Religion, Pluralism, and Reconciling Difference

W. Cole Durham, Jr., Donlu D. Thayer

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317067207
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

We live in an increasingly pluralized world. This sociological reality has become the irreversible destiny of humankind. Even once religiously homogeneous societies are becoming increasingly diverse. Religious freedom is modernity's most profound if sometimes forgotten answer to the resulting social pressures, but the tide of pluralization threatens to overwhelm that freedom's stabilizing force.

Religion, Pluralism, and Reconciling Difference is aimed at exploring differing ways of grappling with the resulting tensions, and then asking, will the tensions ultimately yield poisonous polarization that erodes all hope of meaningful community? Or can the tradition and the institutions protecting freedom of religion or belief be developed and applied in ways that (still) foster productive interactions, stability, and peace?

This volume brings together vital and thoughtful contributions treating aspects of these mounting worldwide tensions concerning the relationship between religious diversity and social harmony. The first section explores controversies surrounding religious pluralism from different starting points, including religious, political, and legal standpoints. The second section examines different geographical perspectives on pluralism. Experts from North and South America, Europe, Africa, and the Middle East address these issues and suggest not only how social institutions can reduce tensions, but also how religious pluralism itself can bolster needed civil society.

Part I

Introduction

1 The paradox of pluralism

Towards a relational approach to religious freedom

Russell Sandberg and Sharon Thompson

The stories we tell

‘Telling stories of all kinds is the major way that human beings have endeavoured to make sense of themselves and their social world’.¹ Law is all about stories: stories of individual cases; stories of the development of doctrines of law over time; stories about ‘the law’; and stories about legal ideas and practices. Legislators, adjudicators, advocates, and scholars are constantly telling, accepting, and perpetuating stories; what Carole Pateman has termed ‘conjectural histories’. Orthodox accounts and their implicit assumptions are perpetuated without question. The fact that they are authored and constructed is too easily forgotten. The ways in which these stories are framed; the assumptions, their biases and the fact that they are the product of human systems are overlooked. These stories of law can easily become constraining, rendering invisible alternative narratives and experiences. As Pateman’s work illustrates, the stories that do not fit the narrative are silenced and forgotten.²

Legal disputes naturally narrow the focus to the often technical issues at hand. The technicolor lives of those involved are reduced to the monochrome constructs that the legal system can understand. The legal eye focuses on constructing a problem and solving a problem. Although cases may be cited by reference to the surnames of the parties, those people are depersonalized in the judgments. Legal argumentation silences or at least suppresses their voices.³

It is therefore welcome and important that bodies of scholarly work exist to question the accounts made from orthodox viewpoints. There is a need for scholarship that looks at the terrain from a different lens. The increasing literature on religious pluralism and the increased focus on the legal experiences of minority cultures provide an example of this. This literature starts from a different angle and asks different questions. It starts with an acceptance that diversity is the norm and that different religions and cultures will interact with the state and with the legal system in different ways. The pluralist literature recognizes religious pluralism as a social and legal fact. It problematizes the concept of religion by warning that the term cannot be defined by a conservative appeal to precedent and that the binary between religion and non-religion is by no means absolute.⁴ The literature also recognizes legal pluralism as a social and legal fact, problematizing too the concept of law. This again involves rejecting conservative understandings based on analogy with state law as the norm and debunking the notion that law is autonomous and detached from society and that a neat distinction can be made between law and non-law.⁵

The literature on pluralism has made a number of significant achievements. Indeed, it is striking how many of its presuppositions have become the norm.⁶ Yet, this literature too has begun to perpetuate a particular story that is itself selective and constraining. Paradoxically, the pluralist focus is not pluralist enough. Ironically, although this literature has identified and critiqued a number of binary distinctions (most notably the public–private divide and understandings of religion/non-religion, law/non-law), the story it tells has perpetuated another binary focus: a dual spotlight upon the state and upon the religious group. This has overlooked the agency of individuals and failed to take into account the numerous interlocking power relationships that are in play. This means that, although the pluralist lens has meant that the picture painted is in no longer in broad brush strokes, it is still monochrome.

This introductory chapter will begin by exploring this paradox through looking at Ayelet Shachar’s Multicultural Jurisdictions: Cultural Differences and Women’s Rights, ⁷ a lauded work on religious pluralism and legal pluralism. This identifies the missing story but then ironically makes the same mistake in sidelining agency in the solutions that it proposes. Drawing upon our previous work,⁸ we will then explain how a relational approach could overcome this, correcting the pluralist paradox. We conclude by asking the reader to keep this in mind as they read the chapters that follow which all tell stories about pluralism and religion.

The story of Multicultural Jurisdictions

Shachar’s work is concerned with the ‘minorities within minorities debate’. This explores whether the state should play a role in ensuring that members of religious or cultural groups should not be denied the rights that they would ordinarily enjoy by virtue of their citizenship of the state where the polity of the group differs from that of the state as regards gender roles. Shachar’s argument is that the state should neither endorse a strong version of multiculturalism giving complete deference to groups nor have a blanket prohibition on the development and enforcement of group-based norms. Either approach would turn a blind eye to gender and other inequalities within the group. A stance of ‘“non-intervention” may effectively translate into immunizing wrongful behavior by more powerful parties’ while prohibition would relegate ‘religious traditions to the margins, labelled as unofficial, exotic, or even dangerous (unrecognized) law’.⁹

Shachar’s work, therefore, focuses on when and in what circumstances the state should intervene. Like many feminist scholars,¹⁰ Shachar rejects the binary option provided by what is often called the ‘right to exit’ argument, which states that the role of the state should be limited to ensuring that at-risk group members are able to leave if they do not agree with their group’s practices. She argues that this ‘right to exit offers no comprehensive approach at all’ because it imposes ‘the burden of solving conflict upon the individual’ whilst ‘relieving the state of any responsibility for the situation’.¹¹ Shachar is critical of how this approach is predicated upon a ‘binary’ notion of identity whereby individuals are either an adherent of the group or a citizen of the state. She is critical of such an ‘oversimplified “either-or”- type understanding of legal authority that is not tailored to respect individuals’ manifold identities’.¹² She argues that there is a need to recognize those people within religious groups – who she referred to as ‘citizen-insiders’ – as being both ‘culture-bearers and rights-bearers’.¹³ She highlights the agency of the citizen-insiders.¹⁴ This criticizes the caricaturing of ‘women who remain loyal to minority groups’ cultures as victims without agency. She calls for attention to be paid to what she called the ‘complex and multi-layered nature of multicultural identity’, saying that we cannot ‘remain blind to the web of complex and overlapping affiliations which exist between these competing entities’.¹⁵

However, while Shachar correctly diagnoses the problem, the cure she identifies is problematic. Shachar introduces her concept of ‘joint governance’. This describes the idea that people can belong to, show allegiance to, and follow norms from more than one source of authority at any given time.¹⁶ Joint governance seeks to overcome the problem of ‘artificially compartmentalizing the relationship between the group and the state into a fixed inside–outside division [which] conceals the extent to which both are in fact interdependent’.¹⁷ It ‘promises to foster ongoing interaction between different sources of authority, as a means of improving the situation of traditionally vulnerable insiders without forcing them to adhere to an either/or choice between their culture and their rights’.¹⁸

Ironically, despite the fact that joint governance seems to focus upon the agency of the citizen-insiders, Shachar’s articulation of joint governance sidelines this.¹⁹ In emphasizing how individual identity is negotiated through membership of overlapping (and sometimes competing) groups, her account fails to give adequate attention to the citizen-insider. The minority within the minority is treated as the object that the group and state fight over.²⁰ In her schema, ‘it is in the self-professed interest of the group and the state to vie for the support of their constituents.’²¹ She observes that ‘each entity must “bid” for these individual’s continued adherence to its sphere of authority.’²² This takes a very passive and rational-minded approach to the question of agency. Her focus upon competition has been criticized for taking a ‘rational actor view of the world’ which is ‘written in the language of the marketplace’.²³ When this perspective of the ‘individual rights-bearer’ is employed it arguably rests upon and perpetuates a liberal legal idea of the autonomous rational person.²⁴

Shachar’s diagnosis – that gender and agency must be central to understandings of the minorities within minorities issue – is sound. However, by viewing the state and the group as two competing entities, her solution ignores individual agency and the gendered nature of decision making. It fails to solve what Gillian Hadfield has referred to as a ‘feminist puzzle’ or ‘dilemma of choice’:²⁵ whether it is possible ‘to protect women from the oppressive consequences of harmful, constrained choices … without divesting women of agency?’²⁶ Shachar’s call for agency to be recognized is laudable but in the end is unrealized. The schemas suggested in Multicultural Jurisdictions focus on the state and the group as two competing and monolithic entities. While the story is about the citizen-insider, they themselves are not the main characters and their agency is ignored.

A relational approach

A relational approach is needed to recognize the ways in which people’s identities are shaped by the relationships that they form.²⁷ It is needed in order to correct ‘top-down’ approaches that focus on the state and the group which deny the agency of minorities within minorities. And, crucially, it is also needed to ensure that the focus on minorities within minorities does not result in an individualistic approach based upon liberal legal assumptions of the autonomous rational person. Placing the citizen-insider as the main character in the story can often lead to an individualist approach. Focusing on whether the citizen-insider consents or can be said to have made an autonomous choice raises the problems caused by the ‘right to exit’ approach discussed above. Binary legal tests silence the voices of minorities within minorities distorting their situations to fit the story that the legal and political systems can deal with.

In the context of family law in England and Wales, Jonathan Herring has been critical of the rise of an ‘individualist conception of autonomy’ which claims that ‘individuals should be allowed to make decisions for themselves and that those decisions should be respected by others, unless the decision involves harming someone else’.²⁸ The pervasiveness of this approach has been shown by the encouragement of resolution of family disputes outside the courtroom, prompted at least in part by the removal of most legal aid for such family law disputes.²⁹ The importance now afforded to individual autonomy is epitomized by recent case law concerning prenuptial agreements,³⁰ which has stressed ‘the need to recognize the weight that should now be given to autonomy’ and stated that the ‘new respect to be given to individual autonomy means that the fact of an ...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Part I: Introduction
• Part II: Starting points
• Part III: Perspectives
• Part IV: Conclusion
• Index