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    Little, David 2016. LAW, RELIGION, AND HUMAN RIGHTS: SKEPTICAL RESPONSES IN THE EARLY TWENTY-FIRST CENTURY. Journal of Law and Religion, Vol. 31, Issue. 03, p. 354.



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Not so very long ago, the idea of religious freedom enjoyed all the self-evident virtue of a Norman Rockwell painting. Sure, Americans disagreed about what it meant in practice, leaving their Supreme Court to hash out the details. Still, however Americans differed in their religious beliefs, they espoused religious freedom and insisted that it cannot be government's job to promote any one religious sect over others or coerce anyone's conscience in religious matters. “If there is any fixed star in our constitutional constellation,” thundered Supreme Court Justice Robert Jackson in 1943, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”1 For a time, this consensus seemed poised to embrace the entire world. When in November 1949 Eleanor Roosevelt proudly held up for public view a poster-size copy of the Universal Declaration of Human Rights, including its article on “freedom of thought, conscience and religion,” one might have been forgiven for thinking that all the peoples of the earth were ready to follow her matronly instruction.2

Not so very long ago, the idea of religious freedom enjoyed all the self-evident virtue of a Norman Rockwell painting. Sure, Americans disagreed about what it meant in practice, leaving their Supreme Court to hash out the details. Still, however Americans differed in their religious beliefs, they espoused religious freedom and insisted that it cannot be government's job to promote any one religious sect over others or coerce anyone's conscience in religious matters. “If there is any fixed star in our constitutional constellation,” thundered Supreme Court Justice Robert Jackson in 1943, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” 1 For a time, this consensus seemed poised to embrace the entire world. When in November 1949 Eleanor Roosevelt proudly held up for public view a poster-size copy of the Universal Declaration of Human Rights, including its article on “freedom of thought, conscience and religion,” one might have been forgiven for thinking that all the peoples of the earth were ready to follow her matronly instruction. 2

Doubtless this consensus about religious freedom had limits. Like Norman Rockwell paintings, the postwar American consensus on religious freedom often left in shadow the dissonances of American life. Still, the consensus was real and lasted remarkably long in both popular culture and intellectual discourse. Americans could distinguish hypocrisy in the practice of religious freedom from the principle of religious freedom and indeed deployed the principle to identify the hypocrisy. Such was true at least through the 1990s, which saw overwhelming bipartisan support in the US Congress for the Religious Freedom Restoration Act (1993) as well as the International Religious Freedom Act (1998). 3 Yet, in just a few short years, this placid consensus has given way to roiling controversy about the wisdom, virtue, and even the coherence of religious freedom in principle. Once a self-evident truth, religious freedom is now subject to the deepest deconstructionist suspicion.

Contributing to this suspicion is an emergent phalanx of intellectuals. They inhabit Western universities and swim in their prevailing currents, among these a relentless invocation of “difference,” a strong suspicion of Western assertions of universality, and a revulsion against the imposition of Western values on non-Western peoples. Religious freedom is a perfect target for these antipathies. Far from being universal, they argue, religious freedom is the product and the agenda of one culture in one historical period: the modern West. And in the West it should stay—and be kept under strict surveillance.

These scholars refer to religious freedom advocacy as an “industry,” but they have fashioned quite an industry of their own, setting forth their critique in an online forum, 4 special issues of academic journals, 5 op-ed pieces, 6 as well as the three books reviewed here: a volume of essays published by the University of Chicago Press and two monographs published by Princeton University Press. Rarely is a common view of a common subject channeled so formidably into a scholarly product line.

The collective nature of their project is most conspicuous in the Chicago Press volume, the Politics of Religious Freedom, presenting twenty-seven short essays that first appeared on the blog, The Immanent Frame. The volume's title conveys its attitude: “the politics of religious freedom” means not just that religious freedom has become politically disputed but also that it is little more than politics: a projection of ideology, an interest of factions, a colonial and imperial pursuit, in a word, power. These scholars purport to see through and behind religious freedom advocacy. For example, religious studies scholar Greg Johnson terms religious freedom advocacy “social eugenics” (Johnson, Politics of Religious Freedom, 79, 80). Upping the ante, co-editor and political scientist Elizabeth Shakman Hurd compares it to the Inquisition (Hurd, Politics of Religious Freedom, 55).

The essays bring this hermeneutic of suspicion to sundry settings, including Sudan, Sri Lanka, South Africa, early modern Europe, the colonial Middle East, and US constitutional law, concluding that religious freedom is contingent and contextual, its definition and deployment dependent on configurations of power in time and place. Above all, the United States—both its constitutional tradition and its foreign policy of religious freedom—comes under harsh scrutiny. To be fair, not all of the authors adopt this suspicion; essays by Robert Hefner, Samuel Moyn, and Nandini Chatterjee stand as at least partial exceptions. But the preponderance of the pieces share in the volume's deconstructionist aspirations.

We have here a veritable school of thought whose members we may call “the new critics of religious freedom.” Two of the four co-editors of The Politics of Religious Freedom, Hurd and anthropologist Saba Mahmood, have contributed monographs to this school. In Hurd's Beyond Religious Freedom: The New Global Politics of Religion, she explains that an “industry” of Western religious freedom advocacy—reacting against religion's prior marginalization by secularization theory—zealously promotes “good religion” in the form of religious freedom, peace, conflict resolution, minority rights, and reconciliation, and demotes “bad religion” in the form of terrorism, intolerance, and repression. While the industry presumes that religious freedom is ahistorical and universally good, what it exports is in fact a highly particularized religion emanating from the modern Christian West.

This version of religious freedom and of religion are promoted by “self-appointed public experts on religion”—scholars, think tanks, development officials—and may be called “expert religion” (Hurd, Beyond Religious Freedom, 30). Once governments and international organizations undertake to promote expert religion, they endow it with power and it becomes “governed religion.” When exported, however, expert and governed religion come into conflict with—but also partially construct—the “lived” religion of ordinary people. This export generates various ill effects, Hurd charges. The exporters wrongly assume that religion is the sole source of strife and injustice and that religious freedom is the sole solution, and in their monistic zeal they incentivize people on the ground to conform to their version of religion and “exclude” and “marginalize” religious forms that fail to do so.

Mahmood, an anthropologist, focuses her book, Religious Difference in a Secular Age: A Minority Report, on one country, Egypt. Egypt was also the site of the 2005 book that established her academic reputation, The Politics of Piety. 7 By studying a women's urban mosque movement in Cairo, she came to question her erstwhile Westernized feminism and its suspicion of religion, discovering that devout women in traditional roles were at the same time ardent constructors of the world around them.

More audaciously, though, Mahmood insisted that all ethics is local. 8 In her piece in The Politics of Religious Freedom, she elaborates that Westerners should refrain from asserting their views as universal in matters not only of sex and gender but also of religious freedom. Religious freedom is a bulwark of the West, where it is “widely regarded as a crowning achievement of secular-liberal democracies” (Mahmood, Politics of Religious Freedom, 142). Westerners believe themselves to be civilized and tolerant while the Muslim world is “afflicted with the ills of fundamentalism and illiberal governments” (Ibid.). Religious freedom “means very different things to different groups,” pointing to the Middle East as a site where religious freedom has historically found multiple and conflicting meanings (Ibid., 146).

Mahmood opens her current book, Religious Difference in a Secular Age, by noting that “[o]ver the last few decades, the Middle East has emerged as the site of an unprecedented increase in violence between Muslims, Christians, and other religious minorities” (1). She alludes to a wide range of minorities but focuses on Coptic Christians and, to a lesser extent, Bahá’is. While Westerners account for this strife through Islam's propensity for violence and intolerance, Mahmood offers a different explanation: the Western secular state. Westerners may imagine the secular state as promoting freedom, equality, and minority rights in matters of religion, but they fail to perceive the secular state's pervasive management and shaping of religion, an exercise of dominance that undermines freedom and toleration, indeed “hardening interfaith boundaries and polarizing religious differences” and begetting new forms of exclusion, hierarchy, inequality, and difference (Mahmood, Religious Difference, 1–2).

Contemporary religious tensions, then, can be traced back to the secular state, which, Mahmood tells us, comprises five features: political and civil rights, religious liberty, public order, minority rights, and the legal distinction between public and private (Ibid., 11). In various chapters, she makes the case that the secular state, bundling these features, accounts for Western colonial strategies of controlling Egypt during the Ottoman period; the maltreatment of Coptic Christians today; the propensity of family law to breed interreligious conflicts and gender inequality; the oppression of Bahá’is; and a cultural controversy between Coptic Christians and Muslims over a 2008 novel.

What are we to make of the new critics? Let us summarize and examine their critique of religious freedom through four propositions.

The first is that religious freedom is so variable and contingent across historical time and cultural context that it lacks any universal normative force, much less any coherent and stable meaning and substance across contexts. “Religious freedom” (notice the scare quotes) cannot be anything but someone's parochial version of religious freedom and cannot name a single, stable principle of justice or pattern of treatment to which all human beings have a right.

The new critics roundly reject the venerable tradition of thought and practice that the human rights conventions encapsulate. This tradition, with roots both modern and ancient, construes religious freedom as a claim that all human beings justly assert, simply by virtue of their humanity, to an immunity from coercion in religious matters. Religious freedom, in this tradition, possesses three core features. The first is universality. Religious freedom names a moral intuition that applies to all: no one's engagement with religion and religious questions (including that of the non-religious) should be subject to arbitrary coercion by someone else. The second is that religious freedom is an essentially negative and therefore modest principle. Religious freedom is more proscriptive than prescriptive—an immunity, a negative liberty, a freedom from. The third is that religious freedom is presumptive, not absolute. It is limited by other basic human rights and sometimes aspects of public welfare, though coercion always carries a strong burden of justification. 9

This concept of religious freedom the new critics judge to be incoherent, shifting, and parochial. One reason for this judgment is their view that the very concept of “religion” is an invented category lacking any stable meaning across time and place. Partly drawing on an increasingly influential school of thought in religious studies, 10 they make two central claims.

The first is that the analytical category of “religion” is radically diverse and its uses across history incommensurable. There is no stable referent, no common phenomenon, that third-party observers can identify as “religion.” Religion is not a meaningful genus that encompasses a set of species that are both different yet possessing a generic quality. What we in fact confront in the world, as Hurd describes in Beyond Religious Freedom, is “a diverse, shifting, and multiform field of lived religious practice” (6).

The second claim is more political: the modern Protestant West invented “religion” as a generic category—centering on individualism, interiority, and creed—and then imposed it on the world's “multiform” religious fields. In doing so, the new critics argue, the West did not merely commit an intellectual mistake but also pursued a hegemonic project. Haunted by its own experience of religious irrationality and violence in early modern Europe, the modern Protestant West created and defined religion as a distinct and discrete phenomenon in order to separate it from politics and subordinate it to political control. “Religion” is not something objective, isolable, and analyzable, nor a neutral, analytically illuminating category, but rather a distorting projection. “It is only with the rise of religion as a generic category following the Protestant Reformation,” Hurd argues, “that religion became legally available as a stand-alone category, both domestically and internationally” (Hurd, Beyond Religious Freedom, 19). This modern construct of religion assumes that all authentic religion by definition must be some version of Protestantism—a compartment of human reality separate from other spheres of human life that consists chiefly in an individual's interior belief in a creedal package of theological propositions. Attendant is the normative expectation that religion ought to be privatized and domesticated, confined to its proper and strictly spiritual domain.

These claims are not without merit. Superficial and incomplete attempts to categorize and analyze religion have abounded, many of them reflecting the prejudices of the modern male Western Protestants who have played a disproportionate role in launching and developing the modern academic study of religion, including in the United States. 11 True also, ambitious political authorities exerted unprecedented forms of control amidst the political and religious turmoil of early modern Europe, as we discuss below.

Yet, the proposition that “religion” is an impossibly variable category hopelessly tainted and distorted by its association with Protestant modernity is a gross oversimplification. The new critics decry the hegemony of the modern, Western, Protestant concept of religion but then proceed to reason as if this is the only version that has been propounded across history or available today. With breathtaking confidence, Hurd refers to “the construct of religion,” “the category [of religion],” and this construct's single “long genealogy”—as if religion has but one, easily identifiable family tree, traceable to an exclusively post-Reformation Western parentage (Hurd, Beyond Religious Freedom, 19; our emphases). Consequently, she and her fellow new critics persistently obscure longer and more complex histories of “religion” and “religious freedom” that predate the modern West and fail, therefore, to match their one-dimensional historical narrative.

It is true that scholars and other thoughtful observers have defined and conceptualized religion in dozens of different ways across cultural space and historical time. 12 This diversity, though, is far from an intellectual blur and on close inspection buttresses the claim that religion represents a genuine, transcultural, if elusive human phenomenon. Consider that Cicero, Lactantius, Augustine, and Aquinas on one hand, and the great modern scholars of religion Mircea Eliade and Martin Riesebrodt, on the other, defined religion in different ways, reflecting different standpoints, yet commonly viewed religion as a set of practices directed toward the veneration of, and participation in, a sacred realm inhabited by gods or God. The understanding of religion that they share—viewed neither as individualist, nor interior, nor privatized, nor belief-oriented—has exercised a powerful and enduring influence in the history of the West and enjoys strong parallels outside the West. Classicist Robert Wilken notes that throughout the history of the Christian West, including in early modern Europe, religion has been consistently understood not as a mere matter of conscience or belief but also centrally as a matter of public “exercise.” 13 Religion, in other words, cannot be reduced to a single construct with a single, politically driven genealogy.

Despite the new critics’ claims that religion is hopelessly indeterminate and that the West has foisted a univocal construct on an unwilling world, they often reason as if they do not believe these claims. Hurd's own critique of the constructs of “expert” and “governed religion” presupposes that there are genuinely “lived” or “everyday” religious phenomena that are distinct, identifiable, and not pure constructs imposed from above. Throughout Beyond Religious Freedom she makes claims such as the following:

Religion does not stand outside or prior to other histories and institutions. Religious practices unfold amid and are entangled in all domains of human life, forms of belonging, work, play, governance, violence, and exchange. Religion cannot be singled out from these other aspects of human experience, and yet also cannot simply be identified with these either. (7)

If religion is entirely indeterminate, such claims are unintelligible. They can only be proffered by someone who is fully confident that she can name and understand “religion” and “religious practices” in ways that are superior to prevailing understandings and that penetrate the false boundaries and distinctions other analysts erect between religion and non-religious phenomena.

Now Hurd is aware that her attempt to argue for religion's indeterminacy even while insisting on religion's definability in her terms puts her in a precarious intellectual position. As she puts it,

[T]o distinguish between official and lived religion … is to risk reifying and romanticizing lived religious practice. There is tension between the claim that religion is too unstable a category for government management and the simultaneous insistence on the importance of lived religion as standing apart from official or expert religion. … There are no clean lines. … The challenge … is to constantly problematize a clean juxtaposition between everyday and official religion even while relying on these distinctions as heuristic devices that allow us to ask new kinds of questions, pressing the field in new directions. (Hurd, Beyond Religious Freedom, 13)

In the next sentence Hurd proudly names and claims this precarious intellectual position as a “productive paradox” (Ibid.). In fact it is a dodge. Hurd and her fellow new critics raise a great hue and cry about the sheer indeterminacy of religion and its consequent vulnerability to political manipulation. However, the details of her argument demonstrate that she cannot accept the proposition that religion is completely indeterminate after all. More plausibly, what she believes is that it is possible in principle to grasp and identify religious phenomena in a more accurate, disinterested, and nonpoliticized way.

What Hurd claims to be “tension” is in fact a contradiction. By pretending that she inhabits a “productive paradox” she escapes responsibility for declaring and describing her own definition and conception of religion and how we can more accurately distinguish “everyday” religion from “official” religion imposed from above. She retains the cool pose of a Foucauldian deconstructionist, seeing indeterminacy everywhere, while evading the burden of owning up to her own definitional assumptions and commitments. But she cannot have it both ways. Religion is either a purely indeterminate and variable construct untethered to any transcultural human reality, or it is not.

The fact that realism about religion ultimately slips through Hurd's Foucauldian fortress is a strong argument for the indispensability and viability of religion as a general analytical concept. 14 Underlying the analysis of the new critics is the valid intuition that religion, however imperfect a moniker, names a genuine, if difficult to pin down, phenomenon. It can be named and described, though always inadequately. It can appear in forms that resist repressive political and religious frameworks imposed by “experts” and “governors,” though it is always vulnerable to political manipulation. It can be singled out for analysis, though it is never neatly isolated but always intermixed with other human phenomena, much the way an element such as oxygen can be conceptually singled out for analysis even though it is never found in nature in complete isolation but always intermingled with other elements. The views of the new critics themselves, then, commit them to the proposition that religion is not a hopelessly variable muddle of indeterminacy. 15

A second major proposition of the new critics is that power and interests have driven the modern West's invention and global diffusion of its peculiar constructs of “religion” and “religious freedom.” This is the underlying explanation for the allegedly shifting, variable, and always parochial quality of religious freedom: particular instantiations of religious freedom reflect the powers that be in the given context. Echoing Thrasymachus in his debate with Socrates about justice, the new critics claim that religious freedom is merely the interest of the stronger. But our present-day skeptics speak not ancient Greek but a language more widely known in today's academy—“post-modernist, post-Foucauldian, post-colonial” deconstructionism, or “Pomofoco,” as religion scholar Jacques Berlinerblau terms it. 16 Reading the new critics, one wishes for a Foucauldian-English dictionary to translate terms such as “marginalize,” “privilege,” “projects,” “constructs,” “authorize,” “discourses,” “surveillance,” “problematize,” and “technologies of power.”

In plain English, the new critics’ argument is that Europe's powerful, modernizing, and centralizing states invented religious freedom and imposed it first throughout the West and then on the Rest. Religious freedom was and is a technology of control and domination. Stripped of its Foucauldian husk, the argument contains a kernel of historical truth. The modernizing states of early modern Europe sought to expand their control over religion and aggressively deployed new ideas and institutions to accomplish the task. The difficulty, however, is that the new critics provide no evidence we are aware of that these states and their architects fashioned or deployed religious freedom or religious toleration per se as weapons of this control. There is plenty of evidence that they imposed what is known as Erastianism—state control of a national church accompanied by the suppression of unruly non-conformists. There is plenty of evidence that they promoted unitary religious nationalisms. 17 But we are not aware of any evidence that they used concepts of religious freedom or related concepts of liberty of conscience and religious toleration to advance their hegemonic political ends.

Much evidence, in fact, runs quite to the contrary. The most conspicuous advocates for hegemonic statism and religious control in early modern Europe not only did not deploy or invoke “religious freedom” or closely related concepts like “religious toleration” or “freedom of conscience” but were openly hostile to them. Thomas Hobbes inveighed against “conscience” and its claimed liberties, blaming such seditious presumptions for the English Civil War. 18 Hugo Grotius, as a member of the administrative apparatus of the United Provinces until 1619, advocated for an Erastian policy of almost perfect state control over religious life, subordinating liberty and claims of conscience to the demands of peace and political stability. 19 French king Louis XIV revoked the tolerationist Edict of Nantes in 1685, at the height of his unitary nation-state construction, while Queen Elizabeth I of England built the apparatus of her state while persecuting Catholics and Protestant dissenters. Generally speaking, religious freedom and religious toleration were not deployed as instruments of modern nation-state construction in early modern Europe but were opposed and eviscerated—often explicitly and savagely—as an obstacle to it. 20

Not only did the powerful abjure religious freedom, but it was the powerless who espoused it. Religious freedom and religious toleration made their most conspicuous appearances in early modern Europe on the margins of, or in direct (and often futile) opposition to, centers of political and religious power, including centralizing states. Consider the examples of Bartolomé de las Casas, Roger Williams, John Locke, and Pierre Bayle, all of whom introduced or developed arguments for religious freedom from positions quite distant from centers of political power, including physical exile and often a standpoint of direct and public opposition to established authorities. 21 Some of the most consistent advocates of robust religious freedom throughout the sixteenth and seventeenth centuries were Mennonites, Anabaptists, and Baptists, among the most persecuted sects of the entire period. Ambitious states as well as established clerics perceived such advocacy as an intolerable challenge, not as an aid, to their power and exclusive authority. If absolutely necessary, they accommodated demands from below for toleration and freedom; whenever possible, they resisted, quashed, or conceded them only in part. Indeed, early modern Europe was characterized by an inverse relationship between proximity to political power and advocacy of robust religious freedom.

A much wider historical perspective confirms that religious freedom has far more often been a weapon of the weak than a technology of the strong. It was arguably the early Christian church fathers Tertullian and Lactantius who invented religious freedom in the second, third, and early fourth centuries—a period when the early church was least powerful and most persecuted. Over the course of history, religious freedom has been a “loser's creed” far more often than a path to power. 22 This explains why robust and impartial religious freedom has been so rare and so fragile across human history. If religious freedom were a clear path to hegemonic power and control, why do we not see more governments pursuing it but instead a world in which some three-quarters of the world's people lives in countries whose regimes severely restrict religious practice, as the Pew Research Center reports? 23 The fact that religious freedom empowers vulnerable minorities and breaks the political and religious monopolies of established majorities explains why instituting religious freedom often requires highly unusual conjunctions of circumstances. As political scientist Anthony Gill shows, for instance, the gradual acceptance of religious freedom in early America arose from the intense competition between the colonies (and later states) for trade and industrious immigrants and the desire to attract the support of Catholic France in the struggle for independence, both of which required adjusting prevailing attitudes and policies concerning the toleration of “nonconforming” Protestant sects and Catholics. 24

So it was then and so it is today. In a world in which large numbers of people suffer from arbitrary and often grotesque restrictions and violence at least partly because of their religious identity and practice, religious freedom and religious freedom policies are of little interest to the powerful, including, increasingly, the government of the United States. There just is no vast religious freedom conspiracy—or “industry”—circling the globe. Though Hurd and Mahmood suggest that religious freedom is constructed to benefit powerful interests, including the most orthodox and established, rather than heterodox and dissenting, religious groups, the truth is the reverse. Tiny, unusual, and often heterodox sects such as Ahmadis, Bahá’is, Yazidis, and Chaldean Christians have suffered some of the most horrific religious persecution the world has seen in recent years, have clamored for redress and protection and a modicum of religious freedom in response, and have—rightly—won disproportionate (though still modest) attention from various governmental and nongovernmental religious freedom agencies.

Little glory and no power or material reward accrue from advancing the interests of such tiny communities, however, so foreign policy organs promoting their religious freedom remain much like the groups they focus on—isolated and marginal. A reader of the new critics might be surprised to learn that the highest office in the United Nations infrastructure devoted to religious freedom, that of UN Special Rapporteur on Freedom of Religion or Belief, is an entirely unpaid, part-time position, with few resources and almost no support staff. Another important Western religious freedom agency, Canada's Office of Religious Freedom, got the axe in spring 2016, having been in existence only three years.

Buttressing the new critics’ claims about universality and power is their historical claim, which amounts to the third proposition: modern religious freedom is a product of particular developments in Western history, especially the Protestant Reformation and the secularization that followed in its wake in the Enlightenment period. Through this historical narrative, the new critics seek to demonstrate that religious freedom is Western, not universal, and to set the stage for arguing that the West has exported religious freedom in imperialist fashion.

The guru of this narrative, on which Hurd, Mahmood, and other new critics rely, is anthropologist Talal Asad, who in turn relies heavily on Foucault. On a first encounter with Asad's thought, one imagines he might be sympathetic to religious freedom. He strongly criticizes modern secularism, which marginalizes religion through the rationale that religion is baneful when it enters the political sphere and benign only if it remains private. But Asad turns out to be no friend of religious freedom, which he believes emerged from the same historical forces that gave the world secularism. Chief among these forces was the Protestant Reformation, which birthed a new meaning of religion into the world. Whereas religion was once about rituals, practices, and embodied community, now it stressed an individual's belief and the sincerity of his faith, which amount to a “purely inner, private state of mind, a particular state of mind detached from everyday practices.” 25 Pivotal for Asad was John Locke, who, trading on this concept of religion, argued that religion could not be coerced and that the political realm ought to be one of religious toleration.

Enlightenment philosophers took a giant stride towards a more secular understanding of politics. They affirmed the civil right of religious freedom and the widening of the separation of religious and political authority but they also looked upon religion much more skeptically as a fissiparous force, a wild animal that needed to be leashed. It was their view that religion ought to be private and that secularism was the lingua franca for matters public, Asad believes, that ushered the modern state onto the historical stage.

Asad criticizes modern secularism for proclaiming itself universally valid while in fact its views of religion and of the relationship between religious and political authority are but parochial constructs. Evident here is Foucault's imprint. “The meanings of religious practices and utterances … are to be explained as products of historically distinct disciplines and forces,” Asad writes. 26 Worse, the West has sought to export its parochialism through colonialism. It is from this standpoint that Asad looks upon religious freedom as a feature of the Protestant-secular pathway to the modern world. Asad concludes a recent essay by declaring that when the West foists the secularism of its own version of democracy on peoples who view religion differently, it violates democracy's spirit of listening and inclusivity. 27

Hurd doubles down on Asad's harsh judgment of religious freedom. Religious freedom, she charges in her Politics of Religious Freedom essay, privileges Protestant forms of religion and leaves others out; subordinates religions in which inward belief is not central; “endows … authorities with the power to pronounce on which beliefs deserve special protection or sanction”; and “globalizes the secular state's power over the individual” (54). Several other contributors to The Politics of Religious Freedom and to other forums involving the new critics, including Sullivan, Sherwood, Keane, co-editor and legal scholar Peter Danchin, and philosopher Robert Yelle, reason similarly about the Western, Protestant, secular provenance of religious freedom and its resulting exclusivity (see, for example, Danchin, Politics of Religious Freedom, 242–43, 250–52). 28

The new critics’ case rests on this historical narrative. It provides the genealogy for how religious freedom became tethered to a Protestant notion of religion as inward, private ideas and how these notions became part and parcel of the modern secular state. All of these elements, bundled and bound into a seamless package—to which Mahmood adds minority rights and the public/private distinction—are what the West has sought to export for some three centuries. Is the narrative compelling?

Indisputably, Protestant reformers sought to scrape what they saw as the barnacles of ritual, hierarchy, and superstition from the hull of the Christian church in order to disencumber the free commitment of the individual believer. Doubtless, the Western sovereign state has accrued power and authority over and at the expense of religion steadily from the sixteenth century onwards. True as well, it was Protestant and Enlightenment thinkers who first articulated religious freedom in the modern West in a version that favored individual, private belief and was not extended to other forms of religion. Locke, for instance, did not allow toleration for Catholics, atheists, and Muslims.

Yet, the new critics’ claim that religious freedom is tightly bound to Protestant, privatized religion and the secular state—and is thus an exclusively Western idea that can only be imposed on the rest of the world—is riddled with difficulties. We find seven in particular. The first of these difficulties is Protestantism without religious freedom. Among early modern Protestant political theologies, those proposing religious freedom were outnumbered by those that did not. Martin Luther and John Calvin both advocated, and in Calvin's case, personally oversaw, the burning of heretics. Yes, as we note above, some Protestants (mostly those on the receiving end of persecution) pressed for religious freedom in early-modern times, but other Protestants—Bismarck in Germany, Anglicans in England—advocated its sharp curtailment well into the nineteenth century. 29

A second difficulty is the Enlightenment without religious freedom. While the new critics rightly stress that religious freedom in Enlightenment thought was biased towards the Protestant notion of religion, the same insight undermines their claim that religious freedom was bound up in the emergent secular state. If the regime that Enlightenment thinkers envisioned was capable of brutally denying religious freedom as much as promoting it, then it is far too simple to say that religious freedom was part of a “secular state package” that was then imposed on the rest of the world. Denis Diderot—whom religious studies scholar Yvonne Sherwood connects with the invention of religion as belief (Sherwood, Politics of Religious Freedom, 29–32)—is associated with the quip that “[m]an will never be free until the last king is strangled with the entrails of the last priest.” 30 The French Revolution enacted Diderot's script by emancipating Jewish and Protestant individuals while beheading resistant Catholic priests.

A third difficulty is the West without religious freedom. Since the Enlightenment, Western institutions have ranged greatly in their respect for religious freedom. The United States Constitution's First Amendment was a landmark for religious freedom and opened America's gates not only to Protestants who were not tolerated elsewhere, including Amish, Mennonites, and Seventh-Day Adventists, but also to Muslims, Mormons, Jews, Catholics, Bahá’ís, Buddhists, and many others. The liberal republican legacy of the French Revolution yielded harshly anti-clerical regimes in France, Italy, Mexico, and many Latin American countries. Meanwhile, the religion of the clerics, the Catholic Church, comprising the majority of West Europeans and Latin Americans, did not fully embrace religious freedom until 1965, when the Second Vatican Council promulgated Dignitatis Humanae. Communist Soviet Union and Nazi Germany, both Western regimes, carried out history's greatest denials of religious freedom. To say that the West imposes its religious freedom around the world, then, is to imagine a West far more monolithic than the one that has existed.

A fourth difficulty: religious freedom prior to Protestantism and the Enlightenment. Jarring to the Asad narrative is the appearance of the precise concept of religious freedom centuries before Western modernity. Scholars such as Robert Wilken, Elizabeth DePalma Digeser, and one of us (Shah) have pointed to the concept in early Christian thinkers, whose articulation of religious freedom could not have rested on anything like the Reformation's allegedly privatized vision of religion. 31 Tertullian was almost certainly the first person in history to use the phrase “religious liberty” [libertas religionis], and precisely in the sense of freedom from arbitrary religious coercion, in his Apology of 197 CE, some 1,300 years before the European Reformation and some 1,500 years before the European Enlightenment, and his premodern articulation laid a conceptual cornerstone that would prove formative for Western thought. 32

A fifth difficulty: religious freedom outside of Protestantism and the Enlightenment. The Buddhist emperor Asoka urged religious toleration in India in the third century BCE in his edict that one should refrain from “condemning the religion of others without good cause.” 33 Religious freedom drove the moral drama in the deuterocanonical First and Second Books of Maccabees, in which Jews rebelled against King Antiochus in the second century BCE, whose Hellenizing policies sought to coerce religious and cultural uniformity. Consider, too, Sophocles's Antigone, in which the heroine defies Creon's unjust decrees—decrees that are unjust chiefly because they impose a kind of religious coercion by preventing the fulfillment of a central, binding obligation of piety. The church father of the late second century, Irenaeus, declares, “there is no coercion with God, but a good will [towards us] is present with Him continually.” 34 The fourth-century father Lactantius, influenced by Tertullian, thunders that religion “cannot be coerced. It is a matter to be dealt with by words not by blows. For it has to do with the will.” Significant, too, is the fact that the vast majority of the nearly 2,500 bishops from around the world who gathered for the Catholic Church's Second Vatican Council (1962–65) concluded their months of deliberation on religious liberty with a declaration, Dignitatis Humanae, that revolves around the simple proposition that “all human beings ought to be immune from coercion” in religious matters. 35 Finally, consider the famous injunction of the Qur'an: “Let there be no compulsion in religion.” 36 Religious freedom has never been consistently, much less irrevocably, intertwined with the Protestant religion.

A sixth difficulty is religious freedom articulated far more widely than the Protestant notion of religion, as it is in the human rights conventions. Hurd (Beyond Religious Freedom, 60–61) and Mahmood (Religious Difference, 48–50) each associate the modern human right of religious freedom with the Protestant notion, but the conventions protect religious freedom in both belief and in practice and in both its individual and collective dimensions. This is true for the Universal Declaration of Human Rights of 1948, the International Covenant on Political and Civil Rights of 1966, and, most of all, the 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, which protects a remarkably wide array of dimensions of religion. 37 Today, religious freedom advocates strenuously resist, rather than draw upon, the reduction of religion to beliefs or ideas.

And, finally, the seventh difficulty: the new critics’ mischaracterization of Protestantism. While “stripping the altars” was certainly a feature of the Reformation, Protestant churches retain ritual, hierarchy, and a stress on “good works” seen as flowing from faith. This varies among Protestant churches, which number at least six major international bodies and literally thousands of small and independent denominations, whose styles differ from one another as much as any differ from the Catholic Church. A high Anglican church outdoes most Catholic churches in its liturgical elaborateness, while Pentecostal churches have rituals of their own, albeit informal ones. Naturally, then, Protestant claimants of religious freedom demand far more than freedom of belief.

All of these problems point to the conclusion that religious freedom is not simply the upshot of an allegedly Protestant religion of private, inward belief or the product of modern Western history. Ironically, the new critics end up creating exactly the sort of binary that they decry—the West versus the Rest—even though binaries and essentialism are the unforgivable sins of postmodern intellectuals. Their arguments contain too little and too much diversity. Too little, because the bifurcation of the world into the West and the Rest fails to allow that there are and have been both proponents and opponents of religious freedom in every religion and every part of the world—including the West—both prior to and during modern times. Too much, because religious freedom extends far more widely over time and place than they allow. The simple truth obscured by the ideologically charged and often overheated Foucauldian arguments of the new critics is that the minimalist moral intuition of religious freedom as religious noncoercion, far from being parochial or peculiar to the modern West, enjoys a widespread resonance across history and across cultures.

Following from the three previous propositions is the new critics’ fourth proposition, a prescription for action: Westerners ought not to export religious freedom. Especially nettlesome to them is the International Religious Freedom Act (IRFA) 38 that the US Congress passed in 1998. Advocated by a coalition of religious leaders and activists who were convinced that the persecution of religious minorities is one of the largest and yet most overlooked human rights violations in the world today, the law mandated that the US government monitor, report on, and apply leverage on behalf of religious freedom. More recently, other Western democracies have incorporated religious freedom into their foreign policies in one way or another, including the United Kingdom, Austria, France, Germany, Italy, the Netherlands, Norway, the European Union, and Canada (which recently reversed course). A cover for power, the new critics call the American version. IRFA “must be placed within [a] long geopolitical history in which Western powers have often violated the principle of state sovereignty under the guise of promoting religious tolerance,” Mahmood opines in her essay in Politics of Religious Freedom (145). The law resulted from the growing power of the Christian Right, Danchin avers. 39 Hurd reasons similarly about Western religious freedom policies in Beyond Religious Freedom (37–38).

Both Hurd and Mahmood argue in their new monographs that religious freedom policy worsens religious divisions, violence, and inequality in sites where Western powers apply it. Do they recommend the repeal of religious freedom policy? Each equivocates. Hurd writes in her preface that “my intention is neither to judge individuals or local groups who choose to make political claims in the language of religious freedom, nor to undermine local groups working to oppose violence and discrimination” (Beyond Religious Freedom, xii) and that “those in search of a policy prescription … may be disappointed in this book” (20). Mahmood is careful to state that she does not reject religious freedom or wish to abandon the principle of state neutrality toward religion (Mahmood, Religious Difference, 20).

Yet Hurd asserts her wish to tell a “different story” that “undermines the assumption that the solution to dilemmas of governance lies in the globalization of freedom of religion, government engagement with faith communities, and legal protection for religious minorities”; invites the reader “to catch sight of a world beyond religious freedom” (Beyond Religious Freedom, 20); again, likens religious freedom to the Inquisition in her Politics of Religious Freedom essay; and, in a blog post of November 2014, compared religious freedom advocacy to ISIS, allowing that “they cannot be equated” but insisting that they “share more in common than either would care to admit.” 40 Mahmood, for her part, devotes Religious Difference in A Secular Age to showing the forms of violence and exclusion that the secular state creates. In her piece in Politics of Religious Freedom, she writes that “it behooves us to rethink the global good [religious liberty's] advocates often promise to all peoples of the world” and questions whether it is possible to separate religious freedom policy from “the exercise of geopolitical domination, interests, and power” (Mahmood, Politics of Religious Freedom, 147–48). Were Hurd's and Mahmood's thinking to become widely shared among influential political leaders, religious freedom policy's days would be numbered.

Like all policies, religious freedom admits of controversies: Should it be pursued unilaterally or multilaterally? Should it be isolated as a human rights policy or incorporated into the high politics of alliance, diplomacy, and counterterrorism? Have religious freedom policies succeeded in improving religious freedom around the world? All are fair questions. But does the record show that these policies have performed the perniciousness that Hurd and Mahmood claim?

Hurd's and Mahmood's claims that religious freedom has fomented strife, division, and exclusion are causal ones. Neither author, however, supports these claims through methods of causal analysis—controlling for alternative causes, providing connecting evidence, and the like. In Beyond Religious Freedom, Hurd discusses several cases where Western religious freedom policy and religious engagement allegedly made matters worse but provides scanty proof. She charges the “international community” with worsening the plight of the Rohingya Muslim community in Burma, yet offers no empirical account of who the “international community” is, what policy they applied, or how the Rohingyas suffered from such a policy (Hurd, Beyond Religious Freedom, 42–47). Mahmood provides a similarly loose history connecting Western colonial policies in the nineteenth and early twentieth centuries with religious tensions in Egypt today. She accords only passing attention to two major alternative explanations for these tensions located in Egypt in the middle twentieth century. One is a massive Islamic revival. The other is the imposition of a repressive secular state under Gamal Abdel Nasser—a Western-inspired secular regime, and not one that promoted religious freedom with detrimental effects but rather one that did not promote religious freedom at all. Together, Islamism and repressive secularism, far more than the imposition of rights for religious minorities, have rendered Egypt one of the most religiously repressive regimes in the world. 41

In Hurd's book, many of the policy failures she describes appear to result from an insufficient rather than an overzealous commitment to religious freedom: aid to refugees in the Western Sahara, US policy towards the K'iche’ people in Guatemala, and the Turkish government's treatment of Alevis. More deeply, Hurd's and Mahmood's constant charges of exclusion, marginalization, and inequality give rise to the question, according to what principle? In fact, their charges presuppose autonomy, equality, full citizenship, and other Enlightenment values, including religious freedom—the very principles whose perniciousness they decry.

Finally, the new critics’ characterizations of US religious freedom policy run afoul of historical reality. While evangelicals were instrumental to initiating the momentum for IRFA, it was an interreligious coalition that included Muslims, Mormons, and Jews that achieved the passage of the law in 1998. Since then, the implementers of the policy have worked assiduously to bring attention to the persecuted from a wide array of religious backgrounds, including minorities with little connection to US interests. For instance, on behalf of Muslims who experienced massacres in 2002 in the state of Gujarat, India, the US Commission on International Religious Freedom successfully lobbied to have the United States deny a visa in 2005 to Gujarat's chief minister, Narendra Modi—who became prime minister of India in 2014. By and large, though, religious freedom remains marginalized in US foreign policy, typically trumped by trade, terrorism, and alliances. Religious freedom is sidelined by, not subservient to, power.

After sorting through the new critics’ claims, the best explanation and argument for religious freedom advocacy remains the sober fact that religious repression is real and widespread. In great numbers, all over the world, human beings are killed, tortured, imprisoned, detained, robbed of their property, deprived of their houses of worship, and denied jobs, economic opportunities, and positions in public service on account of their religion.

The claim that such treatment is unjust is not a Protestant claim, a modern claim, or a Western claim. It does not call for the global export of any one country's relationship between religion and state. It does not rest upon Western liberal notions of individual autonomy or any one theology, philosophy, ideology, or political doctrine. Religious freedom is, rather, a human claim. It is conceptually modest yet morally critical, rooted in every human being's simple yearning to explore and embrace authentic answers to the most ultimate questions, free from coercive interference by others. It is not an elaborate social or political aspiration, but a moral minimum. It is not a ceiling, but a floor. Religious freedom should be seen as a necessary beginning without which even a minimally decent and stable society is not possible. It is what societies need to do to get past the gate of acceptability, not what societies should do in order to achieve perpetual peace or a modern Enlightenment utopia.

1West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

2 Mary Ann Glendon , A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001).

3Religious Freedom Restoration Act of 1993, 42 U.S.C. §§ 2000bb–2000bb-4 (2012); International Religious Freedom Act of 1998, 22 U.S.C. §§ 6401–81 (2012).

4“The Politics of Religious Freedom,” The Immanent Frame,

5 Saba Mahmood and Peter Danchin , eds., “Contested Genealogies of Religious Freedom,” special issue, South Atlantic Quarterly 113, no. 1 (2014); Elizabeth Shakman Hurd and Winnifred Fallers Sullivan , eds., “Symposium: Rethinking Religious Freedom,” Journal of Law and Religion 29, no. 3 (2014).

6Elizabeth Shakman Hurd, “The Tragedy of Religious Freedom in Syria,” Chicago Tribune, March 29, 2012,

7 Saba Mahmood , The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2005).

8Ibid., 28.

9On religious freedom as a presumption against undue religious compulsion, along with an argument for its cross-cultural validity, see David Little , Abdualaziz Sachedina , and John Kelsay , “Human Rights and the World's Religions: Christianity, Islam, and Religious Liberty,” in Religious Diversity and Human Rights, ed. Irene Bloom , J. P. Martin , and Wayne Proudfoot (New York: Columbia University Press, 1996), 213–39.

10Illustrative of this school is Daniel Dubuisson , The Western Construction of Religion: Myths, Knowledge, and Ideology, trans. William Sayers (Baltimore: Johns Hopkins University Press, 2003); Brent Nongbri , Before Religion: A History of a Modern Concept (New Haven: Yale University Press, 2012).

11On the disproportionate role of liberal Protestants in launching modern American sociology, including the sociological study of religion, see the first two chapters in Christian Smith , ed., The Secular Revolution: Power, Interests, and Conflict in the Secularization of American Public Life (Berkeley: University of California Press, 2003), 1159 .

12Theologian William Cavanaugh, who sympathizes with the new critics, discusses the great diversity in religious definitions and definitional approaches in The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict (New York: Oxford University Press, 2009), 102–22.

13 Robert Wilken , Christianity and Religious Freedom (New Haven: Yale University Press, forthcoming). Wilken stresses the significant fact—ignored by Hurd and Mahmood—that the Religion Clauses of the First Amendment to the US Constitution reflect and protect this broad conception of the “free exercise of religion,” and thus pointedly decline to reduce religion to mere belief or conscience in the way the new critics assume is endemic to Western modernity.

14On the indispensability of the concept of religion, see Martin Riesebrodt , The Promise of Salvation: A Theory of Religion (Chicago: University of Chicago Press, 2010), 57 .

15For a powerful argument making substantially the same point about Winnifred Fallers Sullivan , another new critic, and her book The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005), see David Little , Essays on Religion and Human Rights: Ground to Stand On (Cambridge: Cambridge University Press, 2015), 171–72.

16Jacques Berlinerblau, “The Crisis in Secular Studies,” Chronicle of Higher Education, September 8, 2014,

17 Anthony W. Marx , Faith in Nation: Exclusionary Origins of Nationalism (Oxford: Oxford University Press, 2003).

18 Thomas Hobbes , On the Citizen, ed. and trans. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998), 1415 ; Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1996), especially chapter 29.

19For a discussion of Grotius's illiberal liberalism and the respects in which it pursued objectives radically incompatible with robust religious freedom, see Timothy Shah , Even if There is No God: Hugo Grotius and the Secular Foundations of Modern Political Liberalism (Oxford: Oxford University Press, forthcoming).

20It could be argued that England and the Dutch Republic are exceptions. But it is probably more accurate to argue that Dutch and English authorities, rather than deliberately embrace wide religious freedom for the sake of any broad state-building objectives, gradually backed into providing greater de facto and de jure religious toleration for their unusually religiously diverse populations—through great tumult and reversals and in fits and starts—over the course of the seventeenth century. What religious toleration they instituted often took the form of piecemeal concessions necessary to meet short-term political objectives, such as securing sectarian support for William the Silent's campaign against the Spanish, or securing the support of Protestant nonconformists for the accession of William and Mary in 1688. It would be hard to identify any important political decision makers, even in these fabled contexts of “religious toleration,” who self-consciously embraced a wide policy of religious freedom as a path to hegemonic nation-state construction.

21 Timothy Shah and Allen Hertzke , eds., Christianity and Freedom, vol. 1, Historical Perspectives (Cambridge: Cambridge University Press, 2016). See especially the articles by David Little, David Lantigua, and Robert Wilken.

22 Ibid. See especially the essays by Timothy Shah and Robert Wilken. For numerous contemporary cases supporting this claim, see Timothy Shah and Allen Hertzke , eds., Christianity and Freedom, vol. 2, Contemporary Perspectives (Cambridge: Cambridge University Press, 2016).

23Pew Research Center, “Trends in Global Restrictions on Religion,” June 23, 2016,

24 Anthony Gill , The Political Origins of Religious Liberty (Cambridge: Cambridge University Press, 2008).

25 Saba Mahmood , “Modern Power and the Reconfiguration of Religious Traditions: Interview with Talal Asad,” Stanford Humanities Review 1, no. 5 (1996): 10 .

26 Talal Asad , “Anthropological Conceptions of Religion: Reflections on Geertz,” Man 18, no. 2, (1983): 251 . Emphasis in orginal.

27 Talal Asad , “Thinking about Religious Beliefs and Politics,” in The Cambridge Companion to Religious Studies, ed. Robert Orsi (Cambridge: Cambridge University Press, 2012), 56 .

28See also contributions to the Immanent Frame forum on which the Politics of Religious Freedom is based as well as a closely related Immanent Frame forum on religious freedom. Winnifred Fallers Sullivan, “The Extra-Territorial Establishment of Religion,” The Immanent Frame, March 22, 2010,; Webb Keane, “What is Religious Freedom Supposed to Free?,” The Immanent Frame, April 3, 2012,; Robert Yelle, “Christian Genealogies of Religious Freedom,” The Immanent Frame, April 6, 2013,; Peter Danchin, “Hosanna-Tabor in the Religious Freedom Panopticon,” The Immanent Frame, March 6, 2012,

29The story of Protestantism's mixed and frequently negative record on religious freedom is well told in Joseph Lecler's magisterial study, Toleration and the Reformation, 2 vols. (London: Longmans, 1960).

30However, as many, including Alan Wolfe (The Future of Liberalism [New York: Alfred A. Knopf, 2009], 162) have noted, it is unclear that Diderot originated (or even wrote or said at all) this famous line, and it seems uncertain who did.

31Wilken, Christianity and Religious Freedom; Elizabeth DePalma Digeser , The Making of a Christian Empire: Lactantius and Rome (Ithaca: Cornell University Press, 2000).

32Timothy Samuel Shah, “The Roots of Religious Freedom in Early Christian Thought,” in Shah and Hertzke, Christianity and Freedom, 1:33–61.

33Quoted in Rita Gross , Religious Diversity—What's the Problem? Buddhist Advice for Flourishing with Religious Diversity (Eugene: Cascade Books, 2014), 44 .

34Irenaeus, Against Heresies, book 4, chapter 37, section 1, in The Writings of Irenaeus, vol. 2, ed. and trans. Alexander Roberts and W. H. Rambaut (Edinburgh: T. & T. Clark, 1871), 36 .

35For discussion of Tertullian, Lactantius, Sophocles, and Dignitatis Humanae, see Shah and Hertzke, Christianity and Freedom, 1:1–32, 33–61, 62–89; Riesebrodt, The Promise of Salvation, 38–40; Timothy Samuel Shah, “A Philosophical Basis for Transatlantic Cooperation on Religious Freedom?,” Arc of the Universe: Ethics and Global Justice, November 6, 2015,

36Qur'an 2:256 (Abdullah Yusuf Ali translation).

37G.A. Res. 217 (III)A, Universal Declaration of Human Rights (Dec. 10, 1948); International Covenant on Civil and Political Rights art. 27, Dec. 19, 1966, 999 U.N.T.S. 172; G.A. Res. 36/55, Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (Nov. 25, 1981).

38International Religious Freedom Act of 1998, 22 U.S.C. §§ 6401–81 (2012).

39Peter Danchin, “Good Muslim, Bad Muslim,” The Immanent Frame, April 21, 2010,

40Elizabeth Shakman Hurd, “International ‘Religious Freedom’ Agenda Will Only Embolden ISIS,” Religion Dispatches, November 10, 2014,

41Pew Research Center, “Trends in Global Restrictions on Religion.”