Realism and Idealism: On Law's Limits (Religious Freedom Edition)

Last week, I attended a very interesting conference about which I’ve written before concerning the “politics” of religious freedom, and the question of what, if anything, might come “after” religious freedom. The conference was particularly instructive for me because most of the participants were not law professors. They were primarily religious studies scholars, anthropologists, historians of religion, and doctoral students in these disciplines. The presence of doctoral students at various stages in their studies was especially welcome from my point of view, as it gave me an admittedly narrow sense of what some new voices in these fields are investigating and what is of interest to them. Any legal academic who thinks about religious freedom–and, more broadly, the relationship of government and law (domestic and international) to religious communities and traditions around the world–would profit from greater exposure to the concerns and debates of those disciplines that study particular religious phenomena. I am grateful to Winni Sullivan, Beth Shakman Hurd, Saba Mahmood, and Peter Danchin for inviting me.

The interdisciplinary quality of the conference provided a nice view of the convergences and divergences in these scholarly worlds. I did come away from the conference believing that there were more divergences than I had at first perceived. Here are some scattered impressions of the differences in aim, method, and perspective between legal scholars and the scholars at the conference. I also have a little reflection at the end of the post on some recent comments by Benjamin Berger, a fellow member of the law professor tribe whom I was delighted to meet at the conference and who offered some thoughtful and penetrating remarks.

1. First, a point of sheepishly self-referential comparison: generally when I attend legal academic conferences about law and religion, I find myself arguing for restraint on the part of the liberal state, for the limits of law, and for the importance of highly contextual analysis that does not flatten out conflict in ways that fundamentally misunderstand it. That is because, in the main (and, of course, with many important exceptions), law professors (in my area) subscribe to a fairly muscular liberal political theory of the state. I am therefore cast in the role of cautionary skeptic. By contrast, the scholarly community at the conference was highly critical of the liberal state–critical of it from a distinctive political perspective, to be sure, but critical of it nonetheless. It is probably a contrarian character weakness that had me very much feeling like the liberal state needed a friend. I couldn’t quite muster up the energy to be that friend but I do know more than a few law professors who would have eagerly taken up the mantle.
2. I was also struck by how prevalent critical methodology seemed to be. Deconstructing narratives and discourses of various kinds (whether of persecution, of power, of freedom, of religion, or otherwise) was a major concern. I have never attended a critical legal studies conference, in part because it is not a methodological inclination I share, and in part because, in law, CLS peaked and declined long before I entered the legal academy. But here critical method seemed to be broadly embraced.
3. Following from this point, one theme of the conference was that “religious freedom” is at best a useless conceptual category and at worst a malign instrument of state power that skews or deforms the natural, organic, local interactions of particular communities–a weapon with which the state can control those communities after a fashion that suits it and under the terms that it dictates. 

At times I felt that what truly troubled some of the participants was  not so much the problem of religious freedom per se, but instead the role of international law and international organizations in imposing a foreign and maladapted normative legal regime on local communities. The question of the conceptual unity of religious freedom seemed to me to be simply a vehicle through which to criticize the broader issue of the imposition of an internationalist framework. To the extent that there was a traditional liberal internationalist position in favor of religious freedom, it was represented by a member of Human Rights Watch, who gave a sobering and disheartening presentation about widespread killing and barbarism in the name of religion that is now occurring in Pakistan.

One question that remained with me after the Human Rights Watch gentleman’s presentation was: if the activities of persecutors and persecuted alike are universally understood by those groups to be “religious” in nature, and if historically and customarily that is how societies–including our own–have understood them, then what real difference (on realism and idealism, see the end of the post) does it make whether they can be redescribed or reconceptualized or reidealized using other terms? And even if they are, won’t we simply have similar fights about those other terms? Many of these terms, after all, are culturally contested. What makes “equality” or “autonomy” or “conscience” or “nondiscrimination” more problematic  than “religion”? One of the participants shrewdly observed that singling out religion as specially problematic was in fact just the sort of privileging of religion that seems to be anathema. One type of response to these concerns was that the language and rhetoric of “religious liberty” can make the conflicts in these communities worse and more fiercely contested than they otherwise might be. But one would have then to ask the question: “Worse than what?”–worse than if we focused on some other set of issues (gender, for example, or issues of class, or something else)? Perhaps so in some cases.

Though some participants expressed “anxieties” (I use quotation marks here simply to denote that this was the term used; indeed, I was sympathetic to the anxieties expressed) that their projects begin and end with critique, others insisted that understanding the problems that they studied without delving into prescription at all was more than sufficient work for the discipline. In response to disciplinary anxieties of this sort, I remarked that perhaps it might be useful to think less about what religion, or religious freedom, really means, and more about the sort of political philosophy or theory of the state and of law that might be calibrated to produce–if not an optimal state of affairs, then at least a tolerable one. Not that one discipline’s concerns ought to be every discipline’s concerns, but it seemed to me that a sizable elephant lurking at the edge of the conference room involved the proper function of the state and of law. But my suggestion was resisted by some as being the sort of project in which they were not interested. First, before getting to all of that, the problem must be understood better. I sympathize with that view as well.

An important theme seemed to be that the state and law are generally problems–forces that had rigged the game in unfair or distorting ways for local communities. This unfairness and distortion was profiled especially keenly in the relationship of the religious tradition most commonly studied by the participants–Islam–in many different parts of the world (Egypt, Tunisia, Malaysia, and elsewhere) to the state. As to law, it was generally agreed that courts do an incompetent job of understanding religious phenomena “on the ground”–that they neglect important details, that they miss or get wrong major points, and that they construct histories that are either skewed or, in some cases, flatly false. At one point, I offered a partial defense of these legal constructions of history and fact. Judicial histories of religious liberty will always be dissatisfying to historians or anthropologists of religion; their function is not to satisfy them. Their function is to serve as the background for legal judgment–judgment in which one side wins and one side loses. At its worst, judicial history skeletonizes and deforms fact (Andy Koppelman’s citation to this phrase of Clifford Geertz has stuck with me). In my own work, I have urged greater nuance in judicial history. But even at its best, it is not the sort of nuance that could possibly satisfy the historian or the anthropologist. Nor should it.

I’ll conclude this post with just a few reflections on some incisive comments by Ben Berger that follow from this last point. Prof. Berger writes that some of the disciplinary disjunctures between law and the academic study of religion reveal law’s removal from “the reality of the social world that we find,” whereas the work of the scholars at the conference is steeped in that reality. Concerns about text, precedent, and the social managerial function of law are, he writes, anti-realist or perhaps even idealized, whereas efforts to destabilize the concepts and categories upon which the law depends and which it formalizes are real or true or representative of what is really happening “on the ground.”

The thesis is provocative, inasmuch as it is commonly assumed that if law deals with anything, it is with fact and with the real–real cases, real people, real problems, real judgment. And Professor Berger has put the point artfully and persuasively.

But I am not sure that I agree. It all depends what we mean by “realist” or “idealist.” True, law formalizes certain categories, and in doing so it may freeze them in ways that are rigid and unresponsive. True also, the categories of law may not correspond to the lived realities of people and communities; indeed, perfect correspondence is not possible if law is to accomplish some of its other vital aims. It was Lord Coke who spoke first of law’s artificial reason, but he might just as well have spoken about law’s artificial facts.

But law has its own realism–not the realism of the academic, with her aspirations to find better and ever-fresher and truer descriptions of what is (possibly with implications for law’s adaptation and expansion), but the realism of the lawyer, with his recognition that law’s capacity to respond to the social world is limited and most appropriate when it operates narrowly, formally, conflict by conflict. At its best, law is not blind to its incompleteness and to what it misses. It takes what it finds under the terms that are presented to it–the terms, for example, as reported by the gentleman from Human Rights Watch. What is real for law is what is offered up in a court of law, in the terms that litigants understand, in the terms that exist now, and in the constrained domain that law recognizes. What could be more real and more factually specific? Law’s concern is not to imagine what might be under new, better, more creative reconceptualizations of its own making. That is an idealized project–the project of the academic–and it is a vitally important one. But it is in the nature of  law’s limited domain that it does not venture into such heady territory. It sits squarely within the concepts and categories that prevail at any given time. Its stance can be described as anti-realist, but in fact its posture is a useful defense against the perpetual (and real) threat of its own expansion–not infrequently at the urging of anti-formalist skeptics–into territory that does not, and ought not, concern it.

Once again, I am grateful to have been involved with this project. It has opened up many possible lines of research for me about the role and function of law in its relationship to the rest of the world that I had not before considered.