Routledge Handbook of Freedom of Religion or Belief

Silvio Ferrari, Mark Hill QC, Arif A Jamal, Rossella Bottoni, Silvio Ferrari, Mark Hill QC, Arif A Jamal, Rossella Bottoni

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781351401951
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

Freedom of religion is an issue of universal interest and scope. However, in the last two centuries at least, the philosophical, religious and legal terms of the question have been largely defined in the West. In an increasingly global world, widening our knowledge of this right's roots in different cultural and legal systems becomes a priority. This Handbook seeks to attain this goal through a better understanding of the historical roots and expressions of the right to freedom of religion on the one hand and, on the other, of its theological background in different religious traditions. History and theology provide the setting for the analysis of the politics of freedom of religion, that is, how this right is used in the context of the dialogue/confrontation between countries placed in different cultural regions of the world, and of the legal strategies and tools that have been developed and are employed to protect and foster the right to freedom of religion. Behind these legal and political strategies, there is an ongoing debate about the nature of this right, whose main features are explored in the final section.

Global, historical and interdisciplinary in approach, this book studies the new relevance of freedom of religion worldwide and develops suitable categories to analyze and understand the role that freedom of religion can play in managing religious and cultural diversity in our societies. Authored by experts, through the contributions collected in these chapters, scholars and students will be able to broaden and deepen their knowledge of the right to freedom of religion and to develop the ability to go beyond the borders of the different cultural environments in which this right took shape and developed.

1 Locating the right to freedom of religion or belief across time and territory

Mark Hill

A generation ago, the concept of a handbook was virtually unknown in the academy. Published scholarship came in the form of textbooks, innovative monographs, and introductory works for students, or casebooks of materials with commentary.¹ The term ‘handbook’ was generally reserved for dull and anodyne publications, such as the owner’s manual for a car or electric appliance or a turgid reference work containing nothing more than lists of data. But the handbook has gradually earned its place in the teaching environment of the twenty-first century as a repository for authoritative and original thinking on subjects of pressing social concern, on which differing views can be espoused with integrity.² To date, however, there has been no handbook published specifically addressing the right to freedom of religion or belief. This volume aims to be comprehensive but not necessarily exhaustive; authoritative but never polemical; and accessible but not simplistic. Traditionally, studies of religious freedom have tended to be law-focused, and many scholars and practitioners ignore the historical and theological foundations of the idea of religious liberty, as well as the existence of different histories and theologies. The innovative profile of this unique Handbook is its global, historical and interdisciplinary (law, theology, political science, etc.) approach. The Handbook aims to stimulate creative and refreshing ways to (re)think the role of religious freedom in the contemporary world.

Likewise, the topic of freedom of religion or belief has gained a currency in the political and social discourse of the current age which was far less visible in the past. While some see the concept of human rights as having its fons et origo in the doctrine and practices of the Judeo-Christian tradition, others see them firmly in the post-war rise of secularism, articulated in international instruments such as the Universal Declaration of Human Rights. This Handbook considers the history of the right to freedom of religion or belief, but not from exclusively Western and largely Christian perspectives epitomised by such scholarship in the past. Instead, the voices of distinguished contributors are heard in the context of globalisation which has become the hallmark of academic study today. We live in an increasingly multipolar world, where different cultural and religious traditions are re-emerging as reference points and providing a framework for global projects of living together. Due to migration and the globalisation of mass media, the clash of different traditions takes place within the borders of national and regional societies that previously were relatively homogeneous, heightening the level of religious and cultural diversity and conflict. In many parts of the world, this transformation is quite recent and the debate on how to manage it is still ongoing. While opinions about the best strategies and tools to help attain this goal vary widely, there is a growing consensus about the need for a better knowledge of the cultural sensibilities which are rooted in different religious traditions and macro-regional areas.

This Handbook aims at answering this perceived need through the exploration of the different facets of freedom of religion (theological, historical, political and legal) with reference to various religious traditions (Judaism, Christianity, Islam, Buddhism and Hinduism) and to the cultures within which they developed. Global, historical and interdisciplinary are the three words that define the approach adopted in this book to study the new relevance of freedom of religion worldwide and to understand the role that freedom of religion can play in managing religious and cultural diversity in our societies. The Handbook reveals the lived reality of the right to freedom of religion and belief from different viewpoints and trajectories: those of religious people and entities; and those of the government and the state in overtly political terms, from constitutional, international and non-State positions, and within the context of human rights more generally.

It will be immediately apparent that this Handbook represents a range of opinions from scholars dispersed throughout the globe, and from different religious traditions and none. Some are well-established experts in their field, for whom no introduction is needed and whose reputations precede them. Others are younger scholars, a fresh generation equipped and empowered not only to challenge the accepted truths and received wisdom of the past, but to carry forward the torch of freedom of religion with enhanced enthusiasm and clarity. And just as differing views are expressed by the contributors, so the quartet of editors have brought their own particular understandings to the venture. Whilst this Introduction travels under my name, it represents the product of a constructive, and occasionally combative dialogue, which has informed this project in its conception, development and delivery. All four of us have contributed to its content, and I am indebted to Rossella, Arif and Silvio for their comprehensive and thoughtful input and their characteristically robust criticism of successive drafts.

Having established our reasoning for the adoption of the handbook format, the obvious questions are why has the right to freedom of religion or belief been so little discussed in the academic world until the second half of the twentieth century? And why has the literature on the subject exploded in the past decade or so with textbooks, monographs, edited volumes and journals, together with blogs, chatrooms and every other form of the all-pervasive social media? And most pressing, why has there been a discernible shift from narrow national studies towards global and comparative research?

Freedom of religion or belief lies at a triangulation point where the individual, the faith community and the State converge. The paradigm, in the present age, is a peaceful and mutually affirming convergence where the rights (and duties) of all three players are at least recognised and, where possible, maximised. But this halcyon world, if it exists, would make for a rather dull book. The citizen, the religious organisation and the State are all somewhat angular, and there is bound to be friction when they rub up against each other. This can be problematic and destructive or, as with the editorship of this volume, it can foster a creative dynamism which is rich and fulfilling, leading to a whole which is greater than the sum of its parts.

In recent years, however, this triangulation point has become a much more contentious area – the level of friction has substantially increased. Individuals have become more assertive in expressing their rights against the State and – if they belong to one – their faith community. The age of deference has passed. Populism is in the ascendant with elite governing classes on the retreat. This seems to be happening globally. However, as I write, an unprecedented global phenomenon is causing us to rethink and recalibrate, namely the Covid-19 pandemic. It has led to a resurgence of authoritarianism, particularly in Western democracies, with towns, cities and entire countries being placed into lockdown and places of worship closed, with the active concurrence, or passive acceptance, of religious leaders. Civil rights, including freedom to manifest religion and belief, have effectively been suspended as a consequence of a global health emergency. Severe limitations on personal and associational autonomy – unthinkable in normal times – have been imposed, in circumstances in which most major faith groups have been complicit and supportive. It will be interesting to see how the landscape will have changed after the current public health emergency has passed. We are likely to see three forces at work, each exerting pressure in different directions: globalisation, securitisation and pandemic. But that is speculation for the future: let us return to the present.

One aspect of the current debate about freedom of religion or belief concerns whether there is an ongoing need to have protection for such freedom or whether this right, though historical, is something that can – and indeed should – be dispensed with, at least in its protection of religious beliefs because religion, it is suggested, is not something that should be protected. Academics such as Leiter (2013) and Sullivan (2018) point, respectively, to a philosophically or sociologically suspicious basis for protecting religion. The contributors to this volume suggest ways in which the promotion of freedom of religion remains worthy of support – globally, nationally and within communities.

Freedom of religion and belief necessitates, at its core, two negotiations: the first is bilateral, between the individual and the particular faith community. The second is more complex and has three distinct players: the citizen, the religious organisation and the State. In the first, the assumption of membership of a religious organisation carries with it the partial surrender of personal autonomy in the acceptance of the doctrines and instruments of governance as a matter of consensual compact or quasi-contract as with any other unincorporated association, or not-for-profit organisation. Sometimes the surrender is express in the sense of a rite of initiation, sometimes it is effected vicariously as with infant baptism, and sometimes social or cultural convention compels membership.

The second surrender of autonomy, also partial, relates to the manner in which the State grants freedoms – expressly or by implication – to religious organisations collectively, and to their adherents individually. The citizen enjoys freedom of religion and belief (in both its personal and associational guises) only to the extent permitted by the law of the sovereign state. The negotiation of this relationship is less susceptible to the individual conscience and more a matter of realpolitik. There is a leit motif throughout this volume concerning this surrender of autonomy: historically in the increasing readiness of States to promote pluralism by creating within the public square mechanisms and opportunities for faith organisations to flourish; geographically in the notably different ways in which States promote or tolerate both majority and minority religions; and doctrinally in the extent to which faith communities are prepared – as a tenet of their belief system – to collaborate with increasingly secular civic authorities. And inevitably, though rarely articulated, freedom of religion and belief intersects with other areas of law, such as international law or indigenous law.

But these negotiations did not exist independently of one another. As is explored in various chapters of this Handbook, the manner in which the relationship between the individual and the faith community develops has an impact on the tripartite relationship between citizen, state and religious institution (and probably vice versa). The different forms in which religious pluralism manifests itself in India or the United States of America may be related to the way in which, in these two countries, the relationship between the individual and the religious community has developed: with a stronger emphasis on the individual in the United States and on the community in India. These negotiations take place in parallel and overlap considerably: each has an impact on the other.

Before turning to the architecture of this Handbook, it is helpful to say a word about definitions and abbreviations. I have a long-standing visceral dislike for the acronym FoRB, which is ugly and suggestive of a chemical formula. Of course, in any informed discussion, the use of shorthand is desirable. However, its usage is becoming more commonplace and, like the King Canute of legend, I may not be able to hold back the rising tide. As we shall see, freedom of religion or belief is a complex and elusive matter, hard to pin down and understood in subtly different and increasingly nuanced ways. Sometimes, in the academic literature, authors appear to have deployed the acronym as a means of avoiding more meaningful engagement with the concept. The contributors to this volume tackle the topic head-on and in depth, so this intrusive and inadequate abbreviation is otiose and unnecessary. To avoid unnecessary repetition, the convention we have adopted throughout this volume is that unless the context indicates otherwise, the reader should assume that all references to ‘freedom of religion’ are to be read expansively as encompassing freedom of thought, conscience, religion or belief as framed in international human rights instruments but with particular reference to religion in its institutional sense, and the wider generality of belief systems, whether spiritual or humanist in their nature.

It is intended that this Handbook will prove to be an invaluable teaching aid for the burgeoning number of undergraduate and graduate courses in law and religion, ‘church and state’ and comparative religious laws.³ At its core is the right to freedom of religion or belief, but this is examined from five discrete planes, aimed at informing enquiring students of emergent strains of thought and equipping them for more penetrating and informed analysis. The particular feature of this volume, however, is its global reach. Unlike previous works which have largely been tethered to Europe or North America, this volume paints on a broader canvass featuring particular contributions from Asia and Africa. These both complement and challenge the traditional understandings of the West. The intersection of freedom of religion with indigenous laws and practices, for example, is ripe for further study. This Handbook aims to bring perspectives derived from different religious traditions as well as from different places, to bear on discussion about the place and role – past, present and future – of freedom of religion or belief, revealing the various contexts in which it is being thought about.

Part I is overtly historical, looking as how understandings of freedom of religion and belief have evolved over centuries. John Witte examines the traditional perspective from the West but with an energy and insight that is often missing. Fresh and fascinating perspectives from Asia are the subject of Kevin Tan’s chapter, and Ahmed Garba writes on Africa, whilst Caroline Sägesser gives an overview from the vantage point of secular humanism.

The focus changes in Part II to an evaluation of the right to freedom of religion and belief as understood and deployed by the major religious traditions. Buddhist perspectives are examined by Benjamin Schonthal, Christian understandings by Norman Doe, with a Hindu viewpoint presented by Laura Dudley Jenkins and Kristina Teater. An Islamic overview is provided by Wael Saleh with Patrice Brodeur, while Matthew LaGrone’s focus is Jewish perspectives. This part concludes with an ambitious evaluation of an interreligious notion of the right to freedom of religion by Arvind Sharma.

Part III is rooted in the triangulation point identified above and comprises an exploration of the geopolitics of the right to freedom of religion, broadly interpreted, with chapters on the West, by Gerhard Robbers, on Asia, from Arif Jamal and Jaclyn Neo, and on sub-Saharan Africa, from Idowu Akinloye.

In Part IV, specialist authors map the right to freedom of religion, with Johan van der Vyver looking at various constitutional patterns of protection in domestic legislation, and Eva Brems and Laurens Lavrysen evaluating the right to freedom of religion in international law. Martin Ramstedt examines the right to freedom of religion in non-State legal orders.

The concluding pair of chapters which comprise Part V revisit some of the themes of the earlier chapters but broaden the ambit of investigation. David Little seeks to relate the particular right to freedom of religion to other human rights, both in national systems and as part of the global legal order, and the complex relationship between the universal and particular elements of the right; and Peter Danchin helpfully considers the dialectics between the universal and particular dimensions of the right to freedom of religion.

This Handbook ambitiously includes contributions that introduce new elements to the emergent discipline of freedom of religion and belief: traditional religions in Africa, Asian values, indigenous religions in Latin America, etc. These pose new questions that have a direct impact on the debate about the universality of the right to religious freedom to which the last section is dedicated. This Handbook is intended to be a bridge between the traditional debate on religious freedom and the new perspectives opened up by globalisation and the progressive shift of the world’s centre of gravity eastwards. Whether this eastward shift has been accelerated by the Covid-19 pandemic and the resulting economic and social lockdown, only time will tell. But the need for students of freedom of religion actively to engage with these new perspectives and to question, or depart from, hard-wired traditional Western understandings has never been more urgent. It is hoped that this Handbook will expose students to new ways of thinking which may stimulate civic and religious leaders to new ways of action.

References

Ahdar, R. (Ed.), 2013. Research Handbook on Law and Religion. Edward Elgar.

Bielefeldt, H., Ghanea, N., Wiener, M. (Eds.), 2016. Freedom of Religion or Belief: An International Law Commentary. Oxford University Press.

Leiter, B., 2013. Why Tolerate Religion? Princeton University Press.

Lindholm, ...