How does the law shape the category of (free) religion, and by which mechanisms does this shaping occur? Building on conversations started at the Centre for Religion, Conflict and Globalisation‘s recent conference, ‘Reimagining Difference: Being, Thinking and Practicing Beyond Essentialism’, this blog series explores law’s approach to – and creation of – religion and religious rights. Helge Årsheim opens our exchange by asking: How should scholars of religion understand the ‘fine print’ that determines the limits of religious freedom?

The literature and news cycles on religious freedom tends to be dominated by big, principally important cases, where the foundational principles of liberal democracy are in the balance. Seeking out news items or scholarly analysis of religious freedom, a handful of usual suspects tend to pop up, from the brutal persecution of religious minorities at the hands of so-called Islamic State or the present crisis surrounding the Rohingya minority in Myanmar, and to the infamous  Hobby Lobby  decision of the United States Supreme Court in 2012 and the controversial  S.A.S.  decision of the European Court of Human Rights (ECtHR) in 2014. Throughout these cases, readers and analysts alike easily get the impression that the right to religious freedom is under constant threat, with our highest-ranking politicians, judges and commanders-in-chief as our only hope of redemption.

In recent years, the overemphasis on headline-gripping cases and its potential to distort and misrepresent the way people actually live out their lives has rightly been countered by a wave of critical scholarship. Large-scale research projects like  ReligioWest  at the European University Institute, the Politics of Religious Freedom project at UC Berkeley, and the  Grassrootsmobilise  project at the Greek ELIAMEP foundation have pointed to the harmful potential and conceptual challenges arising from a fundamental disconnect between legal and “lived” forms of religion. Like Eleanor Roosevelt’s famous dictum about human rights, this wave of criticism has served to highlight the crucial importance of the “small places, close to home – so close and so small that they cannot be seen on any maps of the world”.

The middle ground

While criticism of top-down approaches to religious freedom that only address the big issues is important and pertinent, it has largely ignored the machinery where the majority of decisions on religious adherence and allegiance by legal means are made: Working at the steady, sometimes infuriatingly slow pace of an old engine, the nuts and bolts of administrative law and bureaucratic practice grinds out decisions on the boundaries of religious beliefs, practices, organizations, buildings, garments and dietary products every day, and at a massive scale. Far removed from the spotlight of the news cycle, critical scholarship or political discourse, civil servants from a broad and growing array of modern nation states determine the proper nature and scope of religion, oftentimes as a small, even happenstance part of their jobs. In the Norwegian legal system alone, more than 30 separate legal acts overseen by a variety of different ministries, directorates and county governors regulate and determine “religion”, each with its own paper trail of circulars, advisory notes, opinions and former decisions for the eager bureaucrat to dive into, should the occasion arise. Added to this is the instances where bureaucrats are faced with religious organizations, doctrines or practices that somehow challenge their templates, moulds and pre-written standard decisions.

The decisions of civil servants determine the shape and scope of religion in virtually every section of society. From the zoning of public and private land for the construction of temples, mosques, churches or community centers, to the criteria for religious advertisement, hate speech, broadcasts or publications, and to the regulations governing religious observance in public institutions, from hospitals and prisons, to schools and public transit. Their densely written decisions are rarely publicized, with access usually restricted to the concerned parties, who are frequently unfamiliar with the technical jargon and reasoning underpinning the final verdict. Obviously, this is not a challenge that is unique to religion, but one that is typical of administrative law: As Bruno Latour has observed regarding the intricacies of French administrative law, its existence and working methods is almost totally unknown by the French people themselves.

A legal vernacular for religion

However, as legislators and policymakers have become increasingly concerned with the role of religion in society, a large and growing body of laws, policies and regulations on religion has been adopted in order to deal with what is perceived to be the “comeback” of religion to the public sphere over the course of the last decades. This ongoing “juridification” of religion can be detected across different layers of legal regulation, from international and constitutional law, to statutory, administrative and informal regulatory systems. While the proliferation of norms and the flagship decisions of courts at the international level tend to grab the headlines, the vast majority of decisions, verdicts and opinions produced as an effect of the growing number of norms take place at the administrative level.

In this process, which resembles the “vernacularization” of international law that takes place among non-governmental organizations working to promote human rights, civil servants effectively translate the dicta of international, constitutional and statutory legal rules to fit in with their own daily work. As a result, legal regulations of religion are injected into the rationale and legal materials cited to support administrative decisions, which tend to draw on a broad and complicated set of circulars, practice summaries, guidance notes and supplementary legal materials. While these documents will usually derive, at least in theory, from authoritative legal texts, the majority of support materials will deal with the former decisions of civil servants and views from experts, concerned ministries and other public entities, who have their own ways of interpreting the actual scope of legislation in their day-to-day work.

Tips of the iceberg

Every once in a while, administrative decisions or regulations percolate up to gain the attention of politicians, rights activists, the news media and the courts, thus putting the spotlight on potential disruptions between the original intent of legislators and the experiences of people “on the ground”, whose diverse and complicated lives and challenges cannot possibly be adequately captured by the letter of the law. These cases have been amply covered in the recent, critical literature on religious freedom. One example is the Florida court overseeing the  Boca Raton  case examined in minute detail in Winnifred F. Sullivan’s book  The Impossibility of Religious Freedom (2005), another is the cottage industry of scholarship investigating the origins and ramifications of the apostasy case against the Malayan convert Lina Joy, a third is the multiple decisions of the ECtHR on the legitimacy of various bans on religious head coverings, which by now has almost become its very own sub-discipline of scholarly inquiry. Throughout these cases, and the scholarly literature that surrounds them, legislators, lawyers, judges and expert witnesses are frequently found to misconstrue or distort, the lived religious experiences of the defendants, more often than not putting religious minorities at a disadvantage.

Important as these observations are, they provide little in terms of explanation and analysis of the machinery in between – the intermediaries who have been set with the task of applying and giving substance to the airy promises of international treaties and domestic legal bills. The resulting landscape is one of Manichean simplicity, where legal regulations of religion will inevitably do interpretative violence to the inherent complexity of “lived religion”, or inscribe or overemphasize a religious component where the situation on the ground is inherently more complex. However, because of the lack of attention to what happens at the critical junctures where law becomes policy, and policies become decisions that concretely affect peoples’ daily lives, we simply do not know even the basic mechanisms (nor if there are any) whereby civil servants tend to determine religion. We know even less about how people tend to perceive the decisions made by bureaucrats in this area, nor do we know how well-informed they may be about their available legal remedies, or even their basic knowledge of the scope of administrative decisions that can have crucial influence on their daily lives.

Being boring

The lack of knowledge about how civil servants translate laws on religion into regulations and policy documents, is, to some extent, a given. Even broad-based, multiple-researcher projects lasting several years could not possibly pretend to identify and systematize the bureaucratic apparatus and its dealings with religion comprehensively. At best, singular case studies like Franklin Presler’s classic study  Religions under Bureaucracy  (1988) and Maria Birnbaum’s recent  Becoming recognizable. Postcolonial independence and the reification of religion  (2014) can provide snapshots and glimpses of the ways in which bureaucrats approach and comprehend religion in specific instances. In my own work, I have sought out similar snapshots of bureaucratic attempts to pin down the essences of “religion”, ranging from the registration of religious organizations, via the technical review of new legislation on religion and the zoning of places of worship, and to the determination of refugee status based on religion-related persecution.

Across these instances, I have come to realize the deep truth in Edward C. Page’s observation that “[t]he hardest thing about offering an account of the world of everyday policymaking, where many choices and issues revolve around obscure substantive and procedural points that tend to interest few, is to avoid boring people and becoming bored oneself.” As civil servants pile on copious items of information, assessments, practice notes, decrees and semi-legal circulars to prop up their decisions with an air of authority, the citizen, scholar and journalist can easily be overwhelmed and disillusioned by the unshapely mass of information to be sorted and examined. But herein lies the very crux of the issue: exactly because bureaucracy is massive, unwieldy and boring, it usually escapes the critical gaze of scholarship developed for more high-profile and immediately comprehensible cases involving controversy and conflict.

Much in the same way as climate change, the challenges, scope and future development of the modern bureaucratic state are too uncertain and complicated for the majority of the population to pay any significant attention to the matter – and, as a result, the machine grinds on. To assess how the nuts and bolts of this machine fit together, what raw materials it depends upon and how their end products affect their surroundings, critical scholars need to pay considerably much more attention to the fine print and the forms, regulations and directives that are the hallmarks of modern bureaucracies.

 

 

 

* This post has been published on the ‘Religion: Going Public’ blog and ‘Law and Religion UK’ under a different title before and reposted here with permission of the author;

(http://religiongoingpublic.com/archive/2017/being-boring-how-bureaucrats-determine-religious-freedom
and
http://www.lawandreligionuk.com/2017/10/20/being-boring-how-bureaucrats-determine-religious-freedom/).