legal system and values on all citizens. However, when this is done, an enormous outlay of resources may be required to maintain such a rigid social order, and political leaders may eventually decide that the costs in terms of resources (and possible international negative publicity) is not worth the effort. Of course values of the society’s political leaders also could be implemented in a manner that allows more flexibility, thus protecting some forms of legal pluralism and the attendant freedoms of members of any groups allowed such flexibility. One could empirically test whether a 31   James T. Richardson and Thomas Robbins, ‘Monitoring and Surveillance of Religious Groups in the United States’, in Handbook of Church and State in the United States, ed. Derek Davis (Oxford: Oxford University Press, 2011), 353–69.

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strong state usually would see significant efforts toward uniformity, with less legal pluralism being allowed, or what other characteristics of a society, such as whether it has an established religion, might play a major role in whether legal pluralism and personal freedoms might be allowed. For instance, we would hypothesize that: 3. If a strong state also has an autonomous judiciary that could critique actions of the executive and legislative branches of government with impunity, more legal pluralism would exist involving minority groups than would otherwise be the case. As indicated above many societies develop formal or informal hierarchies of religious, ethnic and racial groupings, with selected groups being allowed more benefits, such as access to schools, the media, the military, tax revenues and other forms of assistance. This is certainly the case in societies with formally established religions. Groups ranked lower in the hierarchy would have fewer benefits, and some at the very bottom would have none, and would perhaps even operate at their peril within that society. We would hypothesize that: 4. The higher a minority group ranks in whatever hierarchy exists within a society, the more likely it would be to be allowed to develop its own internal set of normative and even legally binding social control processes. A corollary to this prediction might be: 5. The degree of legal autonomy afforded a minority ethnic or religious group would depend to some extent on the amount of resources and effort the dominant society would have to expend to force a minority group to abide by norms and rules of the dominant society. In short, sometimes those in charge of institutions of social control in a society might decide it was too much trouble to enforce all the rules of the society within a given enclave, and therefore dominant-class political leaders might leave them to their own devices, thus allowing informal legal pluralism to develop. We have earlier predicted that the presence of an adversarial based legal system would increase the chances of successfully defending religious freedom.32 Therefore we would hypothesize that, in comparisons between societies with varying types of legal systems: 6. The presence of an adversarial legal system should promote the development of legal pluralism.   Richardson, ‘The Sociology of Religious Freedom’.

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The obtaining of legal counsel within an adversarial based legal system can be thought of as one form of ‘third party partisanship‘(see discussion below). With this in mind, we would hypothesize that: 7. If a minority religious or ethnic group can obtain the services of strong and experienced legal assistance in battles with authorities, it will have a better chance to develop a form of legal pluralism to serve the group’s interest. In an inquisitorial system, those in charge of the judicial system determine who (if anyone) will offer testimony or other support for those being charged with violating laws or seeking redress in civil legal actions. Because such control is possible within an inquisitorial system, we would hypothesize that: 8. An inquisitorial legal system would usually preclude the involvement of any significant third party partisan acting on behalf of a minority group or person, thus limiting the chances for successful development of legal pluralism. If legal pluralism is allowed to develop, it could diminish a person’s feeling that they are part of the greater society and their commitment to the values of that society.33 Remaining exploratory hypotheses include: 9. A person who is member of a minority group which is allowed to develop significant legal pluralism may feel less a part of the greater society, as indicated by lower levels of commitment for basic values of the society. 10. A person who is a member of a minority group which is allowed to develop significant legal pluralism may identify less with the greater society and more with their membership group Sociology of Law Variables and Processes Minority religious groups by definition have less status and prestige than other religious groups, and this lack of social standing adheres to most group members as well. Also by definition, in many minority ethnic and religious groups, the members and leaders share little personal or cultural intimacy with members of the dominant classes in a society. They live in separate worlds governed by different sets of norms and values. Given this situation of separateness, the achievement of any degree of legal autonomy by a minority group seems problematic, and when this occurs, explanation is needed. Official policies sanctioning multiculturalism, enforced by officials within the dominant society, can contribute to the development of enclaves of legal pluralism, but why such policies develop is itself a question of import. Such policies could be the result of enlightened leadership from the   Turner, ‘Citizenship and the Crisis on Multiculturalism’.

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dominant class, coupled with a “squeaky wheel gets the grease” attitude brought on by persistent efforts of a minority group to implement its own norms and values in certain areas of life. Enlightened leadership and the persistence of the minority group both could be related to the presence of values allowing and encouraging pluralism within that society. Alternatively, officials governing the society could simply decide that it is less trouble to allow the development of legally pluralistic enclaves for certain minority religious groups. Following the logic outlined above, we would hypothesize as follows: 1. The presence of an official policy of multiculturalism will contribute to the development of legal pluralism enclaves in the society. 2. If minority groups are persistent in their efforts to develop and maintain a legal pluralistic enclave, this will contribute to legal pluralism being allowed to develop within a society. How minority groups implement any granted flexibility associated with legal pluralism may be questioned, of course, as some may limit personal freedoms in doing so. However, those in the dominant class may agree to ignore such potential breaches of dominant societal values in the interest of maintaining a semblance of control over the group, as well as peace in the streets. One important variable to consider when legal pluralism is allowed to exist concerns the possible presence of the previously mentioned third party partisans. If minority groups lack social status and personal or cultural intimacy with the decision-makers in a society, they may nonetheless sometimes attract support from others who have some of those characteristics, or who have the authority to enforce different values than the decision-makers within that society. This “strange attractor” phenomenon needs more research,34 but it is clear that sometimes this situation does occur with minority racial, ethnic and religious groups, and they may be assisted in the development of legal pluralism. We would hypothesize that: 3. When legal pluralism is established for a minority ethnic, racial, or religious group, this occurs in part because of the efforts of key “third party partisans” acting on behalf of the group. Alternatively, 4. When ‘third party partisans’ oppose the development of legal pluralism for a minority group, less legal pluralism will occur. Consideration of how, why and when third party partisans are attracted to (or repelled by) minority groups also would assist in understanding specific dialectic   See brief mention of this phenomenon in Cooney, ‘Evidence as Partisanship’.

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processes that develop in modern societies with their many contractions that can lead to conflicts if not resolved.35 One possible resolution to potential conflicts between minority groups and the dominant society would be to allow legal pluralism to develop. Clearly when such situations are given formal sanction, an explanation is needed about how and why this occurred. And, even if there is no formal legal approval for legal pluralism to develop, but minority groups are allowed to go their own way to some extent, such as in family matters, this process of negotiation and compromise should be delineated. Arguably such formal or informal legal pluralistic situations would not develop for minority groups unless there was some sort of intervention on behalf of the group from parties with status and prestige in the society, as indicated above. This logic leads to the following Research Question: What processes are followed in the development of legal pluralism, and what groups or entities are involved in the resolution of the conflict over efforts to develop legal pluralism for a minority group? The research ideas described herein also will address this important research question. Excursus on Shari’a Shari’a in a number of modern societies is attracting a growing attention from scholars and concern among policymakers.36 An obvious question arises as to how the theorizing and hypothesizing presented herein relates to the spread of Shari’a in societies where Muslim minorities exist. The variables discussed are helpful in explaining the development of legal pluralism, and those variables also can help explain specifically how various Shari’a-derived systems might develop and flourish. However, before exploring possible ways our theorizing might affect the acceptance of legal pluralism involving Shari’a an important caveat is needed. Contrary to popular myths about Shari’a, it is not a monolithic and rigid set of beliefs and practices. There are significant variations within various traditions of Islam as to the meaning of Shari’a and great variations abound in the interpretation of Shari’a, as the meaning and practices attached to the term vary by location and context and also change over time. Australian law professor Ann Black, addressing the issue of possible adoption of Shari’a in Australia, poses the question, ‘Whose   Chambliss and Zatz, Making Law.  Rex Ahdar and Nicholas Aroney, eds, Shari’a in the West (Oxford: Oxford University Press, 2010); A.A. An-Na’im, Islam and the Secular State: Negotiating the Future of Shari’a (Cambridge, MA: Harvard University Press, 2008); John Bowen, Can Islam Be French? Pluralism and Pragmatism in a Secular State (Princeton, NJ: Princeton University Press, 2010); Christian Joppke, ‘Islam in the West: Can Muslims Live in a Liberal Society?’ (Presented at Islam in Europe and America conference, City University of New York, 4–6 May 2011); Oliver Roy, Globalized Islam (New York: Columbia University Press, 2004). 35 36

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Shari’a should be adopted?’37 Abdullah Saeed, another Australia scholar, discusses the dramatic changes that have occurred in some Muslim majority countries in the area of family law, noting particularly changes in Morocco.38 Sociologists Malcolm Voyce and Adam Possamai present an effort to ‘deconstruct’ the idea of a single interpretation of Shari’a,39 citing the work of Al-Azmeh, who states, ‘There are as many Islams as there are situations to sustain it …’40 These concerns notwithstanding, it seems fruitful to comment on how the variables discussed above might impact the development of legal pluralistic enclaves of Shari’a within specific historical and societal contexts. In religiously pluralistic societies with less pervasive legal systems, the presence of a persistent minority religion such as Islam should find it easier to gain acceptance, even if reluctantly, for its type of legal pluralism. In a more centralized legal system, the very fact of centralization, especially in a ‘strong State’, could work in favour of a Shari’a-based legal pluralism if societal authorities became convinced that the Muslim minority should be allowed their own legal enclave to settle personal and domestic matters and also to deal with food preparation issues. If the legal system is adversarial in nature, this might be accomplished more easily if a Muslim group retained a socially well-placed ‘third party partisan’ to carry their legal battles, or if prominent individuals or groups within the dominant society decided to assist in establishing a legal pluralistic enclave for the minority group. If a society’s authoritative legal documents allowed or even encouraged the establishment of legal pluralistic enclaves, this would assist Muslim groups in doing so more easily. If the judiciary was relatively autonomous, and judges shared pluralistic values, then they might be more prone to allow the operation of legal pluralism that would serve Muslim communities, even in the face of opposition. Decisions in favour of Shari’a would be even more the case if some members of the Muslim community were higher in social status and prestige, as is the case in the United States,41 and if there was some sharing of cultural and personal values with those in decision-making positions within the dominant society. Also, if socially well-placed third parties could be found to defend and speak on behalf of the Muslim community, then this could have a positive influence on those making decisions about the acceptance of legal pluralism for Muslim communities. 37   Ann Black, ‘In the Shadow of Our Legal System: Shari’a in Australia’, in Shari’a in the West, eds R. Ahdar and N. Aroney (Oxford: Oxford University Press, 2010), 239–54. 38   Abdullah Saeed, ‘Reflections on the Establishment of Shari’a Courts in Australia’, in Shari’a in the West, eds R. Ahdar and N. Aroney (Oxford: Oxford University Press, 2010), 223–38. 39   Malcolm Voyce and Adam Possamai, ‘Legal Pluralism, Family Personal Laws, and the Rejection of Shari’a in Australia: A Case of Multiple “Clashing” Modernities’, Democracy and Security 7 (2011): 338–53. 40  Aziz Al-Azmeh, Islam and Modernities (London, Verso, 1993), 1. 41   Pew Research Center, ‘Muslim Americans: Middle Class and Mostly Mainstream’, 22 May 2007 http://pewresearch.org/pubs/483/muslim-americans (accessed 11 November 2012).

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All of these interacting variables would aid in understanding the dialectic processes that are undertaken as a society deals with the contradictions and conflicts that can arise when a Muslim community emerges within a culture that is quite different in terms of norms and values. It should be noted that the differences between norms and values of minority groups (such as Muslims) need only be perceived as different from those of mainstream society. The true differences between groups may be exaggerated, as similarities and shared values are often understated or may be completely overlooked. As resolutions are sought to such potentially conflicting situations, those dialectically achieved resolutions should be explicable in terms of the operation of variables outlined above. As research on Islam in contemporary societies develops, one issue to address relates to individual versus group freedoms. This issue also may help explain the specific character of any legal pluralistic resolution involving Shari’a that is allowed by authorities of the dominant society. Efforts to promote Shari’a may generate some opposition from those who would value individual freedoms, especially for women, and also from those who value the right to change religions or membership in the group, among other concerns.42 Such interests, both internal and external to the Muslim group, will play a role in the dialectic process that might produce legal pluralism and help determine any resolution that is adopted at any given time. Another area of study concerns the issue of citizenship raised by Turner and others. Allowing legal pluralism enclaves to develop for Muslim groups could foster less concern for the overall society and less identification of those in the Muslim community with overarching societal values. However, research done by Pew Research Center would seem dispel such concerns, as it indicates that most Muslims are well-integrated into America society, support its basic values and do not support terrorism.43 According to this research, Muslims appear quite similar to typical Americans according to their own attitudes and opinions. However, it also seems evident through the current social climate in the US that Muslims are perceived by some as being different than other, mainstream Americans. This issue and other questions posed above should be a major focus of further research in this important area of study.

  McClain, ‘Marriage Pluralism in the United States’.   Pew Research Center (2011) ‘Muslim Americans: Middle Class and Mostly Mainstream’, and ‘Muslim Americans: No signs of Growth in Alienation or Support for Extremism’, 30 August 2011 http://people-press.org/2011/08/30/muslim-americans-nosigns-of (accessed 11 November 2012). 42 43

Index

9/11 98, 99 American Broadcasting Company [ABC] 141–142 Abduh, Muhammad 113 Aberhart, William 133 aboriginal peoples 8, 9, 52, 149–156, 198 Abrahamic 23, 96 abuse/d 71, 187–199 A.C. v. Manitoba [Director of Child and Family Services] [Canada, 2009] 47 accommodate/s/ed, accommodation/s 5–6, 9, 33, 39, 47, 71, 96, 104, 167, 171–172, 177–178 adjudication 110, 167–181 Adler v. Ontario [Canada, 1996] 46 advertising 141–142 aesthetic/s 6, 8–10, 33–37, 39, 42–44, 47–48, 51–53 African American 193–193, 198 Akaka 60 Ali, Ben 107, 111, 118, 124–126 Al-Azmeh, Aziz 217 al-Din al-Tunisi, Khayr 112 al-Fajr 123 al-Islam, Shaykh 114 al-Istiqlāl 115 al-Nahdha 108–111, 121, 123–124, 126–127 al-Taha Ben Achour, Shaykh Muhammad 116 al-Thaalibi 113–114 Alliance to End Violence 197 America/s 7, 45, 84, 93, 95, 100, 102, 131, 141, 168, 192–193, 197, 199, 218; see also North America; United States [US] Americans with Disabilities Act 3 American Indian

American Indian Religious freedom Act 59 claims to sacrality 106 title deeds 101 tribes 60; see also Lenape American Revolution, the 94, 100–102, 104, 106 Amien, Waheeda 173–174 Amselem, Moïse 38, 43 Amselem v Syndicat Northcrest [Canada, 2004] 38 Anglican Church/es 89, 102, 131 bishops 102 canon 133 dean 197 Anglo-American 1, 165 Ankara 111 Antigonish 139–141 antinomian 3, 27–28, 31 antinomianism 30 anti-religious 86, 159 Arab/s 108, 118, 125, 129 Arabic 108 Arminianism 30 Asad, Talal 6 Asia 10, 149, 151, 155, 161 East Asian countries 148 Inner Asian heritage 153 Southeast Asia 161, 168 Southeast Asian Muslims 168 studies of 10 war in 155 ascetic, asceticism 21, 31 assmimlate/d, assimilation 96, 152, 155–156 Assmann, Jan 23–24 anthropological, anthropology 8, 35 atheism 21 Athens 22 Australasia 82

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Austronesian 149 authoritarianism 121, 126 authoritarian regime 107, 129 authoritarian state 108, 111, 118 autonomy/ous 24, 48, 168, 176, 178, 180–181, 183–185, 198, 203–204, 201, 213–214, 217 Australia/n 4, 8, 208, 216–217 Axial Age 9, 16–17, 22–27, 32 Balagangadhara, S.N. 18 Ball, Lucille 141 Baptist/s 82, 104, 133–134, 137 Beijing 152 belief 10, 19–20, 95, 150–151, 158, 160, 167–168, 171–172, 176–177, 185 beliefs 11, 39, 41, 43, 48, 156, 158–159, 161, 196, 216 Ben Achour, Yadhn 116, 124–125 Bendix, Reinhard 82 Bennet, WB 135 Berger, Benjamin 4, 6, 9–11, 33 Berle, Milton 141; see also Mr Television Berman, Paul 201 Bey of Tunis 112 Beyer, Peter 4, 9–11, 75 Bibby, Reginald 84 Bible Students 133–134 Bill C-30 [Canada] 46 Bill of Rights [US Constitution] 3, 95, 171–172, 179 Black, Ann 216 Black, Donald 207–208, 210 social status and prestige 207, 217 personal and cultural intimacy 207 third party partisan/s/ship 203, 207–208, 214–215, 217 blood transfusion 47–48 Bloomberg, Michael 96–99, 102, 106 Bourguiba, Habib 111, 114–116, 118, 123–125 Brant Rock 132 British Broadcasting Corporation [BBC] 135, 145 British Empire 2, 131 British North America Act 45, 131, 11 British North America 131 broadcasting 131–133, 135–138, 140–145

Bronn v. Frits Bronn’s Executors [South Africa, 1860] 170 Brown, Peter 23 Buddha Light Mountain [Foguangshan] Monastic Order 161 Buddhism 8, 21–23, 25, 85, 89, 151, 153, 155–156, 158, 161, 230 laypeople 24 Mahāyāna 21 monastic community 30 nirvāna 21 Burlington Coat Factory 98–100 CFCN 133 CFRB 580 frequency 134 CHUC 134 CJBC 133 CJCA 136 CJFX 140 CKCK 132 CKSM 133 Calgary, AB 133, 191, 194, 197–198 California 98 Cameron, William A 134 Canada 40, 45, 83, 87, 132 Anglican Church of 89 census 136 Charter of Rights and Freedoms 4, 45, 51 claims to Indigenous title 50 confederation 4, 45–46, 131, 136, 143, 145 Fathers of Confederation 131 constitutional culture 53 creation of 131 federal organization 40, 132 government 136 immigration rules 85 International Covenant on Civil and Political Rights 46–47 Lower Canada 131 pluralization of religion 76, 79, 83–84, 86, 89 Radio-Canada 137–138, 143 Roman Catholic nationalism 83 separation of church and state 131–132 spatial authority 52 spirituality and freedom 75

Index Supreme Court of 39, 44–45 United Church of 82 Upper Canada 131 Canadian Broadcasting Corporation [CBC] 135–198, 140–143, 145 Religion Department 143 Trans-Canada CBC Network 136 Canadian Charter of Rights and Freedoms 4, 45, 51 Canadian Department of Marine and Fisheries 132 Canadian National Railways 135 Canadian Radio Broadcasting Commission [CRBC] 135–136, 143 Rules and Regulations 135 Canadian Radio Television and Telecommunications Commission [CRTC] 136, 144–145 Cape, the [South Africa] 140, 168–170 Cape Breton Highlands [Canada] 140 capitalism 81, 105, 139 Cardin, Arthur 134–135 Cardinal Maurice Roy 138 Cardinal Paul-Emile Leger 138 Caribbean, the 197–198 Casanova, José 6, 17, 122 Cassirer, Ernst 9, 35, 39, 50 caste system 25–27 Catholicism American broadcasters and 142 Caritas 197 Catholic Hour, the 137–137 Catholic/Protestant 87 Catholic Register, The 134 Evangelical and Catholic 195 in French Canada 45, 88 “in name only” 88 priest/s 133, 136–137 radio and tv program/s, programming 142–143 resources for domestic violence 197 sacramental economy 30 social teaching/s 140–141, 196 “traditional” 89, 144 Chaïbi, Riadh 109 Chamberlain, Lindy 208 Chamberlain v. Surrey School District No. 36 [Canada, 2002] 43

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Charles II 94 Charlotte, NC 191–193, 197–198 Chambliss, William 203, 207 China 9, 22, 147–162, 166 Ching-kuo, Chiang 157 Christians as Family Advocates [CAFA] 193 Christian and Missionary Alliance in Edmonton [CHMA] 133 Christian schools 46 Christian Science 137 Christian unity 78 Christianity 8, 62, 89 acceptance of Islam 153 applied Christianity 141 conversion 29, 150 de-privileging 85 in Late Antiquity 22 Christianization 57 Church of Canada 89 Church of England 2–3, 75–76, 97, 100, 101–102 Church of Jesus Christ of Latter-Day Saints 104 Church of Scotland 76 church-state/church and state 1, 3–6, 8, 16, 18, 20–21, 25, 57, 76–77, 95, 97, 100–101, 103, 106, 131, 145, 147, 157, 162, 197, 207 Churches of the Air 132 citizen/s, citizenship 29, 81, 88, 110–111, 126–128, 140, 170, 175, 203–206, 209–210, 218, civil rights 202–203, 205, 207, 209; see also human rights clergy 21, 97, 101, 106, 131, 134, 136, 138, 169, 175, 189, 190, 191, 193, 195–196 Clinton, Bill 59 Coady Institute 139 Coady, Moses Michael 139 codification 112–118 coercion 7–17, 150, 180 Cold War 142 colonization 10, 3, 62, 68, 100, 121, 201 Columbia, MO 191, 193 Columbia College [New York] 100 communist party 157–159

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community agencies 192–193, 197, 199 community-based agencies 187, 189, 193–194 Con Ed [Consolidated Edison] 98 Confucianism 22, 151 congregation/al 61, 85, 100, 104, 187, 189, 190–193, 196, 199 Congregational 133 contract 67, 70, 99, 157, 169, 170–171, 182, 184, 197 Cook, James 57 Cooney, Mark 208 Cooper, Davina 43 cosmology 4, 8, 50, 150 Covenant on Civil and Political Rights 46–47 Cover, Robert 180 criminal justice 188, 190–194, 196, 199 cross 28, 99 cross-border conversation 1, 3 cross-cultural 17, 35, 145 CTV network 143 cultural values 203, 205–207 Danchin, Peter 11–11, 165 deist 20, 30 Delaney, David 39–40 Delaware River 93 democracy 107–110, 122, 126–129, 155 democratic 100, 102, 107–108, 123, 125–126, 128–129, 140, 149, 157, 159 democratization 148, 160–161 denomination/al 45, 76, 8285, 89–90, 99, 133–134, 136–137, 142–144, 161, 195 dingo case [dingo case [Chamberlain v R [Australia, 1983]] 208 disability 3, 7 discourse 5, 60–62, 84, 119, 166–167, 174, 184 discrimination 5, 154–155, 168, 174–175, 179 disenchantment 21, 24–25 disestablishment 5–9, 76–77, 86–87, 95, 97, 101–102 disestablishmentarian 4 divine 21, 24, 115, 170

divorce 112, 115, 169, 173, 180, 182, 195, 202, 212 Dix, John 103 Djait Code 114–115, 117 Djait project 118–119 Djait, Shaykh Abdelaziz 114–116, 123 domestic violence 10, 187–193, 195–199 dominant society 201, 212–214, 216–218 Dumont, Louis 17, 26 Dumont, Network 141–142 Dunlop, John 143 Durante, Jimmy 141 Durkheim, Émile 24 Ebenezer Scrooge 139 ecclesiastical 20, 67, 100 ecumenism 136 education 45–46, 51, 76, 84, 127, 139–140 cooperative 139–140 distance 140 egalitarianism 195 Egypt 23–24, 38, 113, 181 Eisenstadt, SN 16, 22–24 Eliade, Mircea 42 empêchement légal 120 England 2–3, 61, 75–76, 94, 100–103, 106, 165 enlightenment 21–26, 214–215 entanglement 16, 71, 170–175 Episcopal 100, 103, 142 Episcopalians 102–104 Eretz Israel 38 Erie and Union Pacific railroads 103 Ersatzreligion 80, 86 eruv 37–38, 43 establishment; see also disestablishment establishmentarian 5–6 statutory 9, 56, 64, 70–71 structural 9, 56, 62, 70–71 naturalized 7–9, 56–57, 60–61, 68, 69–71 shadow establishment 4, 8, 75–76 Eugene, OR 191, 193 Euro-American 9 Europe 4 Council of Europe 204 exceptionalism 3, 94, 184

Index North America and 7 politics 8, 126 reformed churches 153 religious communities 168 semantic developments 76 Western Europe 153, 201 European Court of Human Rights 204 FaithLink 194, 197 family law 7, 107–108, 112, 114–116, 118, 120–121, 169–172, 176, 181–184, 217 family violence 196–199; see also domestic violence federal 9, 40, 45, 59, 60–61, 64, 95, 104, 131–132 federalism 40, 45, 52 federalization 95 Fessenden, Reginald 132 First Nations 4, 194 Fitzgerald, Timothy 18 foundational 2, 39, 76, 79–80, 84, 86, 90, 94, 125, 147 foundationalism 80, 84, 86, 89, 91 Ford, Richard T 40 France 5, 7, 53, 126, 131, 159 St Francis Xavier University 139 free-church 3 freedom [personal] 184, 208–209, 211, 213, 215 freedom of conscience 160, 168, 171 freedom of expression 42 freedom of religion 5, 20, 26, 29, 32, 42, 45–46, 48, 90, 95, 166, 171–172, 175, 177–178, 185 French Canadian 83, 89, 139 New France 131 Wedding between altar and throne 131 Ancien régime 131 French Protectorate [Tunisia] 114 Fujian 149, 154, 161 Galanter, Marc 18–19 Gauchet, Marcel 21 Gautama, Siddhartha 30; see also Vessantara [Prince] gender 8, 25, 41, 58, 90, 111, 118, 175, 177, 182–183, 190, 193, 195, 199

223

gender equality 111, 118, 175, 177, 182–183 gendered hierarchies 195 genealogy 27, 50, 52, 65, 112, 121, 170, 183 Germany 82, 197 geography 6, 8, 39–40, 80–81, 89, 97, 100–101, 190, 198–199, 212 Ghannouchi, Rached 108, 121–123, 128 Gilkes, Cheryl Townsend 198 glebe land 11, 101 globalization 9, 75, 77, 89, 95 gnostic 30 God 5, 20, 25, 28, 30, 38, 105, 120, 139, 148, 195 god/s 20, 28, 50, 97 Godfrey, Arthur 141 gospel 20, 28, 30, 104 grace 28, 30, 31, 71, 120, 174 Native American Graves Protection and Repatriation Act 59, 64 Great Stone Church 61 Greek 22, 28–29 Grignon, Claude-André 139 Hainan 152 halachic 137 Halifax 137 Hall Naone, Dana 67–69 Hallaq, Wael 110 Halley, Janet 170, 184 Hallman, E.S. 138 Hanafi 112, 114, 119 Hawai`i 4, 6, 11, 61 environmental protections laws 59 Congregationalist missionaries 61 akua [deities] 58 ali`i families 61 ancestors 57–58, 65 ancestral burials 57 burial law 56–57, 59, 64–65, 68–69, 71 burial sites 9, 11, 58, 65–66 culture 58–59, 62, 68 cultural expert 59, 63–64 politics 57 deities and spirits 63 Department of Hawaiian Home Lands 56, 63 Hawai`inuiakea School 63

224

Varieties of Religious Establishment

Hawaiian Apology Bill 59 Hawai`ian studies 63 hula 54 human remains 66–69 Iolani Palace 61 Kamakakuokalani Center 63 Kawaiaha`o Church 56–57, 61–62, 64, 66–70 Kingdom of Hawai`i 61 Mahele era 58 Office of Hawaiian Affairs 56, 59–60, 63, 66–69 island burial councils 59 monarchy 3, 58–61 Preservation Division 61, 63, 65–68, 70 Burial Council 65 Council, Maui and Lan’I Island Hawai’I Burial Council 65 Moloka’I Island Burial 65 Ni`ihau and Kaua`i Islands O’ahu Island Burial Council religion 57–58, 60–64 prayers 63 renaissance 59 self-governance 60 spirituality 62 State of Hawai`i 59, 61–62 State Historic Society 63, 65–68, 70, 78 waters 57; see also Native Hawai’ian Hebrew 24 Henry VIII 3 Herberg, Will 96, 106 hierarchy 21, 26, 29, 106, 117, 119, 195, 205–206, 216 Hilton bombing 208 Hindu/Hinduism 8, 18–19, 22–23, 25–27, 19–31, 85, 144, 184 Hoanya 149 Hokkien 154 holistic 9, 30–31 Holtmann, Catherine 10–11, 187 homeland 38, 98 Un homme et son pêché 138 Honolulu, HI 56–61 Hosanna-Tabor v. EEOC [United States, 2012] 60 householder 30 House of Commons [Canada] 134

Hudson River, NY 93, 104 human rights 7, 46–47, 57, 90, 95, 125, 127, 175–176, 202–204, 209, 211; see also civil rights; women’s rights Iacobucci, Frank [Justice] 46 iconoclastic 22–23 immanence 25, 50 imam 97–98, 104, 169 immigrant 1, 8, 89, 96, 103–104, 106, 153, 198–199 immigration 3, 83–85, 153 independence 19, 85, 108–110, 114, 124–125, 150, 159–160 indigenous 7, 41, 50, 55, 57 India 2, 9, 15–19, 25–27, 29, 31–32, 59–60, 93, 97–98, 101, 106, 168 ancient 9, 25–27 classical 15 Constitution of 19 religion 19 Supreme Court of 19 society 24–26 individual rights 91, 127–128, 165, 167, 181, 202 industrialization 103, 139–141, 155 incarnation 21, 30 individualism 4, 26 inequality 183–184 Inibs 150 interfaith 8, 96, 104 International Council on Human Rights 202, 211 International Bible Student Association [ISBA] 133–134; see also Jehovah’s Witness/es Islam; see also Muslim acceptance of 153 assessors 173, 179, 182 in Canada 88 civil society organizations 175 community centre 94, 96, 98, 104 in contemporary societies 218 emancipation and gender equality 118, 125 family law 7, 107–108, 112, 114–116, 118, 120–121, 169, 171–172, 176, 181–184, 217

Index fear of 96 founding era 80 history 109 institutions 173, 179 interpretations 126 jurisprudence 181 law 116–118, 120–121, 169, 174, 176, 179–182 Malay Muslims 168 marriage 10, 165, 167–175, 178–179, 182–184 matrimonial property 174 and minorities 45, 80, 82, 89, 131, 168, 172, 203, 205–206, 216 and modernity 118 as a religion 111 and non-Muslims 175, 210 norms 175, 177, 180 as religion of the state 6, 109, 116, 122, 125–125, 128 religious symbols of 126 and secularism 116 South African 170 Southeast Asian 168 Tunisian-Muslim system 113 and women 85, 175 worship 104 youth activists and students 174 Islamic Council of South Africa 169 Islamist 9, 108–111, 118, 121–124, 126–129, 177 Israel 22, 38, 127 Israelite 20, 38 Italy 7 Jacobsohn, Gary 18 Jain 25 Jamaica 198 James II 94 Japan 9, 148–149, 153–158, 162 Jarvis Street Baptist Church 133 Jasper, Karl 16, 22 JCC [Jewish Community Centre] 104 Jefferson, Thomas 95 Jehovah’s Witness/es 47–48, 133–134, 145; see also International Bible Student Association [IBSA] Jerusalem 22

225

Jewish law 20, 30, 38 Jews 28–19, 37, 85, 96, 106, 137, 144 and Christian schools 46 and community 38, 47 holiday 37 as immigrants 104 representations of 137 ritualism 23 as theatre owners 140 Johnson, Greg 4, 6, 9, 55 Johnston, Alexander 140 Judeo-Christian 22 Judaism 22–23 judge 47, 62, 68–69, 113, 116–117, 119, 133, 171, 173–174, 179–182, 204–205, 212 judicial systems 203–205, 207–208, 210–212, 214 judiciary 112, 203–204, 211–213, 217 jurisdiction 10, 16, 39–43, 52, 67, 69–70, 101, 116, 131, 176, 1476, 183 jurisgenerative principle 180 jurisprudence 94–95, 112, 175, 178, 181, 183, 36 jurist 110, 112–114, 117, 120 justice system 113, 115, 125, 192, 194, 208 Juzay, Ibn 119–120 Ka’anohi Kaleikini, Paulette 67 Kahn, Daisy 98 Kahn, Paul 9, 39, 48–49, 52, 98–99, 105 Kaho’olawe 59 Kai-shek, Chiang 159 Kamehameha 57–58, 61 Kangxi 153 Kant, Immanuel 9, 34–35, 36, 39, 44, 47 karma 25, 28–29 Kawaiaha’o Church 56–57, 61–62, 64, 66–70 Kennedy, James W 142 King William [1697, England] 101 King’s College [add location]100 Kingdom of Tongning 149–152 Kingdom of Datu 149 kinship 65 Koran, Koranic verses 118–120 Korea 142, 146, 148–149, 154 Krygier, Martin 49

226

Varieties of Religious Establishment

Ku Klux Klan 134 Kuo Min Tang [KMT] 157–160 laïcité 5, 128; see also secularism Laliberté, André 9–10, 147 Laloge, Donalda 139 Lanphier, Charles 133, 136–137, 145 Laurentians 139 law civil law 17–19, 170, 177, 179, 182–183 common law 49, 98, 101, 184 force of 34 historicity of 48 international 51, 95 martial 157–158, 161–162 natural 30 positive 120–121 public 11, 109, 124 reform 167–168, 174–175, 177, 184 and religion 1–2, 16, 32, 46 of search and seizure 42 recognition by law 171–172, 175–176, 183 Law of Manu 25, 30 lawyers 8, 16, 102–103, 114, 175 legal autonomy 213–214 legal enclaves 202, 2012, 217 legal privatization 178 Lenape 93, 97; see also American Indian Li-An, Chen 160 liberate/d/s 2, 28, 30, 123, 125, 127–128, 177 liberation 9, 15–16, 21, 24–26, 28, 31, 123 lieu de mémoire 120 Lifan Yuan 152 Likeke Hall 67 Lili’uokalani [Queen] 58–59 Lilly Endowment 190 Loew’s Theatre 134 logos 167, 176 London 43 Lourimi, Ajmi 124, 126–128 Loyal Orange Lodge 136 Loyola College [Montreal] 142 Luther, Martin 19–28 Lutheran 82, 137

Lyford, Buck 142 MacDonald, Angus L 140 MacDonald, Joseph A 140 Madan, TN 18, 25–27 Madrid 150 Mahmood, Saba 181, 183 Magdalen Islands 141 Magna Carta 3 Mahele 58 mahr 170, 173, 180, 182–183 Majallat al-ahwāl al shakhsīya 114 Maliki 112, 114, 116, 118–120 Maloney, JJ 134 Manchu 149, 150–152, 162 Manhattan, NY 9, 93–94, 97, 100, 103–106 map/s 11, 39–40, 42, 52 Maritimes 139–140 marriage 10, 112, 115, 119, 167–175, 179, 182–184, 199 martyr 99, 113 Marxism 8 Marxist 76 Maui 59, 65, 68, 69 McCaffrey, JF 142 Mecca 127 media 8–10, 76, 89, 90, 107, 138, 160–161, 213 mediated 55, 181, 193–194 mediating 180, 209 mediation 181–182 Medicine Wheel 198 medieval 26, 76, 113 mega-churches 193 Mensch, Elizabeth 102 Mennonite 193 Mertie, Fergus 143 metaphysics 40–41 Methodist 81–82, 104 Mexico 159 Mezghani, Ali 102–121 Middle Ages 201 Middle East 5, 114, 183 military 45, 59, 152, 155, 205, 213 Ming 149–153, 162 Ming-Ming, Peng 160 minister 52, 62, 114, 118, 121, 132, 134, 137, 140

Index Minnanhua 154 modern 9, 15–18, 20, 25–26, 29, 33, 36–37, 39, 45, 51, 62, 75–78, 80, 93, 99, 104, 110–112, 115–116, 118, 120–122, 159, 165–167, 179, 183–184, 196, 204, 206, 210, 216 modernizer 159 modernism 118 modernist 9, 116, 118, 121, 125–126 modernity 16, 29, 118, 121–122, 127 modernization 117, 122–123 monastic community 30 Mongolian 152 monogamy 170 monotheistic 22–23 Montgomery-McGovern, Janet B 150 Montreal, QC 37–38, 138–139, 142 Morgan, Thomas 20 Morocco 217 mortuary practices 58 Mosaic distinction 20, 23–24, 28 mosque 9, 96, 123, 127, 169 Motala, Ziyad 175 Mr Television 141; see also Milton Berle multicultural 8, 87, 151–152, 162, 194 multiculturalism 4, 33, 214–215 mundane 10, 17, 21, 23–25, 29 Murray, Major Gladstone 136 Murrow, Edward R. 141 Muslim, see Islam Muslim Judicial Council [South Africa] 169 Muslim Mediation Council 181 Muslim Personal Law [MPL] 168–171, 173, 175–177, 179–184 Mutchmore, JR 137 myth 50, 60, 94, 216 mythic 50–53 mythical 50–51 Nason-Clark, Nancy 10–11, 187 Natal 168–169 National Consultative Committee [Canada]138 National Council of the Episcopal Church 142 National Religious Advisory Council [NRAC] 136

227

Nationalist Party [Taiwan] 157 Native American 9, 59, 64, 98, 105 Native Hawai’ian 55, 56, 59, 60, 62, 65, 66; see also Hawai’ian neo-liberalism 8 Netherlands, the 9, 82, 93, 100, 150 Newfoundland 131, 141 New Amsterdam 93 New England 61, 100 New Brunswick 131 New World 95, 100–101, 136, 144, 153, 185 New York City 9, 96, 100, 103, 105 City Corporation of 102 Landmarks Commission of New York 98 municipal building codes 98 noise ordinances 98 Port Authority of New York and New Jersey 99 Public Service Commission 98 real estate 98 zoning 98 New York State Constitution 102 Legislature 103 niqab 34 nomos 28, 30–31, 165, 167, 176, 185 non-religious 20, 77, 195–196 Non State Legal Orders (NSLO) 202 normative systems 8, 10, 209 normativity 15, 180 North America 1–3, 5, 7, 82, 102, 131, 168, 192–193, 197, 199; see also America; Canada; United States [US] Nova Scotia 131, 139, 141 Nunn, Clyde 140–141 Old Testament 24 Ontario 45–46, 143 ontological 40–41, 43 Orangemen [Canada] 136 Ottoman 114 Outremont 37–38, 43 pagan 20, 23, 140 Papora 149

228

Varieties of Religious Establishment

parish/es 97, 100–101, 198–199 Park51 9, 94–97, 100, 102, 106 parochial 2, 16, 18–19, 21 paternalistic 104–155 patriarchal 111–177 Pazeh 149 PBS [Public Broadcasting Service] 142 Pentecostals 89 People’s School [Canada] 139, 141 Personal Status Code [PSC] 114–120, 123–126, 128 personal status law 114, 118–119, 168, 172 Pew Research Center 218 pluralism form-pluralism 184 freedom and 172 freedom, equality, and 175 legal 8, 10–11, 121, 168, 185, 201–204, 206, 208–218 legal and normative 8 legally defined 212 modus vivendi 176, 178 religious 36, 147, 178, 205 and religious diversity 25 pluralization 76, 79, 83–84, 86, 89, 157 political science 8 political theology 99 polygamy 115, 120, 170 polygynous 170, 173 Pope Leo XIII 140 Pope Pius XI 140 populism 4 Possaimai, Adam 217 post-apartheid 10, 167–168, 171, 175 post-Westphalian 9, 75–76, 83, 86, 91 Poudrier, Seraphin 139 predestination 28–30 Presbyterian/s 82, 104, 132, 136–137, 154, 160 press, the 96–98, 115, 124, 128, 206 and religion 206 law of 1975 128 priesthood 26–29, 79, 132–133, 136–137, 139–141, 199 Prince Edward Island 131, 141 private property 7, 11, 93, 96–99, 102–106 private sphere/s 11, 29, 167, 178, 183

privilege 22, 45, 75–76, 82, 90, 131, 205–206 profane 21, 27, 42, 162 Project Committee at the South African Law Reform Commission [SALRC] 171 Protestant 83, 87 air time 137 anthropologies and cosmologies 4 branches 80 church/es 134, 137, 196 conservative 195–196 Devotional Hour 133, 137 doctrines of grace 30 federal establishment of [in Canada] 9 missionaries 58 Reformation 16, 21, 26, 28–29, 78 religio-cultural identity 87 soteriologies 29 and true religion 19–20 valorization of grace 28 Protestant Catholic Jew 96 public authority 38, 43 public discourse 5, 84 public good 10–11, 95 public domain 38, 41, 43 public school/s 42, 44, 127 public purpose 104, 106 public/private divide 8, 43, 168, 178 public sphere 7, 11, 129, 132, 166–167, 175–177, 179, 184–185 Puritan 28, 30 purity 27 Qili, Song 160 Qinq Empire 148–156 Québec 5, 7, 38, 83, 86–88, 131, 138–139 Supreme Court of 38 Quebec Act of 1774 45 Queen Anne 100 Quiet Revolution 138 rabbinic 37, 143 radio 132–138, 140, 143 francophone 138 preachers 136, 145 regulation of 131 single-faith based 136

Index wireless 132 Radio-Canada; see Canada RAVE Project [Religion and Violence e-Learning] 190–192, 194, 196–197, 199 batterer intervention programs 191 computer software 191 e-learning 190–191 web-based model 190 rebirth 25, 28 referendum 159 casus belli 159 Regina, SK 132 religio-legal 2, 6, 94 religio-political 9, 80, 100, 106, 150 religion adventitious 161 and belief 95, 167, 171 civil 86 decline of 17, 84 definition 10, 19–20, 88, 129, 162, 168 folk 24, 161 and life 122 organized 85, 153 public 11, 122 regulation of 8, 155, 162, 206 of the state 6, 109, 116, 122, 125–126, 128 transnational 161 religious education 45, 51, 127 Richardson, James 10–11, 201, 208 renunciation 22–23, 25–27, 30 Republican 102, 104–105, 124, 126, 159 rhetoric 4–5, 98, 121, 139, 165–166, 178 ritual economy 6, 8, 10, 17, 27–29, 31–32 Roman Catholic/s 4, 18, 45–47, 51, 75–76, 80, 82–84, 89, 131–132, 138, 143 Roman Catholic Church 18, 45, 76 Roman Catholic education 45–46 Roman Catholic hospitals 84 Roman Catholic and Protestant establishments in Canada 82 Roman Catholic school/s in Canada 45–47 Roman imperium 76 rosary 138 Royal Commission [to investigate Canadian Radio] 135 royalist 102

229

Rutherford, Joseph F 134 sacred places 58, 106 sacred property 105 sacrality 38, 106 sacrament 28, 30 sacrifice 28, 99, 105–106 Saeed, Abdullah 217 Sakamoto, Karl 62, 68–69 Salvation Army, The 137 same-sex 44, 184, 195 Saskatchewan 134 Schmitt, Carl 15 Schwartz, Benjamin 23 Second World War 87, 89, 148, 155 Security pact [1857] [Tunisia] 112 sectarianism 145 secular, the activists of 127 church and 18 community responses to 187, 199 and the demands of public reason 44 meaning of 36 and modern system of justice 115 and non-sectarian principles 44 religion and the religion/secular dichotomy 188 sacred and 23 sacred/secular 15, 32, 194 secular age 25, 88, 193 secular neutrality 166 secular/religious 177 secular society 60, 128–129 secular state 6, 19, 51, 147–149, 156, 158–159, 177 secularism 17, 21, 129, 183 authoritarian version of 162 contemporary 16, 23–24 critique of 122 Islam and 116 liberal secularism 123, 129 modern 166 political 6, 183 as separation of religion from law 17 varieties of 107, 129, 177 secularist 9, 15, 108–111, 118, 120–122, 124–129, 175 secularity 19, 77

230

Varieties of Religious Establishment

secularization 6, 8–9, 17, 20–21, 23–24, 183 Santinel 134 separationist 1–2, 4–6, 8, 16–18, 20–21, 24, 29, 95, 103, 106–107, 109, 111, 122–123, 125, 128–129, 131–132, 145, 183, 185, 207 sermon 132, 134 sexual politics 7 Sezgin, Yuksel 202 Shabbat 37 sharia, shari’a 108–111, 116–117, 126, 129, 181, 183, 202 and women’s rights 108 court/s 113–115, 173, 180 qadis 112, 180 ijithad 180 implicit 107, 110, 112, 121 interpretation 116, 119, 170, 174, 216–217 legal pluralism and 201 Sheen, Fulton J 141–143 shelter 191, 193, 198–199 Shinto 8, 48, 154, 156, 158 shomer Shabbas 37 shrine 158, 161 Shui-bian, Chen 160 Sikh 85, 144 Sinatra, Frank 141 Sisters of St Martha 140 slavery 38, 104, 120, 168 Smith, Donald Eugene 18–19 social action 188 social control 100, 204–208, 213 social engineering 125 social order 16, 18, 24–25, 31, 39, 77, 86, 100–101, 184, 212 social orders 10, 17, 31 social progress 140 social science 190, 192, 199 social services 10–11, 197–198 social space 40, 210 social system 16, 24, 29, 31 societas perfecta 76 sociology 8, 11, 16, 31–32, 123, 207–210, 214 Soho Properties 96, 98, 104, 106 soteriology 29–30 Souaihi, Mongia 118

South Africa 8, 10, 165, 167–169, 170–172, 174–175, 178–179, 181, 184–185 Spain, Spaniards 9, 150 Spartan eunomia 185 spiritual economy 6, 8–10, 15, 17, 27, 31–32 spiritual imaginary 161 spiritual but not religious 84–85 spiritual support 187 spirituality 62, 75, 86, 143 spiritualization 84, 89, 29 St John’s, NFLD 133 stare decisis 49 state of exception 15 statehood 58 Stietencron, Heinrich von 18 succah/s 38, 39, 43 sui generis 16 Sullivan, Winnifred Fallers 1, 3, 9, 11, 15, 93 Sunni Jamiatul 169 superstition 19, 158 Supreme Court of Canada, see Canada Switzerland 82 symbol 21, 34–35, 126, 179, 199 symbolic 35, 40, 50, 116 symbolically 37, 43, 175 syncretic 151 Taiwan ethnic networks 161 Ministry of Interior’s Department for Civic Affairs 160 Pan-Taiwanese religions 158 self-determination 159 Southern Taiwan 150 Strait of Taiwan 149 Tamanaha, Brian 201 Taoism 151, 155, 161 Taussig-Rubbo, Mateo 105 Taylor, Charles 21, 24–25, 30, 88 technology 57, 132, 179, 196 television Admiral 141–142 cable services 132, 144 digital 132, 144 pay television 144 temple 97, 156, 158, 160, 161

Index territory 10, 30, 38, 40, 42, 157 Texaco Star 141 theocracy 127 theology 99, 104, 116 Tibet 152–153, 157 toleration 6, 19, 32, 47, 80, 82, 206 Tompkins, Jimmy 139 Toronto Star 136 tourism 58 transcendence 10, 16–17, 20, 22–25, 29–32, 34, 36, 44, 47 transition house movement 188 transnational 8, 80, 82, 89, 161, 204 Treaty of Paris 45, 102 tribal groups 168 Trinity Church Wall Street 11, 100–105 Toronto, ON 133–134, 136–137, 141 Tory [United States] 102 Tunisia 1959 Constitution 107–108, 116, 122, 125–126 blog Nawaat 109 secularism 129 Committee for Political Reforms [CPR] 124 Constitution, Constitution of the Tunisian Republic 118, 124 Constituent Assembly 107–108, 114–116, 124, 128 democracy 107 family law 121 French-Tunisian system 113 Islamist movement 122–123, 125 law 109, 111, 117, 120–121 Minister of Religious Affairs 118 Ministry of Justice 114–115, 117 new Sharia Code 115, 117, 119–120 public law 11, 109, 124 Regency 116 sovereignty 113 Tunisian-Muslim system 113 uprisings 107 Turkestan 152 Turkey 159 twenty-first century 5, 94, 145 two swords doctrine 76 ulama 110, 115, 116, 175

231

bodies 169, 170, 176–177, 179–181 conservative 115, 121 Jamiatul Ulama 169 Majlisul Ulama 169 organizations 178 progressive ulama 175 Sunni Ulama Council 169 Tunisian ulama 115 United Fruit Company 132 United Kingdom 135, 145, 166 United Nations Human Rights Committee 46 United Nations Secretariat 188 United States National Historical Landmark 61 United States of America [US] church-state law 97 and establishment of religion 3, 15, 61, 80, 95, 96, 172 FCC [Federal Communications Commission] 145 free church model 3 Constitution of the United States 3, 5, 15–16, 97–95, 106, 172 First Amendment 3, 15, 60, 94–95, 106, 172, 206 Fourteenth Amendment 95 Homeland Security 98 Internal Revenue Service 98, 206 law 16, 95 Native Americans 105 Congregationalist/s 104 religious culture 94 religious multiplicity 96 religious radio 141 Supreme Court of the 3, 95 universal 7–8, 10, 36, 116, 161, 166, 170, 178, 185 universality 166, 184–185 universalism 29, 36 universalization 29 universalize/ing 21, 25, 29 value-pluralist 168 Valverde, Mariana 39 Vancouver, BC 133–134, 137, 144 Vedic 8, 26, 28–29 Vessantara [Prince] 30; see also Gautama, Siddharta

232

Varieties of Religious Establishment

Vietnam 147, 149 Voyce, Malcolm 217 Wall Street 11, 100–106 wars of religion 78–79 war on terror 105 warlords 157 Ward, JE 133, 137 Weber, Max 20–21, 29, 30–31, 64 Wesleyans 133 West Africa 93 Westphalia 8–9, 75, 78–79, 82 Peace of Westphalia 75–78 Treaty of Westphalia 8 westphalian model 9, 75–76, 78, 80–81, 83, 86–88, 90 westphalian regime 88–91 Wilson, Bertha [Justice] 45 Winnipeg, MB 133, 137, 143, 147 witness 34, 47–48, 68, 79, 113, 133–134, 145 women’s emancipation 111, 118

women’s rights 108, 111, 125–126, 175, 177, 183; see also gender equality WomenSpace 193–194 Wood, F.R. 133 World Health Organization 188 World Trade Centre 94, 97–100, 104–106 world religions 22, 24 worship 19–20, 28, 61, 96–97, 100, 104, 132, 161, 192, 199 Yat-sen, Sun 159 Yiguandao 158 Ying-jeou, Ma 160 YMCA 104 Yunnan 152 Zaytūna University 115–116, 118 Zeghal, Malika 6, 9, 107 Zeidman, Morris 136, 145 Zhongtaichan 160 Žižek, Slavoj 21