by Silvio Ferrari and Rinaldo Cristofori (eds). Burlington, VT: Ashgate Publishing Company, 2010. 406pp. Hardback $124.95. ISBN: 9781409411437.
Reviewed by David K. Ryden, Political Science Department, Hope College. Ryden [at] hope.edu.
The U.S. is often thought unique among advanced democracies both in the level of its religiosity and the extent to which that religiosity has public and political ramifications. This book provides an important counterpoint to the undue focus on the U.S. in the realm of religion and politics. It rests on two key acknowledgements of contemporary religion and politics research. One is simply the ongoing salience of religion as a primary influence on law and politics. Contrary to any assumption that the decline of religion as a formative societal force is somehow inevitable, a generation of research in the field of religion and politics, if anything, shows the opposite. The impact of religion on our political affairs shows no sign of abating, and indeed is on the upswing. The second facet is the need for religion and politics research to be thoroughly comparative and global in its reach and perspective. This work aptly demonstrates that the interplay between religion, law and governments surely is not the province of a few countries or regions. Rather it encompasses an incredibly diverse array of topics, with a panoply of histories and modern developments that have far reaching implications for the spectrum of church/state arrangements across the globe. For these reasons alone, this work is a welcome and much needed addition to the literature on religion and the law.
The two factors noted above manifested themselves in the 2007 formation of the International Consortium for Law and Religion Studies (ICLARS), an international network of scholars working in the field of law and religion. That consortium held its inaugural meeting in January of 2009, around a broad theme of 21st century relations between states and religious communities. This volume comes out of those proceedings. In her introductory chapter, Grace Davie articulates the reality behind ICLARS’s formation, namely the “growing body of data that indicates that religion is present, pervasive and increasingly influential in the twenty-first century” (p.13). In light of that reality, Davie calls for nothing short of a return of religion to the center of social-scientific analysis. This simultaneously edifying and frustrating book provides an exhaustive body of support for Davie’s plea.
The book is divided into three parts. The first section canvases patterns of intersection between law and religion, with a particular focus on South and West Africa, India and Japan, and the U.S. and Latin America. The second part consists of a series of case studies on the influence of a resurgent religion in Europe. The final, and lengthiest, section of the book plumbs a host of contemporary law and religion debates, with an emphasis on such topics as [*212] religious liberty and expressive freedom, rights to and limits on proselytization, varying approaches to public displays of religious symbols and imagery, and finally the legal status of Islam in western countries.
The breadth of topics precludes an exploration of the book in its entirety. Let me offer an admittedly eclectic survey of those essays I found most intriguing. Several chapters in the opening section explored the effect of more recently introduced evangelistic faith traditions on countries that previously had been marked by a respect for pluralism and indigenous religiosity. Fatou Kine Camara’s analysis of the Islamization of West African countries is a fascinating account of how modern economic forces combined with religious ideology and westernizing cultural shifts to work a significant shift in a relatively short period of time. West African states had been known for a syncretized religious identity where the dominant religion, typically Islam, shared space with and was shaped by indigenous faiths and religious practices. As a result, those states were known for their longstanding commitments to secularism and religious toleration. In the past few decades, those norms have been shaken in a number of the Muslim-majority African countries, as oil-rich Middle Eastern states used the oil shocks of the ‘70s and subsequent droughts to export their religious ideology to sub-Saharan Africa. The nexus between financial assistance and the propagation of Islamic law, culture and education worked to erode the black African culture and the ethos of pluralism and toleration that undergirded it. The irony is that “religious fundamentalism is nourished by the marginalization of black African culture, the very culture that allowed Islam to peacefully take root” (p.51).
Juan Navarro Floria’s study of the challenges accompanying religious diversification in Latin America offers parallels. As had been the case in Africa, the dominant institutional religious presence – in this instance Catholicism – tended to co-exist with more popular indigenous expressions of religion, leading to what Floria terms a “double belonging” (p.119). The key unanswered question in light of burgeoning evangelical Christianity is whether its emphasis on evangelization might negatively affect the tolerance of indigenous forms of religiosity in Latin America. Floria is careful not to make broad assertions regarding this relatively recent phenomenon. But it clearly bears watching, especially in light of the explosive growth of evangelical Christianity in Africa, Asia and elsewhere.
Several other chapters in the first section examine the role of constitutionalism in mediating religion in the broader context of society and the state. Tahir Mahmood provides a fine descriptive account of India as a modern democratic state committed to secularism and religious neutrality even as it honors its religious make-up. A series of constitutional provisions, legislative enactments and judicial decrees together combine to provide explicit protection for religious pluralism while simultaneously acknowledging India’s rich religious traditions.
One might be forgiven for thinking that nothing fresh remains to be said of U.S. church/state relations, but Cole Durham [*213] and Robert Smith demonstrate otherwise. Their contribution is cast in terms of a largely overlooked development in American church/state law, namely the increasing divergence among the states in resolving church/state questions. Durham and Smith cite what has become the consensus view of the historical design of the establishment clause, that it was a jurisdictional barrier to federal interference with state religion policy rather than a substantive principle of separation between government and religious actors. Their analysis of the religion clauses of the First Amendment assumes state prerogatives in this area. Their review of free exercise jurisprudence post- Employment Division of Oregon v. Smith (1990) explains how that decision provided the impetus for the development of independent state-level religious liberty jurisprudence. Most states had simply mirrored federal free exercise precedents. But in the wake of the unpopular Smith decision, broad scale state-level action led to a marked divergence from federal law, with heightened standards of religious liberty protections becoming the norm across the states.
A similar federalism-based dynamic had occurred with establishment clause jurisprudence; the Supreme Court’s narrowing of federal standing in Hein v. Freedom From Religion Foundation (2007), combined with its acknowledgment of the role of state constitutions in Locke v. Davey (2004), means that states may be inclined to carve out their own church/state laws in reliance upon those religion provisions found in virtually all state constitutions. The picture is murky and unsettled, the future difficult to predict. The extent to which principles of accommodation or separation are likely to proliferate at the state level is unclear, given the broad variation in state religion clauses, the questionable (anti-Catholic) origins of many of those provisions, and the ease with which states might revisit how their state constitutions regulate public support for religion in the wake of the recent trend toward faith-based initiatives. This is sure to be a fascinating and important storyline to watch.
Part II uses a series of case studies to analyze the relationship between law and religion in Europe. The first set of studies focus on central and eastern Europe, with a special interest in those once-communist states where systems of church/state relations have had to be built from scratch. The second series of studies look to northern Europe, where the seemingly inexorable decline of religion has given way to a renewed interest in it. The Nordic European states have been on the front edge of a number of developments, with the rise of Islam and the role of Sharia law occurring alongside national state churches and significant changes occurring within Christianity. These developments lead Marco Ventura to characterize these states as “[laboratories] of church-state issues and solutions whose significance will be experienced well beyond the region” (p.185). In sum, the case studies in this section provide a much more nuanced portrait of religious life in Europe than the utter secularization that is commonly portrayed.
The third section of the book turns to an array of current law and religion controversies. Jeroen Temperman’s [*214] essay explores the well-intended, but ultimately misguided, efforts by the European Court of Human Rights to formalize a right to respect for one’s religious sentiments. He is critical of the European Court’s recognition of a cause of action against films, publications or other expressions that fail to “respect the religious feelings of believers” (p.217). The right not to be offended blurs the lines between mere insult and tangible discrimination that actually interferes with or does real harm to the ability to engage in religious practice itself. While Temperman does not see freedom of expression and the right to religious practice as perpetually at odds, the essay conveys the challenge of striking a proper (and workable) balance between honoring freedom of expression and protecting against the abuse of that freedom for purposes of inciting religious hatred or discrimination. It remains to be seen if the European Court of Human Rights can shed its embrace of subjective notions of insult in favor of more tangible forms of harm to religious freedom.
Several contributions explore Islamic laws and attitudes toward proselytism. These essays describe a complex web of legal arrangements that exist in those states where Islam is considered the state religion; they implicate the relationship between Islamic legal categories and international norms regarding the freedom of religion as it pertains to the right to evangelize. Those relationships range from (1) the outlawing and criminalizing of the proselytizing of Muslims (in Morocco and Algeria) to (2) the criminalizing and forbidding of apostasy – that is, the abandonment of Islam – under Islamic law (in Sudan), to (3) more permissive regimes where proselytizing is allowed as a form of religious freedom (in Pakistan). One obvious result of such laws is the deep conflict with evangelical Christian missionary movements, where proselytizing is considered a biblical imperative.
Lest one think that such legal prohibitions are characteristic only of Islamic law, Aviad Hacohen finds similar restrictions imposed by Israel to protect Judaism. Pro-Jewish institutional pressure is advanced through the investment of state resources to advance large scale conversion of citizens to Judaism, as well as through the imposition of criminal and civil disincentives to convert away from Judaism to other faiths. The context undoubtedly differs from the Islamic states. There is an existential dimension to Israeli fears of a loss of national Jewish identity as well as a perceived threat to social harmony if demographic trends were to undermine the critical mass of the Jewish population in the state. Whatever one thinks of these nationalistic and social-utilitarian justifications, it is difficult to deny the existence of real limitations on religious freedom for those not of the Jewish faith.
A handful of essays pertaining to public displays of religious symbols, clothing and jewelry raise important questions regarding the balancing of values of neutrality and impartiality, pluralism and tolerance, and respect. Elana Miroshnikova provides an interesting reflection on the public re-emergence of religious imagery in post-Soviet Russia. She places this development in the context of civil religion, observing that displays of such images may serve to positively legitimize genuinely held [*215] popular religious beliefs. However, they also may evolve into something more problematic, namely an expression of nationalistic religion that can be used by those in power for their advantage. She concludes her essay with an expressed hope that civil religion will ultimately prove supportive of democratic values and freedom of conscience in Russia.
Most of the chapters in this section are descriptive in nature, avoiding normative judgments about particular legal treatments of religion in specific contexts. One exception, for which I was grateful, was the ten Napel/Theissen contribution, a comparative study employing legal scholar Cass Sunstein’s minimalist/maximalist dichotomy to compare the European Court of Human Rights’ treatment of religious symbol claims to the approaches of the high courts of Canada and South Africa. The authors find the European Court’s protection of liberty claims to be anemic, and assert that a bolder, more maximalist assertion of the principle of religious liberty in the context of public displays of religious imagery and symbols may be necessary.
The final chapter in this section confronts one of the seminal issues in the contemporary comparative religious rights arena, the treatment by host states of a growing Islamic presence in western democracies. The French and American approaches to the presence of growing Muslim communities offer important contrasts. The French emphasis is on religious control within a neutral secular state, with the state striving to limit “the social and cultural impact of the public presence of Islam” (p.361). The greater the demand for a public or political Islamic presence, the stronger the official stance emphasizing the centrality of secularism, and secular democracy’s attendant civic values of participation and tolerance. This seeking after social cohesion, and its implicit view of publicly manifested religion as incompatible with that, stands in stark contrast to the U.S., where religiously derived public behavior is not only allowed, but often encouraged. Author Andrea Pin characterizes the European approaches to Islam as variations on the model of religious control in favor of a neutral secular approach, while the U.S. “cultivate[s] connections between religious affiliations and shared life in society” (p.367) Pin lauds the latter approach as a more constructive approach, allowing Muslims to retain their Islamic identities even as they are better assimilated into American life and politics.
Much more could be said about other contributions to the volume. But let me offer several comments on the quality of the publication. The ICLARS has already hosted its second conference in Santiago, Chili in 2011 centered upon the subject of religion and constitution. I assume (and certainly hope) that a volume based on those proceedings is in the works. If so, remedying several weaknesses in the original volume could lead to a much-improved product. One problem is simply the caliber of the writing, which widely fluctuates from chapter to chapter. Numerous chapters were plagued by grammatical errors and clumsy sentence and paragraph construction. In several instances, these problems were serious enough to obscure the meaning of the author’s discussion. In short, the volume (which is published in English and presumably not the native tongue of many of the [*216] contributors) would have benefitted greatly from a much firmer and more careful editorial hand.
My other gripe relates to the lack of a clear and coherent structure to the book. This is a challenge for any multi-author volume, but especially so in a book with thirty essays that cover as broad and varied a topical range as does this one. On one level, the lack of coherency is not a large problem. This book will have value on my shelf as something of a reference book, in which I can pick and choose isolated essays or topics as I like. However, the book’s value could have been enhanced by a concerted effort to identify major themes around which to organize the book. Each of the three sections of the book has its own introduction, but they are almost perfunctory. As a relative newcomer to the comparative study of law and religion, I would have appreciated the inclusion of book-end essays that might have culled out major questions or expanded on common strains running through the essays. Alternatively the editors might have opted for a more narrowly focused book, identifying the most prominent themes of the conference and taking a more selective approach to inclusion of essays in the published volume. These frustrations notwithstanding, I laud the formation of the ICLARS and their decision to publish their proceedings, and anticipate the results of the religion and constitution conference.
Employment Division of Oregon v. Smith 494 U.S. 872 (1990).
Hein v. Freedom From Religion Foundation 551 U.S. 587 (2007).
Locke v. Davey 540 U.S. 712 (2004).
Copyright 2012 by the Author, David K. Ryden