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 collaborative Religion Factor and Religion: Going Public blog series explores law’s approach to – and creation of – religion and religious rights. In this post, Professor ​Richard Amesbury examines bureaucracy’s politics of depoliticisation.

In his post “Deus in Machina,” Helge Årsheim calls attention to the role civil servants play in shaping religious freedom, grinding out decisions on “the proper legal boundaries of religious beliefs, practices, organizations, buildings, garments and dietary products every day.” Where much recent scholarship on law and religion has pointed to the “juridification” of religion, Årsheim emphasizes its bureaucratization. God is in the machine, and the devil in the details.

One reason this is significant is that bureaucratic, administrative governance takes place largely out of sight, in a zone in which sovereignty is experienced as “soft” and diffuse, a matter less of decision than of discretion. The boundaries of legal religion are shaped not simply by decree but also – and perhaps more importantly – through processes of sedimentation and accretion. Referring to civil servants working behind the scenes, Årsheim writes, “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.” From a political perspective, this raises challenges for democratic accountability. For scholars, the challenge is to bring into focus a layer of social complexity that is “massive, unwieldy and boring” and thus tends to escape the critical attention reserved for flashier high-profile cases.

Although my own contribution to the Groningen panel on law and human rights took up a different set of issues – concerning religion’s relation to human rights – I see some important areas of thematic overlap, about which it might be worth thinking further. The point of my paper was to call attention to the political work done by framing human rights (and religion) as non-political. Every political culture presupposes a set of parameters which it treats as removed from ordinary political struggle and analysis. For instance, within a liberal scheme, the Right is said to be prior to competing conceptions of the Good. Similarly, the idea of human rights aspires to place limits on the exercise of political power from a standpoint irreducible to any particular move in the political game and so to trump – if we can still use Ronald Dworkin’s term – other claims with which these rights might come into conflict. Precisely because they purport to be non-political, these boundaries are among the most significant features of a political landscape, even though they do not occupy its center.

A similar analysis might apply to bureaucracy and civil service, which are also typically regarded as non-political, albeit for somewhat different reasons. The civil servant – or so the term appears to suggest – is a humble and hard-working careerist, charged with the drudgery of keeping the machine running efficiently. Toiling in relative obscurity and Weberian anonymity, the bureaucrat is a professional implementer, not a maker, of public policy. Of course, as Årsheim rightly points out, that description belies the influence exercised at this level. (In his ethnographic work on bureaucracy, Bernardo Zacka notes that frontline bureaucrats, though commonly portrayed “as unthinking automata,” are routinely called upon to exercise independent judgment, and that these judgments are often value-laden.) But we might push the point even further: it is not simply that we are apt to overlook the political work achieved by bureaucrats on account of its apparent tedium and innocuousness, but that the civil servant’s purported lack of agency is itself a potential source of political power.

Consider, for example, the case of Louis Freeland Post, Assistant U.S. Secretary of Labor during the Wilson administration. During the First Red Scare, Post defended the rights of immigrants against advocates of mass deportation like J. Edgar Hoover, who headed the Justice Department’s “Radical Division.” As the political theorist Bonnie Honig has pointed out, Post interpreted the law in order to achieve Progressive political objectives precisely by representing himself as the apolitical servant of law:

As aliens subject to administrative power, the detainees lacked the rights Post attributed to them. Post used his administrative powers to grant them rights they did not have juridically. . . . And then Post (before the Committee, in his practice at the Labor Department, in relation to the Justice Department) acted as if these rights, which had no juridical existence apart from his own contestable administrative rulings, bound him. That is, Post acted as if he had not granted those rights, as if they existed ex ante, as if they bound him, and as if he merely deferred to the force of those rights or channeled them, acknowledging their power to limit the range of his discretion – the very discretion whereby he granted or acknowledged the rights in the first place. (Honig, 79)

While Hoover and Attorney General A. Mitchell Palmer sought to “cast Post as an arbitrary, untrustworthy administrator whose aim was to undo the law” – a criticism echoed today in paranoid talk of a conspiratorial “deep state” seeking to undermine the current U.S. administration – “Post responded by casting himself as law’s strictest adherent and casting his opponents as arbitrarians and securitarians whose own decisionism was poorly cloaked by pseudolegality” (Honig, 76).

If human rights are imagined to stand above politics, administrative governance is imagined to lie beneath it. In each case, political work is abetted by a claim to depoliticization.

By way of conclusion, I would observe that we seem currently to be in the midst of a period of repoliticization, in which ideas, institutions, and practices formerly removed from political contestation have (again) been made topics of heated political debate. Much that had once seemed settled is now up for grabs, with the result that the boundaries of what is permissible in politics are unclear and constantly being tested.

Finally, I must confess to a certain ambivalence about all of this. Having sought, as a scholar, to explore the architecture of political thought whereby certain concepts – human rights, justice – are imagined as occupying a level distinct from that of the political, I hope not to be interpreted as hostile to these concepts per se. If part of their power derives from their self-presentation as neutral containers for political dispute, does it contribute, however indirectly, to the loss of their authority to point out that they are in fact parties to it? The more Steve Bannon talks about seeking the “deconstruction of the administrative state,” the fonder I feel about it.

Pic 1: Freedom of Information Request made to the FBI: (https://archive.org/details/LouisFreelandPost)

Pic 2: Louis Freeland Post: (http://www.old-picture.com/american-legacy/008/Freeland-Louis-Post.htm)