Re-thinking the intersection of law and religion today tends to proceed from a concern for the limits of religious freedom and a critique of the foundational historical, social, and cultural presumptions about religion that are seen to undercut or frustrate the possibility of advancing religious freedom. We thought it might be useful to begin instead from the other end, from what has historically been seen, in the U.S. 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 necessarily proceeds 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. “Establishment,” we thought, 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.
Whether establishment proves an enduring category for thinking the legal regulation of religion, we think the essays in this volume 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, exploring the often unexpected ways in which the conjunction of religious 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.
These essays 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 U.S. 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; and 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 and Islams – 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.
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 essays; Part 2, a set of essays focusing on re-telling histories of establishments; and Part 3, focusing on explorations of law’s capacities.
Part 1 of the volume includes three essays proposing theoretical frameworks for re-thinking and re-imagining the problematic of religious establishment. Robert Yelle asks whether current re-appropriations 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 re-orient 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 essay, inspired by 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 essay 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 essays which focus on and complicate particular moments in the longer story of establishment/disestablishment. Peter Beyer’s essay is a re-reading of the Westphalian legacy, suggesting an emerging post-Westphalian modeling of religion and the state driven by secularization and globalization. He 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 U.S. model, but has now given way to the neo-liberal market model made possible by the dominance of cable channels. Winnifred Sullivan’s essay 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 which, 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.
Part 3 includes three essays 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 essays 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. Yelle offers a fresh perspective on the entangled challenges of defining religion and the differentiation of religion as a separate sphere. He 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. Berger highlights the point of tension between law and religious difference through the use of a Kantian aesthetics. He 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. 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. He 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-analyzed 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 over land and burial sites 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. 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. 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.
All of the essays offer multiple interventions into a lively and increasingly global debate. We hope they will invite continued conversation.