Formatting Religion: Across Politics, Education, Media, and Law 9780429030567, 9781138599987

Table of contents :
Cover
Half Title
Series Page
Title
Copyright
CONTENTS
Notes on contributors
Preface
1 Formatting religion: the approach
2 Sacralization and desacralization: political domination and religious interpretation
3 A new formatting: Myanmar’s 2015 ‘race and religion laws’
4 Monitoring religious freedom: persecution, documentation and the role of political facts
5 “Shared religiousness” as a source of values?
6 A time of change in the Estonian Islamic community: the question of power among the surrendered ones
7 Media formatting religion and conflict
8 Do the Toledo Guiding Principles politicise religious education?
9 Salient or silenced: how religion and terrorism are formatted in school
10 Religion, human rights and juridification
11 Towards re-sacralization of Nordic law?

Citation preview

FORMATTING RELIGION

To talk about religion is to talk about politics, identity, terrorism, migration, gender and a host of other aspects of society. This volume examines and engages with larger debates around religion and proposes a new approach that moves beyond the usual binaries to analyse its role in our societies at large. Formatting Religion delves into these complexities and demonstrates the topical need for better understanding of how religion, society, culture, and law interact and are mutually influenced in periods of transition. It examines how over the last two decades, people and institutions have been grappling with the role of religion in socio-cultural and political conflicts worldwide. Drawing on a host of disciplines – including sociology, philosophy, anthropology, politics, media, law, and theology – the essays in this book analyse how religion is formatted today, and how religion continuously formats society, from above and from below. The volume will be of great interest to scholars and researchers of religious studies, politics, media and culture studies, and sociology. Marius Timmann Mjaaland is Professor of Philosophy of Religion at the Faculty of Theology, University of Oslo, Norway. He is president of the Nordic Society for Philosophy of Religion and served as Academic Director of Oslo University’s inter-facultary research program PluRel (Religion in Pluralist Societies) 2013–17. He is also the author and editor of several books, including Autopsia (2008) and The Hidden God: Luther, Philosophy and Political Theology (2016).

ETHICS, HUMAN RIGHTS, AND GLOBAL POLITICAL THOUGHT Series Editors: Sebastiano Maffettone and Aakash Singh Rathore, Center for Ethics & Global Politics, Luiss University, Rome

Whereas the interrelation of ethics and political thought has been recognized since the dawn of political reflection, over the last sixty years – roughly since the United Nation’s Universal Declaration of Human Rights – we have witnessed a particularly turbulent process of globalizing the coverage and application of that interrelation. At the very instant the decolonized globe consolidated the universality of the sovereign nation-state, that sovereignty – and the political thought that grounded it – was eroded and outstripped, not as in eras past, by imperial conquest and instruments of war, but rather by instruments of peace (charters, declarations, treaties, conventions) and instruments of commerce and communication (multinational enterprises, international media, global aviation and transport, Internet technologies). Has political theory kept apace with global political realities? Can ethical reflection illuminate the murky challenges of real global politics? This Routledge book series Ethics, Human Rights, and Global Political Thought addresses these crucial questions by bringing together outstanding monographs and anthologies that deal with the intersection of normative theorizing and political realities with a global focus. Treating diverse topics by means of interdisciplinary techniques – including philosophy, political theory, international relations and human rights theories, and global and postcolonial studies – the books in the series present up-to-date research that is accessible, practical, yet scholarly. RELIGION AND CIVIL SOCIETY IN THE ARAB WORLD In the Vortex of Globalization and Tradition Edited by Tania Haddad and Elie Al Hindy FORMATTING RELIGION Across Politics, Education, Media, and Law Edited by Marius Timmann Mjaaland For more information about this series, please visit: www.routledge.com/ Ethics-Human-Rights-and-Global-Political-Thought/book-series/EHRGPT

FORMATTING RELIGION Across Politics, Education, Media, and Law

Edited by Marius Timmann Mjaaland

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 selection and editorial matter, Marius Timmann Mjaaland; individual chapters, the contributors The right of Marius Timmann Mjaaland to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Mjaaland, Marius Timmann, editor. Title: Formatting religion : across politics, education, media, and law / edited by Marius Timmann Mjaaland. Description: First [edition]. | New York : Taylor and Francis, 2019. | Includes bibliographical references. Identifiers: LCCN 2018054748 (print) | LCCN 2019004866 (ebook) | ISBN 9780429030567 | ISBN 9781138599987 (hardback : alk. paper) Subjects: LCSH: Religion and sociology. Classification: LCC BL60 (ebook) | LCC BL60 .F64 2019 (print) | DDC 306.6—dc23 LC record available at https://lccn.loc.gov/2018054748 ISBN: 978-1-138-59998-7 (hbk) ISBN: 978-0-429-03056-7 (ebk) Typeset in Galliard by Apex CoVantage, LLC

CONTENTS

Notes on contributors Preface

vii x

1 Formatting religion: the approach

1

MARI U S TI M M ANN MJA A L A ND

2 Sacralization and desacralization: political domination and religious interpretation

17

HAN S J O AS

3 A new formatting: Myanmar’s 2015 ‘race and religion laws’

37

I S EL I N F R Y D E N L U ND

4 Monitoring religious freedom: persecution, documentation and the role of political facts

56

MI CH AEL H E RTZ BERG

5 “Shared religiousness” as a source of values?

77

V EBJ Ø RN L. H O RS FJO RD

6 A time of change in the Estonian Islamic community: the question of power among the surrendered ones

90

E G E L EPA

7 Media formatting religion and conflict KNUT LUNDBY

v

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CONTENTS

8 Do the Toledo Guiding Principles politicise religious education?

127

RO B ERT J ACKS O N

9 Salient or silenced: how religion and terrorism are formatted in school

142

TRI N E AN KE R A ND MA RIE VO N DER L IP P E

10 Religion, human rights and juridification

156

PAM E L A S LO TT E

11 Towards re-sacralization of Nordic law? L I S BET C H RI S T O FFERS EN

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175

CONTRIBUTORS

Trine Anker is Professor in the Study of Religions at MF Norwegian School of Theology, Religion and Society. She has published in international journals and anthologies on religious education and ethics. Lisbet Christoffersen is Professor of Law & Religion at the Department of Social Science and Business Studies, Roskilde University, adjunct professor of religion law with ecclesiastical law at the Faculty of Theology, University of Copenhagen and Dr. of Constitutional Law, Faculty of Law, University of Copenhagen, Denmark. She is director of several research projects on Law and Religion and currently the project leader of the HERA funded project on Protestant Legacies in Nordic Law (ProNoLa). She is also editor of Law & Religion in the 21st Century – Nordic Perspectives (2010). Iselin Frydenlund holds a PhD in the History of Religions from the University of Oslo and is currently Associate Professor of Religious Studies at MF Norwegian School of Theology, Religion and Society. She has written extensively on Buddhism, politics and violence in Sri Lanka and Myanmar. Michael Hertzberg is Associate Professor at the Department of Linguistic, Literary and Aesthetic Studies at the University of Bergen, Norway. He defended his PhD, The Anti-Conversion Bill: Political Buddhism, ‘Unethical Conversions’ and Religious Freedom in Sri Lanka, in 2016. He has published articles on law, rhetoric, religion and politics in Sri Lanka. Vebjørn L. Horsfjord is Associate Professor of Religious Studies at the Inland Norway University of Applied Science. His PhD dissertation (2015) was on Christian–Muslim dialogue, and he has published on

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CONTRIBUTORS

contemporary religion and religion and human rights, including articles on the Russian Orthodox Church and human rights. Robert Jackson is Emeritus Professor in Religions and Education at the University of Warwick, UK, and a Visiting Professor at Stockholm University, Sweden. He has contributed to the educational work of the Council of Europe since 2002, including writing Signposts (2014). Robert Jackson’s latest book is a selection of his writings over his career: Religious Education for Plural Societies: The Selected Works of Robert Jackson, World Library of Educationalists Series, London: Routledge. In 2017, he was awarded honorary doctorates by NTNU, Trondheim and the Norwegian School of Theology, Oslo, Norway. Hans Joas is Ernst Troeltsch Professor for the Sociology of Religion at the Humboldt University of Berlin, Germany, and Professor of Sociology and Social Thought at the University of Chicago, USA. He received honorary doctorates from the University of Tübingen (2012) and Uppsala University (2013) and numerous awards, including the Bielefeld Luhmann Prize, the Max Planck Research Award and the Prix Paul Ricoeur. Among his recent books are The Sacredness of the Person: A New Genealogy of Human Rights (2013), Faith as an Option: Possible Futures of Christianity (2014) and Die Macht des Heiligen. Eine Alternative zur Geschichte von der Entzauberung (2017, forthcoming in English). Ege Lepa is PhD Fellow at the Department of Theology and Religious Studies, Tartu University, Estonia. Her research is focused on internal dynamics of Estonian Islamic community, influence of historical (Soviet) background to current developments and ways a changing community deals with newcomers and how those adapt to a local network of Islamic organizations. Marie von der Lippe is Associate Professor in the Study of Religions and Didactics at the Department of Archeology, History, Culture Studies and Religion at the University of Bergen, Norway. Knut Lundby is Professor at the Department of Media and Communication, University of Oslo, Norway. He has a background in sociology and wrote his doctoral dissertation on the sociology of religion. Lundby is among the founding members of the international research community on Media, Religion and Culture. He is editor of the handbook on Mediatization of Communication (De Gruyter Mouton, 2014), of Mediatization: Concept, Changes, Consequences (Peter Lang, 2009) and of Religion across Media (2013).

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Marius Timmann Mjaaland is Professor of Philosophy of Religion at the Faculty of Theology, University of Oslo, Norway. He is president of the Nordic Society for Philosophy of Religion and served as Academic Director of Oslo University’s inter-facultary research program PluRel (Religion in Pluralist Societies) 2013–17. He is also the author and editor of several books, including Autopsia (De Gruyter, 2008) and The Hidden God: Luther, Philosophy and Political Theology (Indiana University Press, 2016). Pamela Slotte, Dr. Theol., is Associate Professor in minority studies at Åbo Akademi University and Vice-Director of the Centre of Excellence in Law, Identity and the European Narratives (eurostorie.org) at the University of Helsinki, Finland. She is an affiliated senior research fellow at the Erik Castrén Institute of International Law and Human Rights at the University of Helsinki. She is co-author of The Juridification of Religion? (Brill, 2017) and co-editor of Revisiting the Origins of Human Rights (Cambridge University Press, 2015).

ix

PREFACE

The debates on how to understand religion in its relation to secularism and to secularization have dominated the first two decades of the 21st century. This volume is a contribution to this debate, but the authors have deliberately chosen a new approach that avoids some of the deadlocks connected to the religion/secular binary. The approach is called formatting religion and focuses on how religion is shaped and perceived in contemporary society due to substantial changes in other realms of society (e.g. in politics, law, education, and media). Religion is not merely a passive receptor of such societal changes, though. On the contrary, religion has become a driving force in political and cultural transformations in various parts of the world. Hence, formatting should be read in the passive as well as the active sense: Religion is formatted, but it is also formatting the society of today and the world of tomorrow. Understanding religion from the perspective of ‘formatting’ presupposes an interdisciplinary endeavor. In order to understand how religion is formatted and formatting, we have included scholars of sociology and philosophy, of law and religious studies, of theology and education. The present volume is the fruit of ten years of interdisciplinary cooperation at the University of Oslo under the headline ‘Religion in Pluralist Societies’ (PluRel). The program included scholars from the Faculties of Law and Humanities, Theology and Social Sciences, Medicine, and Education. I want to express my gratitude to the University of Oslo for generous funding of the program, but also to the numerous researchers who contributed to PluRel in the period 2008–2018. I will also say a word of thanks to the board members, the former PluRel Directors Terje Stordalen and Oddbjørn Leirvik, and former Dean Trygve Wyller. The perspective of ‘formatting religion’ was developed by two research projects under the direction of Prof. Tarald Rasmussen: Memory (2014–18) and Good Protestant, Bad Religion? (2015–19), both funded by the Norwegian Research Council x

PREFACE

(NRC). The approach of ‘formatting religion’ was developed in a joint effort by Prof. Rasmussen, Dr. Helge Årsheim, and myself and will be applied for new research projects in the future. The chapters in this volume were first presented at the conference Conflict, Media, and Formatting of Religion at the University of Oslo on April 21–22, 2016. The conference gathered an interdisciplinary group of scholars from sociology, law, theology, education, media studies, philosophy, psychiatry, anthropology, and religious studies. A short presentation of each contribution is given towards the end of Chapter 1, where I have given a more detailed description of the approach, with emphasis on three formatting processes: juridification, politicization, and mediatization. There is hardly any sign that religion will become less controversial or less influential on political and cultural conflicts during the rest of the 21st century. The modest contribution given by this book is therefore to suggest a shift of focus and a broader perspective that includes other disciplines and other realms of society in order to better understand the deep structural and political meanings and forms of religious life. The approach is hereby recommended, and, on behalf of the authors, I explicitly invite objections and further discussions concerning its fruitfulness and consequences, and in particular, further investigations on the critical question raised by our emphasis on formatting religion.

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1 FORMATTING RELIGION The approach Marius Timmann Mjaaland

Despite the tendency in 20th-century scholarship to isolate ‘Religion’ as a separate field or sector to be studied on merely secular conditions, while treating ‘religion’ as a phenomenon that might sooner or later become superfluous (according to Durkheim, a mere ‘luxury’!) for human beings, religion has never actually been detached from other parts of life or from other realms of society (cf. Durkheim 2008: 318). Although secularism has been an influential political movement in many regions of the world, and secularization is still gaining force in Europe and North America, there has never been such a thing as a purely ‘secular’ world. If there is any consensus in the discussions concerning the so-called post-secular condition – whatever we think of the term – this is connected to the rejection of the thought that secularization is a one-way process towards a non-religious world (Casanova 1994; Asad 2003; Joas 2009; Habermas 2010; cf. even Bruce 2013). Hence, there are definitely new ways of managing the sacred, new ways of understanding the thin line between transcendence and immanence, and new ways of dealing with the religious heritage and questions of religion in society, in politics, in media, and in terms of law, but this presupposes that religion is taken for granted as a key element of human life. When some other aspect of society is changing (e.g. law or political structures), these changes influence religious life and understanding, and when religion is changing, it has a profound impact on political issues, on cultural changes, on the media, on education, and on law. This is the background for introducing an approach to the study of religion which we have called ‘formatting religion.’ Looking at religion from the perspective of ‘formatting’ presupposes an inter-disciplinary endeavor. In order to understand how religion is formatted, we have included scholars of sociology, intellectual history, and philosophy; of law, international politics, and comparative religion; of theology, 1

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media, and education. The common interest in questions of religion among these scholars is based on the idea that religion might be better understood in the way it interacts with and is formed by other realms of society, rather than as a separate thing, a separate field. It does not mean that religion is reduced to a function of other societal realms – on the contrary, it indicates that religion is so fundamental, even to societies or states that are defined as ‘secular,’ that it influences all other aspects of life and the organization of society, in history and at present, and presumably will continue doing so in the future (cf. Beyer 2013b). In the 21st century religion has again become a contested and highly controversial issue. It is regularly linked to conflict and violence, to political challenges and legal controversies, to gender issues and terrorism. Hence, since the turn of the century, and more specifically since a particular day in September 2001, religion has once more become a topical question in the media and in political controversies. It has again entered the international political agenda in questions of migration and borders, radicalization, surveillance, terrorism, and war. But it is also a key issue in national and regional discussions on education, immigration, security, and integration policies. It is a strong identity marker for minorities and majorities alike, and thus it gets involved in discussions over identity and basic values on a national or civilizational level. Some of the most heated debates on human rights have to do with religion and the right to believe – or not – and to practice one’s (non-)religion in community with others (Slotte 2012). There are numerous cases concerning religion and secularism in the European Court of Human Rights in Strasbourg. The valuation and understanding of ‘religion’ are as controversial as these issues under discussion. It depends on the concrete situation and the political and historical circumstances. Different political systems give different answers, and the role of religion can be seen as constructive and peaceful in one context and as a source of violence, conflict, and suppression in another. As many scholars have pointed out, including scholars contributing to this volume, it is hardly possible to agree on a common definition of what religion ‘is.’ However, the deliberate turn of this book is to shift focus from analyzing what religion is or how religion is distinguished from secularism, and even from the thicker descriptions of lived religion to how religions are structured and re-defined in the early 21st century, due to changes in law, politics, media, and education. These changes in the contemporary perception and understanding of religion are conceived as instances of how religion is formatted in terms of juridification, politicization, and mediatization in the contemporary world. Second, and in response to that, the authors also discuss how religion and shifting notions of the sacred influence law, politics, media, and education (e.g. in terms of sacralization and desacralization). 2

FORMATTING RELIGION

The present volume also draws parallels in history to how religion has been formatted in earlier times, as sociologist Hans Joas discusses in the second chapter. The process of formatting religion is as old as religion itself, and historical analyses are helpful for a better understanding of contemporary changes. In this respect there is nothing new under the sun. As a scholarly approach, ‘formatting religion’ can be seen as an attempt at establishing a more generic perspective on religion as embedded in and entangled with other realms of society. Disciplinary differences remain as significant as ever, but they are seen as resources of a more generic and multi-faceted description of the complexity of religion and the forms of religious transformation.

Why formatting? The words ‘format’ and ‘formatting’ obviously have something to do with the form. Hence, the very distinction between form and content, between form and matter, is activated, with emphasis on the former. The contributions to this volume vary in content and context, but with their focus on politicization, juridification, and mediatization, they all emphasize that form matters. The form, the format, materializes itself in new forms of religious life (cf. Durkheim 2008). The formatting of religion matters because it materializes itself in new ways of interacting, new ways of understanding and regulating religion, new ways of practicing religion in the modern and globalized world. Religions have traditionally been comprehensive systems of understanding and organizing the world; hence, they have always been adaptive to influences from other cultures, thought systems, philosophical categories, political structures, and law. And there are numerous examples of how religions interact and mutually influence each other. They are influenced by the understanding of ‘religion’ and religious practice in the surrounding community; hence, the format is changing and thus also the matter. If, for instance, the notion of ‘religion’ in European law is based on a Protestant Christian understanding of personal faith, a Protestant religiosity, this also influences the understanding of Islam when practiced and lived under European legislation. This influences how Muslims in Europe understand ‘religion’ and practice their religiosity, as, for example, Ege Lepa argues in her chapter. In a period of globalization, it may influence Muslims and other religious traditions worldwide. Islam is ‘formatted’ differently if it is understood as a question of personal choice and belief rather than a given tradition which regulates all aspects of life, as Islam would do in countries like Egypt and Iraq only a generation ago (Roy 2004:146–47). 3

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Olivier Roy has argued that with the postmodern understanding of a global Ummah, which is neither based on a tradition that is taken for granted nor on territorial limits, we are actually facing a ‘new’ religiosity that has little in common with traditional Muslim religiosity, although they all belong to Islam and refer to the Quran and the Hadith as authoritative texts (Roy 2013:187). Hence, it is clear that the format matters, and this (personal, text-oriented, at times fundamentalist) ‘formatting’ as Roy labels it, has obvious political consequences, for example, when it comes to the territorial ambition of establishing an ‘Islamic State’ or a new global caliphate. This new understanding of Islam and the global Ummah, of jihad and authority, influences political developments and instigates wars and terrorism, refugees and migration (Brekke 2012). The format matters, and formatting of religion materializes itself in new forms of social life, of politics, of education. In what other respects does form matter? Whether we are speaking of a piece of art, a political message, or a TV program, the content is definitely changing when the form does. And the same applies to religion. Yet by focusing on the form and the formatting of religion, we observe something else than when we try to fix and analyze the content, or even the ‘essence’ of religion (e.g. its doctrinal propositions, its anthropology, and its teaching about God or gods). New formats of understanding require different ideas of Bildung, of forming and educating children and young people, of constructing the society of tomorrow. An English dictionary defines the noun ‘format’ as ‘the way in which something is arranged or set out.’1 This is exactly what we are looking for when we describe the ‘format’ of religion: the way it is arranged or set out. Another way of ‘formatting religion’ is therefore the formatting that takes place when religion is mediated on the Internet or in social media. What happens to ‘religion’ then? How is it represented, and how is it understood? The formats of the Internet and social media give priority to images and films, to the visual representation of religion. Stereotypes are actively reinforced in order to mediate a strong visual impression of ‘religion.’ An extreme example of this is the medial representation of Daesh at YouTube and in social media, which is dominated by ancient symbolism, black cloaks and weapons, flags and shouting, and archaic violent actions such as decapitations.2 Other expressions of religion in social media are more peaceful, either beautiful or cliché-ridden, and probably more influential on daily life, including saints and landscapes, crosses and flowers (Endsjø and Lied 2011). Knut Lundby discusses the difference between mediation and mediatization of religion in Chapter 7. Mediation of religion takes place all the time, he argues, and is integrated into the religious conceptuality, as 4

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when Christians see Christ as mediator between God and man and present the sacraments as mediation of God’s grace. The forms of mediation are changing in a modern society, and the formats of the medium, from printing to art, from television to social media, put particular restrictions and open possibilities of communication and understanding. However, in late modern societies scholars are also talking about a ‘mediatization’ of politics, of sports – and of religion. This is the case when religious institutions, organizations, customs, and understanding undergo processes of transformation due to the comprehensive usage of media in the world today. Hence, religion is formatted in a way that eventually transforms it into a different social and cultural form. Lundby thus defines the difference between form and format: ‘While “format” points to concrete “mechanisms” in the formatting processes, “form” encompass the social and cultural whole that comes out of the formatting and which condition further mediation.’ He argues that there is a continuous dynamic between form and format. When studying the formatting of religion, such as mediatization, Lundby focuses on the ‘dynamic interaction over media formatted material [which] shapes a form of communication, that transform the involved practices and institutions.’ Hence, mediatization is a formatting process that enables us to discuss critically the distinction between ‘form’ and ‘format’ and the interaction between the two in the process of transforming religion, thus making it into ‘something else’ (Durkheim 1974:26–27). Lundby concludes that mediatization is formatting religion into a new form. A final example from Scandinavia may illustrate how such processes take place. As I have pointed out, social media give priority to visual representations and tend to enhance stereotypes, and thus also conflicts, on religion and/or against religion. Hence, it is hardly a coincidence that the cartoon controversy in Denmark occurred in 2005–06, at the time when the Internet was still at an early and relatively innocent stage. Social media were still in their childhood, and thus the representation of Islam through caricatures of Mohammed remained unnoticed as long as it remained connected to the printed media in the newspaper Jyllands-Posten, where the cartoons were published on 30 September 2005. As Muslim leaders were made aware of the cartoons in the Middle East and the cartoons were mediated online, it caused a stir and violent demonstrations across the Muslim world from Beirut and Amman to Meymaneh and Jakarta – and flags were burned during demonstrations at the Norwegian and Danish embassies across Europe, Asia, and America. According to the New York Times, the violence caused at least 200 deaths globally.3 It turned out that these cartoons depicting the prophet with a bomb in his turban, etc., were extremely provocative to 5

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Muslims, who had a different relationship to images, to blasphemy, and to visual media than the averagely secular Dane (Mjaaland 2011). Such caricatured representations enhanced the conflict and the prejudices between Christians and Muslims and raised the level of conflict, which was already considered by many a civilizational conflict between the West and the Islamic world with ongoing wars in Iraq and Afghanistan. After the publishing of further cartoons in the journal Charlie Hebdo in the following years, Islamists attacked the redaction, killing twelve people and wounding eleven others in January 2015. Today, it is almost impossible to analyze conflicts on religion without taking into account their media representations, such as the spectacular view of the planes flying into the Twin Towers or the media images of the Pope, of the prophet, of Islamic movements, of refugees. These images also make us aware of how the processes of mediatization seem to accelerate in the present, mediatized world. And thus it becomes all the more significant to provide a better understanding of these transformations, the formatting of religion.

Formatting religion in history and at present Hans Joas’ chapter on the sacralization and desacralization of power introduces some historical aspects of formatting religion, with emphasis on how religion is influenced by questions of power and politics – but it also demonstrates the deep religious influence on and structuring of political ideas. Joas begins with a discussion of formative processes during the ‘Axial Age’ between the 8th and 3rd century BC, when many of the religions that are recognized as so-called ‘world religions’ today received decisive impulses to their formation. Although Jaspers’ theory of such an Axial Age is disputed, the problems he draws attention to are still relevant for the study of religion: universalism vs. cultural particularism, sacred vs. desacralized forms of power, and the description of religious change as gradual development from one stage to another. In a critique of Charles Taylor’s theory of secularization Joas rejects that a linear description of such complex phenomena is possible, in terms of a ‘vector’ or trajectory leading towards a ‘secular’ age. Claiming that such linear analyses are insufficient, possibly even misguiding, he discusses how we could describe the development without recurring to more or less random descriptions of the sacralization and desacralization of political power – and in particular, how could we ‘conceive more precisely of the relationship’ between the universalisms (e.g. emerging in the Axial Age) and the cultures in which they are embedded? Joas argues that the critical tools of sociology of religion should be used in order to unmask the sacralization of power, not only in ancient times but 6

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also in the study of the 20th or the 21st century in the critique of national and collective self-sacralization, such as the Russian and German totalitarianism and racism that dominated the history of the 20th century. This is an example of how religion is formatted in terms of national sentiments that lead to sacralization of idols, ideas, and ideologies that the Old Testament prophets to whom Joas refers would simply label as ‘idolatry.’ The negotiations and declarations of human rights are, according to Joas, comparable to the universalizing tendency of the Axial Age. According to his previous analyses, the development and acknowledgment of human rights represent a sacralization of the person, since every single human being is seen as free and equal in dignity and rights – as opposed to the sacralization of states and nations (Joas 2013). However, he argues that human rights are threatened not only by totalitarian regimes suppressing them but also by Western countries supporting and stressing them as a sign of their cultural and political superiority. Joas argues that the tendency of national self-sacralization so typical of the nationalisms during the 20th century is recurring today, for example, in the self-sacralization of a continent (Europe) or a civilization (the West) that tends to elevate its own ideals, represented by human rights, as superior to all other cultures and civilizations. This is a dangerous development, he points out, since it effectively undermines the universal validity of these human rights, and it is followed by a cultural and thus particular rather than universal understanding of Christianity and secular versions of Christian and/or humanitarian ideals. Hence, the analysis of politics and religion in terms of religious patterns of understanding such as the ‘sacred’ formatting of political power becomes a critical tool for understanding our own times and its deep political and cultural challenges connected to identitarian as well as liberal, totalitarian, and democratic movements in the 21st century. The chapter on sacralization and desacralization shows the relevance of ‘formatting religion’ in the study of developments across the centuries. Religion is thus embedded in and regulates an economy of the sacred, but this economy is linked to the identity of a community, to the regulations of law and morality, to the distribution of political power, and to its representation in art and media. By studying the formation of these entangled aspects of human and social life, we are expanding the scope of formatting religion and the tension between a formatting from above and from below.

Formatting religion from above and from below The expression ‘formatting religion’ is thus understood in a double sense: First of all as a question of how religion is formatted differently due to 7

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political, legal, or medial changes. Second, it is a question of how religion – and religious ideas, communities, and movements – is formatting society, identity, law, and politics in a particular historical context. Religion is thus formatted by legal and political decisions, but it is also formatting societies based on its extensive political, social, and cultural patterns, symbols, and ideas. Formatting Religion adopts this double perspective on historical and contemporary issues, with particular emphasis on questions of law, politics, media, and education. Its scope is global, and the processes thus described as formatting processes are observable worldwide, although the examples discussed in the present volume are primarily taken from Asia and Europe. The process of formatting religion has so far not been given a precise scholarly description or definition in the literature. Whereas Olivier Roy (2013:195–6) has proposed ‘formatting’ as a heuristic tool primarily in order to understand recent, modern processes of standardizing the shape and content of religion, this volume sets out from the assumption that formatting processes have been present and can be traced historically back to early concepts of religion in the Middle Eastern region and up to our present ‘secular’ age (Taylor 2007). Rather than merely standardizing religion within certain institutional forms (i.e. a formatting from above), I will argue that these processes also enhance the controversies and ambiguities connected to the ongoing globalization of religion and its respective expressions of ‘glocalization,’ that is, particularizing responses to global transformation (Beyer 2013a). Despite the political pressure in pluralist societies for standardizing all religions within one specific ‘form,’ the agents of religious communities react with creativity and opposition, underscoring their particularity in a formatting from below. These opposite tendencies are part of the same cultural and political dynamic, which accelerates in accordance with new media formats and complex political controversies (cf. Kahn 2011). In addition to the process of mediatization and (de-) sacralization, as described earlier, the authors contributing to this volume are focusing on processes of juridification and politicization. In order to give a more comprehensive and embedded understanding of ‘formatting religion’ as analyzed in this volume, I will turn to some examples discussed by the contributors, where we find formatting both from above and from below. In Myanmar, we may currently observe the former, viz. the formatting of religion from above in terms of juridification and politicization, as Iselin Frydenlund argues in Chapter 3. Conflicts connected to religion and ethnic identity have been dramatically enhanced in Myanmar since the military regime opened up for relatively free elections in 2011, after more than half a century under military rule. Whereas the country has experienced political liberalization and legal reform, religious 8

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expressions and identity markers have been regulated far more strictly (e.g. in order to prevent interreligious marriages). Religious issues are thus mixed with racial discrimination and suppression of minorities. Religion is thereby formatted from above through strict legal regulations of what is acceptable within the borders of Myanmar. Frydenlund argues that this development is anything but unique for Myanmar. Similar developments are observable in Spain in the 20th century and in Russia and South Africa in the 21st century. There is formally a clear separation of religion and politics in Myanmar, but this fundamental secularism has not prevented a strict legal formatting of religion by the authorities. However, laws are influenced by political circumstances, and the development in Myanmar is, according to Frydenlund, the result of monastic legal activism. Their arguments are based on an understanding of religion as ‘belief,’ she writes, based on intellectual reasoning and individual choice. This is an example of formatting from below that conforms to Western, even Protestant, understandings of what religion ‘is.’ Hence, global tendencies are reflected in the local formatting of religion from below, which again demands a response from the authorities, visible in strict legal regulations of religion as formatting from above. Recent responses to such regulations indicate a continuous interaction between the two perspectives. Hence, women’s groups are raising protests against this development as an expression of monastic (male) domination and control, whereas other Buddhist women support the regulations as necessary for their own protection. One of the major advantages of the perspective developed here as ‘formatting religion’ is to give a dynamic description of such processes without defining them as either an example of secularization or the opposite. It could possibly imply both, viz. both secularization and re-sacralization of the society in Myanmar. However, the religious/secular binary is not so significant for understanding this development. Neither is the attempt at defining ‘religion’ as a phenomenon with specific characteristics. On the contrary, this book focuses on how religion interacts with processes of law, politics, media, and education, and thus is formatted by but also formatting these realms of society, from above and from below.

Politicization The situation in Myanmar as discussed by Frydenlund combines the politicization of religion with an expanding scope of legal regulations of religion. This is one of the dimensions of juridification, a notion to be circumscribed and defined in further detail later. The chapters on Sri Lanka, Russia, and Estonia also include political and legal dimensions, although with emphasis 9

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on the former. Politicization of religion thus refers to (i) political formatting from above by national and international authorities, but conversely also (ii) self-formatting of religion by adaption or resistance to political formatting from above. Politicization also includes (iii) political usage of religious patterns and discourse, for example, when the term ‘jihad’ is redefined by fundamentalist groups or women use religious language in their fight for equal political rights; and (iv) political formatting of religious identity, constructing a ‘world religion,’ a civilization, a local or global Ummah, or a state. The reference to a global Ummah as described by Ege Lepa among young Muslims in Estonia who primarily connect to this community by way of social media is thus an example of politicization, but also the mediatization of religion. In the following I will give a short presentation of all the chapters. The book is organized around the three key processes of politicization, mediatization, and juridification, although these processes are often interwoven. The first two chapters have already been presented: Chapter 2 is written by Hans Joas and adopts the long historical perspective of sacralization and desacralization as described earlier. Chapter 3 is written by Iselin Frydenlund and focuses on the politization and juridification of religion in Myanmar as presented in the previous section. In Chapter 4 Michael Hertzberg analyzes the monitoring of religious freedom in Sri Lanka. Christian groups, in particular Evangelical Christians, have protested against numerous incidents of persecution, whereas the Buddhist majority accuses the Christian groups of ‘unethical’ conversion of poor people in rural areas. After the end of the civil war, the majority religion urged the political authorities to enact a law that bans such conversions. However, the Evangelical Christians mobilized their influential connections abroad, and every incident of persecution or intimidation is reported and monitored by organizations operating internationally. In 2005 the UN special rapporteur on religious freedom or belief, Asma Jahangir, visited Sri Lanka to inquire about the recent conflict around ‘unethical’ conversions and violence against Christians. On her fact-finding mission she stated that the documentation provided by Buddhists on conversions was ‘vaguely described and unclear with regards to circumstances,’ while the reports on violence against Christians were ‘very well documented and precise to the factual circumstances.’ Hertzberg thus analyzes the process of politicization of religion in Sri Lanka, focusing on the dynamic between local and national monitoring efforts in relation to the international scene. The ‘formatting’ thus taking place is demonstrated by the ‘monitoring’ as an authoritative and reliable source of understanding religion and guiding political decisions. The chapter highlights the importance of various reports 10

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and fact-finding missions to alleviate documentation into generating political facts critical to decision-makers in the realm of religious freedom. In Chapter 5 Vebjørn L. Horsfjord presents an analysis of the political influence of the Russian Orthodox Church and its understanding of ‘traditional values’ as a source of common religiosity across the major religious traditions. The chapter analyzes a number of statements and declarations about human rights on which the leadership of the Russian Orthodox Church have had considerable influence. The documents display an antisecular and anti-liberal agenda, especially regarding so-called ‘family values.’ However, the structure of the arguments varies considerably: In some cases the agenda is based on specifically theological reasoning drawn from the Bible and the Church fathers. In other documents, the agenda is said to arise from ‘the religious worldview’ with no reference to Orthodox tradition. A translation process is going on, but it is not a translation from religious language to generally accessible language; they have introduced the notion of ‘shared religiousness’ as a common source of ethics and values. This implies a formatting of the concept of religion that can nurture interreligious alliance building against liberal agendas, and thus a politicization of religion – but also, given the increasing political influence of the Russian Orthodox Church nationally and internationally, a sacralization of political power. In Chapter 6 Ege Lepa discusses the situation of a religious minority that once was under heavy influence of the Russian Orthodox Church and the Soviet Empire, viz. the Muslims in Estonia, who represent less than 1 percent of the population. Although the numbers are very limited, this group has experienced some extreme changes in political conditions over the last century since the October revolution in 1917. Most of the Muslim families in Estonia moved there during the Czar period and lived peacefully with their Christian and Jewish neighbors. Then they experienced a short period of relative freedom and secularization between 1918 and 1945, before Estonia came under Soviet rule and the atheist ideology. After 1989, Muslims were again allowed to practice their religion freely, and the country is today a progressive member of the European Union. These political changes have implied a series of formatting processes based on system, laws, and ideology. The Muslim community seems to have adopted a strategy of becoming ‘invisible’ to political authorities but keeping the tradition and prayers alive, incognito, in private homes or buildings without the typical external symbols and signs of a minaret. Religion is privatized, and believers are forced to secularize their public lives, while keeping the social relationship to the community. However, with the new format of social media on the Internet (e.g. closed groups on Facebook), young 11

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Muslims seem to adopt a radically different form of faith, often critical of the older generation, but devoted to a global community of Muslims, the Ummah. At the same time, this formatting is connected to the Internet rather than a concrete, physical community of people praying together. The new format invites a postmodern religiosity covering everything from veiling fashion to fasting tips for Ramadan. The two forms of Islam live side by side in the same country, shared by a tiny minority, but Lepa argues that their respective formatting of religion is so different that they have hardly any point of connection.

Mediatization and religious education Chapter 7 is dedicated to the mediatization of religion, a seminal theoretical analysis of the field written by Knut Lundby and described in further detail earlier. The media perspective is a key to the question of formatting in the current context, and it has clearly influenced the recent discussions of religious education in Europe, which is the focus of the two subsequent chapters. In Chapter 8 Robert Jackson draws attention to the Toledo Principles for Religious Education (RE), a process that has been initiated by the European Union in order to compare and align the principles for educating children and youth in questions of religion. Jackson has been one of the architects behind this process, but it has been accused of formatting religion in a specific way, in order to adjust the understanding of religion to secular principles. Liam Gearon has accused the Toledo Principles of a politicization and even a securitization of religious education in order to produce secular, tolerant children who respect human rights and reject religious fundamentalism and radicalization. As Jackson points out, this has never been the intention of the Toledo process, and the researchers have been free to choose the perspectives they find helpful and relevant for understanding the current role of RE in Europe. Hence, he finds it out of place to accuse Toledo of such an agenda. However, he admits that there has been a general shift in the scope and form of religious education, from ‘nurturing’ religious faith to an emphasis on knowledge about (various) religions. This implies a new formatting of religion, which is taught in new, more ‘objective,’ and thus secular categories. A distance to the religious commitment and identity is established, and thus the result may be politically significant, perhaps even changing the understanding and formatting of religion for generations to come. As important as these changes will be, Jackson rejects the hypothesis that they can be traced back to the Toledo Principles. On the contrary, these principles are simply adapted to the new political and 12

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religious situation in Europe, and thus Toledo can be seen as an indicator (and not the cause) of this new formatting of religion, with potentially enormous consequences for future generations – although it is difficult to predict the effect of such changes. They might end up with the opposite of what the law- and decision-makers had expected. Radical changes (even from above) sometimes provoke the most radical responses (from below). In Chapter 9, Trine Anker and Marie von der Lippe have analyzed the responses to religious radicalism and extremism in the classroom. Recent international studies indicate that RE is the most significant source of knowledge about religion for many students aged fourteen to sixteen, and in particular among those who indicate that they have ‘no religion.’ Based on experiences from Norway after the terror attacks in New York and in Utøya in 2011, they argue that RE has come under pressure from two sides: (i) the politicization and securitization of the field corresponds to the political expectation of harmonizing the society by means of Bildung, whereas (ii) the mediatization of religion implies a shift of focus towards religious conflict, terrorism, and violence. The teachers are left with the difficult task of negotiating between these two tendencies that indicate a double formatting of religion that is difficult to integrate in a unified understanding of religion. As the authors conclude, this may simply be a result of the complexity of religion in today’s world, and it can be an indicator of processes that gain further momentum in the years to come. The complexity of religion is thus reflected in the formatting processes it experiences in religious education today.

Juridification The two following chapters focus on contemporary juridification of religion in the Nordic countries. The Nordic countries experience significant changes affecting their organization of society. Over the last two to three decades they have changed from homogenous Lutheran Protestant societies, where the Church played a central part in the execution of state power and law, to more secular-pluralistic societies, where the sources of law ought to be re-negotiated and the rights of non-believers and religious minorities ought to be taken care of. Norway has recently changed its constitution in order to loosen the bonds between state and church, and thus the legal position of the Church is still a contested issue open to negotiations. According to Lisbet Christoffersen one consequence may paradoxically be a re-sacralization of the Norwegian state. The ‘juridification’ of religion is connected to an increasing tendency in various parts of the world, particularly in Europe, Asia, and North America, 13

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to regulate religious issues in terms of law. This is not a new tendency, since all religions have been instrumental in the development of jurisprudence and moral law, as in Sharia/Fiqh (Islam), Dharma (Hinduism/Buddhism), and Halakha/Nomos/Lex (Judaism/Christianity). Hence, law is by no means foreign to religion, and the law codices of modern states are often influenced by religious jurisprudence. However, with the separation of church and state that has become the rule in most modern states, there is also a need to clarify the competence of the state versus religious institutions. Within pluralist societies, the law ought to take care of justice between religious majorities and minorities, as well as the non-believers within a given society. The human rights have become important guidelines – also by regulating state power towards individuals and religious communities – in order to prevent excessive abuse of power against public religion. The new law in Myanmar is an example of how laws are nevertheless used in order to regulate the relationship between the religious majority (Buddhism) and religious minorities (Christians, Muslims). This is an example of juridification as understood here: Formatting religion in terms of law. As discussed by Blichner and Molander (2008), juridification can be understood as a multi-layered process, including (i) the expanding scope of legal regulations on religion, (ii) increased interaction between state entities and religion, and (iii) shifting relations between religious and legal authority. It can also be connected to questions of constitution, to human rights issues, and to the increased legal framing of individual/collective/state relations, including the often controversial role of religion in these relations. In Chapter 10 Pamela Slotte points out that there is a clear global tendency towards navigating religious diversity by turning to law in the sense described by Blichner and Molander. However, this is hardly a solution to the societal and cultural controversies connected to religion, she argues, with emphasis on the current situation in Finland. Human rights are helpful as a common framework, but religious issues are also questioning some of the premises of such a universal and secular set of rules. As opposed to the effort of constructing a legal sphere beyond religious competence, Slotte suggests that human rights institutions ought to ‘conceive themselves as within an undivided sphere of the sacred where they participate in a discussion about what is acceptable and desirable.’ Hence, the juridification would not take place from outside, but rather from within the shifting relations between religious and legal authority. In Chapter 11 Lisbet Christoffersen takes the argument one step further when she argues that after a long period of secular jurisdiction where the parliament has been responsible for legal regulation of the church and other religious institutions, the recent separation of church and state in Norway 14

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has not merely contributed to further secularization of the public and legal sphere. Although this separation paves the way for a more secular society on the political level, she argues that it has provoked a re-sacralization of parts of Norwegian law, in particular, when it comes to the regulation of same-sex marriages. Hence, the emphasis on formatting religion in terms of juridification reveals a complex relationship between de- and re-sacralization which is rather ambiguous. In this respect, Christoffersen’s chapter confirms Joas’ argument, that these processes are complex and by no means follow a one-way direction towards a merely secular world. Formatting religion thus takes various forms, and the emphasis in each chapter differs. However, it is also possible to see an interaction between the processes of juridification, politicization, and mediatization. The changes in Myanmar, in Russia, and in the Nordic countries include juridification and politicization, and the challenges for education in religion definitely include both politicization and mediatization. Finally, it is interesting to observe that even secularism and non-religion are formatted according to similar patterns of understanding as religions. Hence, ‘formatting religion’ transcends even the limits of religion alone, towards a question of formatting secularism or non-religion. But that is the topic of another volume.

Notes 1 Cf. https://en.oxforddictionaries.com/definition/format [Accessed 20 March 2018]. The OED defines ‘format’ as (1a) ‘shape and size of a book’ or (2a) ‘a style or manner of arrangement or presentation; a mode of procedure’ [www. oed.com/ accessed 20 March 2018]. 2 NBC News 14 September 2014, ‘ISIS Extremists Claim to Behead British Hostage David Haines’ https://www.nbcnews.com/storyline/isis-terror/ isis-extremists-claim-behead-british-hostage-david-haines-n202836 3 New York Times, ‘Danish Cortoon Controversy’ www.nytimes.com/topic/ subject/danish-cartoon-controversy [Accessed 20 March 2018].

References Asad, T. (2003) Formations of the Secular: Christianity, Islam, Modernity. Stanford, CA: Stanford University Press. Beyer, P. (2013a) Religions in Global Society. London: Routledge. Beyer, P. (2013b) ‘Questioning the secular/religious divide in a post-Westphalian world’ International Sociology 28, 663–679. Blichner, L.C. and Molander, A. (2008) ‘Mapping Juridification’ European Law Journal, 36–54. Brekke, T. (2012) Fundamentalism: Prophecy and Protest in an Age of Globalization. Cambridge: Cambridge University Press.

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Bruce, S. (2013) Secularization: In Defence of an Unfashionable Theory. Oxford: Oxford University Press. Casanova, J. (1994) Public Religion in the Modern World. Chicago: The University of Chicago Press. Durkheim, E. (1974) ‘Individual and collective representations’ Sociology and Philosophy. New York: The Free Press. Durkheim, E. (2008) The Elementary Forms of Religious Life. Oxford: Oxford University Press. Endsjø, D.Ø. and Lied, L.I. (2011) Det folk vil ha. Religion og populærkultur. Oslo: Universitetsforlaget. Habermas, J. (2010) ‘Notes on a post-secular society’ New Perspectives Quarterly 25:4, 17–29. Joas, H. (2009) ‘Die säkulare Option: Ihr Aufstieg und ihre Folgen’ Deutsche Zeitschrift für Philosophie 57, 293–300. Joas, H. (2013) The Sacredness of the Person: A New Genealogy of Human Rights. Washington, DC: Georgetown University Press. Kahn, P.W. (2011) Political Theology: Four Chapters on the Concept of Sovereignty. New York: Colombia University Press. Mjaaland, M.T. (2011) ‘Geneatopics’ Studia Theologica 64:2, 172–189. Roy, O. (2004) Globalized Islam: The Search for a New Ummah. New York: Columbia University Press. Roy, O. (2013) Holy Ignorance: When Religion and Culture Part Ways. Oxford: Oxford University Press. Slotte, P. (2012) ‘The Religious and the Secular in European Human Rights Discourse’ Finnish Yearbook of International Law 21, 231–286. Taylor, C. (2007) A Secular Age. Cambridge, MA: Belknap/Harvard University Press.

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2 SACRALIZATION AND DESACRALIZATION Political domination and religious interpretation1 Hans Joas

‘Vengeance is mine, saith the LORD.’ Bible readers will no doubt be familiar with this saying, but even those of a secular persuasion will probably have come across it – as the motto, for example, of Leo Tolstoy’s marital novel Anna Karenina. It comes from the book of Deuteronomy (32:35) and is a passage in Moses’s settling of scores with a disobedient people, a terrible threat invoking harsh punishment and inexorable decline. We find the same saying in Paul’s Epistle to the Romans, where he quotes it while giving it his own twist: ‘Beloved, never avenge yourselves, but leave it to the wrath of God’ (Rom 12:19). For many people today, both believers and nonbelievers, the original version simply sounds appalling because their notion of God, to the extent that they have one, has been transformed into that of a loving, sympathetic, all-forgiving superhuman being. The great turn in Paul, the call for human forgiveness and reconciliation because God has the monopoly on revenge and punishment, is a quite different matter. The emphasis is now on ‘mine’ rather than ‘vengeance.’ Yet even this milder version, which many contemporaries will find appealing, soon inspires doubts. Is this idea that people ought to entirely forswear vengeance remotely realistic in any positive sense? Is it not in fact the case, as Max Weber put it in his famous ‘Intermediate Reflections,’ that ‘according to the inescapable pragmatism of all action . . . force and the threat of force unavoidably breed more force’ (Weber 1991: 334)? If God alone has the right to vengeance, who among human beings speaks for Him, who interprets God’s will? Isn’t there a presumption and a will to power inherent even in this ostensible gesture of submission to God’s will, a danger that certain forces will deign to act as ‘God’s mouthpiece or sword’ (Schieder 2008: 88)? 17

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These are issues in what we might call political theology, issues concerning religion as such, or specific religions, as conducive to peace or sources of violence, as sometimes one and sometimes the other but under differing conditions that we must examine in any given case, and perhaps as both at the same time, because the good conscience may covertly foster the imposition of one’s own views. My main goal in this chapter is to suggest how we might come to grips with and resolve these issues from the perspective of a comparative historical sociology of religion. I therefore spend very little time here comparing my ideas with other conceptual proposals and theories. Everyone is aware how difficult it is to define ‘religion,’ and neatly capturing the meaning of ‘politics’ and the ‘political’ is no less problematic, particularly if we consider phenomena that lie outside the realm of the modern state. The conceptual confusion becomes particularly palpable in debates on possible links between the totalitarianisms of the twentieth century and the processes of secularization that began in the eighteenth. If we make a list of analyses that have sought to shed light on this issue, we soon find ourselves in a veritable jungle of terminology: replacement for religion and ersatz religion; political religion and secular religion; pseudo-religion, cryptoreligion, implicit religion, and new religion; loss of transcendence and practical transcendence – all these terms and many more besides have been cited or invented in an attempt to honor the intuitive sense that the various forms of totalitarianism developed a character reminiscent of the historical religions. Without going more deeply into these approaches here, I merely wish to identify what I believe to be the most crucial requirement of any contemporary attempt to explore these issues. This requirement arises from what I see as the key characteristic of the politics of religion at present. Two supposed certainties that have determined debates on the politics of religion since the eighteenth century have proved untenable. It seems to me that this fact is more profound than questions about the role of religiously motivated terrorism, religion as conducive or obstructive to the integration of certain immigrant groups, or the significance of Islam to Turkey’s possible membership in the European Union (cf. Joas 2014, 2009b). The supposed certainty that long informed the thinking of believers, but which they must now abandon, is that human beings have an inherent anthropological need for religion and that whenever this need is denied – through force or human hubris or consumerist superficiality – moral decline is the inevitable result. This decline in morality, repeatedly predicted both by serious theologians and out-and-out religious apologists – since anything goes without God – has not occurred in the most secularized present-day societies. The empirical connections between religion and morality appear to be less straightforward than some would like to believe. 18

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Conversely, nonbelievers and critics of religion must now relinquish the supposed certainty that religion is historically outmoded and the corresponding notion that believers are backward, that existing forms of religious life are mere remnants, and that in their lack of faith they themselves represent the cutting edge of world-historical progress. In light of the economic and scientific-technological modernization of societies and cultures outside Europe and North America, it is evident today that much of what was formerly considered a law-like causal relationship between modernization and secularization is in fact due to contingent aspects of European history. Even those who still believe that such a relationship exists now concede that our world will become ever more religious in the foreseeable future. They come to this conclusion the moment they consider the demographic dimension: the differing levels of fertility in secularized and religiously vibrant societies. This makes it virtually impossible to argue against religion on the basis of empirical-historical trends and, conversely, to believe you are holier than thou simply by dint of being religious. For those who cling to the notion that radical secularization is impossible on anthropological grounds, the various totalitarianisms necessarily look like mere ersatz forms of the historical religions as the result of secularization or of attempts to compensate for the losses imposed by secularization. This perspective risks overlooking what is new about these new creations or overstating their overlap with the old and familiar phenomena of religious history, and sometimes even explains them in light of a mysterious subterranean Wirkungsgeschichte, or effective history, of gnostic or millenarian motifs. Conversely, those who hold to the view that modernization leads to secularization will perceive the quasi-religious characteristics of totalitarianism as evidence that religion has yet to be fully overcome, believing that, like the traditional religions, these are ideas, practices, and institutions with no future.2 In the present-day situation, then, the crucial requirement is to talk about these totalitarianisms but also about the whole global history of the relationship between religion and politics in a way that relinquishes these two pseudo-certainties. The first step in such an approach must be to make a sharp conceptual distinction between the sacred and religion – at least in the sense that we must eschew any tendency to derive the sacred from religions and instead view religions as attempts to interpret the experience of the sacred, to facilitate this experience through practices and narratives and give it enduring form through institutions. The genesis of sacredness in human experiences forms the point of departure for my present proposal. Right from the start, I steer clear of any notion that ‘religion’ and ‘politics’ are two entities that could originally be clearly distinguished from one another. Instead, we must bear in mind the importance of referring to 19

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people and their actions, experiences, and associations rather than to ‘factors’ or ‘systems.’ Only in this way can we attempt to untangle the historical interplay between sacredness and power with any hope of success. The genesis of sacredness is a fundamentally anthropological phenomenon (cf. Joas 2008, 2013). People sometimes have experiences in which they feel drawn beyond the boundaries of the self – in other words, experiences of ‘self-transcendence.’ If they have such experiences, they inevitably identify the source of the power they have experienced – which exceeds the force of their own will but on which their own life force also depends – as lying outside of them. Certain qualities must be attributed to these sources, qualities that differ from those of the things, individuals, and situations found in everyday life. If they look at the question of what is morally acceptable in light of these experiences of the sacred and their sources, then the sacred – which may include good and evil, the divine and the diabolical – becomes the absolutely good. Just as the experience of self-transcendence represents an irreducible aspect of human life, we may then refer to the ‘fact of ideal formation.’3 In the first instance, this merely means the empirical fact that within their shared social existence people constitute ideals. They generate ideas about good and evil that seem obvious or subjectively self-evident to them, and in this sense they seem to require no further justification. These ideas function as an indispensable foundation, one that undergirds the correctness of every justification, and this self-evidence seizes human beings with great affective intensity. Despite the inadvertently presumptuous overtones, I chose the expression ‘fact of ideal formation’ in conscious allusion to Immanuel Kant’s notion of the fact of pure practical reason, but it is immediately apparent that my concept entails a dual difference from Kant’s moral philosophy. The concept of the ideal is far broader than that of morality, which is what Kant had in mind, and underlines that which is attractive rather than that which is restrictive. Further, referring to ideal formation rather than simply to ideals or morality, I highlight an unpredictable, thoroughly historical process of genesis rather than eternal transhistorical validity. Certain aspects of this basic idea immediately have to be pinned down more precisely. It is vital to understand that the formation of ideals is not an intentional process. We cannot decide to regard something as an ideal. We must instead be seized by it, which is why in all such cases we experience ourselves as passive, as recipients of a gift, as hearers of a message, as receptacles of inspiration. Nietzsche’s notion of ‘fabrication’ in On the Genealogy of Morals is therefore quite inadequate to capturing the phenomenon at issue here.4 It is also crucial to emphasize that the distance between ideal and reality is not fixed but is itself historically variable. 20

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Moreover, this emphasis on the fact of ideal formation does not imply that history is a teleological process of the advancing realization of ideals in the spirit of an idealist philosophy of history. Quite the reverse. The notion of ideal formation underscores that new ideals are always emerging over the course of history, that they break with old ideals and reorient human action. Rather than the logic of one single development, this focuses our attention on historical change in all its diverse forms. The emergence of new ideals includes the eclipse of old ideals, or at least a shift in ideas, an impulse to produce new syntheses. Such change may be gradual or sudden. From this perspective, what we call secularization is ambiguous insofar as this process may involve a shift of affective intensity from one set of ideas to another – as when a commitment to Christianity is superseded by one to socialism, or it may involve a mere decrease in intensity, ‘l’institution démotivée,’ in the absence of an affectively intense commitment to something new (Héran 1987). I have referred to ‘ideal formation’ rather than to the ‘genesis of values’ partly in order to avoid the connotations that the term ‘value’ continues to have for certain German philosophers and theologians. But even more important, I want to avoid diminishing the phenomenon at hand by intellectualizing it, as if we were dealing primarily with the process of agreeing to straightforward explicit propositions. The phenomenon at issue here is a holistic process in which deeper layers of the personality are addressed than a person’s capacity for argument. So again it makes sense to refer to ‘sacralization,’ to the deeply unsettling or inspiring encounter with stirring forces that provide us with an image of good or evil, an image we can only ever inadequately express in the form of propositions that others might agree with, and one that does not necessarily make a clean distinction between good and evil. These basic insights into the fact of ideal formation and the historically contingent dynamics involved in processes of sacralization and desacralization were present in the work of major early twentieth-century thinkers – though they expressed them through a variety of concepts. All of them rejected both every ‘materialist’ attempt to denounce ideals as mere ideologies or illusions and the ‘idealist’ tendency to exaggerate the role of human notions of the good vis-à-vis the other dimensions of human action. These thinkers include the American pragmatists William James and John Dewey; Josiah Royce, who is positioned somewhere between neoidealism and pragmatism; Émile Durkheim, the founder of French sociology; and, in Germany, Georg Simmel, Max Scheler, Ernst Troeltsch, and, in certain respects, Max Weber. The basic idea at issue perhaps finds its clearest expression in the work of Durkheim. In the conclusion to his The Elementary Forms of Religious Life, he seeks to demonstrate that it is societies that 21

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produce religions (Durkheim 2008: 310–43; cf. also Durkheim 1978). But at the same time, he goes to great lengths to avoid being interpreted as a supporter of historical materialism. What Durkheim had in mind was the typical human capacity ‘to conceive the ideal and add to the real’ while, according to him, the animal knows just one world: ‘the world he perceives through experience, which is as much internal as external’ (Durkheim 2008: 316). But Durkheim believed that it made no sense to treat this basic anthropological fact as if it were ‘a mysterious virtue that eludes science’ (Ibid.). On the contrary, it is this human gift itself and the specific forms it takes that we must investigate empirically. The main error we must avoid here is approaching ideal formation as if it were a kind of ‘luxury that man might do without’ (Durkheim 2008: 318); in fact, it is a condition of our existence. A society can neither create itself nor recreate itself without at the same time creating the ideal. This creation is not a kind of optional step, a finishing touch that society adds once it has been formed; it is the act by which it fashions and refashions itself periodically. . . . The ideal society is not outside the real society; it is part of it. Far from being torn between them, as between two mutually repellent poles, we cannot insist on one without insisting on the other. (Durkheim 2008: 317) In other words, the idea that a society has of itself is a central aspect of that society; while a society may not necessarily live up to this idea, it strives to do so. The same insight is found in the work of the American pragmatists, but there mostly with a focus on the individual human being. William James, for example, introduces a distinction between the self ‘in actu’ and that ‘in posse’ and underlines that we will fail to adequately understand the individual human being if we comprehend him solely in terms of his existing qualities and achievements and fail to take account of his ideals (James 1902: 138n2, 210). From self-observation we all know how frustrated and diminished we feel when others disregard our potential and reduce us to our current empirical lot, yet we often make the same mistake when dealing with others. There are, of course, ironists and skeptics – in other words, people with an ambivalent relationship to their own ideal or to many ideals – but for James, if an individual lacks any relationship to ideality, she is in the grip of the deepest form of depression, living in a world with no appealing qualities at all. In the philosophy of Josiah Royce, the idea that we possess 22

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the ‘power to form ideals’ and that this is ‘a product of my nature as a social being’ becomes the point of departure for far-reaching ideas in ethics and the theory of religion (Royce 2001: 110; cf. also Royce 1908). In light of the same basic insight, Ernst Troeltsch developed his conception of how we might avoid the relativistic dangers of historicism and of a universal history of religion (Troeltsch 2008; cf. Joas 2013: 97–139, 2010). But enough of these attempts to find reassurance in intellectual history. At this point it may sound as though the essence of my message is merely a well-meaning humanism. There are no doubt much worse things, but I have something quite different in mind. If we shift focus away from individuals and take seriously the diversity of ideals, their great cultural and historical range, the fact that something may seem self-evidently good to one person and self-evidently evil to another, we begin to grasp that the ‘fact of ideal formation’ does not simply mean the true, beautiful, and good as such; it also has a flip side. The original character of ideal formation actually involves an idealization of certain states of a collectivity that have been experienced as particularly intense, states that have given rise to the ideal. The sacralization of particular meanings is, originally, also the sacralization of the collectivity. Only from an anachronistically individualist perspective do we think first and foremost of the individual and her experience of the discrepancy between the ideal and her actual abilities. As researchers studying the Australian aborigines have shown, it seems that in hunter-gatherer societies the ideal exists as such only within the collective self-enjoyment of a successful ritual (Stanner 1965). Here, no individual is enduringly perceived as an embodiment of the ideal collective state. In this developmental reconstruction the personal embodiment of the ideal already looks like a more advanced stage. This does not mean that the original self-sacralization of the collectivity vanishes. Other tribes that do not participate in the ecstasy of the collective ritual and thus fail to get close to the overwhelming powers that are experienced within it are regarded as ‘unholy,’ their members mere ‘shadow creatures’ unfamiliar with the true, elevated life (Stark 1974: 19). Within one’s own collectivity, it makes sense to ascribe a special form of ideality to those most familiar with the collective ritual – in other words, experienced elders and ‘experts’ in the preparation, execution, and interpretation of the ritual event. But this personalization may be entirely confined to the dynamics of sacralization processes without implying any real differentiation of power or politics; individuals may be mere role models without deriving binding claims to allegiance or even material privileges from their exemplary status. From this point forward, every step in the development of power and domination is experienced within the framework of this self-sacralization 23

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of the collectivity. Power can thus accrue to elders or sorcerers (shamans, medicine men, and so on) just as, conversely, a greater concentration of sacred forces is ascribed to warriors who have proved themselves in battle. This means that, above and beyond those collective states in which the collectivity as a whole feels elevated and beyond respected elders and role models, there is also a power-based sacredness and a power experienced as sacred. These phenomena take a vast variety of forms. I consciously refer to ‘power’ and ‘sacredness’ because ‘religion’ and ‘politics’ suggest states of affairs that do not yet pertain – namely, the professional systematization of the sacred or the development of elementary state structures. With their emergence and intense development in Egypt, Mesopotamia, and China, the concentration of sacredness in powerful individuals – a process that had already occurred through the sacralization of ‘chieftains’ – increases immeasurably, now in the sacralization of their homes or tombs and in the cult practiced by them or on their behalf. There is no longer any question of the ideal merely being an elevated collective state, and we have gone far beyond the perception of an individual as exemplary. Instruments of power can now be deployed to consolidate a particular cult; demands for subjugation can be justified in light of the rulers’ cosmic role; and sacrificial practices, up to and including human sacrifices, can be systematically expanded. To this day our imaginations are pervaded by the violent character of the archaic state – the pharaohs, Nebuchadnezzar, and Aztec human sacrifices – though it is an open question to what extent these images reflect historical reality or were enemy propaganda. The fusion of religion and politics in the archaic state, then, remains terrifying, at least on the imaginary level. But it is the history of religion itself that has generated the strongest reaction to the violent potential of tribal religions, and above all, archaic ones, and this is of crucial importance to our examination of the relationship between political domination and religious interpretation. When he referred to a ‘prophetic age,’ and not just among the Jews, and to the ethicization of concepts of salvation, Max Weber himself – building on key currents in the nineteenth-century historiography of religion – highlighted a deeply religious rupture with the power-backed sacredness of the archaic states (Weber 1978: 445–6). Building on the work of Weber and others in his 1949 book The Origin and Goal of History, a book that also represents an important response to the challenges of totalitarianism, Karl Jaspers (2010) referred to an ‘Axial Age’ in the ancient Jewish world and in Greece, India, Iran, and China as an age in which there emerged a new mode of reflection on the basic conditions of human existence. Jaspers highlighted the potential for mutual understanding among the civilizations to which these upheavals gave rise, 24

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upheavals that continue to nourish these very civilizations. Over the last few decades, a broad current of comparative historical sociology of religion has built on these long-disregarded notions and on similar ideas put forward by other scholars, such as Eric Voegelin and Marshall Hodgson, a development spearheaded by two of the most significant sociologists of our time, Shmuel Eisenstadt and Robert Bellah. But there is no consensus so far about the specific characteristics of this Axial Age, its triggers, and its consequences. The Israeli sociologist Eisenstadt – in collaboration with Harvard sinologist Benjamin Schwartz – was the first to discern that the key characteristic of this religious upheaval is the emergence of the notion of ‘transcendence’ and its political-sociological impact (cf. Eisenstadt 2008; Voegelin 2000; Schwartz 1975; Bellah 2011). To this day, people often talk as though a focus on ‘transcendence’ is a characteristic of every religion, and the price of this notion is often a profoundly trivialized understanding of transcendence. For most of human history, the divine was part of the world – with no separation from the merely earthly realm. The spirits and gods could be directly influenced, if not manipulated, precisely because they were part of the world or because the realm of the gods (such as Mount Olympus) functioned in much the same way as the mundane beings. But if a sharp, quasi-spatial boundary is now drawn between the worldly and the divine, this represents a tremendous intensification of the fact of ideal formation. The divine can now be conceived as the real, the true, the entirely other, in comparison with which the earthly must inevitably be deficient. What we have then is a realm of the specifically good, one that goes beyond all mundanely conceivable qualities. This process of differentiation is not just a metaphysical idea but the articulation of an unprecedented intensification of the tension between ideal and reality. Religion, which could be a powerful instrument of the sacralization of power and domination, particularly in the archaic states, becomes an instrument of the desacralization of this very power. Divine kingship is not compatible with this concept of transcendence. If God or the gods exist beyond the realm of the mundane, it is no longer possible for a ruler himself to be God. The ruler is of this world – and must now justify himself vis-à-vis the true world beyond. In this way religion may form the point of departure for a new form of critique of domination and its instruments, along with the forms of social inequality that it supports. If God issues commandments that the ruler fails to uphold, it becomes an obligation to rise up against him in the name of God and to be more obedient to God than to human beings, even the most powerful among them. This opens up space for ‘intellectuals’ avant la lettre, priests who preach and act 25

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on the basis of sacred texts, prophets who urge a change of mind or renunciation or, like Buddha, embody it. A chink appears in the self-sacralization of the collectivity since the ethnic collectivity and the religious collectivity are no longer necessarily identical. Blood brotherhood vis-à-vis enemies can now be superseded by the idea of humanity, a universalism that transcends every ethnic particularity. The heroic use of violence can now give way to the idea of renouncing violence and of propitiatory self-sacrifice. At the very least, the Axial breakthrough laid the foundation for Christianity (and later Islam). The story of Jesus Christ is one of a break with the selfsacralization of his people as well as with that of the Roman Empire. I refer to the desacralization of political power and favor this term over that of rationalization or secularization to convey the phenomenon at issue here. This is certainly not a matter of any diminution in sacredness as a whole, but of a novel, now to some extent reflective, process of its relocation. Rather than investigating the minutiae of research carried out on these issues within the fields of religious history and sociology, to conclude this point I would like to provide an illustrative example (Bellah and Joas 2012). The book of Deuteronomy contains what sounds like a particularly bloodthirsty passage (13:2–10) warning against the temptations of idol worship and calling on people to kill anyone promoting it and to help carry out the execution oneself, even if this means killing one’s own brother, son, daughter, wife, or best friend. Protestant Old Testament scholar Eckart Otto has demonstrated to fascinating effect that this is a virtually verbatim borrowing from the oath of loyalty sworn to the Assyrian king by the grandees of the Assyrian Empire and its vassals, including the Jewish king Manasseh (696–642 bc). But reassigning this oath of loyalty to God means reinterpreting the king of the Jews as ‘the most pious of all his people in his devotion to the Torah’ (Dt 17:14–20) (Otto 2009). God, or the cultic community and scribes, thus becomes a source of law and in this respect supersedes the king. However much we might acknowledge the explosive force of the Axial Age or, if we want to avoid focusing on a specific era, the power of such religious changes at any point in time, we should be careful not to imply that from this point forward the desacralization of political power was a stable cultural possession of the Axial Age civilizations. In retrospect, this alleged world-historical rupture can sometimes seem almost like a mere phase, as every desacralizing religious force of this kind was always immediately appropriated and turned into a new source of the religious legitimation of political power. Christianity, for example, became the state religion of the Roman Empire; in Byzantium there were even ‘hybridizations’ of the cult of the emperor and the cult of Christ (Stark 1974: 13); and despite 26

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all the internal tensions between church and political power, Latin Christianity too generated a plethora of fusions and interwoven religious-political forms of legitimation. The appropriation of religion by the state or the ‘nationalization’ of religion remains an ever-present temptation even for post-Axial religions. It is not the only one. When the state is essentially weak, post-Axial political self-sacralization may be directed toward the people itself, asserting that it has been specially chosen by God. There is no need to build any negative myths around this. On the contrary, it is quite understandable that the sense of possessing a profoundly superior religious insight, which is granted to one’s own people, is interpreted in terms of having been chosen for this ‘revelation.’ What is then crucial is whether one’s own chosenness is experienced as one ‘with tenure’; as a one-off, irrevocable, and unconditional privileging of a single people by God, or as conditional and granted to others as well.5 There is a famous passage from the prophet Amos that disputes the idea that the people of Israel enjoy any special rights. The Lord asks, ‘Are you not like the Cushites to me, O people of Israel?’ declares the Lord. ‘Did I not bring up Israel from the land of Egypt, and the Philistines from Caphtor and the Syrians from Kir? Behold, the eyes of the Lord God are upon the sinful kingdom, and I will destroy it from the surface of the ground.’ (Am 9:7–8)6 Just as the ‘nationalization’ of religion represents a risk to moral universalism, so does the kind of ethnicization or culturalization entailed in the notion of a people’s unconditional ‘chosen’ status. An exemplary recapitulation of these tensions can be found in the history of the (North) American self-image. A state that was long very weak made the idea of being a ‘chosen people’ seem quite reasonable to many settlers. The course of United States history is permeated by the inevitable tension between universalism and particularism and a tendency to dress up particularist goals in universalist garb through the notion that Americans have been assigned a mission to civilize, pacify, and democratize the world. One classical formulation of this motif is as follows: God has not been preparing the English-speaking and Teutonic peoples for a thousand years for nothing but vain and idle selfcontemplation and self-admiration. No. He made us masterorganizers of the world to establish system where chaos reigned. He has given us the spirit of progress to overwhelm the forces 27

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of reaction throughout the earth. He has made us adept in government that we may administer government among savage and senile peoples. Were it not for such a force as this the world would relapse into barbarism and night. And of all our race He has marked the American people as His chosen nation to finally lead in the redemption of the world.7 This return of an Old Testament motif is not so much the consequence of ever-present subterranean ideological currents but the appropriation of certain old interpretive schemes in order to articulate novel situations. The post-Axial history of religion, then, is also one of self-sacralization. But the Axial irritant remains. Axial Age innovations endow the world with the potential to desacralize political power, a potential that has never petered out or disappeared again entirely. From this perspective the history of the relationship between religion and politics after the Axial Age has been one of constant tensions – tensions we must seek to reconstruct in a balanced and unprejudiced way in light of the universalist potential of all Axial Age traditions, but also in view of the various particularist constraints present in all of them. It is a mistake to abstractly compare the teachings of the world religions with one another and thus isolate them from their lived practice. There is a common tendency to see the universalist potential in one’s own tradition while emphasizing others’ particularist constraints. And it is at this very point that one crosses an important line, turning a universalist pathos into just another means of advancing particularist goals. In contrast to other commentators, including Charles Taylor (in his monumental work A Secular Age, 2007), I do not believe that, for example, the periodic attempts at reform during the history of Latin Christianity really add up to a ‘vector,’ as Taylor puts it, a vector of the religious desacralization of political power.8 The connections between medieval monastic reforms and the spirit of the Crusades, between the Reformation and early modern state formation, between radical Reformation and the spirit of capitalist economics and its political institutionalization are simply too close. So it is wrong to think in terms of a stable cultural possession or a vector pointing in a given direction, but neither are we dealing merely with the random or cyclical ebb and flow of the sacralization and desacralization of political power. How are we to conceive more precisely of the relationship between the universalisms that arose in the Axial Age and the cultures in which they are embedded? Through critical examination of the work of Ernst Troeltsch, American Protestant theologian H. Richard Niebuhr developed a number of helpful conceptual distinctions and typologies that are intended to provide a more differentiated account of the tense 28

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relationship between this universalism and its necessarily particular cultural and social forms (Niebuhr 1960, 1951). According to him, alongside the clashes between religion and areligiosity, another conflict of faith is of tremendous significance in the present era, and this he refers to as the conflict between the sophisticated notion of monotheism that he identifies ‘and the other main forms of human faith, namely, polytheism and henotheism in their modern, nonmythological guise’ (Niebuhr 1960: 11). When he speaks of the nonmythological form of polytheism, what Niebuhr has in mind is simply the fact that people often ‘take recourse to multiple centers of value and scatter their loyalties among many causes’ (Niebuhr 1960: 28). This is nothing new in historical terms. At most, what is new here is the nonmythological form. With the concept of ‘henotheism,’ meanwhile, a term that had been common among scholars of religion since the research of Indologist Max Müller, Niebuhr was thinking of a fact crucial to the understanding of cultures shaped by the Axial Age. In its original meaning, this term – like that of ‘monolatry’ – refers to religious practices in which one God only is worshiped without denying the existence of other gods or strictly prohibiting their worship. Niebuhr, however, uses this term to refer to the self-sacralization of collectivities, and it is in this process that he sees the real danger for monotheism: ‘The chief rival to monotheism . . . is henotheism or that social faith which makes a finite society, whether cultural or religious, the object of trust as well as of loyalty’ (Niebuhr 1960: 11). Nationalism is of course the most obvious example of such henotheism, but Niebuhr’s analysis shows that subnational entities such as tribes or regions may also represent ‘the value-centre and the object of loyalty,’ as may supranational ones, such as an entire civilization or culture (Niebuhr 1960: 26). He interprets Marxism as a non-nationalistic form of henotheism and also distances himself from secular universalisms if they make humanity as such (rather than Creation as a whole) the highest point of reference. Even an official commitment to monotheism does not prevent this. God may be a mere name, ‘given to the principle of the religious group itself as a closed society’ (Niebuhr 1960: 28). What is meant here is the self-sacralization both of the churches and of those political systems whose claims to legitimacy are centrally informed by a commitment to monotheism. The distinction between ‘henotheism’ and ‘radical monotheism’ provides Niebuhr with the foundation for a typology of the tensions between Axial Age potential and cultural reality.9 There is no purely Axial culture at all in this sense. Niebuhr talks in terms of the relationship between Christ and culture. In his typology, which is a further development of the ideas of Ernst Troeltsch and Max Weber on the forms of Christian 29

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social organization, he distinguishes between five possibilities: renunciation of the world, a paradoxical dualism, synthesizing harmony, complete assimilation, and the ceaseless transformation of culture (cf. Niebuhr 1951; Crouter 2005: 275–6). Only the last variant assumes that we can never find a definitive solution to the problems of human history. It obliges us to act with salutary modesty with respect to every specific social and cultural formation, and to be constantly on the lookout for any signs of a creeping ‘henotheistic’ process of self-sacralization that might be going on unnoticed. But this last variant does not deny that it is possible to institutionalize Axial Age potential more effectively than hitherto. In the sociology of religion, Niebuhr’s helpful typology found an early and very favorable reception but then fell into oblivion because of the general decline of interest in a historical and comparative approach (Schneider 1964: 788). In theology, it has proved to be surprisingly controversial and even called, by Stanley Hauerwas, a great ‘hindrance to an accurate assessment of our situation’ (Hauerwas and Willimon: 40). One of the reasons for the spirit of animosity that has developed in this debate clearly is that Niebuhr had a certain preference for one of his five types, a fact that made others suspicious that he had ‘set up the argument in such a way as to ensure that the transformist approach would be viewed as the most worthy’ (Marsden 1999). This is not the place to discuss the objections in detail. In my opinion they are to a large extent based on a misunderstanding of Niebuhr’s Weberian methodology of constructing ideal types and of Niebuhr’s Troeltschian heritage – a heritage that is more obscured than elucidated when it is classified as Kantian or liberal. Niebuhr’s typology, in my reading, is, like Troeltsch’s own typology, not simply aimed at a preference for one type but at a synthesis or at least an acceptance of the plurality of Christian attitudes. And his reference to Christ and not Christianity or the Church preserves the reference point of universalism and transcendence and protects it from metaphysical immanentization and cultural particularization. Religions can certainly learn from past experience, uncover their own temptability, and try to place restrictions on themselves, both on the level of doctrine and on that of institutions, in an attempt to guard against temptation. We should consider even the religious innovations of the Axial Age results of learning processes concerning the tendencies toward violence in the religions of archaic states and tribal societies. The prime example of such a learning process is the history of the religious justification for freedom of religion – not, in other words, a merely pragmatic commitment or one made out of indifference toward religion, but a commitment to the religious freedom of people of other faiths that is nourished by one’s 30

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own conception of religion. This learning process plays a major role in the prehistory of the human rights declarations of the eighteenth century.10 The history of human rights is a history of sacralization and desacralization. If I am right to assert that what we see in this history is a sacralization of the ‘person’ – in other words, of every individual regardless of his merits and misdemeanors – then this unconditional appreciation of the person and his intrinsic value requires the relative desacralization of state, nation, ruler, or community. It does not, as secularists often assume, require secularization, an abandonment of the notion of the holiness of God, because this very notion may provide a counterweight to the sacralization of earthly political power. Yet even the sacralization of the person can never be a secure cultural possession, nor can we describe the history of human rights as a vector, as a clear-cut trend toward increasing sacralization. After the Axial Age breakthrough and the emergence of the world religions, it is in the history of human rights that I see the second great historical leap forward in the radical desacralization of political power and domination. But as with the first phase, there is once again a danger of reparticularization. The French nation could declare itself the ‘nation of human rights’ and thus repeatedly clothe its nationalism in universalist garb.11 The various forms of a highly secular messianic interventionism since the French revolutionary wars demonstrate that this danger is not one that ensues primarily from religion as such. We have already seen an example of the American, more decidedly religious, sense of mission. Within the history of German nationalism, meanwhile, it proved possible to found a national mission on the basis of resistance to ‘Western’ universalism, and this took both essentially religious and essentially secular forms. Once again, I want to emphasize that my focus here is not on traditions of intellectual history, but rather on the internal dynamics of collective processes of self-sacralization under the conditions of Axial Age religion, or the development of this religion into an embrace of human rights – or even its abandonment in favor of nationalism and racism. Understood as the weakening of religion, secularization has certainly not solved these problems. In the totalitarianisms of the twentieth century to which I referred at the start, we find forms of the self-sacralization of the state and of political leaders of a magnitude that recalls the archaic state, but now intensified beyond measure through the technological means now available. These totalitarianisms may recall the archaic state, but they do not represent a return to it, which is why they have been referred to as the sacralization of politics as distinct from the sacralization of power (Gentile 2000). It is easy to warn of the risks being run by others – for example, if you live in the West, to condemn totalitarianisms and the old German and Japanese 31

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aggressive nationalisms, or to distance oneself from theocratic tendencies in Iran and Saudi Arabia. It is less easy to criticize the missionary spirit of American or French foreign policy, particularly when these countries see themselves in a state of war. But the ideas I have put forward here can cast helpful light on the present era only if they are also applied to one’s own world. What I have in mind here is the widespread tendency in Europe to idealize Europe, its culture, and its past in a way that seems anti-nationalist only if we merely scratch the surface but which in fact recapitulates the structure of collective self-sacralization on a new postnational level. There are secular and religious variants of this tendency. Europe is declared the continent of the Enlightenment, or of Christianity, or of the Judaeo-Christian tradition, or of the successful synthesis of classical Greek civilization and Christianity. Some have attempted to link these ‘Enlightenment’ and ‘religious’ variants by, for example, attributing to the Enlightenment a Christian origin and asserting – and here I quote Pope Benedict XVI – that ‘there are good reasons why it came about specifically and exclusively within the realm of the Christian faith’ (Benedict XVI 2007: 80–1). However much we might respect the motives underpinning such a statement and however aware we may be of the empirical-historical questions that do in fact arise when we overcome the simplistic alternative of Enlightenment versus Christianity, what I see at work here is a problematic ‘culturalization’ of religion, a culturalization that fails to do justice to the transcendence-focused universalist religions. Such notions make far too close a connection between specific features of European culture and the defining characteristics of Christianity, or even identify them with one another, and they do so in a way that misconstrues the universalist potential of other religious and cultural traditions or constellations. Such culturalization makes it too easy for all those who wish to say thanks but no thanks to human rights by pointing to their own cultural traditions. It is vital, for example, to oppose the Chinese state in its contemporary efforts to deny the Axial religious character of Confucianism and reduce it to an expression of Chinese culture rather than responding with Christian-European triumphalism (Roetz 1992). Particularly during a period in which Christianity is undergoing a tremendous global expansion – quite contrary to the European sense of decline – it is increasingly important to be sensitive to European cultural particularisms within the Christian traditions and to avoid confusing cultural peculiarities with the universalist Christian message. Of course, those who do get the two mixed up are particularly unconvincing when they seek to use the Christian aspects of Europe to underpin their exclusionary arguments despite otherwise having very little time for the message of the Gospel (Schneider 2004). Crucially, it is by no means necessary to be of a Christian 32

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background or of any other post-Axial cultural background in order to be seized by this message or the spirit of human rights. This demonstrates the great appeal of this message and this spirit. What I am calling for, then, is not the pursuit of a universalism detached from all culture, because I consider that unrealizable. Instead, I am calling for all of us to reflect on the need to desacralize every agency of political power, which can only be done within a specific set of circumstances, and to be alert to the ever-present temptation to sacralize this power in ever-new ways.

Notes 1 This chapter was given as keynote lecture at the conference Conflict, Media, and the Formatting of Religion, University of Oslo April 21–22 2016. It has previously been published in JSCE 36:25–43 and appears in this volume by courtesy of the editors and the Society of Christian Ethics. It is a revised and slightly expanded version of a text originally published in German in Friedrich Wilhelm Graf and Heinrich Meier, eds., Politik und Religion: Zur Diagnose der Gegenwart (München: C. H. Beck, 2013), 259–86. 2 Highly instructive in this respect are the debates on the concept of ‘political religion’ and on the aptness or limits of Michael Burleigh’s important model. See esp. Burrin 1997; Roberts 2009; Burleigh 2005, 2006. 3 I first used this expression within the context of a methodological justification of my attempt to write the history of human rights as that of sacralization (of the person). See Joas (2013: 102). 4 For a more detailed account of the value and limits of Nietzsche’s contribution, see Joas (2000: 20–34). 5 On ‘with tenure,’ see O’Brien (1988: 42), quoted in Langewiesche (2008: 71). 6 I quote here, as in all cases, from the English Standard Version of the Bible (with the exception of the introductory quotation, which reflects popular usage). This passage plays an important role in Michael Walzer’s distinction between two kinds of universalism in Judaism and Christianity. See e.g. Walzer (2007: 186). 7 Senator Albert J. Beveridge (R-IN), in a speech before the US Senate on September 1, 1900 (56th Cong., 1st Sess.), quoted in Tuveson (1968: vii). 8 My criticisms are more fully developed in Joas (2010). 9 The choice of the term ‘radical monotheism’ is, in my opinion, less than entirely felicitous for a number of reasons. Its roots lie in an emphasis on the prophetic dimension, and it draws on Rudolf Bultmann’s notion of Jesus’s ‘radical obedience.’ It sounds, however, like a rejection of Trinitarian thought and like a means of devaluing nonmonotheistic forms of the ‘radical’ Axial conception of transcendence. Neither of these possible understandings reflects Niebuhr’s intentions. 10 See Joas (2013: 9–36). 11 Impressive examples of French notions of France’s own ‘mission civilisatrice’ in the writings of Victor Hugo, Jules Michelet, and Victor Schoelcher can be found in Bogner (2014). For a comprehensive account of the topic, see Barth and Osterhammel (2005).

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References Bellah, R. (2011) Religion in Human Evolution: From the Paleolithic to the Axial Age. Cambridge, MA: Harvard University Press. Bellah, R. and Joas, H. (eds.) (2012), The Axial Age and Its Consequences. Cambridge, MA: Harvard University Press. Bogner, D. (2014) Das Recht des Politischen: Ein neuer Begriff der Menschenrechte. Bielefeld: Transcript-Verlag. Barth, B. and Osterhammel, J. (eds.) (2005) Zivilisierungsmissionen. Imperiale Weltverbesserung seit dem 18. Jahrhundert. Konstanz: UVK. Benedict XVI (2007) Gott und die Vernunft. Augsburg: Sankt Ulrich. Burleigh, M. (2005) Earthly Powers: The Conflict between Religion & Politics from the French Revolution to the Great War. New York: HarperCollins. Burleigh, M. (2006) Sacred Causes: The Clash of Religion and Politics, from the Great War to the War on Terror. New York: HarperCollins. Burrin, P. (1997) ‘Political Religion: The Relevance of a Concept,’ History and Memory 9, 321–349. Crouter, R. (2005) ‘Reinhold und H. Richard Niebuhr,’ in Klassiker der Theologie, vol. 2, ed. F.W. Graf, 258–88. München: Beck. Durkheim, E. (1978) ‘Introduction to Morality’ [1917], in Emile Durkheim on Institutional Analysis, ed. K. Thompson, 191–204. Chicago: University of Chicago Press. Durkheim, E. (2008) The Elementary Forms of Religious Life. Oxford: Oxford University Press. Eisenstadt, S. (2008) ‘The Axial Age in World History,’ in The Cultural Values of Europe, ed. H. Joas and K. Wiegandt, 22–42. Liverpool: Liverpool University Press. Gentile, E. (2000) ‘Die Sakralisierung der Politik,’ in Wege in die Gewalt: Die modernen politischen Religionen, ed. H. Maier, 166–82. Frankfurt/Main: Fischer. Graf, F.W. and Meier, H. (eds.) (2013) Politik und Religion: Zur Diagnose der Gegenwart. München: C. H. Beck. Hauerwas, S. and Willimon, W.H. (1989) Resident Aliens: Life in the Christian Colony. Nashville: Abingdon Press. Héran, F. (1987) ‘L’institution démotivée: De Fustel de Coulanges á Durkheim et audelà,’ Revue française de sociologie 28, 67–97. James, W. (1902) The Varieties of Religious Experience. New York: Holt. Jaspers, K. (2010) The Origin and Goal of History [1949]. London: Routledge. Joas, H. (2000) The Genesis of Values. Chicago: The University of Chicago Press. Joas, H. (2008) Do We Need Religion? On the Experience of Self-Transcendence. Boulder, CO: Paradigm. Joas, H. (2009a) ‘Die säkulare Option: Ihr Aufstieg und ihre Folgen,’ Deutsche Zeitschrift für Philosophie 57, 293–300. Joas, H. (2009b) ‘Society, State and Religion: Their Relationship from the Perspective of the World Religions: An Introduction,’ in Secularization and

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the World Religions, ed. H. Joas and K. Wiegandt, 1–22. Liverpool: Liverpool University Press. Joas, H. (2010) ‘Selbsttranszendenz und Wertbindung: Ernst Troeltsch als Ausgangspunkt einer modernen Religionssoziologie,’ in Religion(en) denken: Transformationen der Religionsforschung, ed. F. W. Graf and F. Voigt, 51–64. Berlin: de Gruyter. Joas, H. (2013) The Sacredness of the Person: A New Genealogy of Human Rights. Washington, DC: Georgetown University Press. Joas, H. (2014) Faith as an Option: Possible Futures for Christianity. Stanford, CA: Stanford University Press. Langewiesche, D. (2008) Reich, Nation, Föderation. Deutschland und Europa. München: Beck. Marsden, G. (1999) ‘Christianity and Cultures: Transforming Niebuhr’s Categories,’ Insights: The Faculty Journal of Austin Seminary 115, 4–15. Niebuhr, H.R. (1951) Christ and Culture. New York: Harper & Row. Niebuhr, H.R. (1960) Radical Monotheism and Western Culture. New York: Harper & Row. O’Brien, C.C. (1988) God Land: Reflections on Religion and Nationalism. Cambridge, MA: Harvard University Press. Otto, E. (2009) ‘The Departure and Return of God: Secularization and Theologization in Judaism,’ in Secularization and the World Religions, ed. H. Joas and K. Wiegandt, 77–107. Liverpool: Liverpool University Press. Roberts, D.D. (2009) ‘“Political Religion” and the Totalitarian Departures of Inter-War Europe: On the Uses and Disadvantages of an Analytical Category,’ Contemporary European History 18, 381–414. Roetz, H. (1992) Die chinesische Ethik der Achsenzeit: Eine Rekonstruktion unter dem Aspekt des Durchbruchs zu postkonventionellem Denken. Frankfurt/ Main: Suhrkamp. Royce, J. (1908) The Philosophy of Loyalty. New York: Macmillan. Royce, J. (2001) The Problem of Christianity [1913]. Washington, DC: Catholic University of America Press. Schieder, R. (2008) Sind Religionen gefährlich? Berlin: Berlin University Press. Schneider, L. (1964) ‘Problems in the Sociology of Religion,’ in Handbook of Modern Sociology, ed. R. E. L. Faris, 770–807. Chicago: Rand McNally. Schneider, U. (2004) ‘Von Juden und Türken. Zum gegenwärtigen Diskurs über Religion, kulturelle Identität und Modernisierung,’ Zeitschrift für Geschichtswissenschaft 52, 426–40. Schwartz, B. (1975) ‘The Age of Transcendence,’ Daedalus 104:2, 1–7. Stark, W. (1974) Grundriß der Religionssoziologie. Freiburg i. Br.: Rombach. Stanner, W.E.H. (1965) ‘Religion, Totemism, and Symbolism,’ in Aboriginal Man in Australia, ed. R.M. Berndt and C.M. Berndt, 207–37. Sydney: Angus and Robertson. Taylor, C. (2007) A Secular Age. Cambridge, MA: Harvard University Press. Troeltsch, E. (2008) Der Historismus und seine Probleme, 2 vols. (= Kritische Gesamtausgabe, vols. 16.1 and 16.2) [1922]. Berlin: de Gruyter.

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Tuveson, E.L. (1968) Redeemer Nation: The Idea of America’s Millennial Role. Chicago: University of Chicago Press. Voegelin, E. (2000) Order and History, 5 vols. [1956]. Columbia: University of Missouri Press. Walzer, M. (2007) ‘Nation and Universe,’ in Thinking Politically, 183–218. New Haven, CT: Yale University Press. Weber, M. (1978) ‘Religious Groups (The Sociology of Religion),’ in Economy and Society, vol. 1, 399–634. Berkeley: University of California Press. Weber, M. (1991) ‘Religious Rejections of the World and Their Directions,’ in From Max Weber: Essays in Sociology, ed. H.H. Gerth and C. Wright Mills, 323–59. London: Routledge.

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3 A NEW FORMATTING Myanmar’s 2015 ‘race and religion laws’ Iselin Frydenlund

Introduction After more than half a century under military rule, Myanmar has since 2011 experienced a rapid political transition and an opening up to the outside world. The reformist agenda of the former President Thein Sein’s semi-civilian government led to the release of Aung San Suu Kyi from house arrest, increased freedom of expression and association and freedom to form political parties, as well as the release of hundreds of political prisoners, including Buddhist monks.1 Myanmar’s first free (but not fair) elections in twenty-five years were held on 8 November 2015.2 Moreover, in 2011 President Thein Sein’s semi-civilian government initiated broad legislative reforms, and steps were taken to review and amend laws that did not meet international human rights standards.3 More than 220 laws were passed in Parliament in the period 2011–2015, and as part of the reformist agenda, the government established in 2011 the Myanmar National Human Rights Commission. Yet in this wave of political liberalization and legal reform, the Parliament and the president passed in 2015 legislation that implies increased regulation with religion. Myanmar’s legislation to ‘protect race and religion’ is a package consisting of four laws passed in Parliament and signed by the president in 2015. It consists of the Control of Population and Health Care Law, the Religious Conversion Law and the Myanmar Buddhist Women Special Marriage Law and the Monogamy Law.4 The laws seek to regulate marriages between Buddhist women and non-Buddhist men, to prevent forceful conversion through state control of conversion from one religion to another, to abolish polygamy and extra-marital affairs and to promote birth control and family planning in certain regions of the country. The new legislation was passed after strong mobilization by sections of the Buddhist monastic order (the Sangha), through a monastic organization initiated in 2013 called the MaBaTha 37

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(an acronym for Ah-myo Batha Thathana Saun Shaung Ye a-Pwe, or the Organization for the Protection of Race and Religion). Of crucial concern to the MaBaTha and their supporters was the alleged ‘islamization’ of Myanmar and claims of violations of the religious freedom of Buddhists, particularly female Buddhists. The laws were met with strong opposition from various religious groups and civil society organizations, as well as from local and international human rights organizations on the grounds that the laws did not comply with international human rights standards and that they would deteriorate inter-religious relations at a crucial time in Myanmar’s history. I argue elsewhere (Frydenlund 2017) that Myanmar’s race and religion laws must be understood as the result of four factors.5 The aim of this chapter, however, is to focus more narrowly on the Buddhist actors that pushed the laws forward and their conceptualization of religion and religious freedom. What was the aim of the laws, and what kind of understanding of religion and religious freedom can be discerned in the legal texts? State policies concerning religion are tools of governmentality, to control and to dominate. This process Olivier Roy (2010) argues is characterized by standardization, or ‘formatting of religion’. This process is facilitated by the need for institutions for a one-size-fits-all format, that is, a common template of religion. This has traditionally been the domain of the state, but the new paradigm of human rights, Roy argues, requires a global-level analysis. The human rights paradigm, with the ultimate aim of providing individual security, freedom and equality for all, also results in the formatting and standardization of ‘religion’ as states (to varying degrees) incorporate the global human rights paradigm into state policies. But what exactly ‘religion’ and ‘religious freedom’ are is open for debate and negotiation, and definitional controversies have been high on the agenda in Myanmar. As I will argue in this chapter, Myanmar’s race and religion laws follow a particular logic of the Burmese state’s ancien régime of codification of ethnic and religious identities as basis for legal rights, but a new formatting process can be identified, one which is partly informed by a global language of religious freedom. Or, more precisely, the new formatting of religion during Myanmar’s democratization indicates a contradictory process in which religious nationalist protection policies are combined with religious freedom concerns.

Democratization, regulation and religious freedom Contrary to the position that religious liberty is a fixed and neutral concept rooted in European Enlightenment, recent research questions this narrative, pointing to the fact that the early formulations of the concept were unfixed and unstable, and that the genealogy of religious freedom and 38

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democratization in Europe in the nineteenth century was constantly renegotiated (Sorkin 2015). Furthermore, comparison of selected case studies indicates no clear pattern of how democratizing states have handled issues of religious ‘recognition’ and/or restriction of religious liberty. In his study of religious liberty in democratizing states in modern Europe, John Anderson (2003) finds that factors such as regime type, nature of transition, religious difference and nationalism are factors to be explored, but the cases indicate no clear pattern of the relationship between these factors. In fact, if we look at the cases of Russia, Spain or South Africa, we can see how different political transitions might be, and moreover, how differently religion has been dealt with. In Russia an initial phase of radical liberalization and unlimited religious pluralism was later replaced by calls for protection of ‘traditional churches’ as foreign religious groups increasingly came to be identified as a threat to national unity (Anderson 2003: 48). The Orthodox Church called for protection from ‘unfair’ foreign competition, and policies tend to disfavour non-Orthodox religious associations. This follows a broader pattern in East European post-communist societies where ‘national churches’ – weakened by decades of atheist state policies – sought legal protection to reinforce their position. Moreover, Anderson argues, in the post-communist world arguments for the restriction of religious liberty are made most strongly in those countries where democratization is most weakly established. Spain, by contrast, is now a consolidated democracy, with strong protection of religious minorities, after decades of discrimination by the Catholic-supported Franco regime. The case of Spain indicates a slower and consensus-based approach in which the Catholic Church eventually accepted an individualistic rights-based approach to religious liberty (Anderson 2003: 38). A third variety is found in democratic South Africa, which has sought to protect religious freedom through the protection of religious diversity, in an inclusivist form of secularism. This implies accommodation of religious diversity in the public sphere, for example, by allowing plurality of worship in state-funded institutions. Moreover, due to the history of apartheid, legal recognition of personal religious laws, for example, African customary marriages, has been of utmost importance (Amien 2015). Yet attempts to legally recognize Muslim marriages have so far failed, perhaps due to unresolved tensions within the Muslim community, but also due to lack of political will to accommodate a numerically small religious community.

The politics of religious freedom The academic literature on the freedom of religion is vast, but shows little sign of agreement on how we should define this seemingly self-explicatory 39

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concept. In addition to the long-lasting concern over definitional ambiguities, a more recent trend focuses on power and interest struggles in relation to religious freedom. A new school of critics holds that religious freedom is not universal and furthermore that the United States’ promotion of religious freedom as little more than a neo-imperialist project that manifests American power (Sullivan et al. 2015). Also, some regard the institutionalization of religious freedom through human rights jurisprudence simply as a means by which the modern nation-state manufactures and regulates ‘religion’ (Mahmood and Denchin 2014). The conclusion of much of this work is that religious freedom is ‘impossible’ due to antinomies of the concept and its biased application in the courtroom. Against this view, it has been argued that the particular American experience does not rule out the universality or the indispensability of religious freedom (Springs 2016). Nonetheless, the school of critics provides an important analytical lens for this study as it emphasizes religion as an instrument of governmentality and the fact that religious freedom (however defined), rather than being an elevated and neutral concept above politics, is defined, articulated and negotiated over as part of politics. Thus, a fine-grained analysis of local political processes and social and religious contexts that inform formatting of religion – and thus religious freedom – is necessary.

The Burmese military’s formatting of religion Burma/Myanmar has for long figured among those states with the highest level of state regulation of religion in the world (Pew 2018). The 2008 constitution does not proclaim Buddhism as state religion, but Article 361 recognizes it in a special position as the religion of the great majority of the people, in a particular version of ‘Buddhist constitutionalism’ (Schontal 2016). What exactly this preference for Buddhism entails is not defined, but as I discuss later, state preference for Buddhism is acted out at the policy level. In fact, it is possible to argue that the Myanmar Constitution balances between notions of privilege and equality, organized in a hierarchy of subordination with Buddhism at its top.6 Demands for constitutional reform have been at the heart of pro-democracy activism, but discussions on Buddhist constitutionalism have been remarkably absent, in spite of the fact that religious minorities in Myanmar have long opposed state preference for Buddhism, indicating Buddhism’s strong position among the majority population. In addition to state preference for Buddhism, another remarkable feature of formatting of religion in Myanmar is the constitutional separation of religion from formal politics. The constitution bans ‘religion’ from politics 40

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as well as the use of religion for electoral purposes (Art. 121). Moreover, members of religious orders are deprived of their voting rights, and they are banned from forming political parties (Art. 392 (a)). Furthermore, the Political Parties Registration Law prohibits political parties from ‘writing, speaking, and campaigning causing the conflicts and violence among the individual, groups, religions and ethnics’.7 In this regard, the state is strictly secularist, which can be explained as the result of the military’s need to control religion, but also as being in line with pre-colonial Theravada Buddhist political ideology, which separates the monastic order from the political realm. In addition to constitutional protection, the state has adopted several policies of religion that favour Buddhism to the extent that it is reasonable to argue that Buddhism de facto serves as the state religion. The Department for the Promotion and Propagation of the Sasana, under the Ministry of Religious Affairs, for example, acts out a specific policy of Buddhist missionary activities, including in ethnic minority areas dominated by non-Buddhist religions. The Ministry of Religious Affairs reassures the constitutionally protected right of religious freedom, but gives priority to Buddhism on a numerical basis (claiming that more than 89% of the population is Buddhist).8 It should be noted that the special preference given to Buddhism also entails strict regulations of the Buddhist monastic order itself, through the Ministry of Religious Affairs, the State Sangha Act (1990)9 and the so-called State Sangha Maha Nayaka Committee (or MaHaNa), which has the authority in doctrinal matters, defining orthodoxy from heresy and leaving numerous Buddhist sects ‘heretical’ and thus illegal. Cases regarding ‘heresy’ and ‘malpractice’ are dealt with in a specific Buddhist court system of Buddhist court cases (vinicchaya).10 Buddhists (mostly monks) are brought before such courts charged with heresy (adhamma) and malpractice (avinaya) under the jurisdiction of the MaHaNa. This body, established under General Ne Win in 1980, oversees the regulation and conduct of the members of the monastic order, the Sangha, and this system of Buddhist court cases has been a significant feature of both the maintenance of Buddhism (buddhasāsana) by the Sangha and the control of the Sangha by successive military governments (Ashin and Crosby 2017). The courts are still operative and can be said to ‘format’ Theravada Buddhism in a particular conservative way, resisting reformist agendas such as radical and innovative understandings of basic Buddhist teachings, or with regard to the hotly debated question in the Buddhist world regarding full ordination for female monks. Thus, a point not to be missed is that more so than Christianity, Islam or Hinduism – which receive some recognition in the constitution – the 41

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state in very specific ways regulates and formats Theravada Buddhism in Myanmar. At the same time, the state declares religious freedom for its citizens. Article 34 of the constitution ensures citizens’ right to ‘freedom of conscience and the right to freely profess and practice religion’, but this is ‘subject to public order, morality or health or to other provisions of this Constitution’. This leaves the legislature free to ban any practice it considers disruptive (Williams 2014). The qualification has been broadly applied, for example, through strong censorship of foreign missionaries and religious translation work. Moreover, numerous claims of violations of religious minority rights have been made throughout the years, including allegations of forced conversions to Buddhism.11 Also, the strong identification of Buddhism with the state has made it almost impossible for citizens belonging to other religions than Theravada Buddhism to hold high-ranking positions, for example, in the military. Generally speaking, there is freedom to worship and conduct religious processions, but Burmese nationalism, state preference for Buddhism and the Citizenship Law (discussed later) have jointly produced an environment conducive to minority discrimination. The three post-independence constitutions of Myanmar (1947, 1974 and 2008) contain elements of legal egalitarianism (for example, provisions against racial discrimination) for those identified as ‘national races’ in the constitution. Importantly, however, the 1982 Citizenship Law has undermined principles of non-discrimination, as ‘religion’ and ‘ethnicity’ were adopted as legal and policy categories as a means of state control over its subjects. The Citizenship Law operates with three categories of citizenship that are given different rights and status; only those who belong to one of the ‘national races’ (taing-yin-tha) count as full citizens. The law has denied or significantly delimited the rights of hundreds of thousands of people, and as argued by Nick Cheeseman, it has ‘removed the normative basis for some persons’ claims to legal rights, on the pretext of protecting the rights of others’ (Cheeseman 2014: 111). The state has the power to determine which groups are to be considered ‘national’ and thus qualify for citizenship.12 The Citizenship Law recognizes eight broad classifications of ‘national races’.13 In addition, the state makes use of a list of 135 ‘national groups’.14 The origin of this list remains obscure,15 but has been in use since 1990. The list of 135 was confirmed by the Ministry of Immigration and Population as late as 30 March 2016, and it was then held that changes to the list had to be approved by the Union Assembly.16 It should be noted that the list’s legal and formal status is not clear. Based on the list, the state codifies ethnic and religious identities through national identity cards, which citizens are obliged to carry at all times. The 42

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card states religious affiliation, which only can be one, and ethnic identity, which can be multiple. Ethnic groups not recognized by the Citizenship Law or mentioned in the list of 135, like the Muslim Rohingya population, are not granted citizenship or identity cards.17 The very codification of ethnic and religious identities as a basis for the political community thus explains the desperate situation of the Rohingyas, culminating in ethnic cleansing of more than 700,000 people from Myanmar into Bangladesh. In addition, several hundred thousand Burmese of Indian origin (both Muslim and Hindu) do not enjoy full citizenship.18 Religious difference is recognized in Myanmar’s legal system, which is marked by a high degree of legal pluralism, including separate Muslim, Christian, Hindu and Burmese Buddhist customary laws. Thus, the ethnic and religious identity ascribed to an individual matters fundamentally for the individual’s legal status in family law.

The rise of Buddhist legal activism Myanmar’s democratization witnessed a rise of Islamophobia and calls for the protection of Buddhism.19 Moreover, between 2012 and 2014, Myanmar experienced severe Buddhist–Muslim violence, particularly affecting the Muslim Rohingya community, but also other Muslim communities throughout the country. The fear of Islam in Buddhist Myanmar can, at least partly, be explained by anxieties brought about by rapid social and economic change (Walton and Hayward 2014). Furthermore, in a traditional and deeply religious society like Myanmar, religious leaders exert enormous influence in their communities, and their calls for the protection of Buddhism came to gain wide acceptance among the Buddhist majority population. In the following, I analyse the role played by Buddhist monks in pushing forward the race and religion protection laws, showing how the laws were not initiated by the regime itself, but rather were the result of aggressive lobbying by Buddhist monks in the 969 movement and the MaBaTha. After the student rebellion in 1988 and the ‘Saffron Revolution’ in 2007, Buddhist monks had been under strict surveillance, but as a result of the political reforms in 2011, monks gained wider freedoms to organize and associate and voice their opinions in public life. The most dominant of the Buddhist monastic groups are the separate but interlinked 969 (formed in 2012) and the MaBaTha (formed in 2013), which jointly drafted the first version of the ‘race and religions laws’. The formation of the 969 and the MaBaTha and the formation of the laws are organizationally, ideologically and historically intertwined. As a religious and political phenomenon, Buddhist protection movements are not new, but have been frequent since British colonialism and have generally been anti-colonial and anti-state 43

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(Schober 2011; Turner 2014). With Myanmar’s political liberalization, such undercurrents again came into central view in public life, largely under former President Thein Sein’s protection. The 969/MaBaTha call for the protection of Buddhism, particularly against the ‘Islamic threat’, and have become controversial for their strong anti-Muslim stance.20 U Wirathu, the spokesperson of the 969, but also a leading MaBaTha monk, became an international media figure after being on a Time magazine cover, titled ‘The Buddhist Face of Terror’. He is accused of hate speech against Muslims in social media and during religious sermons, as well as for abusive and sexist language against Yanghee Lee, the UN special envoy to Myanmar.21 He was jailed in 2003 by the military for instigating anti-Muslim violence but released in 2012, together with political prisoners, as part of Thein Sein’s political reforms. By contrast, the MaBaTha has a more senior and slightly less militant profile and has succeeded in building up alliances across monastic divisions and in close relations with the monastic top hierarchy; it has built up a strong lay division and worked closely with leading government figures of the previous USDP government. U Wirathu himself traces the history of the laws back to the engagement of the Ministry of Religious Affairs in the post-1988 era and one of its functionaries, the retired general U Kyaw Lwin, who also provided the ideological foundations of the 969.22 To U Wirathu – the most prolific defender of the laws in public – the laws must be understood in the context of suppression of Burmese women during colonialism, as an antidote against Muslim–Buddhist violence and as a protective means against (alleged) Muslim (Rohingya) aggression in the western state of Rakhine (bordering Bangladesh). Legislation to ‘protect race and religion’ was at the core of 969/MaBaTha activity, and early drafts of the laws were presented at the MaBaTha’s inaugural meeting in 2013. At this early stage only two draft bills were presented: one on mixed marriage, the other on conversion. According to U Wirathu, the monks themselves prepared the conversion and mixed marriage laws,23 and they also discussed monogamy and birth control, but this was left for lay people to finalize, as they did not consider it ‘suitable for Buddhist monks to work on laws; it is not in accordance with the Vinaya (the monastic law)’. At this stage, the family planning and monogamy draft laws were discussed but were not considered ready for distribution. The meeting attracted hundreds of leading monks and nuns, as well as prolific Burmese writers and intellectuals. The MaBaTha leadership sent a petition to the president to promulgate the laws, and simultaneously, the MaBaTha organized a signatory’s campaign, collecting (according to its own estimates) more than 5 million signatories by February 2014.24 44

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The MaBaTha remained in the shadows of the 969 for several months after its inception; it first became an important force in public life after a meeting in Mandalay on 18 January 2014. For the first time the laws received wide public attention; moreover, a closer look at this meeting reveals important elements of the new Buddhist nationalism in Myanmar. More than 10,000 monks were gathered to discuss the perceived threat to Buddhism by Islam in general and Buddhist–Muslim intermarriage in particular. In a written document, the monks identified ten areas of particular concern.25 Several of these relate directly to the highly contentious issue of citizenship. The Rohingyas are denied citizenship, but were temporarily entitled so-called ‘White cards’, which then allowed for electoral participation in the 2010 and 2012 elections. Two out of ten demands made by the monks relate to Rakhine: point four asks for investigation of ‘non-national’ parliamentarians (to exclude Rohingya parliamentarians), while point five asks for withdrawal of voting rights of those holding ‘White cards’. The last and tenth point is a promise to continue the work to get the ‘race and religion’ laws passed. The declaration also states that the MaBaTha is to be a national, but independent, power centre led by Buddhist monks. The meeting was well covered in local print press and social media, and the notion that Buddhism needed particular protection through ‘race and religion laws’ gained momentum. The declaration, I suggest, signalled a new and politically confident Buddhist nationalism in which the situation in Rakhine and the exclusion of certain ethno-religious minorities from the national political community are conflated with a general notion of the ‘Islamic threat’. Early versions of the ‘race and religion’ law drafts circulated in social media and among civil society organizations in 2013–2014. One version of the Marriage Act prescribed that only Buddhist men could marry Buddhist women.26 It was also stated (in the unofficial English translation) that ‘If any non-Buddhist man who married a Burmese-Buddhist woman against above rules shall be punished with a ten years prison term and also all his possessions and properties shall be confiscated and given to the BurmeseBuddhist woman he married against this law’. As discussed later, this provoked concern in human rights circles but was at this early stage not taken too seriously among local civil society groups, as they doubted the government’s willingness to follow up on the monks’ demands. According to the MaBaTha itself, their nationwide mobilization and pressure on the government had effects: in March 2014 a Draft Preparing Commission27 was established by the President’s Office,28 led by the deputy attorney-general to draft the Conversion Law and the Population Control Law. In addition – in a surprising move – the president decided that the interfaith marriage and monogamy laws were to be drafted by the Union 45

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Supreme Court.29 The exact reason for this remains unclear, but could indicate presidential determination in getting these two particular laws ‘right’, as both relate directly to Myanmar’s complex customary family laws. Formally, lay Buddhists – and not Buddhist monks – drafted the laws at this stage. Real or not, this distinction between the monastic and legalpolitical-military spheres is important; as previously discussed, the constitution and various election laws separate the ‘political’ from the ‘religious’. Had the monks been the formal authors of the laws, they could – had it proved to benefit the government – easily been charged with ‘unlawful political’ activity. Throughout spring 2014 it became clear that the government and the Draft Preparing Commission were serious in their efforts. In May 2014 the commission published a draft in government newspapers for public consultation.30 Here, the commission informs of its work, that the president in an official letter has asked the Parliament to draw the laws ‘for adoption purpose’, and the commission invites the public to send their suggestions and comments to it.31 The statement leaves little doubt of the supportive role of the president and the President’s Office. Also, it is noteworthy that the invitation letter to the public is called ‘Inviting suggestions from monks and lay people on “Religious Conversion Law (draft)”’, signalling that this was largely to be considered a question for Myanmar’s Buddhist population and less so for religious minorities. A deadline was set for the end of June 2014 for the commission to submit drafts to the president, but only the Religious Conversion draft appeared. In order to push the process forward, the MaBaTha decided to pressurize the government through public demonstrations to ‘demand their rights’.32 They organized a public protest march of more than 50,000 people from the Shwedagon pagoda in Yangon, imbuing the march with great religious significance. By the end of November 2014 the drafts were submitted to Parliament, and during December 2014, a second draft of the Religious Conversion Bill was made public through newspaper announcements, together with the three remaining drafts. In the end, the MaBaTha had managed to convince the government and the president of the importance of the laws, and after discussions in the Parliament’s Upper and Lower Houses, all four bills – only with minor changes from the drafts – were passed by the Union Parliament and signed by the president during 2015.

MaBaTha and the notion of religious freedom As could be expected, laws to control conversion, control mixed marriages, enforce family planning and criminalize extra-marital affairs were met with fierce opposition from local33 and international human rights organizations 46

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for not being in accordance with international human rights standards.34 The UN Special Rapporteurs on FORB (Freedom of Religion or Belief) and on Myanmar pointed to the dangers of the laws at numerous occasions. In addition, local human rights groups argued that the Conversion Law would imply a violation of Article 34 (on religious freedom) of the constitution itself. Religious minority groups did not manage to forcefully challenge the laws – except for the Catholic Church – indicating their vulnerable position in Myanmar society. Muslim communities were not in a position to protest the laws, given the recent anti-Muslim violence and widespread discrimination, although it should also be noted that many Muslims did not necessarily regard the laws as applicable to them. Also, some Muslim community leaders thought the laws to be a Buddhist equivalent to sharia law, and thus a good development.35 In the latter part of this chapter I will discuss in more detail the MaBaTha’s notion of religious freedom, shedding light on a phenomena I identify as the ‘Buddhist politics of religious freedom’, which so far has received little – if any – academic attention. The MaBaTha’s aim to stop ‘islamization’ is largely framed in religious rights’ language, exemplifying how ‘religious freedom’ can serve as a tool for identity politics and for marking of communal difference.

Securing the ‘religious freedom’ of Buddhist women A comparison between the final laws (which treat ‘religion’ mostly in the neutral) and the aim of preventing ‘islamization’ as articulated by the MaBaTha reveals some interesting differences. While the President’s Office – as well as most debates in Parliament – pronounced a more general concern for conversion issues, family planning or family law, the MaBaTha itself claims to have designed the laws specifically to prevent various aspects of ‘islamization’. To the MaBaTha, the aim of the birth control bill is to stop the escalating numbers of ‘illegal immigrants’, mostly referred to as ‘Bengalis’ (that is, Muslim Rohingyas); the aim of the conversion bill is to prevent forced conversion of Buddhist women to Islam; the inter-religious marriage bill is to protect the right to religious freedom of Buddhist women in marriages with Muslims males, and moreover, to prevent sexual violence in marriage; and the monogamy bill aims at reducing the scale of Muslim families in Rakhine. To the MaBaTha, the 1954 Buddhist Marriage Law was insufficient, as it mostly dealt with inheritance and property and did not secure the ‘religious freedom’ of Buddhist women. U Wirathu holds that the laws were designed to cover specific aspects of Muslim practices identified as relevant for ‘islamization’. The first aspect 47

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relates to the (alleged) increase in the Muslim population and the dystopia of a future Islamic tyranny where Buddhists will constitute a persecuted minority, while the second relates to violent ‘islamization’ of Buddhist women by their Muslim husbands. Again, according to U Wirathu, Buddhist wives of Muslim men are being beaten up due to their ‘Buddhist worship’.36 The MaBaTha, then, defines domestic violence in religious terms and with reference to religious freedom, moves the politics of religious freedom from the public to the domestic sphere. The background for this is rooted in the legal requirement of conversion to Islam for non-dhimmi women for a religious wedding to be valid.37 To the MaBaTha, this conversion requirement is in itself conceptualized as a grave religious freedom violation. Moreover, it is argued that Buddhist women marry Muslim males for economic reasons and thus that conversion is not made out of ‘free will’ but out of poverty and economic ‘allurement’. This rests on an understanding of ‘religion’ as belief, and moreover, that this ‘religious belief’ is autonomous vis-à-vis other kinds of rationales for action. Coincidently, this fits well with Buddhist doctrinal notions of free will and conversion (to Buddhism), which emphasizes intellectual reasoning and individual choice. Conversion is regarded as a particular way of seeing the world and is less concerned with outer manifestations of ‘the religious’. Contemporary Buddhist protectionist discourse is informed by the human rights paradigm, but in ambiguous ways. For example, on the one hand, human rights are viewed with suspicion as a Western neo-colonial instrument to bring down Buddhism and the ‘national races’. Following this, the MaBaTha is conscious to refer to group rights (lu hkwin yay osu) and ‘human dignity’ and not individual ‘human rights’ (lu hkwin yay) (Perrière 2015). Also, the MaBaTha went public to state that patriotism should go before human rights.38 On the other hand, elements of human rights thinking are blended into Buddhist nationalist discourse; the very conceptualization of ‘islamization’ of Buddhist women in mixed marriages in terms of ‘religious freedom’ exemplifies this. One of the most striking features of the Buddhist Women’s Special Marriage Law is found in Chapter 4 (Section 24), in which special provisions are identified for the ‘non-Buddhist man’ in order to a) secure the religious liberty39 of the Buddhist woman within the marriage; b) to secure the religious freedom of the children; c) to secure the woman’s right to Buddha image worship in the house, including images of Buddhist monks and pictures of buildings; d) to secure her right to perform Buddhist rituals, meditation, listening to sermons and to visit pagodas and to donate money; e) not to force the woman to leave Buddhism; f) not to destroy her Buddhist objects of 48

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worship; g) not to insult her Buddhist feelings ‘in words or in writing or through visible representation or gesture’; and finally h) her right to a Buddhist funeral. In case of violations of Article 24, which identifies the duties of the non-Buddhist man, the Buddhist wife is entitled to divorce, which, in that case, would result in 1) the non-Buddhist man losing his portion of shared property, in addition to paying her compensation; 2) the man losing guardianship of children; and 3) that he shall pay maintenance for children who are minors. This text, then, clearly summarizes what leading Buddhist monks, as well as Myanmar’s political elites, identify as proper Buddhist practice. Not surprisingly, this does not include religious practices commonly held by Buddhists in Myanmar, such as nath worship or seeking the occult practices of a weizza. In addition, the Religious40 Conversion Law seeks to protect women from forceful conversion. The final text of the law does not have a preamble, but in the second draft version, we are given a clue of the rationale behind the law. Here, the preamble repeats Article 34 of the constitution on freedom of religion, but states that there is a need for transparency and a system in place to ensure the right to freedom of religion and the freedom to choose and convert to another religion. While not stated explicitly, the underlying assumption rests on a notion of forced conversions of Buddhists taking place – particularly in cases when Buddhist females marry Muslim males – and that this law will ensure religious freedom of those who allegedly are forced, induced or allured into changing their religion. A repeated aim is to ensure change of religion according to the individual’s ‘own free will’. Thus, the aim is not to ban conversion, but to secure freedom from coercion. Finally, the law allows for a change to atheism, or no religion (batha-me), which secures the right not to have a religion.41 The Religious Conversion Law and sections of the Myanmar Buddhist Women’s Special Marriage Law illustrate an important development in state policies on religion in Myanmar: With the 2015 ‘race and religion laws’, a stronger engagement with ‘religious freedom’ can be identified, but one that is fragmented, selective and contradictory. In addition to religious freedom issues (for Buddhists), the MaBaTha showed concern for violence against women. Crucial to the narrative of Buddhist–Muslim marriage is Muslim male aggression, and the 969 has organized a series of public events to document cases of Muslim domestic violence against Buddhist wives through the presentation of ‘real-life stories’. In such events, the identified female Buddhist victim is interviewed by a Buddhist monk in front of a Buddhist audience. Such stories – often testimonies of severe domestic violence – are framed within a Buddhist– Muslim dichotomy and conceptualized as a case of violations of the right to 49

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freedom of religion and violations of women’s rights. A binary dichotomy is constructed: ‘Islam, violence, unfree’ versus ‘Buddhism, non-violence and freedom’. In this narrative of violence and suffering Buddhist monks are portrayed as rescuers of women who escape religious persecution. Finally, ‘Muslim’ is referred to in the pejorative ‘dark’ (kalar) and juxtaposed to being a Myanmar citizen. Women’s groups in Yangon raised a feminist critique of MaBaTha ideology, arguing that the race and religion laws imposed ‘the responsibility of preserving race, religion, culture and the traditions of a country entirely on women’.42 Nonetheless, many Buddhist women supported the laws as the MaBaTha’s focus on violence against women had great appeal, and many Buddhist women saw the laws as necessary for their protection (Walton and Hayward 2014). In addition, it should be noted that although the MaBaTha is dominated by male monasticism, both nuns and lay Buddhist women take active part in the organization. One of Myanmar’s leading Buddhist nuns, who also happens to be a proud MaBaTha member, explained to me that unless the race and religion laws were passed, Buddhism would disappear. Importantly, however, she also emphasized that protection of Buddhism would not result in discrimination of other religions, indicating that human rights discourses on religious freedom and minority protection also informed her views.43 Controversies over religious freedom, coercion and free will in Myanmar fit into a wider regional pattern concerning the politics of religious freedom (Finucane and Feener 2014). On the one hand, Christian religious freedom advocacy groups champion the right to unrestricted proselytism. On the other hand, anti-conversion legislation has become a political tool for majoritarian identity politics. In addition, the question of mixed marriage and ‘Love Jihad’ has come to the fore in anti-Muslim discourses across the region. ‘Love Jihad’ refers to a claimed Islamist conspiracy whereby Muslim men trick non-Muslim women into marriage as a means to spread Islam (Charu 2009). As previously discussed, such fears are not new in Myanmar, and the four race and religion laws build on previous legislation. However, as a close reading of the laws has shown, a new language of religious freedom (for Buddhists) can be identified in the 2015 legislation.

Conclusion In contrast to other democratizing societies, constitutional regulation of religion was not high on the agenda in Myanmar. As the transition regime resisted major constitutional reform (in order to protect military control over the state), religious elites did not ask for stronger constitutional 50

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protection of Buddhism. Rather, Buddhist legal activists sought to secure Buddhism through family laws and through regulation of conversion. From this perspective, the race and religion laws represent an attempt by religious and political elites to act out the constitutional preference for Buddhism at the policy level, but without constitutional reform. The idea that state policies format religion implies that the category of religion is constructed and thus exists within legal frameworks, as the religion of the law, as it were. But the concept claims more than that, as it implies that such legal frameworks shape religion ‘out there’ as well. There is no doubt that state policies of religion in Myanmar have shaped specific formations of religion as a social reality, as is clearly shown in the banning of Buddhist ‘heretical’ groups, or in the constitutional exclusion of members from religious orders to engage in formal politics, or even to vote. However, an analytical distinction has to be made between the religion of the law and the construction of new religious formations in the social field. In a country like Myanmar with high levels of corruption, lack of an independent judiciary and a general lack of rule of law, the relationship between written law and jurisprudence is not always straightforward. Moreover, except for an increase in cases of Buddhist women suing their Buddhist husbands for extra-marital affairs, the laws have yet to result in new religious formations ‘out there’. Thus, the effectiveness of the laws as a tool of governance to prevent islamization and secure religious freedom is most likely to be low, or at least not hitting the intended target. However, what this chapter has shown is how rapid social and political change produced a new formatting of religion of the law. This new format, I have argued, was informed by notions of an alleged Islamic threat to Buddhism and, as we have seen in the Buddhist Women Special Marriage Law, by a specific definition of what religious freedom for Buddhists (particularly Buddhist women) entails. Moreover, the article has identified a particular formatting process, referred to as the ‘Buddhist politics of religious freedom’, which aims at protecting Buddhism against other religions using a particular global language of ‘religious freedom’. As such, this study serves as an important reminder to human rights scholars and practitioners alike that religious freedom is not above, but rather part of, politics and can be used as a tool in majoritarian identity politics.

Notes 1 This positive trend is also noted by UN Special Rapporteur to Myanmar, Yanghee Lee, in A/HRC/31/71, dated 18 March 2016. 2 This qualification rests on the fact that the constitution reserves 25% of the seats to the military, the disenfranchisement of the Rohingya population and

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3 4 5

6 7 8 9 10

11 12

13

14

15 16 17

that in several ethnic minority areas the security situation prevented people from casting their vote; see “Preliminary Statement”, European Union Election Observation Mission MYANMAR, General Elections, 2015’, 10 November 2015, retrieved at www.eueom.eu/files/dmfile/101115-psmyanmar_en.pdf (accessed 29.03.2016). For example, the Wireless Telegraphy Act (1934), the Printer and Published Registration Act (1962) and the Law Relating to the Forming of Organizations (1988). Control of Population and Health Care Law No. 28/2015, the Religious Conversion Law No. 48/2015, the Myanmar Buddhist Women Special Marriage Law No. 50/2015 and the Monogamy Law No. 54/2015. These are the military regime’s formatting of ‘religion’ through strict legal regulation, the rise of Buddhist Islamophobia, political liberalization and a new language of ‘religious rights’ and ‘freedoms’ in what I define as the ‘Buddhist politics of religious freedom’. For more on the notion of hierarchical subordination, see Frydenlund (2016). Political Parties Registration Law No. 2/2012, 6(d). Ministry of Religious Affairs at www.mora.gov.mm/mora_department1. aspx ‘The Law Relating to the Sangha Organization’, The State Law and Order Restoration Council Law No. 20/90. Vinicchaya in Pāli means to make a judgement. In the Burmese context it refers to judgements regarding dhamma and vinaya practice. Within the monastic legal system a distinction is made between ordinary vinaya issues and allegations of adhamma and avinaya (usually referred to as vivādādhikarana in Pāli lingustic terminology). See for example reports by the Chin Human Rights Organization and Christian Solidarity Worldwide. 1982 Burma Citizenship Law, chapter II, s. 4. A recent study of Muslim identities shows how the state’s categorization does not correspond to the cultural ‘reality’, but rather is a remnant of inaccurate colonial sociology, see Kyaw (2015). Chapter II, s. 3 reads: ‘Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine or Shan and ethnic groups as have settled in any of the territories (. . .) from a period anterior to 1185 B.E., 1823 A.D. are Burma citizens.’ It should be noted that the 1982 Citizenship Law, contrary to popular opinion, does not strip the Rohingya population of citizenship. ‘Composition of the Different Ethnic Groups under the 8 Major National Ethnic Races in Myanmar’, list made available at the website of the Embassy of Myanmar, Brussels, at www.embassyofmyanmar.be/ABOUT/ethnic groups.htm The list is partly built on the British linguistic classification system from the 1931 census. The list of 135 was confirmed by the Ministry of Immigration and Population as late as 30 March 2016, see www.mmtimes.com/index.php/ national-news/19717-chinese-minority-to-get-bamar-designation.html It is to be noted that it remains unclear if the four race and religion laws apply to non-citizens of Myanmar, for example, the Muslim Rohingya population.

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18 The Indian state holds that there are 2,500,000 people of Indian origin in Myanmar, of which 400,000 are stateless, see Gosh (2016). 19 However, it should be noted that Myanmar has a historical legacy of Indophobia (cf. Egretau 2011). 20 For more detail on the 969, see N. Kyaw (2016). 21 ‘UN condemns Myanmar monk Wirathu’s ‘sexist’ comments’, BBC, 22 January 2015. 22 Interview, 1 June 2015, Mandalay, translated from Burmese to English. 23 This is, however, only party true, as the mixed marriage law relies heavily on the 1954 law, as previously discussed. 24 The information on the early history of the MaBaTha is based upon interviews with the MaBaTha lay leadership at its headquarters in Insein, May 2015. 25 ‘10-point Declaration’, (in Burmese) dated 15 January 2014. 26 Then referred to as the ‘Marriage Act (Emergency) for Burmese-Buddhist Women’. 27 The commission was made up of officials from the Ministry of Religious Affairs and the Ministry of Immigration and Population Affairs as well as lawyers, historians and others. 28 Order No.19/2014. 29 This was met with surprise by law-makers, see www.irrawaddy.com/burma/ thein-sein-orders-commission-court-draft-protection-religion-law.html. 30 ‘The Law Relating to Religious Conversion (Draft)’. 31 ‘Inviting suggestions from monks and lay people on “Religious Conversion Law (draft)”’, Attorney General’s Office, undated. 32 Interview, MaBaTha lay leadership, Insein, May 2015. 33 ‘Comments from Women’s Organisations/Networks and Civil Society on the 4 Bills to Protect Nation’. 34 On behalf of the UN High Commissioner on Human Rights, four special rapporteurs sent a letter to President Thein Sein to withdraw the ‘race and religion laws’, dated 19 June 2014 (MMR 4/2014). Strong criticism was also voiced by Amnesty International, Human Rights Watch and the International Commission of Jurists, who all emphasized the laws’ severe implications for inter-communal relations in Myanmar, in addition to noncompliance with international human rights standards. 35 Focus group interviews with inter-faith activists in Yangon (May) and Mandalay (June) 2015. 36 Interview, 1 June 2015, translated from Burmese to English. 37 Requirement of conversion of people who do not belong to the People of the Book (dhimmi) is a common principle in Islamic law. However, it should be noted that who counted as non-dhimmi has not been fixed through history. In India, for example, Hindus were conceptualized as People of the Book by Mughal rulers, but only few Buddhists have been granted this status. 38 www.mmtimes.com/index.php/national-news/11495-human-rights-lessimportant-than-nationalism-says-senior-monk.html. 39 Lele soi (‘freedom’) and koke kiun (‘religious right’). 40 The Burmese original refers to kokyeya (‘worship’) and batha (‘religion’). 41 This was added to the second draft version. It should be noted that outspoken atheism is very rare in Myanmar, and atheist societies operate anonymously.

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42 ‘Comments from Women’s Organisations/Networks and Civil Society on the 4 Bills to Protect Nation’. 43 Interview, Sagaing Hills, May 2015, translated from Burmese to English.

References Amien, W. (2015) ‘Postapartheid Treatment of Religious Freedom in South Africa’ in The Politics of Religious Freedom, ed. W. Sullivan, E. Hurd, S. Mahmood and P. Danchin, 179–193. Chicago: The University of Chicago Press. Anderson, J. (2003) Religious Liberty in Transitional Societies: The Politics of Religion. Chicago: The University of Chicago Press. Ashkin, J. and P. Crosby (2017) ‘Heresy and Monastic Malpractice in the Buddhist Court Cases of Modern Burma’ Contemporary Buddhism 18:1, 199–261. Cheeseman, N. (2014) Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order. Chicago: The University of Chicago Press. Egretau, R. (2011) ‘Burmese Indians in Contemporary Burma: Heritage, Influence, and Perceptions since 1988’ Asian Ethnicity 12:1, 33–54. Finucane, J. and M. Feener (2014) Proselytizing and the Limits of Religious Pluralism in Contemporary Asia. Berlin: Springer. Frydenlund, I. (2017) ‘Religious Liberty for Whom? The Buddhist Politics of Religious Freedom during Myanmar’s Transition to Democracy’ Nordic Journal of Human Rights, 35:1, 55–73. Frydenlund, I. (2016) “Particularist goals through universalist means: the political paradoxes of Buddhist revivalism in Sri Lanka” in Buddhism and the Political Process, 97–120, ed. Hiroko Kawanami. Palgrave McMillan. Frydenlund, I. (2019) “Buddhist Islamophobia: Actors, Tropes, Contexts”, in The Brill Handbook on Religion and Conspiracies, ed. A. Dyrendal, E. Asprem & D.G. Robertson. Leiden: Brill. Gosh, P. (2016) Migrants, Refugees, and the Stateless in South Asia. Thousand Oaks, CA: Sage Publications. Kyaw, N. (2015) ‘Alienation, Discrimination, and Securitization: Legal Personhood and Cultural Personhood of Muslims in Myanmar’ The Review of Faith & International Affairs 13:4, 50–59. Mahmood, S. and P. Denchin (2014) ‘Immunity or Regulation? Antinomies of Religious Freedom’ The South Atlantic Quarterly 113:1, 129–159. Olivier, R. (2010) Holy Ignorance. When Religion and Culture Part Ways. New York: Colombia University Press. Perrière, B.B. (2015) ‘Ma Ba Tha: Les trois syllabes du nationalisme religieux birman’ in L’Asie du Sud-Est 2015. Bilan, Enjeux et perspectives, ed. A Pesses and F Robinne, 31–44. Bangkok: IRASEC. Pew Research Center, June 21, 2018, “Global Uptick in Government Restrictions”, available at http://www.pewforum.org/2018/06/21/global-uptickin-government-restrictions-on-religion-in-2016/. Schober, J. (2011) Modern Buddhist Conjunctures in Myanmar: Cultural Narratives, Colonial Legacies, and Civil Society. Honolulu: University of Hawaii Press.

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Schontal, B. (2016) ‘Securing the Sasana through Law: Buddhist Constitutionalism and Buddhist-Interest Litigation in Sri Lanka’ Modern Asian Studies, 1–43. Sorkin, D. (2015) ‘Religious Minorities and Citizenship in the Long Nineteenth Century: Some Contexts of Jewish Emancipation’ in The Politics of Religious Freedom, ed. W. Sullivan, E. Hurd, S. Mahmood and P. Danchin, 115–126. Chicago: The University of Chicago Press. Springs, J. (2016) ‘Tentacles of Leviathan? Nationalism, Islamophobia, and the Insufficiency-yet-Indispensability of Human Rights for Religious Freedom in Contemporary Europe’ Journal of the American Academy of Religion, 1–34. Sullivan, W., E. Hurd, S. Mahmood and P. Danchin (eds.) (2015) The Politics of Religious Freedom. Chicago: The University of Chicago Press. Turner, A. (2014) Saving Buddhism: The Impermanence of Religion in Colonial Burma. Honolulu: University of Hawaii Press. Walton, M. and S. Hayward (2014) Contesting Buddhist Narratives: Democratization, Nationalism, and Communal Violence in Myanmar. Policy Studies 71. Honolulu: East-West Center. Williams, D.C. (2014) ‘What’s So Bad about Burma’s 2008 Constitution? A Guide for the Perplexed’ in Law, Society and Transition in Myanmar, ed. M. Crouch and T. Lindsey, 117–140. Oxford: Hart.

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4 MONITORING RELIGIOUS FREEDOM Persecution, documentation and the role of political facts Michael Hertzberg

Introduction In 2005 the UN special rapporteur on religious freedom or belief, Asma Jahangir, visited Sri Lanka to inquire about the recent conflict around ‘unethical’ conversions and violence against Christians. On her fact-finding mission she stated that the documentation provided by Buddhists on conversions was “vaguely described and unclear with regards to circumstances”, while the reports on violence against Christians were “very well documented and precise to the factual circumstances”. In short, this conflict circles around a bill proposed in 2004, where Buddhist nationalists in Sri Lanka forwarded a legislation that sought to impose regulations on ‘unethical conversions’. Christians claimed that this was another attempt to curb Christian, especially evangelical Christian, activity on the island, along with exclusionary violence against Christian groups. Jahangir’s dismissal of the fact-finding efforts of the Buddhists encouraged them to launch another voluminous report documenting instances of ‘unethical’ conversions taking place in Sri Lanka, subsequently released in 2009. The tensions sparked both local and international Christian groups to document the situation for Christians in Sri Lanka, while Buddhist groups started their own enquiries into the practices of ‘unethical conversions’. This chapter adds to the growing literature that examines how religious freedom is produced and negotiated in contingent encounters between legal and religio-political activists (see Mahmood and Danchin 2014). The anticonversion bill in Sri Lanka has received wide scholarly interest (see Owens 2006; Matthews 2007; Berkwitz 2008; Mahadev 2014; Hertzberg 2015, 2018; and see Frydenlund 2017 for a case in Myanmar). My aim is to go 56

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into depths of how monitoring practices function and develop in the realm of religious freedom, produced and negotiated between religio-political actors, national and international politics and legal-bureaucratic procedures. While Young (1998) and Danchin (2002) have written illustratively on the global structures of external monitoring of religious freedom, my emphasis is to look at these processes from the ground and how religio-political actors in Sri Lanka themselves indulge in formatting their reports to the international standards. This stresses the importance of factual politics, where actors increasingly need to base their arguments and decisions upon reports and inquiries. My argument is twofold; first, I will argue that the various reports and fact-finding missions are vital to understand why the anti-conversion bill in Sri Lanka never was passed, and second, I will argue how certain actors, by formatting their monitoring practices according to international standards, are more likely to be protected under the guise of religious freedom. The focus will be on the importance of various reports and fact-finding missions to alleviate documentation into generating political facts critical to decision-makers in the realm of religious freedom. Based on extensive fieldwork in Sri Lanka during 2011–2013, the chapter aims to unravel the dynamics between local and national monitoring efforts in relation to the international scene. Amidst a violent civil war, evangelical Christians in Sri Lanka have been documenting their grievances with great precision, and through professional international monitoring organisations, most of them of an evangelical Christian origin, they have convinced geopolitical actors to put pressure on Sri Lanka to protect religious freedom. Thus, we are witnessing a situation where each religious group predominantly documents their own grievances along their own networks, contributing to the politicisation of religious freedom. It is common to divide external monitoring mechanism into three distinct categories: multilateral mechanisms (usually international organisations such as the UN and the like), bilateral mechanisms (where one country monitors another and exerts direct pressure) and the existence of non-governmental organisations (NGOs) of local, national and international standing, which initiate and forward their own monitoring efforts (Danchin 2002). In this chapter I will look into how both Christian and Buddhist organisations have initiated their own investigations and factfinding missions to supply evidence of how their ‘religious freedom’ is threatened in Sri Lanka. These initiatives do not stand alone, but are supplemented by how U.S. foreign policy intervened in the debate through the monitoring efforts of the International Religious Freedom Act (IRFA) and Asma Jahangir, special rapporteur on freedom of religion or belief, conducted her own fact-finding mission to Sri Lanka in 2005, where she 57

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also derived her report upon the fact-finding missions supplied to her by different (religious) NGOs in Sri Lanka.1

The Christian voice: blessed be those who are persecuted They [the evangelical pastors] believe, on the contrary, that the attacks are the paramount issue, and that the legislation was merely one part of an overall strategy to assert the primacy of the Sinhalese Buddhism in Sri Lanka and eliminate every religious group that threatens their primacy. Their fear is that the international community will stop paying attention after the demise of the bills, but that the monks will continue their campaign of terror – “diplomacy by other means”, one might say. (Jubilee Campaign, 25 March 2005)

The act of explaining the violence against Christians in Sri Lanka may take two different approaches: either see them as a concerted effort to gain political leverage to introduce the anti-conversion legislation in Sri Lanka or as (rural) responses against aggressive proselytism (‘unethical’ conversions) done by Christian missionaries. The earlier quote summarises how many Christian activists perceive exclusionary violence and the subsequent legal actions around anti-conversion legislation as a potent mix to curb Christian, especially evangelical, activity in Sri Lanka. Buddhist nationalists, however, would rather argue that the anti-conversion bill is a solution to these violent upheavals. They invoke the argument that anti-conversion legislation is enacted precisely to guarantee religious harmony.2 Hema Goonatilake, editor of The Buddhist Times, argues: “Anti-Christian violence began around the same time and increased with the increase in unethical conversions. It was the aggressive campaigns of the new evangelical churches to convert rural Buddhists that resulted in this backlash” (Goonatilake 2009: 44), and she further concludes that “[a] major reason why legislation is necessary is that the law is the most effective way to prevent further religious disharmony” (Goonatilake 2009: 46). The argumentation is that violence erupts due to emotive responses of ‘unethical conversions’ and that with an enactment of an anti-conversion bill these eruptions would come to a halt, as it would stop the methods of aggressive proselytisation by evangelical churches. Christian activists, on the other hand, deny that ‘unethical conversions’ are taking place (or, at best, that it is a very marginal phenomena) and claim that these accusations are levelled against them for political purposes. What is at stake here is the ability to define the problem: Is it improper proselytisation or Buddhist extremism 58

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that lies behind the confrontations? Thus, this questions leads both parties, Christian and Buddhist, into a forensic subgenre of documenting transgressions of religious freedom. A wide variety of Christian organisations have taken an interest in the anti-conversion bill in Sri Lanka. Not only have different traditions of Christians in Sri Lanka – Catholic, Protestant and evangelicals – both formed and unformed political alliances during the policy process of the anti-conversion legislation (from 2003 to 2012) (see Hertzberg 2016), but other independent and international organisations have visited Sri Lanka for fact-finding missions. Some have been rather small, as the Becket Fund or the Jubilee Campaign, but the situation in Sri Lanka also attracted larger organisations with an international reach. Prominent international organisations such as the Voice of the Martyrs (VoM), International Christian Concern (ICC) and Christian Monitor served and still serve a day-to-day reporting function on incidents against Christians in Sri Lanka.3 This could be everything from assaults, threats or other episodes of violence against Christians or status updates on the legal process of the anti-conversion legislation or related legislative attempts that affect Christians. (Evangelical) Christians can use these forums to gain awareness and support for their case, and these international networks centred on ‘the persecuted church’ worldwide provide a structural mechanism for reporting and monitoring incidents of ‘religious violence’. The most important forum of advocacy for Christians on the theme of religious liberty was for a long time the International Religious Freedom Act (IRFA) which was enacted by the United States in 1998 and which had a mandate to sanction states for violations of religious freedom. The IRFA entails that the United States itself monitor the situation of religious freedom all over the world and that countries can either be classified as ‘countries of particular concern’ or they can be put on the ‘watch list’. While Sri Lanka has been put on neither of these lists, an eventual passing of the anti-conversion bill could jeopardise the situation for Sri Lanka, and as Berkwitz notes: [Sri Lanka] can ill-afford to be reprimanded and sanctioned by the U.S. government under the IRFA, which could result in the delay or cancellation of official and state visits to the U.S., the reduction or termination of certain assistance funds, and the imposition of targeted or broad trade sanctions. (Berkwitz 2008: 214) However, this punitive approach has also been heavily criticised as confirming the perception of cultural imperialism that paves the way for American missionaries (Farr and Saunders 2009: 964). 59

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Several of my Buddhist informants were critical to how the American Embassy intervened in the anti-conversion debate and how they had threatened sanctions if it passed. The embassy not only held public meetings with Sri Lankan stakeholders but was also engaged in direct communication with important figures related to the political process. The United States launches annually an International Religious Freedom Report on different countries, and it has reported on Sri Lanka since 2001. Rather than reporting a list of incidents, the reports are more holistic in scope, discussing the latest progress and decline of the situation of religious freedom in Sri Lanka, as well as new administrative and bureaucratic amendments. Moore observes how the reports written under the aegis of IRFA have followed distinct genres, both structurally and thematically, from the human rights discourse, where the reports are more than a simple statement of facts, but written to create a sense of urgency and embattlement (Moore 2011). However, in contrast to the majority of the Christian monitoring bodies, the IRFR also reports more widely from all of the different religious organisations in Sri Lanka. It can be read from the report that the highest level of U.S. interventions and advocacy was reached during the climax of the anti-conversion legislation debate in the years 2003–2006. The various Christian reports argue that both the violence towards Christians and the upcoming anti-conversion legislation can be seen as instruments of religious discrimination. An occasional church attack is no news item, but a concerted campaign of oppression against Christian minorities both through legal mechanisms and exclusionary violence provides a more potent storyline from which to draw conclusions of religious persecution. Thus, the combination of an oppressive law, together with exclusionary violence, is a powerful imaginary of religious persecution, which would give international awareness and mobilisation to the particular case at hand. Thus, the anti-conversion bill proposal in Sri Lanka acted as a catalyst for generating more international attention to the situation of Christians in Sri Lanka, and it was framed as a testimony that Christians in Sri Lanka were targeted by a concerted effort. Castelli, who discusses Christian activism and the persecuted church globally, notes the following trends in reporting ‘facts’ and ‘stories’: ‘[P]ersecution’ is meanwhile defined by means of a specific range of rhetorical strategies. The three most central rhetorical gestures are the practice of graphic synecdoche (where the speaker lists long series of violent and atrocious acts – kidnapping, rape, torture, murder – which everyone agrees are deplorable and unacceptable and which then become specific elements of the broader category, 60

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‘persecution’); narrative metonymy (where incidents are narrated often without specifying details and come to stand as emblematic examples of a more general category); and the strategic use of deeply personalized anecdotes (where again an individual is named and geographically located and his or her story told in brief, again as an illustrative example of the more general category, ‘persecution’). (Castelli 2005: 326) ‘Persecution’ is not a neutral term, and Castelli (2007a, 2005) notes how global evangelical activism has adopted the language of human rights as an arbiter to connect activism against persecution within the frames of religious freedom. During my encounters with evangelical Christians in Sri Lanka they continually reiterated Bible verses and anecdotal sayings to explain their own political marginality in Sri Lanka: “Blessed are those who are persecuted for righteousness’ sake, for theirs is the kingdom of heaven” (Matt 5:10) and “The blood of the martyrs is the seeds of the church” (from Tertullian). Castelli argues that Christianity itself is founded upon the concept of persecution as an archetype of religio-political standing and that “persecution plays a defining role in the generation and sustenance of Christian identity” (Castelli 2005: 329). Many of my evangelical informants claimed that the evangelical pastor Lionel Jayasinghe in Tissamaharamaya was the first martyr4 in Sri Lanka and that his death in 1983 started the persecution of evangelicals in Sri Lanka.5 Hence, suffering, persecution and martyrdom are not solely individual grievances of Christians but are tied into political ideas about how Christians are likely to meet violent response in confrontation with their enemies. As such, in order to understand political mobilisation among evangelicals, it can be misleading to survey their engagement in (party) politics, but often more productive to refer to how such friend–enemy distinctions are embedded within (global) Christian activism. Hence, it is imperative to look at how different organisations, national and international, have worked in Sri Lanka to monitor religious discrimination and religious freedom. The evangelical Christian community acknowledges how the anti-conversion bill proposals highlighted the case of ‘persecuted’ Christians to greater international awareness and that the international pressure and advocacy on the matter were an advantage to the practice of their religious activities. Thus, the anti-conversion legislation became a golden opportunity for them to act upon their aggravating situation and claim international support for their case. The Jubilee Campaign argues: Although the attacks have been going on for years, international attention only became focused on Sri Lanka with the introduction 61

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of the anti-conversion bills. Before that time, religion-based violence was overshadowed by the twenty-year-long ethnic conflict between the government and the Liberation Tigers of Tamil Eelam (LTTE), or Tamil Tigers. Several of the people we interviewed, including a fair number of the evangelical pastors, expressed concern that the apparent defeat of the anti-conversion legislation would lull the government and the international community into thinking that the problem has been solved. (Jubilee Campaign, 25 March 2005) While the anti-conversion proposals were a source of anxiety and fear, they nevertheless acted as a catalyst to bring international attention to their situation, and this international scrutiny helped them as their monitoring efforts were then acknowledged and used as a basis for further advocacy. With the subsequent failure of the anti-conversion legislation, many Christians fear that the decreased international attention will give the Buddhist extremists more room to navigate discriminatory regulations and carry out violent attacks upon the Christian community in Sri Lanka. However, we also see how the political mileage of evangelical Christians is dependent upon their marginality in general and violence in particular. Through such marginality, and especially as victims of violence, they are able to find patronage among these Christian international monitoring organisations specifically, and the international society more generally. Hence, exclusionary violence and discriminatory laws are political commodities necessary for subverting political marginality into global activism and international patronage. When speaking of the Christian monitoring of freedom of religion, what seems to be an innocent documentation of facts is a powerful mechanism to make all these incidents and events form a sequential storyline. These facts are not alone, and the monitoring mechanisms transform these lone incidents together into the coherency that enhances the salience of political facts, which bring witness of a concerted effort against Christian minorities. These forums made it far easier for the evangelicals in Sri Lanka to inform the world about their hardships, and these monitoring efforts subsequently generated more interest in probing the situation of the Christians in Sri Lanka.

Buddhist documentation: the grand commissions on ‘unethical conversions’ The 2002 Report of the Presidential Commission on the Buddha Sasana included one chapter discussing the various external threats to Buddhism 62

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in Sri Lanka, and three sources of concern were revealed: the inculturation of terminology and rituals by the Catholic Church, the subversive methods employed by Muslims in regard to acquisition of land and marriage and, last but not least, the imminent threat of unethical conversions in rural areas. The report observes: They [the fundamentalist Christian groups] settle or ‘plant’ outside Christians among the Buddhists in rural areas. Then, under the guise of social service, they build a close relationship with the Buddhist inhabitants there and systematically convert them into Christianity. (The Report of the Presidential Commission on the Buddha Sasana 2002: Article 9.23) The report argues that Christian fundamentalist groups and/or NGOs are lined up to destroy Buddhism and that there are no means of monitoring their activities in Sri Lanka. Thereafter the report provides a list of dubious activities of Christian groups/NGOs in various parts of Sri Lanka. Either complaints are made over the various subversive methods employed by Christian missionaries/aid workers or supposedly illegitimate preschools/churches/house churches are identified by address. While some of the facts revealed allude to various local disputes over the use of Christian worship sites, many of the allegations are quite general in scope. The report warns that local conflicts have led to violence and that the Sri Lankan state should take immediate steps, preferably through the means of a law, to ban subversive practices of conversion. The Report of the Presidential Commission on the Buddha Sasana’s findings was used as evidence for the need of an anti-conversion bill in 2003 and 2004, and the Supreme Court determination alluded to these ‘factual truths’. However, after the visit of the UN special rapporteur in 2005, she concluded “that the allegations of ‘unethical’ conversions have rarely been precise and largely overestimated” (Jahangir 2005: 21). This lack of acknowledgement on behalf of the ‘Buddhist’ report to soundly deliver evidence and factual truth outraged many among the Buddhist nationalists. Gamini Perera, a prominent Sinhala-Buddhist nationalist and the leader of the Joint Committee of Buddhist Organisations (JCBO), countered the allegations by Asma Jahangir of the inadequate evidential proofs supplied by Buddhists on unethical conversions in a long article in the Buddhist Times (Perera 2005). However, one year later the All Ceylon Buddhist Congress (ACBC) established a committee to look into the factual evidence related to unethical conversions. 63

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In 2006 the leader of ACBC appointed a commission to “inquire and report into the conversion of Buddhists in Sri Lanka by immoral and fraudulent means to other religious orders” (ACBC 2012: intro). The appointment was held at Mihintale, a Buddhist holy place of worship where Buddhism is said to have first set root in Sri Lanka, on 11 June 2006, the Poson Full Moon day in the Buddhist era of 2550. The committee consisted of Sarath Gunatilake, past judge of the high court, 10 commissioners and a secretary, Jaliya Nammuni, a retired major-general. The commission was initially supposed to deliver their report within six months, but it was not submitted to the ACBC until 5 October 2008, nearly two years later. The report was first published in its Sinhalese version in 2009 and later published in an English translation in May 2012. Some of the issues the commission received mandate to inquire into were: a)

To gather information enabling the identification of organisations which are directly or indirectly involved in converting Sri Lankan Buddhists to other religions, with regard to their constitution and their activities; b) To investigate the sources of funding of these organisations; c) Are there facts to confirm the resources that the religious organisations, non-governmental organisations and voluntary organisations which are incorporated in Sri Lanka, those who carry on projects in Sri Lanka with Board of Investment approvals and foreign charitable organisations receive, are by fraudulent means diverted directly or indirectly to organisations which engage in converting Buddhists to other religions? d) To investigate the most popular strategies used in persuading people to convert to other religions, especially simple village folk and the urban population; e) To investigate for evidence to confirm that local as well as foreign voluntary organisations were, on the pretext of helping the victims of the tsunami disaster of 2004, in fact engaged in conversions. The list of questions demonstrates that the commission looked in particular for structural patterns not directly related to the act of conversions per se, but rather at the opportunities of the source, be they religious organisations, non-governmental organisations or voluntary organisations, to conduct ‘unethical’ conversions. The factual reporting as a whole is not incident based, but accusations levelled against the potential perpetrators. The commission presupposes that Christians have a grand conversion strategy against Buddhists, and from this conversion strategy the commission 64

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infers that Christian organisations, especially those who perform social services, conduct ‘unethical conversions’. The majority of evidence in the ACBC report concerns itself with the link between Christian international networks, intents of proselytism and general characteristics of improper methods of proselytisation allegedly taking place in Sri Lanka. Hence, when the commission report provides a list of 379 different “NGOs engaged in religious conversion” (ACBC 2012: 162–176), the mere listing of these bodies in itself is taken to attest to the range and scope of unethical conversions taking place in Sri Lanka today. The contents of the ACBC report can be divided into four different topics: (1) the intent and cunning tactics of proselytism by Christian organisations, (2) the improper means and methods of religious organisations in converting Buddhists, (3) various attempts to bring disrepute upon the Buddha Sasana in general and Buddhist monks in particular and (4) the obligation of the Sri Lankan state to confirm its patronage relations regarding Buddhism as the foremost religion in the country. The complaints against Christian organisations target the invasive behaviour by many evangelical groups, especially their subtle entry into village areas, how they take undue advantage of ignorant and disadvantaged people and achieve conversions by various gifts of allurement (employment, promotion, promise of money or housing or school admittance). Other complaints include incidents of symbol denigration, either narratively delivered against Buddhist precepts and tradition or the actual destruction of physical religious items, such as religious tokens or statues. However, many of these complaints are anecdotal and vague in nature, and the commission report fails to bring the factual truth of their evidence beyond the accusatory level. But again, contrary to acts of violence and legal proposals, to acquire actual proof and evidence of ‘unethical’ conversions and improper proselytisation is no easy task and requires extensive contextualisation of the local agency in each case. The ACBC report was launched almost five years after the anti-conversion bill proposal was forwarded. It is reasonable to believe that many Buddhist nationalists believed that the 2002 Report of the Presidential Commission on the Buddha Sasana offered the necessary evidential material to convince the Sri Lankan Parliament to enact anti-conversion laws, especially when the Supreme Court condoned their material. However, Christian activism led to the production of several fact-finding reports on the situation for Christians in Sri Lanka, and they were able to provide convincing evidence to the international society that the Christian minority in Sri Lanka faced discrimination and hardships, both legally and through violent repercussions. The verdict of the UN special rapporteur Asma Jahangir was that she found the Christian monitoring of the situation precise and reliable, while 65

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the Buddhist testimonies both lacked precision and seemed to be exaggerated. I argue that the launching of the ACBC commission to inquire and report on the conversion of Buddhists in Sri Lanka to other religions by immoral and fraudulent means was arguably a direct response to the verdict made by the UN special rapporteur on the lack of substantialised evidence. The commission report is then an attempt to provide such evidence of ‘unethical’ conversions in Sri Lanka and thus articulate their concerns and anxieties on how they perceive missionary misconduct. Even if the commission report cannot be said to fulfil the requests of valid documentation of ‘unethical’ conversions, the Buddhists have arguably learned the importance of providing factual truth when uttering complaints about violations upon their religious freedom. The policy work around their issues has been taken to a new level, but it is still not reckoned as sufficient. While the Christian monitoring organisations issue many small, but frequent, reports on the status of religious freedom and discriminatory violence against Christians in Sri Lanka, the Buddhist side concentrated their efforts upon one grand and voluminous publication. The late blossoming of the Buddhist frenzy to report on ‘unethical’ conversions, in addition to the substantial amount of time taken to submit the findings in the report, caused the ACBC report to have insignificant political implications. The evidence was provided too late in the process, even though the anticonversion bill was coming up for another reading in Parliament in early 2009. I would argue that the differences in style of the voluminous ACBC report in comparison with the many small Christian monitoring reports indicate that these reports had very different functions. Whereas the Christian reports counted incidents and violations of their religious freedom in Sri Lanka, their reports had no ambition to provide a full account of the situation of the Christians in Sri Lanka, but rather provide evidence and interest among the different policy makers and stakeholders in international political bodies. The frequency of these reports was intended to keep their advocacy pressure upon these stakeholders warm and indicate the urgency of the matter. The ACBC commission report was written with the main intent to persuade politicians nationally to enact protective measures for Buddhism in Sri Lanka, and the report was less intended for the international public. Thus, the report came initially in a Sinhalese version in 2009, and it was published in English in 2012, but it was not before this that it had the potential to gain international political impact. However, the report is still available only in its printed form and not through the Internet. The ACBC report uses the first five chapters to provide the background of the Buddhist identity of the Sri Lankan state and the historical background 66

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of unethical conversions. The intention of the report is not only to document instances of ‘unethical’ conversion but also to confirm the patronage relations between Buddhism and the Sri Lankan state: “Over the centuries Buddhism received state patronage. Royal patronage was necessary for Buddhism to flourish and also to safeguard the traditions” (ACBC report 2012: 54). The present demands of special state patronage to Buddhism can be attested in the following statement in response to the objectives of the Ministry of Religious Affairs6 established in 2005: The declaration of the Ministry of Religious Affairs that its mandate is to treat all religions with equality sets aside the foremost place assigned to Buddhism as guaranteed in the Constitution of the Republic of Sri Lanka. Such declaration constitutes an outright breach of the Constitution. Although all Religions shall be guaranteed their constitutional freedom and rights, such guarantee shall be subject to the responsibility of the State to ensure the foremost place to Buddhism. All religionists shall obtain a clear understanding of the legal and constitutional position. (ACBC 2012: 30) My argument is that the grand nature of the All Ceylon Buddhist Organisation’s Report of the Commission Appointed to Inquire and Report on the Conversion of Buddhists in Sri Lanka to Other Religions by Immoral and Fraudulent Means (2012/2009) aimed higher than mere documentation of ‘unethical’ conversions. An aim with equal parity was to demand a re-instigation of the close patronage linkages that Buddhism and the state enjoyed in the past. Many Buddhist activists claim that these patronage linkages are safeguarded by Article 9 in the Sri Lankan constitution guaranteeing ‘the foremost place’ to Buddhism. The report was ceremoniously released in 2009, carried forth by ornamented elephants, in a manner which the public perceived this as an official state publication, rather than one commissioned by the All Ceylon Buddhist Congress. Further still, while the report made little immediate political impact on the demand for anti-conversion legislation, many of the activists I interviewed read the report with zest and enthusiasm because of how it demanded stronger involvement of the state in protecting Buddhism in the country. The grand and voluminous nature of the report is precisely intended to persuade Sri Lankan politicians to acknowledge and protect the Buddhist heritage of the country, a Buddhist heritage that currently, in their perception, is under severe stress from the impact of foreign conspiring missionaries. The report indicates the hegemonic aspirations of Buddhist 67

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nationalists, as is observed by Woods (2017), yet the failure to pass anticonversion legislation attests to the limits of, and not the power of, such Buddhist hegemonic aspirations.

UN mechanisms and monitoring efforts The role of thematic rapporteurs in the UN is humanitarian and not judgemental in a legal sense. Their area of external monitoring lies outside the traditional UN judiciary and is one form of “quasi-judicial monitoring mechanisms established by convention, and in an area today known as extra-conventional and ad hoc human rights machinery” (Danchin 2002: 149). The procedures have come to include country visits where the rapporteur interviews government officials, as well as members of the judiciary, NGOs and other key persons according to the situation at hand. However, the visit is not a fact-finding mission alone, but draws upon evidence and documentation provided by a wide range of actors, such as governmental agencies, NGO groups and organisations, where the rapporteurs determine whether the uncovered facts implicate state responsibility or not in their recommendations. The UN Special Rapporteur on freedom of religion or belief, Asma Jahangir, visited Sri Lanka from 2 to 12 May 2005 and later published a report where she summed up the latest tensions of religious intolerance in Sri Lanka. One of the key issues in the report was the precision and documentation of evidence provided before the special rapporteur, and she concluded the following on the validity of the factual truth she was given as documentation for the alleged grievances: Incidents of inappropriate methods of conversion and proselytizing by some ‘non-traditional’ Christian groups were brought to the attention of the Special Rapporteur. These incidents were usually vaguely described and unclear with regards to circumstances. Despite repeated requests, the Special Rapporteur did not meet any person who had changed his or her religion because of allurement or other form of inducement. She has also not received any substantiated cases of conversion that would constitute a violation of the right to freedom of religion or belief, such as forced conversions. (Jahangir 2005: 10) And her verdict concerning the documentation of violence against religious minorities concluded: 68

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Before, but also during and after her visit to Sri Lanka, the Special Rapporteur received numerous reports of attacks and other acts of religious intolerance committed against religious minorities, in particular Christian groups. She notes that these reports are usually very well documented and are precise as to the factual circumstances of each case submitted. They come from different sources, some religiously affiliated, some not. (Jahangir 2005: 15–16) The UN special rapporteur is decisive in her verdict of the different monitoring efforts taken to produce evidence of ‘unethical’ conversions in relation to religion-based violence and discrimination. The factual truths submitted to her regarding violence and discrimination were succinct and contextualised, while the reports on ‘unethical’ conversions did not probe the matters succinctly. Jahangir also observes the inherent difficulty in monitoring conversions, and she poses this as one of the main difficulties with an eventual enactment of an anti-conversion bill. First, it is difficult to assess the genuineness of a conversion and to probe that an eventual gift or other similar promise caused the actual conversion. On the other hand, she argues, “A mechanism designed to monitor conversions and thus the reasons and purposes behind them could constitute a limitation on freedom of conscience” (Jahangir 2005: 15). While Jahangir did voice concerns over some aggressive proselytisation in Sri Lanka, her verdict was that she condemned the attacks on religious minorities and advised against any anti-conversion legal mechanisms. The intervention by the UN special rapporteur on freedom of religion or belief, here represented by Asma Jahangir, is the closest we come to an independent inquiry of authenticating the ‘truth’ when it comes to monitoring religious freedom. The moment she uttered her verdict upon the anti-conversion legislation in Sri Lanka, the political realities of such a mechanism to be enacted were reduced drastically. At that juncture, the Sri Lankan Parliament had to contravene the recommendations of the UN special rapporteur, a political manoeuvre that would not go unnoticed. In other words, the UN special rapporteur can be seen as guaranteeing impartiality, integrity and independence – the final arbiter of authenticating truth. Nevertheless, despite the unprecedented status of the UN special rapporteur, her authority does not stand uncontested. Danchin (2002) observes how NGOs have established themselves as the principal monitors of human rights violations. While the UN lacks the sufficient resources to attain credible and extensive information by themselves, different NGOs are increasingly taking the role of experts and witnesses in 69

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documenting such violations (Danchin 2002: 160). Danchin argues further that the thematic rapporteurs in particular are subject to one major weakness, in that there has been no attempt within the UN system to formalise fact-finding procedures, which may result in a risk of inconsistency in the procedures of documentation. Moreover, the growth of extra-conventional and ad hoc monitoring mechanisms within the UN have increasingly led to a NGO-isation of the UN organisation, where the methods and procedures of such NGOs have enabled a strengthened form of ‘activism’ on behalf of the UN, with ‘exposure’ as a major political tool, not to mention to a situation where several NGOs have specialised in forms of monitoring human rights violations, like many global Christian NGOs dedicated to documenting religious persecution. When Buddhist nationalists accuse Asma Jahangir of nurturing close links with evangelical activism for proselytisation, U.S. foreign policy and religious freedom, we see that these alleged ‘complicit relations’ are rather structural determinants in how ‘religious freedom’ is documented and negotiated through ad hoc monitoring mechanisms of the UN. If NGOs, and global evangelical monitoring mechanisms in particular, are able to co-opt the procedures and documentation of the fact-finding mission of the special rapporteur, and thus able to subvert the authority and legitimacy of the UN, complaints over ‘complicit relations’ should be a legitimate concern of the thematic rapporteurs. Taken to the extreme, it could implicate that only groups with the capacity to kindle these structural determinants of supplying ‘truthful’ facts are able to garner support from the UN special rapporteurs. Bielefeldt, the present special rapporteur on freedom of religion or belief, stated in a recent article: “Thus, in the long run, human rights could even end up becoming mere rhetorical tools arbitrarily used by different sides in various ideological battlefields” (Bielefeldt 2013: 66). The implications are considerable by expanding the notions of religious freedom from that of authoritative legality to the wider realm of these discourses of power of morality, legality and legitimacy.

Religious freedom and the formatting of political facts The act of monitoring religious freedom entails a fine balance between the notions of truth, facts and politics. Already inherent in conceptual framing, incidents and episodes, what we may term ‘facts’ is a dependency upon the definitions of religious freedom in use. Thus, by the use of rhetorical political analysis (see Martin 2014), we are able to identify the structural opportunities and conjectural constraints related to religious freedom. The dispute around anti-conversion legislation and the emergence of violence 70

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thereof has made the issue of monitoring religious freedom tantamount for understanding the conflict over conversions. Incidents have been counted, atrocities described and allegations launched, and yet amidst this scenery of ‘facts in the making’, deep differences remain in how the story of the anticonversion bill is interpreted by the different parties involved. A fact may only turn political if it is carried forward by a story. Arendt notes: “A factual statement only acquires political implications by being put into an interpretative context” (Arendt 2006: 245). The salience of political facts is dependent upon a storyline, a trustworthy narrator and a situation that can be remedied. Facts have no interests in themselves; their contingency is kept alive only as far as they are part of a political plot. The contingency of facts attests to their dependence on prosaic politics to keep them relevant, and different political actors will emphasise different facts, either in affirmation or contestation of other political contenders. However, while the dual nature of the fact attests that it is both vulnerable and dependent upon a narrative frame to be activated, the fact in general has nevertheless acquired an unmistakable reputation as the ultimate token of truth. A fact is not just a fact, but it is subject to various forms of control and regulation: “‘Truth’ is to be understood as a system of ordered procedures for the production, regulation, distribution, circulation, and operation of statements” (Foucault 2002: 132). Hence, the production of political facts is often a costly affair, including and integrating several layers of bureaucratic procedures. Thus, facts are never neutral, but rely upon systems or actors interested in their production and refinement, but also the task of authenticating truth, either through the trustworthiness of a narrator or the validating mechanisms of an inquiry. When we discuss the monitoring of religious freedom in Sri Lanka, the institutional differences in how the monitoring efforts were conducted may have an impact upon the salience of the political facts provided. Many large and professional Christian organisations have internationally specialised in monitoring religious freedom and work continuously to document facts and incidents, and local and national Christian bodies may easily connect to these organisations to report and document their grievances. They already have an institutional advantage in documenting the facts, but these organisations are also specialised in transforming these scattered incidents into political facts that can be ordered into coherent stories of religious persecution. They have the skills and repertoires for making their reports and statements ‘truthful’, they know the idiom in which to formulate their documents and they are acquainted with the jargon used in international religious freedom discourse. Thus, while the Christian minorities may wield little political acumen by themselves in the context of Sri Lanka, the 71

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larger Christian monitoring industry comes to assist and guide the process, producing reliable documentation of political facts. Moore argues, on the International Religious Freedom (IRFA) dataset, that “researchers must be alert to how culturally structural discourse can affect reporting on ‘facts’” (Moore 2011: 250). The advantage of Christian monitoring mechanisms should not be underestimated, and it is imperative to understand the dynamics of these structural determinants and how they are implicated in the procedural findings of the UN special rapporteur. The discourse on ‘persecution’ also has a powerful sway over the dynamics of public and political debate. Castelli argues that the discursive relations of human rights, religious freedom and persecution are highly effective in curtailing political debate and have “a distinctive power to clear the room of any other view” (Castelli 2006: 19). Whenever Christians are ‘persecuted’, this impervious suffering silences any critique or debate and confines Christians to the position of victims, but never as perpetrators. Castelli describes the Christian persecution complex as a “discourse entity impervious to critique, self-generating and self-sustaining” (Castelli 2007a: 174). Hence, the narrative locus of ‘persecution’ is indeed a powerful one, as any dissent or debate becomes trivial in the face of persecution. If we turn to how Tamboukou asserts “the performative work of narratives” (Tamboukou 2008: 73), we see how persecution is an important locus of evangelical political identity, always threatened by ‘extremist forces’. However, an effective use of the persecution narrative, well documented and condoned by the UN special rapporteur, mediates the political marginality of evangelicals in Sri Lanka into a global patronage network of protective agents from the international society. Hence, when Tamboukou discusses how different conditions may alter specific narratives as marginal vis-à-vis dominant, we see how the politically marginalised position of evangelicals in Sri Lanka can, by the means of powerful narrative devices, be transformed into wielding considerable political acumen. The act of monitoring religious freedom implicitly carries with it certain ways to define religious freedom. While some monitoring bodies explicitly discuss their definitions of religious freedom, many reports take such definitions for granted. Moore (2011) observes how the reporting under IRFA has been favourable to ‘proselytising traditions’ and how ‘religion’ is produced as a specific category through the genres of reporting and documenting religious freedom, procedures which rarely provide any background information other than the mere statement of incidents. Thus, the tout court of monitoring efforts’ reports on laws and incidents of violence, as such political facts are both easy to ascertain and document, but also because they have a direct relation to the topic in question. However, other 72

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issues are harder to bring into the fold of religious freedom, and the difficulties in monitoring ‘unethical’ conversions are but one example, both because such documentation needs extensive contextual fleshing but also because monitoring conversions can violate the personal rights of forum internum. Religious freedom should not merely be conceptualised as a particular right, but also as a rhetorical device, as the concept of religious freedom relates to powerful discourses of morality, legality and legitimacy. There are still those who believe that human rights stand above the political, as an ivory tower of moral standing and ethical impetus, yet the authority and legitimacy of human rights are not fixed, but rather constantly negotiated and contested by various agents. Both Christians and Buddhists have alluded to religious freedom as a rhetorical device to attain authority and legitimacy for their positions and demands, yet we also saw that evangelicals had more intimate knowledge of the international monitoring mechanisms relating to religious freedom and that these structural determinants were imperative for them to secure backing from the UN special rapporteur. However, Buddhist organisations have strained themselves to accommodate the political repertoires needed to satisfy human rights discourse, both when it comes to the articulation of an anti-conversion bill and the way in which they enacted monitoring efforts to provide evidence for ‘unethical’ conversions. ‘Narrative competence’ becomes a key issue in relation to religious freedom and in how to frame certain events and incidents as violations of this right, and we have seen how the narrative competence of the evangelicals was able to transform their political marginality in Sri Lanka to one of wielding international impetus through international backing.

Notes 1 Reports included in this study are: ACBC-All Ceylon Buddhist Congress (2012), Centre for Policy Alternatives (CPA) (2013), Christian Solidarity Worldwide (2004a), Christian Solidarity Worldwide (2004b), Christian Solidarity Worldwide (2006), Christian Solidarity Worldwide (2010), Ekanayake, Rev. Rohan de S. (1998), IRFR [International Religious Freedom Report] (2001–2011), Jahangir, Asma (2005), Jubilee Campaign (2005), Oslo Coalition (2006), Oslo Coalition (2009), Report of the Presidential Commission on the Buddha Sasana (2002). 2 This argument was prominent in India, where anti-conversion legislation was passed with reference to public order. Osuri (2013) argues that this granted Hindu nationalists an important victory, as this means that ‘unethical conversions’ are seen as the main cause for religious tensions and violence. Therefore, legislation is seen as a solution to these tensions and not as a political repertoire wielded by Hindu nationalists.

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3 Castelli (2007b) notes that many of these organisations engaged in monitoring persecution have roots in the Cold War missionary front. 4 Castelli notes how earlier stories of martyrs often are transported into political contexts: “Martyrdom continues to strike a resonant chord where political struggles are taking place and when those who seek to mobilize others to their cause attempt to find an irrefutable authorizing ground for their stance in those struggles. (. . .) It is in such moments of catastrophe and crisis, uncertainty and heightened conviction that the martyr/the suffering innocent emerges especially as a figure to convince and reassure” (Castelli 2006: 18). 5 Fernando (2014) bases his article upon the congregation in Tissamaharamaya, where the wife of the deceased Lionel Jayasinghe took leadership of the congregation after his death to great success, and Fernando notes how the “martyrdom, in the eyes of Sri Lanka’s evangelicals – is often interpreted as a victory for evangelicalism rather than a defeat” (Fernando 2014: 581). 6 The ACBC report quotes a statement of the Ministry of Religious Affairs: “In as much as the Constitution provides for the protection and fostering of the Buddha Sāsana and for the development of an economy based on Buddhist values so shall all religions be treated with equality and a society be built where all religions and ethnic groups could live safely” (ACBC 2012: 30).

References ACBC-All Ceylon Buddhist Congress (2012) Report of The Commission Appointed to Inquire and Report on the Conversion of Buddhists in Sri Lanka to Other Religions by Immoral and Fraudulent Means. Colombo: All Ceylon Buddhist Congress. Arendt, Hannah (2006) Between Past and Future. London: Penguin Books. Berkwitz, Steve C. (2008) ‘Buddhism and the politics of conversion in Sri Lanka’, in Rosalind Hackett (ed.): Proselytization Revisited. London: Equinox Publishing. Bielefeldt, Heiner (2013) ‘Misperceptions of Freedom of Religion or Belief’, Human Rights Quarterly, 35, 33–68. Castelli, Elizabeth A. (2005) ‘Praying for the Persecuted Church: US Christian Activism in the Global Arena’, Journal of Human Rights, 4, 321–351. Castelli, Elizabeth A. (2006) ‘The Ambivalent Legacy of Violence and Victimhood: Using Early Christian Martyrs to Think With’, Spiritus, 6, 1–24. Castelli, Elizabeth A. (2007a) ‘Persecution Complexes: Identity Politics and the “War on Christians”’, Differences: A Journal of Feminist Cultural Studies, 18:5. Castelli, Elizabeth A. (2007b) ‘Theologizing Human Rights: Christian Activism and the Limits of Religious Freedom’, in Michel Feher (ed.): Nongovernmental Politics. New York: Zone Books. Centre for Policy Alternatives (CPA) (2013) Attacks on Places of Religious Worship in Post-War Sri Lanka. Colombo: Centre for Policy Alternatives. Christian Solidarity Worldwide (2004a) ‘Sri Lanka: Visit to Sri Lanka September 15–25, 2004’, in Briefing. Surrey: Christian Solidarity Worldwide.

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Christian Solidarity Worldwide (2004b) ‘Sri Lanka: Religious Freedom Threatened by Anti-Conversion Legislation’, in Briefing. Surrey: Christian Solidarity Worldwide. Christian Solidarity Worldwide (2006) ‘Sri Lanka: Visit to Sri Lanka: May 26– June 2, 2006’, in Briefing. Surrey: Christian Solidarity Worldwide. Christian Solidarity Worldwide (2010) ‘Sri Lanka: Religious Freedom in the Post-Conflict Situation’, in Briefing. Surrey: Christian Solidarity Worldwide. Danchin, Peter G. (2002) ‘External Monitoring and the International Protection of Freedom of Religion or Belief’, in Elizabeth A. Cole and Peter Danchin (eds.): Protecting the Human Rights of Religious Minorities in Eastern Europe, New York: Columbia University Press, 131. Ekanayake, Rev. Rohan de S. (1998) Human Rights and the Christian Community in Sri Lanka. Colombo: Christian Consultation of Sri Lanka [The Religious Liberty Commission of the Evangelical Alliance of Sri Lanka]. Farr, Thomas F. and William L. Saunders, Jr. (2009) ‘The Bush Administration and America’s International Religious Freedom Policy’, Harvard Journal of Law & Public Policy, 32. Fernando, Oshan (2014): ‘Religion’s ‘State Effects’: Evangelical Christianity, Political Legitimacy, and State Formation’, Religion, 44:4, 573–591. Foucault, Michel (2002): Power, London: Penguin books. Frydenlund, Iselin (2017) ‘Religious Liberty for Whom? The Buddhist Politics of Religious Freedom during Myanmar’s Transition to Democracy’, Nordic Journal of Human Rights, 35:1, 55–73. Goonatilake, Hema (2009): ‘Why the Anti-Conversion Bill Is Necessary?’, OPA Journal, 24, June 2009. Hertzberg, Michael (2015) ‘Waves of Conversion? The Tsunami, “Unethical Conversions,” and Political Buddhism in Sri Lanka’, International Journal of Mass Emergencies and Disasters, 33:1. Hertzberg, Michael (2016) ‘The Rhetorical Shadows of the Anti-Conversion Bill: Religious Freedom and Political Alliances in Sri Lanka’, Nordic Journal of Human Rights, 34:3, 189–202. Hertzberg, Michael (2018) ‘The Gifts of Allurement: Anti-Conversion Legislation, Gift-Giving and Political Allegiance in South Asia’, Journal of Contemporary Religion (Forthcoming). IRFR [International Religious Freedom Report] (2001–2011) ‘Sri Lanka’, U.S. Department of State, Bureau of democracy, Human Rights and Labor. Jahangir, Asma (2005) Civil and Political Rights, Including the Question of Religious Intolerance: Mission to Sri Lanka, Addendum to the Report submitted by the Special Rapporteur on Freedom of Religion or Belief to the Commission of Human Rights, U.N. Doc. E/CN.4/2006/5/Add.3, December 12. Jubilee Campaign (2005) ‘Fact-Finding Mission to Sri Lanka: A Report by Jubilee Campaign USA: Revised and updated March 25, 2005’. Fairfax: Jubilee Campaign. Mahadev, Neena (2014) ‘Conversion and Anti-Conversion in Contemporary Sri Lanka: Pentecostal Christian Evangelism and Theravada Buddhist Views

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on the Ethics of Religious Attraction’, in R. Michael Feener and Juliana Finucane (eds.) (2013): Proselytizing and the Limits of Religious Pluralism in Contemporary Asia. Singapore: Springer. Mahmood, Saba and Peter G. Danchin (2014) ‘Politics of Religious Freedom: Contested Genealogies’, South Atlantic Quarterly, 113, 1–8. Martin, James (2014) Politics & Rhetoric: A Critical Introduction. London: Routledge. Matthews, Bruce (2007) ‘Christian Evangelical Conversions and the Politics of Sri Lanka’, Pacific Affairs, 80:3. Moore, Rick (2011) ‘The Genres of Religious Freedom: Creating Discourses on Religion at the State Department’, in Barbara Jones Denison (ed.): History, Time, Meaning and Memory: Ideas for the Sociology of Religion. Leiden: Brill. Oslo Coalition (2006) ‘The Oslo Coalition on Freedom of Religion or Belief: Fact Finding Mission to Sri Lanka’, January. Oslo: The Oslo Coalition. Oslo Coalition (2009) ‘Missionary Activities and Human Rights: Recommended Ground Rules for Missionary Activities’, November. Oslo: The Oslo Coalition on Freedom of Religion or Belief. Osuri, Goldie (2013) Religious Freedom in India: Sovereignty and (Anti) Conversion. London: Routledge. Owens, Alexandra (2006): ‘Protecting Freedom of and from Religion: Questioning the Law’s Ability to Protect Against Unethical Conversions in Sri Lanka’, Religion and Human Rights, 1, 41–73. Perera, Gamini (2005): ‘Joint Committee of Buddhist’, in The Buddhist Times, June 2005. Report of the Presidential Commission on the Buddha Sasana 2002, Chapter 9: Conversion of Buddhists to Other Religions, downloaded from www. lankaweb.com/news/items12/Conversion%20of%20Buddhists%20to%20 Other%20Religions%29.pdf Tamboukou, Maria (2008) ‘A Foucauldian Approach to Narratives’ in Maria Tamboukou, Molly Andrews and Corinne Squire (eds.): Doing Narrative Research, London: Sage. Woods, Orlando (2017) ‘(Re)producing Buddhist Hegemony in Sri Lanka: Advancing the Discursive Formations of Self-Orientalism, Religious (Im) mobility and “Unethical” Conversion’, Religion, 1–21. Young, Michael (1998) ‘External Monitoring of Domestic Religious Liberties’, BYU Law Review:2.

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5 “SHARED RELIGIOUSNESS” AS A SOURCE OF VALUES? Vebjørn L. Horsfjord

There is much talk today about a conflict of civilizations and cultures, but actually what we are dealing with is a conflict of approaches, one based on the religious worldview while the other on the non-religious worldview. (Kirill 2008)

Introduction This quote from a speech given to the UN Human Rights Council (UNHRC) on 18 March 2008 by Metropolitan Kirill of the Russian Orthodox Church can serve as a suitable starting point for an investigation into a particular line of argument available to religious leaders who seek political influence. Two features of Kirill’s statement will be central in the subsequent exploration: First his sharp dichotomy between religious and non-religious, underlined by the word “conflict”, and second, the significant singular form applied in “the religious worldview”. In Kirill’s view, non-religion is not faced by a variety of worldviews nurtured by a multitude of religions, but rather the worldview shared by the religions or the religious. Kirill’s speech to the UNHRC is not simply any church leaders’ casual remarks about religion and secularity. When he gave the speech, Kirill was president of the Department for External Church Relations of the Russian Orthodox Church (ROC), and less than a year later he took over as Patriarch of Moscow and all Russia. Since then he has been the leader of the world’s second-biggest church and manages the Russian Orthodox Church’s close relationship with the Kremlin (Papkova 2011). Both in Russia and in the UN the ROC has been a strong proponent of “traditional values” (Horsfjord 2017). The Church is a force in international politics, and there is therefore every reason to give attention to the way its leaders configure religion and non-religion, values, human rights and cooperation between various religious traditions. In his address to the important UN 77

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body the soon-to-become patriarch praised the idea of human rights, but nevertheless spent most of his allotted time criticising the current international human rights regime for being too secular and showing little respect for the convictions of the overwhelming majority of the world’s population, 80 per cent in his estimation, that identifies with a religion. The sentence quoted earlier, says Kirill, sums up his central concerns. In this chapter I will place Kirill’s UNHRC speech alongside a number of other official texts about religion, values and human rights on which the senior leadership of the Russian Orthodox Church has had considerable influence. By tracing similarities and differences in the form and content of the arguments that are used, I will show how religious leaders attempt to translate concerns rooted in theological reflection into arguments that carry weight in the arenas of international policy making. One of the devices that ROC leaders – and many other religious leaders – employ is to appeal to a form of “shared religiousness”. This is presented as a source of ethics and values and appears to take up a position halfway between the particular religious traditions, on the one hand, and that which is shared by all human beings, on the other. Although I will not use this chapter to demonstrate that this specific notion of shared religiousness represents a new way for senior religious leaders to speak about religion, there are good reasons to assume that it is a recent development. It is the requirements of the international – not to say global – public sphere, represented not least by the UN in which no particular religion can claim a traditional hegemony, that give rise to a new formatting of religion. It is not forced on the religions from outside, but grows from inside the religions as a new understanding, or at least a new rhetoric, that is conducive to gaining influence in that sphere. It can, in other words, be an example of religion formatted through processes of politicisation. The challenge from secular forces, or “militant secularism” which is a favourite expression of Kirill’s successor at the Department for External Church Relations, Metropolitan Hilarion (Horsfjord 2012), is a central concern for the ROC leadership. Often the contours of the secular are drawn with rather rough strokes, as Kirill also does in the sentences that immediately follow the one quoted earlier: For some reason there is an established opinion that it is the non-religious and morally neutral approach that can express all the human aspirations in the most universal way. . . . It has been often forgotten though that it is the religious and moral dimension of human life that is universal and characteristic of all nations [emphases added]. (Kirill 2008) 78

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Here and elsewhere Church leaders reinforce a religious vs. secular dichotomy by portraying the former as moral and the latter as morally relativistic. As can be expected, it is human rights, ethics, morals and values that are at the centre of the Church leader’s intervention at the UNHRC. When he addresses this forum, an important arena for international politics, he does not express the concern that the “non-religious” threatens religious doctrines or worship, but rather that specific practices in ordinary life, not least in the field of family, sexual ethics and gender relations, are under attack. A problem, according to Kirill, is that the international human rights regime may force people to accept and even practice such things that their religious traditions deem immoral. Although Kirill’s speech sounds like a frontal attack on international human rights, the Russian Orthodox Church’s strategy vis-à-vis international human rights discourse is not to reject it wholesale. The Church leadership’s engagement with the questions this discourse raises is in itself a tacit acknowledgment of its authority, a form of negative acceptance or an “acceptance-through-refusal” (Agadjanian 2010: 105). Had Kirill not thought that the international discourse on human rights was important, he would not have addressed the UNHRC. But the ROC also displays some positive appreciation of human rights. Its most authoritative document on the topic (see later), whose imminent publication Kirill announces at the end of his UNHRC speech, contains many of the critical perspectives that Kirill voices but also acknowledges that the human right of religious freedom secures a protected space in society for the Church and its members (Basic teaching, IV.3, IV.4, IV.6 and IV.7). By addressing the council Kirill signals – in practice if not in theory – a partial acceptance of the liberal world order to which the international human rights regime belongs. One of his explicit aims is to win acceptance for the role of religion in the development of legal norms within this international political system. In one of the opening paragraphs of the speech he complains about the secular hegemony in international human rights discourse: “As a result, religious views are declared a private affair and denied validity as a source of modern law including human rights law”. He returns to the topic of religion in law making towards the end of the speech: “These provisions [the concerns he has outlined in the speech] should be taken into account in developing international law including human rights law as well as national legislations”. Through a partial acceptance of the international human rights system and a demand for religious influence on the law-making process, Kirill walks straight into the debate about the role of religion in the public sphere. 79

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Translation? Discussions on religion in the public sphere can hardly be had without reference to Jürgen Habermas. Since the mid-2000s Habermas has argued for a greater role for religious arguments in public debate. A vast literature has developed analysing and discussing developments in Habermas’ thinking. This is not the occasion to rehearse these wide-ranging debates, but I will make use of some of Habermas’ conceptualisation of the role of religion in the public sphere in order to understand better the alternatives open to religious leaders. If that also throws light on strengths and weaknesses in this conceptualisation itself, that is a welcome by-product of the effort. I will build on Habermas’ outline in the lecture he gave when he received the Holberg Prize in 2005, most of which he has also presented elsewhere (Habermas 2005). A central concern for Habermas in his rethinking of the role of religion in society is to allow arguments arising from religious convictions into public debates. But the role of such arguments is not without limitation, and one of the thresholds religious language must not cross is that of the parliament. In a liberal state, laws must be formulated and justified “only in a language which is equally accessible to all citizens” (Habermas 2005: 16). Habermas’ central point is that the same requirement should not apply to all public discussions, but with regard to the processes of parliaments and courts, he finds no space for arguments based in religious tradition: “The truth content of religious contributions can enter into the institutionalized practice of deliberation and decision-making only if the necessary translation already occurs in the pre-parliamentarian domain, i.e., in the political public sphere itself” [emphasis in the original] (Habermas 2005: 15). Religious actors can bridge the gap between the religious and the secular by translating specifically religious arguments into generally accessible arguments (Habermas 2005: 14). The UNHRC is different from parliaments of nation-states which are at the centre of Habermas’ attention, but given its role in the implementation of international human rights, it would be reasonable to let the requirements regarding the role of religious arguments in national parliaments and courts apply in the same way to UNHRC. Kirill is obviously not obliged to accept Habermas’ translation imperative. Many Christian thinkers do not, such as Nicholas Wolterstorff (Wolterstorff 1997: 117–19) with whom Habermas is in discussion in the lecture quoted earlier (Habermas 2005: 15). But although Kirill may have other visions for the role of religion in society than those that dominate in Habermas’ liberal democracy, his ideas about how he can gain influence through his appearance before the UNHRC seem to be in full accordance with

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Habermas’ model. Such influence might be had precisely through a translation process prior to the law-making process proper. In fact, a closer look at Kirill’s speech to the UNHRC and the ROC’s other contributions in the field of international policy making suggests that such translation is going on: Although Kirill is a senior Church leader, his UNHRC speech contains no reference to sources of authority specific to the Christian tradition. This is in striking contrast with the ROC’s official teaching document on human rights, Basic Teaching on Human Dignity, Freedom and Rights. In that document dissatisfaction with the international human rights regime is presented within theological arguments that draw liberally on such important sources for Orthodox theology as the Church fathers and the Bible.1 According to the ROC, the reality of sin makes human nature an insufficient source of ethics and values, and human rights can therefore not be affirmed on this basis alone (Hoppe-Kondrikova, Van Kessel and Van Der Zweerde 2013: 216). In other words, appeals to the tradition-specific sources of authority are not optional extras within this thought structure but are essential in order to distinguish between right and wrong. So the form and structure of the arguments are fundamentally different in Basic Teaching and in Kirill’s UNHRC speech (which were written at exactly the same time). Nevertheless, the concrete concerns of relevance for international policy making are to a large extent the same. These concerns do not appear in a weaker form in the UNHRC speech, which lacks theological arguments, than in Basic Teaching, which is full of them. In the theologically oriented Basic Teaching the Church voices its concern that human rights allows for “such absolutely vicious things as abortion, suicide, lechery, perversion, destruction of the family” (Basic Teaching: II.2). But Kirill is no less explicit at the UNHRC when he speaks about abortion and “extreme feministic views and homosexual attitudes” that in his view dominate international human rights discourse. This indicates that some form of translation process is taking place, and when faced with the UNHRC, Kirill uses a generally accessible language rather than a specifically religious language to promote the same political agenda. Faced with the perceived requirements of the political processes at the UNHRC, Kirill adjusts his arguments, but not his material concerns. The translation process, however, is only partial, as the argument that is not explicitly rooted in the specific Orthodox tradition is twinned with emphatically pitting “the religious . . . approach” against “the non-religious approach”. Habermas assumes that there are two possibilities: An argument is either framed in “the vocabulary of a specific religious community” or in “a generally accessible language” (Habermas 2005: 14). Kirill, however, appears to suggest that there is a third option: On the one hand, his 81

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argument does not seek legitimation in the specific religious tradition of which he is a representative. On the other hand, his contention is not that the values and morals which he propagates are generally accessible; otherwise, there would not be such a sharp religious vs. non-religious dichotomy. Instead, an intermediary category enters the picture as the source and legitimation of moral norms: the religious.

“Shared religiousness” Kirill’s speech to the UN human rights body concludes with a plea for an “Advisory Council of Religions” that should have some form of status within the UN system. In the context of the speech it seems this council would represent “the religious worldview” in discussions on international affairs. The proposal, he explains, came up in the final statement of a summit of religious leaders in Moscow in 2006. What the Russian Church leader here refers to is the World Summit of Religious Leaders held in Moscow on 3–5 July 2006 in connection with the meeting of senior political leaders at the G8 meeting. The inter-religious summit, the first in a series of summits to take place in conjunction with G8 meetings, gathered over 200 religious leaders from 49 different countries, including representatives from various Christian denominations, Jews, Buddhists and Muslims (Steiner 2013: 6). It was initiated by Metropolitan Kirill and funded by the Russian government, and the planning process, including a preparatory meeting for the drafting of a statement, was in the hands of the Russian organisers (Steiner 2013: 6). The statement from the conference is addressed to the leaders of the G8. Like the intervention at the UNHRC, it is an attempt to exert influence over matters in the arena of international politics. It covers a range of topics such as economics, the environment, poverty and AIDS (World Summit of Religious Leaders 2006). Protection of human rights, it states, is an important concern for the religious leaders. They also emphasise that societies need an “ethical core”, which they link to “duties”. The statement addresses family ethics and gender relations indirectly and calls for “more assistance to the family” by “national and international law and the practice of states” and asserts “the highest value of human life from conception to the final breath and natural death”. The central point for my investigation here is that those who signed the statement claim that the values they promote “are shared by our religions in many practical ways”. But more than that: “We believe these values to be given to us by the Almighty and deeply rooted in human nature”. This is as close as the statement gets to a religious foundation for its suggestions. The appeal to “the Almighty” is 82

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somewhat perplexing given the Buddhist support for the statement, but of equal interest is the claim that the values are found in human nature. This allows for, but does not determine, the reading that these values are accessible to all, since people of any religion and no religion at all can interpret human nature. In yet another statement about human rights in whose production the ROC leadership had a central role, there is no such room for possible universal access to values given by God. Three months before the international religious leaders’ summit, the World Russian People’s Council issued its “Declaration on Human Rights and Dignity” (World Russian People’s Council: Declaration on Human Rights and Dignity 2006). The organisation represents Russian Orthodox interests, it is closely linked to the Church hierarchy, and the Patriarch of Moscow serves as its president (Stoeckl 2014: 31). Its human rights declaration can be seen as an important forerunner for the ROC’s more elaborate Basic Teaching (Stoeckl 2012). On the level of concrete topics and policy implementation, the declaration mirrors official Church teaching: For example, it values religious freedom and the rights of children and of those in prison and emphasises that rights come with duties. However, like the other texts that I study here, and unlike Basic Teaching, it contains no explicit reference to Russian Orthodox theology and presents core arguments from Basic Teaching in what looks like a universally accessible language. Similar to the interreligious summit declaration, it maintains that “the eternal moral law” is “laid down by the Creator in human nature and manifested in human conscience”. But then it continues: “The voice of conscience however can be muffled by sin. Precisely for this reason the religious tradition that has God as its Origin is called to help discern between good and evil”. Such discernment should help inter alia against “the ‘invention’ of such ‘rights’ as to legitimize a behavior condemned by both the traditional morality and historical religion”, which is a very thinly veiled reference to homosexuality and may be also forms of gender equality. The crucial point which distinguishes the declaration from the theological argument in Basic Teaching, however, is that “the religious tradition that has God as its Origin” is not said to be the Orthodox tradition, and it makes no appeal to the Orthodox tradition’s specific sources of authority. In light of Habermas’ model for religious arguments in the sphere of law making and courts, the picture that emerges is this: The elaborate document Basic Teaching explains Russian Orthodox theology of relevance to the field of human rights. Certain ethical norms and values can be discerned in human conscience and through a reflection on human nature with the necessary help of such tradition-specific resources as Church fathers and the 83

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Bible. This provides the Russian Orthodox faithful with “good reasons” to act in specific ways. The ROC demonstrates that this argument is not only meant for internal use when they actively promote the document and have made it easily available online, as well as in an official English translation. The Church cannot expect that those who do not belong to the Orthodox, or at least the broader Christian, tradition will accept its theological lines of arguments, but they are nevertheless offered to a general international readership so that they, if we follow Habermas’ model, “may be able to learn something from these contributions and discern in the normative truth content of a religious expression intuitions of their own that have possibly been repressed or obscured” (Habermas 2005: 14). In the declaration from the World Russian People’s Council and in Kirill’s speech to the UNHRC, the specifically Orthodox line of argument appears to have been – still using Habermas’ words – “translated from the vocabulary of a specific religious community into a generally accessible language” (Habermas 2005: 14). However, the inter-religious summit’s statement shows that this is only a partial translation. References to “the Almighty” as the source of moral law is not the language of one specific religion, as the fact that it is part of an inter-religious statement proves. At the same time, it does not belong to a vocabulary shared by all. An intermediary category in which values and ethics are anchored appears between the particular religious tradition on the one hand and that which is universal or accessible to all on the other hand. The strong words about the “non-religious worldview” attest to this, but equally important is talk about “the religious worldview” in the singular, as in Kirill’s speech, and “the religious tradition that has God as its Origin”, also in the singular, in the declaration from the World Russian People’s Council. It is this singular religious worldview or attitude, it seems, that Kirill and the World Summit of Religious Leaders want to give a voice in the UN through an advisory council and that they assert must also be heard in national law-making processes. In practice, this less tradition-specific language can widen the gap between secular and religious, as Kirill’s UNHRC speech demonstrates.

Religious freedom The notion of a shared religiousness also determines the understanding of religious freedom that is found in the texts under investigation. They contain no easily identifiable and unequivocal support for individual religious freedom in the sense promoted within international human rights discourse. Concern seems more focussed on the rights of religious communities vis-à-vis the state than on individuals, and concern for minorities 84

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is less prominent than concern for the rights of the dominant community in a given “civilisation”. This collectivist approach to religious rights is an expression of one of the fundamental discrepancies between ROC teaching and the international human rights discourse. It explains some of the tension regarding religious influence on law making: The dominant religion within each culture or civilisation must be allowed to influence its laws, as Basic Teaching maintains: A society has the right to determine freely the content and amount of cooperation the state should maintain with various religious communities depending on their strength, traditional presence in a particular country or region, contribution to the history and culture of the country and on their civil attitude. (Basic Teaching IV.3) The World Russian People’s Council similarly affirms the desire for “peaceful diversity of worldviews, cultures, legal and political systems on the globe”. The attitude can sometimes appear to be to us our law, to others theirs. However, such a communitarianism on the global level does not lead to isolation because these various religions that should be allowed to influence policies in their respective cultures or civilisations are presumed to share fundamental values. This conviction, which makes it possible to speak for a form of religious freedom and at the same time speak for the rights of dominant religious communities to influence law making, requires another thought model which is almost, but not quite, articulated: Distinguishing between good religion and bad religion. Good religion deserves protection and is a source of values, but bad religion is not.

Good religion and bad religion The World Russian People’s Council speaks of religious tradition “that has God as its Origin”. This appears to be a much broader category than (Orthodox) Christianity, but nevertheless it does not encompass everything that goes by the name of “religion”. Kirill in his speech to the UNHRC affirms the World Summit of Religious Leaders’ contention that “major world religions share the fundamental moral norms”. The summit is able to reach this conclusion by making a series of distinctions among such things that are usually called religion or religious: Religion can be “a solid foundation for peace and dialogue”. If it becomes “a source of division and conflict”, it is because it is being “used”. In other words, in that case 85

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it is not genuine. Likewise, religion can be used “for rousing hatred or [as] an excuse for crimes against individuals, morality and humanity”. Such activities are associated with “pseudo-religious groups”, and these make “attempts to justify them [terrorism and extremism] by religion” [emphasis added]. Such misuse of religion would be countered if people learn to know true religion: “School, mass media, and preaching by religious leaders should return to our contemporaries the full knowledge of their religious traditions which call them to peace and love”. The picture that emerges is this: Among everything that could be conceived of as religious, there are some traditions or practices that are bad and therefore not true religion, whereas other traditions and practices are good and therefore true expressions of “religion”. Even the landscape of true religion is diverse, but the fundamental values that ought to influence international politics and law making are shared. On closer inspection it seems that the partial “translation” from religion specific to more generally accessible arguments only pushes the question about the source of ethics and values one step back. The argument is not the particularist argument that we should follow a specific norm because the Bible and the Church fathers say so, but rather the generally accessible argument that we should follow specific norms because true religions – or “historical religions” – agree on them. But if the next question is how to determine what are good and true (historical) religions, the answer would have to be that they are those that share the values that are found in the particular Christian (Orthodox) tradition. These could, in principle, have been shared by the religions because they are shared by all people, but in that case the very sharp dichotomy between the religious and the nonreligious would not be important. In other words, it is the Orthodox tradition that becomes the measuring rod for acceptable and unacceptable religion as sources of norms and values. The particularity is taken out of the immediate argument, but it is only one step away. The apparent translation of the religious argument is only a pseudo-translation. Habermas’ apparent insistence that there are only two options – a specific norm is either drawn from a particular religious tradition or it is generally available – seems to hold when faced with the apparent alternative that it could derive from the more diffuse category of religion, or from true religions or “historical religions”. When nevertheless the notion of religion in this sense is brought into the argument, it seems to function as a rhetorical device to partially circumvent the imperative that religious arguments must be “translated” before they enter institutionalised law-making processes. The need to circumvent it rather than simply ignore it does obviously not arise from the mere fact that Habermas wants such translation to take place, 86

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but rather a more general intuition or realisation that it makes sense, that arguments explicitly anchored in one particular religious tradition do not have much purchase in the sphere of international policy making.

Translation: perennialism or rhetorical device? The examples taken from the Russian Orthodox Church exemplify what can happen to the understanding of religion, or at least the language pertaining to “religion”, when theologically based arguments meet the requirements of the arenas of international policy making. Such “translation” is not unique to this particular Church and its leaders, but has been observed in similar situations elsewhere. Turan Kayaoglu discusses how the Organisation of the Islamic Conference (OIC) gradually adopted the language of the liberal human rights discourse in their efforts to make various UN bodies pass resolutions on “defamation of religion” from the late 1990s onwards (Kayaoglu 2014). One of Kayaoglu’s central findings is that the translation process is self-defeating, since it legitimises liberal standards that can then be used to criticise the religious tradition in question: Islam and countries greatly influenced by this tradition. A more thorough investigation of such translation processes would have to make distinctions between different types of “translation”. In Kayaoglu’s article, a central issue is the application of a language specific to one particular arena, the liberal language that dominates at the UN. What is at issue in the material under study in this chapter is slightly different. It is not necessarily about showing conformity to liberal standards, but rather to downplay reliance on lines of argument that require a particular religious underpinning. Such an apparently generally accessible language need not be a liberal language. Also, illiberal positions may be promoted in a secular language. However, the two types of translation processes are closely related and can fruitfully be explored together, as Kayaoglu also seems to be doing when pointing out that the OIC changed (or we could say “translated”) language about “God” into language about “the creator” (Kayaoglu 2014: 63). In the analysis of the lines of argument employed by senior representatives of the Russian Orthodox Church I have further shown that this is not only a question of language, as the creator (or the religious traditions putting the creator at the centre) is understood as a unique and irreplaceable source of ethics and values. At first glance, this might look like a type of perennialism, forms of thinking that have inspired diverse endeavours from a great deal of Protestant theology via the rise of the history of religions as an academic discipline to so-called new age spiritualities. Perennialists maintain that all religious traditions have access to and communicate the 87

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same universal truths. Russian Orthodox leaders’ appeals to what the “historical religions” have in common, what I have called the notion of shared religiousness, however, is different. The distinction lies first in the sharp religious/secular dichotomy that gainsays the idea of universal access to the important truths in question. Second the good religion/bad religion distinction gives prominence to Orthodox interpretations of religions. This stands in radical opposition to most perennialist thinking, which is oriented towards experiences and therefore inherently anti-hierarchical, and which challenges established structures for interpreting religious sources. The notion of a shared religiousness documented in this chapter is an instrument to reinforce the power of established religious hierarchies. As I have indicated, it is better understood as a rhetorical device to build alliances around specific anti-liberal causes than as a deeply held conviction about fundamental commonality. This raises the question whether the repeated application of such a rhetorical device might lead to its taking on greater reality in itself so that the commonality that it affirms gradually comes into being. In that case, the formatting of the language about religion would translate into self-formatting of the religious tradition itself in the process of seeking political influence.

Note 1 I have outlined and analysed the argument in Basic Teaching in some detail in (Horsfjord 2012).

References Agadjanian, A. (2010) ‘Liberal Individual and Christian Culture: Russian Orthodox Teaching on Human Rights in Social Theory Perspective’, Religion, State and Society, 38, 97–113. Basic Teaching on Human Dignity, Freedom and Rights of the Russian Orthodox Church (2010) Moscow, Department of External Church Relations of the Moscow Patriarchate. Habermas, J. (2005) Religion in the Public Sphere [Online]. Holberg Prize Seminar. Available from: [Accessed 19 February 2016]. Hoppe-Kondrikova, O., Van Kessel, J. and Van Der Zweerde, E. (2013) ‘Christian Social Doctrine East and West: The Russian Orthodox Social Concept and the Roman Catholic Compendium Compared’, Religion, State and Society, 41, 199–224. Horsfjord, V. L. (2012) ‘The Russian Orthodox Church: Two Discourses on Human Rights’, Nordic Journal of Human Rights, 30, 429–453.

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Horsfjord, V. L. (2017) ‘Negotiating Traditional Values: The Russian Orthodox Church at the United Nations Human Rights Council (UNHRC)’, in Stensvold, A. (ed.) Religion, State and the United Nations, 62–78. London, Routledge. Kayaoglu, T. (2014) ‘Giving an Inch Only to Lose a Mile: Muslim States, Liberalism, and Human Rights in the United Nations’, Human Rights Quarterly, 36, 61–89. Kirill (2008) The Address of Metropolitan Kirill of Smolensk and Kaliningrad, Chairman of the Moscow Patriarchate DECR on the Panel Discussion on Human Rights and Intercultural Dialogue at the 7th Session of the UN Human Rights Council [Online]. Interfax Religion. Available from: [Accessed 17 February]. Papkova, I. (2011) ‘Russian Orthodox Concordat? Church and State under Medvedev’, The Journal of Nationalism and Ethnicity, 39, 667–683. Steiner, S. (2013) ‘Reflexive Governance Dynamics Operative within Round One of World Religious Leaders’ Dialogue with the G8 (2005–2013)’, Sage Online, 1–15. Stoeckl, K. (2012) ‘The Human Rights Debate in the External Relations of the Russian Orthodox Church’, Religion, State and Society, 1–21. Stoeckl, K. (2014) The Russian Orthodox Church and Human Rights. London, Routledge. Wolterstorff, N. (1997) ‘The Role of Religion in Decision and Discussion of Political Issues’, in Audi, R. and Wolterstorff, N. (eds.) Religion in the Public Square: The Place of Religious Convictions in Political Debate, 67–120. Lanham, Rowman and Littlefield Publishers. World Russian People’s Council: Declaration on Human Rights and Dignity [Online]. (2006) Department for External Church Relations of the Moscow Patriarchate. Available from: [Accessed 16 March 2016]. World Summit of Religious Leaders: Message [Online] (2006) Available from: www. g8.utoronto.ca/interfaith/2006-interfaith-leaders-en.pdf [Accessed 15 January 2006].

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6 A TIME OF CHANGE IN THE ESTONIAN ISLAMIC COMMUNITY The question of power among the surrendered ones Ege Lepa

Introduction The three Baltic states have witnessed and overcome a turmoil of political, cultural and socioeconomic changes during the last century. The inhabitants of Estonia, Latvia and Lithuania have had to adjust to different political and economic systems, as well as cultural and religious policies, fitting in to societies from totalitarian dictatorship to liberal democracy during the last half of the century. Being part of czarist Russia and the Soviet Union during the 20th century and a member of the European Union today makes these little countries unique examples over and over again of “outside in and inside out” reformatting communities. Not just a uniform system and homogeneous society, but a unique cultural, social and organizational reformatting has taken place inside the smaller subcommunities, one of which – the Estonian Muslim community – is the example to be analysed in this chapter.

The beginning of the Islamic community Even though the first silver coins used on the soil of what today is Estonia were Arabic ones and the first geographer putting this piece of land to the map was an Arabian traveller, al-Idrisi, in the 12th century (Abiline 2008: 52), still the first Muslims who settled in Estonia came as allies of Ivan IV during the Livonian War (1558–83), being warriors from the Kazan and Astrahan khazanates, and the first noteworthy Tatar community appeared 90

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in the 18th century after the Estonian territory became part of the Russian Empire. Two waves of Tatar settlers came to Estonia: the first one consisted of soldiers in the Russian army, who stayed and purchased land mostly in Tallinn after the Northern War (1700–21); the second wave was a result of the abolishment of serfdom in Russia, which brought to Narva and Tallinn the families of Tatar merchants (Abiline 2007a: 10; Au, Ringvee 2007: 122). The first Islamic community then was a homogeneous one, adjusting itself into the little Lutherian province of czarist orthodox Russia, having fewer personal contacts in the form of some inter-marriages but more business and cultural contacts as far as celebrating Christian holidays together with the neighbourhood and selling textiles for colouring Easter eggs to townsfolk (Abiline 2007b: 32). By the beginning of World War I the Islamic community in Estonia was estimated to have been a couple of thousand (Linnas 2004: 38), with prayer halls in Tallinn and Narva and owning separate territories at cemeteries in Tallinn, Narva and Rakvere (Abiline 2008: 70). During the first independence period of Estonia both in Narva (1928) and in Tallinn (1940), the Islamic congregation was registered (Au, Ringvee 2007: 122), led by the imam as a spiritual leader and the board as financial and legal representative of the congregation. No distinction on the grounds of nationality for congregation membership is mentioned in the statute (Narva Muhamedi koguduse põhikiri 1928), but until the end of the independence period (1918–40) the Islamic community consisted solely of Tatars. Except for wearing headscarves, the outfits of Tatar women did not differ from the local ones’, and Tatar homes looked similar to the Estonian ones, only having always the Koran at the place of honour (Abiline, Ringvee 2016: 111). World War II destroyed the premises of both congregations and had a devastating impact on the community itself, as local Tatars are reported to have fought in the Soviet, German and Finnish armies; to have been victims of Soviet deportations; or to have fled to the West (Abiline 2008: 72).

The impact of the Soviet system: moderate cultural formatting on the background of thorough political change Having enjoyed cultural autonomy and freedom in religious matters during the first independence period, the period of Soviet occupation that followed started to show the survivors of the war a very different reality. The next decades brought to all Baltic countries, among many others, immigrants from the Muslim Central Asian and Caucasian Soviet republics, and the Sunni-Islamic Estonian (and Tatar)–speaking Tatars witnessed the arrival of 91

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Table 6.1 Estonian inhabitants of Muslim Central Asian background

Tatars Azeris Kazakhs Uzbeks

1959

1970

1979

1989

2000

2011

1,535 422 141 465

2,205 264 195 224

3195 543 226 397

4,058 1,238 424 595

2,582 880 313 132

1,993 940 107 121

Source: Compiled by author according to data from national censuses

a new wave of secularized Russian-speaking Tatars and Shiia-Islamic Azeris. The beginning of the occupation was also the beginning of a multinational Islamic community in Estonia, where today 53 different nationalities are represented (Census 2011). The end of the Soviet period was marked accordingly a decline in numbers concerning the Muslims of Central Asian background. Table 6.1 gives an overview of the nation’s dynamics. From here on, fundamental difficulties became apparent when assessing whether a person of a traditionally Islamic nation’s background is religious, moderately secularized or atheistic. The Soviet regime was atheistic by its nature, but although Islamic congregations were closed by the Soviet authorities in 1940, Muslims – and leading Tatars as still the largest ethnic group – still continued to practise their religious and cultural traditions in private homes (Ringvee 2005: 243). Even so, the Soviet period marks a fundamental change in the religiousness of the people, where state-organized ceremonies replaced religious holidays and urbanization, industrialization and socioethnic changes supported people’s abstaining from religious activities (Liiman 2001: 107). Different researchers of this period (Kilemit, Nõmmik 2004: 24; Özkan 2009: 94) have come to the conclusion that for the members of the Estonian national minorities, their religious identity as part of their national identity bore some significance (orthodoxy to Russians, Islam to Tatars, Azeris, Chechens, etc.), but even so nearly everybody during the Soviet regime and the majority, even decades after the collapse of the Soviet Union, have reservations concerning expressing their religious affiliation. The results of the Soviet atheistic policy can be seen in the answers given to the question about a person’s religious affiliation on recent Estonian national censuses. In 2000, of all respondents in Estonia, 327,832 confirmed allegiance to some specific religion, whereas 381,911 stated they were indifferent to any religion; 89,691 refused to answer the question, and 163,304 stated they can not [sic] answer the question (Census 2000). Ten years later – after two decades of independence and liberalism in Estonia – the numbers show even less explicit religiousness: 320,870 92

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religious respondents versus 592,588 non-religious plus 157,216 reluctant to answer (Census 2011). As we move from general data back to the Islamic community, we see a clearer perspective to the controversy whereby the data from the census in 2000 in Estonia shows there were 1,387 Muslims, but according to the chairman of the board of the Estonian Islamic Congregation, the number of Muslims in Estonia was approximately 10,000 (Seifullen 1999: 196). Descendants of the pre-Soviet Tatar group and of the multinational Central Asian and Caucasian immigrant group from the Soviet period today form the biggest segment of the Estonian Islamic community. They seem to be also more or less secularized and take, with a few exceptions, no active part in the religious life of the Estonian Islamic organizations. Hence, difficulty arises in assessing whether or not the Soviet regime had any instrumental impact on the religious practice of the earliest Tatar community. Based on interviews about family traditions and the community’s development at the end of the 19th and during the first half of the 20th century – before the Soviet occupation – most members of the Tatar community followed Islamic rules in a selective way. Women followed the traditional dress code (which is not very different from the Russian orthodox way of wearing a scarf), the community assembled in private homes and later in communal prayer halls for Friday prayers and most adult Muslims held a Ramadan fast. Still some contradictory episodes occur: the leader of the Narva congregation was at the same time also a stage manager of the local Tatar amateur drama group (Lepa, Seifullen 2015), and some members of the Tallinn congregation celebrated some Christian holidays with their neighbours with a little too much alcohol, so they needed to acknowledge their sins to the imam the next day and pledge not to go astray any more (Abiline 2007b: 31). It was very common to celebrate Tatar holidays with singing and dancing (those activities, together with acting on stage, are not common to the Islamic code of behaviour). Although the Koran was always placed in the spot of significance and distinction at Muslim homes (Abiline 2007b: 27), there was hardly anyone who could understand Arabic, even though children were always taught to memorize prayers and some segments of the Koran (Lepa, Saripov 2016). So, the atheistic Soviet regime moved the Islamic community from common prayer halls back to private homes again, and instead of an official mufti or imam, an older man upheld the religious practices (Ringvee 2005: 243). As time went by, fewer family members held the Ramadan fast; also today older female family members in families of Central Asian and Caucasian background tend to hold the fast, whereas males would rather not to do so (Lepa, Saripov 2016; Lepa, Ahhajeva 2015; Lepa, Uelskaja 2016). In 93

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addition, an interesting sign of changes in customs or interculturalization are graves in the cemeteries where Arabic prayers are carved on the gravestone in Slavic letters; a glass of vodka is placed in front of the gravestone (an orthodox folk tradition) and on the side of the gravestone an iron crescent is raised. For a younger and observant generation a vodka glass on the grave or anywhere else would be haram, as is listening to popular folk music (Lepa, Ahhajeva 2015), but for most of the older and middleaged Estonian Muslims, to whom Islam is part of their cultural identity, the question of haram and halal is not so sharp as to the next wave of immigrants and converts.

Changes after liberalization: more (and different) people, old attitude In the late 1980s the independence movement in Estonia revived general communal activities and also restored the activity of religious organizations and cultural societies of the ethnic minorities. In 1989 the newly established Tatar Cultural Society reestablished the Tallinn Islamic Congregation, having in mind the close connection between the two organizations (Lepa, Seifullen 2015). Some contacts were renewed with Tatar organizations in Finland, support sought from the Spiritual Directorate of the European Union and Siberia and a student of Islamic theology sent from Estonia graduated the medrese at Ufa in Bashkortostan in 1990 (Ringvee 2005: 243). Keeping in mind the reluctance of Estonian people to speak in public or to speak at all about one’s religious views (in 2011 16.4% of Estonians, 44.5% of Russians and 42.4% of Tatars older than 15 years confirmed their allegiance to any religion (Census 2011)), the last official censuses listed the biggest national groups inside the Estonian Islamic community as follows (Table 6.2). In 2000 there were 1,387 and in 2011 1,508 respondents who stated their religion to be Islam. The numbers are really marginal, making up

Table 6.2 Most numerous Estonian Muslim nationalities Year of census

Tatars

Azeris

Estonians

Russians

All Muslim nationalities together

2000 2011

754 605

no data 299

83 148

79 107

1,387 1,508

Source: Compiled by author according to data from national censuses

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roughly 0.1% of the Estonian population. Leaving aside an estimated 10,000 who already in 1990 represented all traditionally Islamic Central Asian and Caucasian nations in Estonia who have non-practicing Muslims, there is still reason to believe that the real figure is today closer to 4,000. In 2005 based on the Estonian Islamic Congregation’s estimation, the number of practicing Muslims was approximately 3,500 (Ringvee 2005: 242); in 2013, on the grounds of increased immigration, Estonians’ and Russians’ conversion to Islam and growing religious activity of younger descendants of Central Asian and Caucasian immigrants, the number was nearly 4,500 (Ringvee 2013: 229). On the opening page of one of the oldest and most popular websites of the Estonian Islamic community in 2015 (after the attack on the Charlie Hebdo offices in Paris) there was a note: “Dear visitor of this homepage! Before you send us an evil or mocking letter, take a moment to read this. The Estonian Islamic Congregation as the big majority of all Muslims considers what happened to Charlie Hebdo absolutely unjustified” (www.islam.pri. ee 2015). On the same page the estimation of the Estonian Islamic community expands to “somewhere between 1500 to 10,000”, because “very many Muslims prefer not to answer the questions referring to religion, fearing of coming under close scrutiny of Kapo (security police)”. The case of Charlie Hebdo is one of many mostly tragic or violent events involving Muslims in Europe or in the world that draws the attention of the Estonian media to local Muslims and starts a mainly offensive online discussion on daily mail webpages. If in recent years online commentariums were the most common place for expressing anti-Islamic sentiments, then at the end of 2015, in Tartu and in Tallinn organized demonstrations took place, urging Muslims to be kept out of the country (Aktuaalne kaamera, 2015. TV programme: ETV; Delfi.ee, 2015. Delfi website). The grounds for those demands were presumably EU negotiations concerning the refugee crisis in the Middle East and its impact on Estonia. Expected effects after the liberalization of the postsocialist society include the revival of numerous religious organizations, general open-mindedness and tolerance towards different religious communities; however, these developments take time, and in some cases the wider political background and public opinion start to impose the same influence on the community as the oppressive regime earlier. Some groups inside the Muslim community start to treat the country or the society they live in as hostile or even aggressive. Egdunas Račius has marked a similar tendency among the Lithuanian Islamic community, and especially among the Lithuanian converts (Račius 2011: 219): “[T]he position of Lithuanian converts to Islam is to be seen as a constructed hostility toward the Lithuanian (in a geographical sense) 95

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culture and its part (in an ethnic sense) – Tatar subculture as non-Islamic”. How the last part of this applies also to the Estonian Islamic community will be dealt with further on.

The Estonian Islamic community today – what and who is it? Estonia is a secular republic with a constitutional right of freedom of belief and religious practice. All religions are considered equal, and religious communities are required to register formally through local courts. As said before, the Estonian Islamic Congregation was registered in 1989 with Soviet authorities as the Tallinn Islamic Congregation, and in 1994 after the adoption of the Churches and Congregations Act in the Estonian Parliament, the name of the congregation was changed to the Estonian Islamic Congregation (Ringvee 2013: 231). The change of the name was more or less formal, since the majority of Estonia’s Muslims live in Tallinn or in the industrial area near the capital. The re-founders of the congregation emphasize the uniqueness of Islam’s uniformity in Tallinn, where both Tatars as Sunni Muslims and Azeris as Shia Muslims belong to the same organization. As stated before, religion as part of the national identity of a minority nation is here more culturally unifying, not a theologically diversifying element. An Estonian and Russian convert’s first encounter with Islamic culture and religious practice is frequently connected to travelling to Egypt, Turkey or other Middle Eastern tourist destinations; sometimes converts adapt newly met friends’ or a future spouse’s religious beliefs; thus, the converts also adapt Islam mostly in Sunni form. The question is not so much the subdivision of Islam, which is adapted abroad, but in the case of people of traditionally Islamic background, who – as Egdunas Račius strikingly states about Lithuanian converts – simply “stumble” upon Islam [. . .] by meeting Muslims while abroad and become fascinated about it (Račius, Norvilaitė 2014: 45); rather, is a question about their desire to become as Islamic as possible and that way separate from their families at home. There are cases in the Estonian Islamic community when, after spending some time in Western Europe and renewing bonds with distant relatives there by adapting a considerably more observant type of Islam then known at home, try to implement here new practices and criticize their family for not being real Muslims. In case of conflict with their “decadent” family, the “newborn” Muslim can leave the family and Estonia for a country where his or her new identity is, in his or her mind, better accepted and the society more tolerant of devoted followers of Islam. 96

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The religious services in Tallinn were first held in rented rooms (Lepa, Seifullen 2015); in 2009 the congregation’s activities moved to permanent headquarters (9 Keevise Street, near the Tallinn airport) in a former office building purchased by a Saudi sponsor, Omar Abdullah-Alshatri (Lepa, Saripov 2016). In the beginning of 2015 some discontent about the management of the property and the congregation’s finances was brought up at the congregation’s annual meeting (Kuusk 2015) – the first annual [sic] meeting since the reestablishment of the congregation; and in June 2015 a foundation Estonian Islamic Centre was established with the main goal to administer, maintain and use the premises of Keevise Street. Also the aims of the foundations are to further and stand for Islam in Estonia and to coordinate work with organizations with possible association with Islam or events concerning religions (Statute of Estonian Islamic Center 2015). Although few in number, Estonian Muslims have founded the organizations noted in Table 6.3. Putting aside a small splinter organization founded in 1995, there is a clear tendency of increased activity since 2009, the same year the congregation took possession of the premises in Keevise Street, where today on the first floor a big prayer hall for men is settled and on the second floor the study rooms for children’s and women’s classes, a small library, a kitchen and a women’s prayer room are situated. On the ground floor a supplementary festive hall can be arranged for the time of Ramadan’s communal dinners after the night’s prayer; on weekends halal food can also be bought there. The Cultural Centre Turath is headed by Imam Ildar Muhhamedšin, and lectures and courses for women and children are provided mainly by the Table 6.3 Islamic organizations established after regaining independence Organization

Established

Founders

1.

Estonian Islamic Congregation

1989/1994

2.

Estonian Muslim Sunni Congregation Islamic Cultural Centre Turath The Association Ahmadiyya Muslim Jamaat NPA Iqra in Tartu The Association of Muslim Women in Baltics NPA Estonian Muslims Foundation Estonian Islamic Centre

1995

Tatars, now multinational Tatars

3. 4. 5. 6. 7. 8.

2009 2009 2012 2012

Tatars Multinational, no longer active Estonians Tatars

2015 2015

Estonians Multinational

Source: Compiled by author according to data from the National Business Register

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wife of the imam, Iman Makhmutova. Imam Ildar Muhhamedšin has been the religious leader of the congregation since 2002; he graduated from the Islamic University of Al-Madinah Al-Munawwarrah in Saudi Arabia (Ringvee 2005: 243); he was born in Tallinn into a family of Tatar descent; and he speaks Russian, Tatar, Arabic and basic Estonian and English. He met his wife, also a Tatar but from Moscow, during his studies, since Iman was also conducting her studies in Saudi Arabia (Lepa, Makhmutova 2015). Iman also speaks Arabic, Tatar, Russian, English and nearly fluent Estonian. The communal Friday prayers are held in the congregation’s prayer halls – in 2015–16 weekly attendance by 60–70 male and 12–20 female worshippers. The prayer is in Arabic; the khutba (sermon) that follows begins with an Arabic introduction. The main part is conducted in Russian, and at the end there is a short explanative part in English. In circumstances where more English-speaking men of very different national origins take part in the prayer, the Imam has made efforts to lengthen the part of the sermon in English, which is somewhat annoying for the mainly Tatar- and Russianspeaking women. In recent years international exchange students from Islamic countries have found their way to the congregation’s premises. For example, in the academic year 2013–14 Turkey sent 35 students to Tallinn Technical University (ÕTA 2013–2014), but there are also students from Afghanistan, Iran, Bangladesh, UAE and other countries studying in other universities in Estonia. It is customary after the Friday and weekend prayers to have a common tea party on the women’s floor, and there is often a problem of finding a common language: older Tatar women (aged 60–80) have a knowledge of Russian, but mostly not of Estonian and certainly not of English; the exchange students speak English, but not Russian, and the Estonians, who normally could be translators between two most numerous parties present, usually don’t attend common prayers (for reasons which will be discussed further). The will to communicate, however, is there from both parties, and the subject matter can be either Islamic teaching and conduct at the prayer or everyday problems and political issues. Since 2015 a little group of young women of North African origin attend prayers, and there have been some cultural differences to overcome, where observant Tatars are disturbed by the newcomers’ behaviour during the sermon (i.e. taking selfies, surfing the Internet on smart devices, doing make-up, etc.). In some cases Imam has had to be a middleman between the protagonists of the old and the new. On Saturday after the communal prayer, children’s Arabic-language classes for two levels and Islamic teaching classes are held, and on Sunday a study group on Islamic teaching (8–10 Tatar women) led by Imam’s wife 98

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takes place. There are also occasional short-term Arabic-language study groups for women which are organized by the community members. A small group of Tatar men taught by Imam form a similar study group, gathering weekly to discuss different aspects of Islamic teaching, mainly concentrating on Islamic law and economy. Both study groups are held in Russian, using some Arabic terminology. The average age of the active Muslim community member is difficult to estimate. Based on the attendance numbers of the communal Friday prayers or the congregation’s annual meeting, it can be said that the average age of the female members is considerably higher than that of the male community members. There is a small core group of elder Tatar women consisting of 10–12 people and the wife of Imam, some 3–4 younger Estonian and Russian converts and some 3–4 younger women of Middle Eastern or North African background (usually exchange students). Men are nearly equally from all age groups and with a wider ethnical background. Based on the data from the last censuses, in 2000 the leading age groups were between 35 and 49 years of age (approximately one third of all Muslims); in 2011 a new big age group emerged in addition to the former ones: young people aged 20–34 (born 1975–90), forming more than a quarter of all respondents. But these estimations apply only to congregational activity or the segment represented in the census. Face-to-face interviews and social media activity reveal the community from a different angle.

Question of authority The people who are the members of the Estonian Islamic community do not necessarily need to be, or cannot always be, members of the Estonian Islamic Congregation. During the first independence period there were no national limits concerning membership of the congregation (membership was, without exceptions, still just Tatars), and the statute of the reestablished congregation also stated as its main goal “to unite on religious ground the Islamic nations living in Estonia” (Statute of the Estonian Islamic Congregation 2014, 2.2). Full memebership in the congregation was open to anyone of age, who was a legal long-time resident of Estonia and wrote a respective application to the congregation’s board (Statute of the Estonian Islamic Congregation 2014, 6.4). The reason for establishing new organizations (as shown in Table 6.3) sprang up from the Estonian converts’ endeavours to become full members of the congregation, which were rejected by the board. A new statute was enacted, allowing full membership in the Estonian Islamic Congregation only to members of nationalities or Islamic cultural societies constituting a council of the congregation 99

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(i.e. Azeris, Bashkirs, Kazakhs, Kirgizis, Tatars, Uzbeks and the Cultural Society of Oriental Nations) (Statute of Estonian Islamic Congregation 2015, 6.3, 8.1). This means that even if Estonians and Russians converted to Islam can take part in religious activities together with the congregation’s full members, they have no say in legal and economic matters of the Estonian Islamic Congregation, which in public opinion stands for all Estonian Muslims (Lepa, Treumuth 2016). In circumstances where Estonians and Russians are the third and the fourth biggest Islamic nation in Estonia, this situation induces evident tension between the nations. To alleviate the situation, the congregations council permitted them to consider the membership of the Estonian national Muslim society after three years of existence (for this reason in 2015 NPA Estonian Muslims was established in the hope of becoming a full member of the council in 2018). Still, the unrest concerning newcomers and the will to preserve tradition lead the Tatar and the Soviet-era immigrant “flank” of the community to find ways of self-protection, including trying to find new premises for the “old” part of the congregation (Lepa, Gadžijev 2016). The alternative and successfully competitive way to discuss different topics and share information lies in social media. The website mentioned earlier – islam.pri.ee – is the official website of the congregation, where abundant information about Islam can be found, as well as a list of converts’ stories about finding Islam, contacts for further general questions and how to contact Imam for religious services. No public debate or certain membership applies to this website. There is, though, a closed Facebook group called Eesti Moslemid (Muslims of Estonia) that in April 2016 had more than 400 members (then on the administrators’ initiative, only over 200 really active members remained) with Estonian as the main language. In this group the operative information is shared about events organized in the community, recommendations are made for different sites connected to Islamic studies and mostly conversations and discussions on different topics take place (for example, how to find halal food in Tallinn, how to dress and wear the scarf in public, how to interpret the teaching of the Koran in everyday life, etc.). Less active is the English language–based Facebook group Tartu Muslims with a smaller membership, consisting mainly of people connected to Tartu University and exchange students there. So we can cautiously speak of two bigger separately existing groups among active Estonian Muslims: first and foremost, the elderly, mainly Tatar- and Russian-speaking, mostly secular (or selectively observant), attending the Islamic Centre weekly and accepting Imam’s authority, though in need of coping with multiethnic and multilinguistic newcomers in the centre,

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and second, those who are mainly English- or Estonian-speaking, mostly observant (but not necessarily actively participating in the congregation’s activities) and silently or publicly reluctant to accept Imam’s leadership. There is also a theoretical viewpoint about the question of religious authority among Estonian Muslims. This is primarily because of recent inquiries from abroad as well as from the Muslim community in Estonia concerning the status of Mufti in the Republic of Estonia Department of Religious Affairs that in 2016 declared that there is in Estonia “no legally recognized bodies called Muftiate or any equivalent of such an institution and thus there is no legal entity that officially represents all the Muslims living in Estonia”, even though there are two persons in Estonia who are using the title of Mufti in a self-declared manner (Imam Ildar Muhhamedšin and Imam Ali Harassov, the leader of Estonian Muslim Sunni Congregation). Thus, they are not recognized by the state or “considered as representatives of all Muslims in Estonia or representatives of the Muslim community as a whole” (The answer of the Department of Religious Affairs of the Ministry of the Interior to the congregation’s inquiry, 2016). From a practical viewpoint, the title of the religious leaders of the community is not comparable with the actual religious authority among the community, or at least among the congregation. In Estonia, in addition to two imams of Tatar nationality there has been a Turkish imam since 2012, sent and financed for five years by the Turkish government, who assists Imam Muhhamedš in in religious services (Ringvee 2013: 231) and two self-taught imams (Ringvee 2014: 214). Face-to-face interviews reveal there are some young Tatars who have studied Islamic law in Medina, and at present there is one young Estonian convert continuing his studies in Medina in the hope of, after coming back, livening up the activity of the Muslim community in South Estonia. Estonian converts tend to prefer and trust his opinion over Imam’s, and in case they need religious (and practical) advice they turn to him via Facebook and Messenger. There are also some younger Estonian female members of the community with noteworthy religious and social authority, who are quite active in organizing community events, publishing handout materials about Islam, giving the newest advice on Islamic fashion (Eslimah webpages in YouTube and Instagram) and discussing theoretical matters on online groups. After the publication of an article “The Most Powerful Muslim in Estonia” in a national weekly newspaper, referring to a young scientist of northern Caucasian origin in Tallinn Technical University, only some moderate online discussion about social authority among the Estonian converts took place (Leitmaa, Salu, 2016: 20).

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As the tendencies of development in Islamic communities in all Baltic countries are roughly similar, Egdunas Račius’s statement about the situation in Lithuania applies quite well to Estonia also: [T]he bulk of the Lithuanian converts to Islam, and especially those still living in Lithuania, are those who do not either formally or even informally belong to the traditional local Muslim community comprised mainly of the Lithuanian Tatars and rather make a parallel ‘virtual’ community. (Račius, Norvilaitė 2014: 43) He also points out that the leaders of discussions in this “virtual” community are mainly female (which applies to Estonia) and are mainly living outside Lithuania (which does not, with a few exeptions, apply to Estonia) (Račius, Norvilaitė 2014: 47). There also is a tendency among especially female converts to move abroad, but not neccessarily to an Islamic country. Face-to-face interviews refer to the biggest (nationally) Estonian Muslim communities in Helsinki, Finland and Sweden, but also in other countries in Western Europe.

Conclusion: change of people, practice and power There is the time of change in the Estonian Islamic community. This change has to do with people, practice and social power. Nearly 250 years of Tatar domination, which was moderately challenged by Soviet-era immigration (but under circumstances of an atheistic society and by nations who saw Islam also as part of their cultural identity), is today withdrawing, giving way to a multiethnic and more active community, which does not see congregational life as the centre of religious activity, but has more diverse expressions. Roughly speaking, there are three generations among the socially active Islamic community: the elders – the re-founders of the congregation in 1989 – have mostly distanced themselves from the leadership of the congregation; the second generation – mostly middle-aged male Tatars and Azeris – hold the administrative power of the congregation (and in the eyes of public opinion the whole Estonian Islamic community); and the third generation – younger to middle-aged converts and immigrants from the last decade – are socially and “virtually” most active and religiously most motivated (and also religiously educated). Relying on the data of the last census, there is a noteworthy tendency concerning the place of birth among the Estonian Muslims: even if one third of the respondents were born in Estonia and two thirds abroad (mostly in the former USSR), then the age of those born abroad is mostly over 50, and in the age group 15–29 there are twice 102

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as many born in Estonia than abroad (Census 2011). Recent immigrants from the Middle East, exchange students and resident businessmen have shifted the lingua franca of Tallinn’s Islamic centre from Russian to English. The change of practices can be seen from different aspects. The shift in observation of the most important guideline in a Muslim’s life – the five pillars – can show the tendency of the change. The framework of a secular Western country forms a constant obstacle in keeping track of proper prayer times, and most moderately observant Estonian Muslims shift their praying to morning and evening time at home. Still from interviews it seems the younger generation, after (re)discovering their Muslim roots or after conversion, are more eager to keep the proper five prayers at the right time; they also share experiences and tips of getting up for a night prayer in social media groups. While the older and the second generation keep zaum (the Ramadan fast) selectively, the converts and recent immigrants take it more seriously, and the time of ramadan is also the busiest time of activity in social media groups, when different lectures, posters, and other materials are shared. There is no difference between generations where the hajj, the pilgrimage to Mecca, is concerned. During the time of Soviet occupation the older generation had no opportunity to travel (except to socialist countries), and during the last two decades some Islamic community members have had a chance to participate in a yearly pilgrimage. The time to pay zakaat or other possibilities for charity work are noted by younger active (female) community members in Facebook, who post reminders. The other aspect – the theoretical side of practices – discussions about the need to pray, the meaning of wearing Islamic attire or other aspects of everyday life as a Muslim, are now mostly held on Facebook (which means a certain language and generation choice). The question of power among the Muslims, the surrendered ones, stems from the change of the people and the practice. Different national groups of the older and the second generation find economical supporters of their activities from different Islamic countries (the Emirates, the Turkish government); the newcomers (Estonian converts) want to have their say in the legal and financial matters of the congregation, but feel rejected. Hence, the establishment of new Islamic organizations and social media groups takes place. Even if converts eagerly use the terms brother or sister referring to anyone in the Muslim community, they often still stress an “I keep myself to myself” attitude concerning not attending communal prayers in the centre of Keevise Street. And those who are attending (in particular, the women of the Keevise centre) seem to feel disturbed about the newcomers or have not yet become familiar with the new situation. Changes from outside – liberation of the society, the growing increase of the role of social media communication among the younger generation 103

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of Muslims, growing immigration from Islamic countries to Europe and to Estonia – have triggered and keep affecting inner in the Estonian Islamic community. There are changes concerning who is an Estonian Muslim today compared to the time when the congregation was reestablished. There are changes concerning carrying out religious practices. There are changes in the organizational structure of the community. But whether there is a thorough common change in approaching the Islamic teaching itself among Estonian or Baltic Muslims (the possible case of Euro-salafism, which Egdunas Račius raises a question about), while there are so many individual approaches and possibilities of interpreting and discussing the teaching of the Prophet, remains unclear, unless the plurality of the theoretical and hence also of the practical side of Islamic teaching is also the main common and unifying trait of the Estonian (and Baltic) Islamic community.

References Abiline, T. (2007a) ‘Islam ja Tallinn,’ in Tallinna Linnamuuseumi aastaraamat 2005/2007 ed. S. Mäeväli, 5–22. Tallinn: Tallinna Raamatutrkikoja OÜ. Abiline, T. (2007b) ‘Tatarlased Tallinnas 1930. aastatel,’ in Tallinna Linnamuuseumi aastaraamat 2005/2007, ed. S. Mäeväli, 23–39. Tallinn: Tallinna Raamatutrükikoja OÜ. Abiline, T. (2008) Islam Eestis. Tallinn: Huma. Abiline, T. and Ringvee, R. (2016) ‘Estonia,’ in Muslim Tatar Minorities in the Baltic Sea Region, ed. I. Svanberg and D. Westerlund, 105–126. Leiden: Brill. Aktuaalne kaamera (2015) ETV. Available at: https://arhiiv.err.ee/vaata/ aktuaalne-kaamera-1128-192369 [Accessed 11. Sept. 2016]. Au, I. and Ringvee, R. (2007) Usulised ühendused Eestis. Tallinn: MTÜ Allika kirjastus. Census (2000) Rahva- ja eluruumide loendus 2000. Usk. [online] Available at: http://pub.stat.ee/px-web.2001/Database/Rahvaloendus/REL2000/ 17Usk/17Usk.asp [Accessed 11. Sept. 2016]. Census (2011) Rahva- ja eluruumide loendus 2011. Rahvastiku demograafilised ja etnokultuurilised näitajad. Usk. [online] Available at: www.stat.ee/ sab-uuendus?db_update_id=14122 [Accessed 11. Sept. 2016]. Delfi.ee (2015) Delfi Website. [online] Available at: www.delfi.ee/news/paevauu dised/eesti/delfi-fotod-ja-videod-pagulastevastased-marssisid-torvikutegalabi-ohtuse-tallinna-oo-labi-kestma-pidanud-uritus-loppes-ootamatultvara?id=72702553 [Accessed 11. Sept. 2016]. Kilemit, L. and Nõmmik, U. (2004) ‘Eesti elanike suhtumisest religiooni,’ in Mitut usku Eesti. Valik usundiloolisi uurimusi, ed. L. Altnurme. Tartu: Tartu Ülikooli Kirjastus. Kuusk, H. (2015) ‘Millest muslimid ei räägi. Radikaalne islam Tallinna mošees’ in Eesti Päevaleht. [online] Available at: http://epl.delfi.ee/news/eesti/

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millest-muslimid-ei-raagi-radikaalne-islam-tallinna-mosees?id=71566017 [Accessed 11. Sept. 2016]. Leitmaa, D. and Salu, M. (2016) ‘Eesti muslimiautoriteet: Mina ei lubaks oma naist üksi Tartusse,’ Eesti Ekspress 13 (1373), 20–25. Liiman, R. (2001) Usklikkus muutuvas Eesti ühiskonnas. Tartu: Tartu Ülikooli Kirjastus. Linnas, R. (2004) ‘Islam Eestis,’ in Mitut usku Eesti. Valik usundiloolisi uurimusi, ed. L. Altnurme. Tartu: Tartu Ülikooli kirjastus. ÕTA (2013–2014). Kokkuvõte Tallinna Tehnikaülikooli õppetegevusest 2013/2014. õppeaastal. [online] Available at: www.ttu.ee/public/u/ulikool/Oigusak tid_ja_dokumendid/Eelarved_ja_aruanded/oppetegevuse_aruanne_2014. pdf [Accessed 11. Sept. 2016]. Özkan, A. (2009) ‘Estonia,’ in Islam in the Nordic and Baltic Countries, ed. G. Larsson. London: Routledge. Račius, E. (2011) ‘Islam in Lithuania: Revival at the Expense of Survival?,’ in Muslims in Poland and Eastern Europe: Widening the European Discourse on Islam, ed. K. Górak-Sosnowska, 207–220. Warszawa: University of Warsaw, Faculty of Oriental Studies. Račius, E. and Norvilaitė, V. (2014) ‘Features of Salafism among Lithuanian Converts to Islam’ Nordic Journal of Religion and Society (1), 40–54. Ringvee, R. (2005) ‘Islam in Estonia,’ in Islam v Europe. Naboženska sloboda a jej aspekt. Zbornik referatov z rovnomennej medzinarodnej koferencie, 242– 247. Bratislava: Centrum pre Europsku politiku. Ringvee, R. (2013) ‘Estonia,’ in Yearbook of Muslims in Europe, ed. J. Nielsen, Vol. 5, 229–236. Leiden: Brill. Ringvee, R. (2014) ‘Estonia,’ in Yearbook of Muslims in Europe, ed. J. Nielsen, Vol. 6, 210–217. Leiden: Brill. Seifullen, T. (1999) ‘Islam Eestis,’ in Eesti rahvaste raamat. Rahvusvähemused, -rühmad ja – killud, ed. J. Viikberg. Tallinn: Eesti Entsüklopeediakirjastus. Statute of Estonian Islamic Center 2015. [online] Sihtasutus Eesti Islami Keskuse põhikiri. Available at: https://ariregister.rik.ee [Accessed 31. Dec. 2018].[a4] Statute of the Estonian Islamic Congregation 2014. [online] Eesti Islami Koguduse põhikiri, registeeritud Eesti Vabariigi Siseministeeriumis 9.04.2014. Available at: https://ariregister.rik.ee (pohikiri_80208134_416452.pdf) [Accessed at 19. Aug. 2018]. Statute of Estonian Islamic Congregation 2015. [online] Eesti Islami Koguduse põhikiri, registreeritud Eesti Vabariigi Siseministeeriumis 16.01.2015. Available at: https://ariregister.rik.ee (pohikiri_80208134_484898.pdf) [Accessed 19. Aug. 2018].

Interviews Lepa, E. and Ahhajeva, A. (2015). Islamic family traditions. Lepa, E. and Gadžijev, N. (2016). Developments in Estonian Islamic Congregation during last two decades.

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Lepa, E. and Makhmutova, I. (2015). Estonian Islamic Congregations activities and development. Lepa, E. and Saripov, T. (2016). Islamic family traditions. Lepa, E. and Seifullen, T. (2015). Reestablishment of Tatar Cultural society and Islamic congregation. Lepa, E. and Treumuth, L. (2016). Developments in Estonian Islamic Congregation during last years. Lepa, E. and Uelskaja, O. (2016). Islamic family traditions.

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7 MEDIA FORMATTING RELIGION AND CONFLICT Knut Lundby

We should no longer reflect exclusively on the meaning, historically and in the present, of religion – of faith and belief and their supposed opposites such as knowledge and technology – but concentrate on the significance of the processes of mediation and mediatization without and outside of which no religion would be able to manifest or reveal itself in the first place. (de Vries 2001: 28)

The concept of ‘formatting religion’ invites an exploration of how the media are involved in the formatting processes. Further, what characterizes the formatting and the media dynamics when there are conflicts over religion? These are the concerns of this chapter.

Formatting religion in media-saturated societies Religion could be formatted from above or from below, as reminded elsewhere in this volume. From above, state authorities and actors in civil society may format religion in either supportive or restrictive ways. Formatting of religion can be studied from above through patterns and structures in institutions like the judiciary or in education, through laws and curricula. Or the formatting processes can be seen from below, in the making, through the reflexive participation – or opposition – by actors in the legal system or by teachers and students during the everyday practices in schools, to stick to these two exemplary fields. In formatting religion, there is an interplay between action and structure (Giddens 1984). The formatting from above will primarily regard religion in its institutional forms, but also frame the individual expressions of religiosity and spirituality through regulations on freedom of religion.

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To think of religion as ‘formatted’, then, implies a perspective on religion as something that is shaped or constructed by actors and by the conditions they operate within. Focus here is on the processes where the formatting takes shape. While half a century ago it was possible to explain ‘the social construction of reality’ without considering the media (Berger and Luckmann 1966), this is not the case in media-saturated societies. Mediated communication and social interaction are now an inherent part of the fabric of society. Contemporary modern societies cope with ‘the mediated construction of reality’ (Couldry and Hepp 2017). The formatting of religion in the interplay between moves from above and below corresponds to the dynamics in mediatization processes (Driessens et al. 2017; Lundby 2018), that is, the transformations, in our case, of public religion through media involvement in religious institutions, practices and expressions. The processes of mediatization will be expanded upon later. The formatting of religion takes place through many small adjustments, adding up over time to visible changes of religious practices and institutions (Mahoney and Thelen 2009) or through more radical shifts (Pierson 2004). The Reformation is an obvious example of the latter; Europeans that cease attending rituals in their historic churches are an example of the former. This applies an institutional perspective on religion. Public religion changes in mediatized transformations, that is, its entanglement with the media (Lundby 2017). The Reformation was carried forward by the printing press (Eisenstein 1979) and the erosion of religious authority, and attendance is partly due to the expanded influence of media (Hoover 2016; Lundby et al. 2018). Media’s involvement in formatting processes depends highly on the social, cultural and political context of the actual religions, ongoing conflicts and the media and communication system of the country or region. My reference in this chapter is contemporary Western modern societies. In such media-rich societies much of the daily communication takes place by technical media, through telephone, SMS and e-mail, social media and networked services. People discuss mass-mediated material and also give feedback through phone-ins and commentary fields. The formatting of religion is influenced by the media through such practices. The chapter sketches some of the ways this occur. Mediation of religion could be studied with a broad definition of media that encompasses the body and performative media like dance and music, as well as oral and handwritten forms (Lundby 2013a). However, here I limit myself to technical media from print onwards to digital. This definition, however, does not restrict ‘media’ to technology. Any media technology is woven into a web of social relationships and cultural codes. ‘Media’ 108

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are organizations, institutions and industries. They are vehicles in communication and human interaction. I define media formatting of religion as the processes where the workings of the media influence religious practices and institutions. Over time media formatting may contribute to transform religion. Media formatting from below takes place through everyday media practices among media producers as well as by media users. Media formatting from above is introduced with new technologies, media regulation and commercial competition between media companies that structure and condition the mediated communication. There is a distinction between the ongoing mediation of religion and the transforming mediatization of religion. This will be explained later. At stake are media-induced transformations of religion. Media formatting of religion may contribute to transformation of religion. The word transformation hides ‘format’ as well as the wider social or cultural ‘form’. The interplay between ‘format’ and ‘form’ is crucial in the argument on media formatting and mediatization of religion, to be explored in the following.

Communication of the sacred Media formatting concerns how media representations are constructed and consumed, or, put another way, initiated and interpreted. Focus is not primarily on the content but on the social interactions that are part of this communication process. How individual representations merge and ‘become something else’, something social and collective, and thus transformed, was theorized by Emile Durkheim a hundred years before the Web became common on the Internet and social media were developed. Individual representations produced from below merge and meet collective representations from above. ‘The resultant surpasses the individual as the whole the part’. This, to Durkheim, is a ‘transformation’ (1974 [1898]: 26–27). Durkheim claims that religion provides us with the most striking example of such transformation. The social nature of religion has so often been misunderstood, he argues, because ‘the immediate link between the greater part of religious beliefs and the organization of society has not been perceived’ (1974 [1898]: 31). On a similar note I claim that today, the role of the media in formatting or transformations of religion is often not perceived or counted for. Emile Durkheim’s theory of the social and the sacred (1995 [1912]) offers insights on communication and into the formatting processes. Communication is central but often implicit in Durkheim’s sociological analyses. Communication, broadly conceived, appears to be a fundamental 109

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social process to him. However, Durkheim was writing before the modern vocabulary of communication theory was developed, as pointed out by Eric Rothenbuhler (2002). Today, ‘interested readers have no difficulty seeing that signs, symbols, representations, rituals, myth, symbolic interaction, and other modes of media and communication are the underlying processes of his theoretical explanations of social order and process’ (Rothenbuhler 2002: 264). Durkheim understood society through what was set apart as sacred. Today, this need not necessarily be religious. In Western societies, secular objects and values may be set apart in a similar way. The ‘secular sacred’ is a matter of the same media portrayal and media formatting as is the case with religion (Knott et al. 2013). What is to be regarded sacred is a matter of recognition in a communication relationship between the involved people and the potential sacred person or object (Lundby 2006: 58). Its ‘manifestations become an appearance of the sacred only for the faithful’ (Cox 1992: 133). To cite myself: The sacred is to be found at the intersection of mediation processes, between the constructed representations of the potentially sacred, and the actual devotion of the audience. The sacred, then, is rooted in continuing communication within a specific context. Mediation of the sacred requires the production of icons or symbols with the potential to become ‘set apart’ and held in awe by the users of these representations. Hence, there is no mediation of the sacred without the reception of those representations. (Lundby 2006: 60) The ‘secular sacred’ is within the scope of this communication perspective, but throughout the chapter I stick to the formatting of ‘religion’ in its institutional as well as its diffused forms.

Formatting religion in ongoing mediation The media are actively involved in processes of formatting religion. Formatting is a key procedure in all media production. All edited media have to fit their content into certain frames or formats that are specific to the workings of the particular medium, as well as to the various genres within that medium. A newscast has a specific format different from an entertainment programme, and the main news in radio has to fit another format than the same stories and bulletins in television with its demand for visuals. In newspapers, there are different formats for features, commentaries 110

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and top news. Social media allow people to contribute without editorial gatekeeping, but the frames set up by the provider are formatting the text that is written and the images that are uploaded. The former 140, or now 280, characters with Twitter are formatting messages differently from the Facebook timeline. When we relate to representations in mass media, when we engage in social media or communicate with messaging or e-mail, we take part in mediated communication, or in short, in mediation. The Internet, computers and smart phones have made everyday communication and social interaction easy. With ‘social media’ we are immersed in a ‘culture of connectivity’ (van Dijck 2013). Media formatting, then, is an inherent process in all mediated communication, as all technological media operate according to certain format requirements. The outcome of all regular mediated communication is conditioned by the format of the particular technical medium. ‘Format’ is the ‘grammar’ of television, David L. Altheide and Robert P. Snow write in a pioneering work (1979: 35). Besides the grammar they argue that a media format also consists of how material is organized, the style in which it is presented and the focus or emphasis given. Format thus becomes a framework or a perspective that is used to present as well as to interpret media phenomena and media changes, Altheide and Snow hold (1979: 10; my italics). A media format conveys the often-unstated communication rules, with the norms that are used to define media content, and the specific rules inherent in the grammar of a medium (1979: 22–23). With contemporary ‘social media’ the media formatting may seem invisible to the media user as it works through the ‘platforms’ we join and the algorithms (data instructions) that Facebook, YouTube and other providers employ on their platforms. Media formatting of religion takes place from above through the infrastructures of social media and through editorial choices in mass media on how to represent religion. From below, the media formatting of religion is shaped by user patterns of mass media as well as by individual representations in social media, text messaging, e-mailing, photo sharing and all the other options that personal, digital media offer to connect and comment. Content producers as well as media users have to abide by the formatting that is built into the medium or platform, as well as to the further formatting by the genre and aesthetic of the medium and the possible editorial choices that are made. Ordinary media participants, either in collective as audiences or as individual media users and contributors, do learn and internalize how to make sense of mass media content and how to play with the personal digital media. This internalization sets constraints as well as offers new options for formatting of religion. 111

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The expanding networked digital media condition mediated communication through the technological affordances that are made available. However, the actual formatting is not effective until the technological opportunities are taken up. Producers and media users alike must behave within the technological and discursive formats that are given or selected on the platforms. With digital, networked media everybody could take part in media publication through postings, commentaries and blogs. Still the pre-set formats structure and influence the communication. Religion is formatted and mediated through coverage in news media, through references to religious symbols in popular entertainment media and in the flow of exchanges in networked personal media. The images or representations of religion in the different media forms depend on the selections of content and the presentation within the requirements and formats of the various media.

Formatting through various media Contemporary news media in liberal Western countries approach religion and conflicts related to religion from a secular basis (Asad 2003), challenging and relativizing the basic codes, sacredness and authority of religious institutions. The formatting of religion in news media, then, may take place on secular premises but often in relation to people and institutions as established agents of religion. Popular entertainment media, on the other hand, mixes bits and pieces from various religious traditions into new, creative productions. This is what Stig Hjarvard (2013) terms ‘banal religion’. Symbols and metaphors that may have religious roots are reformatted into films and television series. Viewers may not recognize their religious roots. If acknowledged as religious or spiritual, it may support individualized beliefs, and thus be further reformatted by the individual. If institutional religion and their stories are challenged, as the Catholic Church was with the book and film The Da Vinci Code, readers and viewers may rather listen to the author of this fiction than to the official version. Popular entertainment media may play with the basic codes and define sacredness in new ways. Networked media, be they ‘social media’ or other Internet-based media, take the reformatting of religion into even more open realms. On social media platforms, everybody could take part in the further formatting of religion by publishing entries, liking and commenting on posts by others. Multimodal digital resources make new symbolic expressions easy. In digital networked media, basic codes could easily be played with and sacredness

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defined in new ways, usually among smaller groups or collectives of adherents. Daesh/ISIS took such formatting out into the wider global public, propagating their particular understanding of Islam.

Religion as a ‘practice of mediation’? In mediated communication, religious symbols and aspects of religious institutions are shared. It’s not simply a matter of dissemination, as ‘senders’ and ‘receivers’ both are affected by the formats of the media they employ. I understand mediation of religion as communication of religion with technical media operating under certain formatting constraints. Religious scholars, in particular those with a background in anthropology, take the concept of mediation of religion further. Birgit Meyer and Annelies Moors view religion as a practice of mediation. They argue that religion ‘cannot be analysed outside the forms and practices of mediation that define it’ (2006: 7). Media, then, are taken ‘as intrinsic, rather than opposed, to religion’ (Meyer 2011: 23). Religion cannot be reduced to its forms of mediation. But the practices of mediation that dominate a religion leave its heavy imprints on it. Christianity has changed throughout history with its transformations from oral to written to print to audiovisual key forms of representation. Digital forms may now make another turn in the further formation of Christianity (Horsfield 2015). Networked, digital technologies are ‘rewiring the House of Islam’ (Bunt 2009). Birgit Meyer studied how Pentecostalism in Ghana was reshaped through its adaption of video and the new communication practices and ‘production of vision’ that followed (Meyer 2006). The challenge is ‘to explore how the transition from one mode of mediation to another’, with the adoption of new media technology, ‘reconfigures a particular practice of religious mediation’ (Meyer and Moors 2006: 7). Yes, this is the challenge. However, with a background in media and communication studies I find it more apt to analyse these transformations with the concept of mediatization (Lundby 2009, 2014). This helps to distinguish the small-scale formatting of religion in ongoing mediated communication from the accumulated or large-scale transitions that may be the outcome of ongoing media formatting. While Birgit Meyer see ‘mediation’ as transformations from within the sensibilities and sensational forms of the religious tradition (Meyer 2013), I argue that the mediatization perspective is suited to capture the transformation of religion from outside, through media formatting in the media-saturated environment (Lundby 2013b).

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Mediatization: transformation through ongoing formatting While ongoing mediated communication may be studied in relation to single or particular media, mediatization is a concept that reaches across media types to the total media environment. As noted, I use the concept of mediation on communication with technical media under certain formatting constraints. The concept of mediatization ‘tries to capture long-term interrelation processes between media change on the one hand and social and cultural change on the other’ (Hepp et al., 2010). Religion is thus involved as an integral part of any culture and society. Mediation may turn into mediatization. The ongoing formatting in mediated communication may over time imply transformations in culture and society. The two terms, mediation and mediatization, are not in opposition to each other – they rather are complementary (Hepp 2013: 31–38). Mediation works to maintain and adjust the social and cultural formation without reformatting it. The mediated communication may have an impact and influence those involved. However, the regular processes of mediation do not imply transformation of the social and cultural setting. Mediatization, in contrast, does transform the involved institutions or social fields. Mediatization, then, implies media formatting and reformatting with lasting consequences. Mediatization research makes grand claims. The concept holds great potential for ‘synthesized understandings of media-related social transformations’, Ekström et al. (2016) acknowledge in a critical article. However, they call for a more open agenda, encouraging more historicity, specificity and measurability in mediatization studies. This, of course, also applies to mediatization of religion, although this could not be fully accounted for here. The focus on media formatting of religion in this chapter is partly a way to specify processes that feed into mediatization of religion. Mediated communication on religion may over time change religion: ongoing small-scale formatting may ‘add up’ to large-scale transformation. Gutenberg’s printing press and the reformatting of religion that followed was a ‘mediazation of culture’ (Thompson 1995), a transformation in the mode of symbolic production and circulation. Out of their American cultural context in the 1970s Altheide and Snow claimed that religion had ‘adopted a television entertainment perspective’ (1979: 11). Thus, religion had taken on formats inspired by television. ‘In turn, the institution of religion has been altered’, they stated. This is a broad generalization, but it illustrates the distinction between mediation and mediatization. Media formatting that is repeatedly integrated into sectors of culture

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and society may over time transform the institutions or practices at stake. The media practices of American televangelism did eventually shape parts of the evangelical movement into a ‘mass media religion’ (Hoover 1988). A more recent example may be taken from communication with digital media in the Nordic context. Blogging opened up new spaces for formatting of ethical discourse. Mia Lövheim (2013) shows how female Swedish top bloggers negotiated and reconfigured religious symbols and practices. Through such reformatting online sites can ‘become spaces for alternative articulations of religious subjectivities that challenge religious conventions and mainstream media representations’ (Lövheim 2013: 163). The accumulated media formatting that leads into mediatization implies a social shaping of practices and institutions, like religion, as well as of relations between institutions. In the next round the mediatization processes create new conditions for the ongoing mediated communication and social interaction (Hjarvard 2013, 2018). Religious actors adapt their mediation of religion as a consequence of the mediatization of religion and society (Herbert 2011; Lövheim 2014; Lövheim and Axner 2015; Axner 2013).

Mediatization: from format to form Altheide and Snow (1979) identified the media format as the key to analyse the overall ‘media logic’. They regarded ‘media logic’ to be a general form of communication that is specified by the focus, ‘grammar’, style and organization of material that makes up the ‘format’. Revisiting his long life of research, Altheide (2016), still sticks to ‘media logic’ with the said elements of ‘format’ as a main concept to get hold of media representations – in mass media as well as in individualized social media. He has observed the development of mediatization research and thinks the concept of mediatization is on par with ‘media logic’ (2016: 8). While ‘format’ is useful in analyses of the specific media formatting in ongoing mediation, I find this concept too narrow in understanding mediatization. I rather apply ‘form’ to characterize mediatization, which influence and change the social and cultural context as well. This alteration between ‘form’ and ‘format’ is more than academic play. While ‘format’ points to concrete ‘mechanisms’ in the formatting processes, ‘form’ encompasses the social and cultural whole that comes out of the formatting and which conditions further mediation. The concept of social or cultural ‘form’, as I use it, is coined by the German sociologist Georg Simmel (1858–1918). Altheide and Snow also refer to him when they define media logic as ‘a form of communication’. But they immediately go on to specify the formats that operate within the

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media logic (Altheide and Snow 1979: 10; Altheide 2016: 8) and, thus, leave the concept of form behind. ‘Form’, for Simmel, is dynamic. Forms ‘are not fixed and immutable, but emerge, develop, and perhaps disappear over time’ (Levine 1971: xv). Simmel argues that there is a distinction between form and content, but they are inseparable in a dialectic relation. Content, on the one hand, is ‘an interest, a purpose, or a motive’. A form, on the other hand, is a ‘mode of interaction among individuals through which, or in the shape of which, . . . content attains social reality’ (Simmel 1971 [1908]: 24). In mediated communication ‘content’ has a meaning beyond the interests, purposes or motives of individuals. A newspaper article, a radio programme or a blog also has a particular form. Mediatization, however, concerns form on a generalized level. As a ‘mode of interaction’ mediatization is the outcome over time of social interaction on media content by media producers and media users with certain media technology in a given social and cultural context. Such continuous dynamic interaction over media-formatted material shapes a form of communication that transforms the involved practices and institutions. In this sense, individual media representations ‘become something else’, something social and collective, and thus transformed, as Durkheim argued (1974 [1898]: 26–27). Simmel encourages studies of mediatization through patterns of social interaction over media-formatted material. Contemporary personal, participatory media make mediated communication an active form of social interaction. It is the social and cultural form that at any point in time could be observed as the outcome of the interaction on and of mediated communication that gives insights into mediatization. In his essays on religion (1997) Simmel shows little interest in the forms that religion take. Rather, he views religion as a quality of social relationships that can be analysed in various contexts. Simmel observes religion as co-created by the interaction of believers (Helle 1997: xv). This approach encourages studies of media formatting on how religious meanings are attached in the social interaction that takes place in mediated communication and further collectively transformed into mediatization as a social and cultural form. In mediatization, the small-scale formatting in ongoing mediation and interaction is accumulated into social (and cultural) form. To put it crudely: Mediatization is formatting religion into new form.

Religion in ‘deep mediatization’ The intensified media environment with media technologies in all spheres of life and all sectors of society conditions the formatting processes. This 116

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situation is characterized by Nick Couldry and Andreas Hepp (2017) as ‘deep mediatization’. They stress the importance of the platforms or infrastructure of various digital media and how social activity is turned into ‘data’ that through algorithms and ‘big data’ condition the social interaction. This is structural formatting of the mediated communication, leading into the ‘deep mediatization’. Couldry and Hepp search the everyday communication patterns under digital conditions. As noted, their book The Mediated Construction of Reality is a comment upon the classic Social Construction of Reality (1966). Berger and Luckmann are heavily influenced by Durkheim and lean on Simmel as well as on Durkheim in their conception of society as an objective reality. They admit that their concept of a ‘symbolic universe’ is very close to Durkheim’s ‘religion’. Their conception of social realities made a great impact on studies of religion, not least through Berger’s following elements of a sociological theory of religion titled The Sacred Canopy (1967). He argued that the socialization, social interaction and common references that shape and uphold our social ‘reality’ also create a ‘sacred cosmos’, a canopy over people’s everyday lives. This canopy breaks down in a fragmented, mediatized society. Couldry and Hepp hold that social theory has to be completely rethought in a world of digital media and social media platforms driven by data processes. Digital media have become deeply embedded in people’s lives, connecting people and creating knowledge in new ways. On the other side of the coin, the companies that dominate the platforms for mediated communication harvest data on individual activities that bring almost everybody under commercial and potentially political surveillance. This mediated reality is constructed from below through individual acts of digital communication and from above by big industries like Facebook and Google. This transformation is thorough, and is why Couldry and Hepp employ the term ‘deep mediatization’. They regard it as a base for new forms of communication and social organization. These are the communicative forms of the ‘digital age’. While ‘form’ is a much-applied term in The Mediated Construction of Reality, the concept of ‘format’ is barely touched. ‘Deep mediatization’ is about new social and communicative forms, not just changes in media format.

Forms of mediatized religion Couldry and Hepp started from a social constructivist approach to mediatization (Couldry and Hepp 2013). However, the alternative institutional approach (Hjarvard 2014) does lead to ‘forms’ rather than ‘formats’ of 117

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communication. Mediatization is characterized by a double-sided development, Hjarvard holds. On the one side the media gain strength and power vis-à-vis other institutions in society, among them in relation to religion. On the other side, the media become integrated into the operations of various institutions, even so in religion. Hjarvard (2012) outlines three forms of mediatized religion. Mediatization is by these forms ‘changing the public face of religion’, as the subtitle of his work summarizes. The first form of mediatized religion is ‘religious media’. They are print, broadcast and Internet outlets based in religious organizations. Such media products may not be too heavily mediatized, but in order to ‘reach out’, they have to accommodate formats and styles that are known to people in the media-rich environment. Journalism on religion takes the second form of mediatized religion. The press in Western countries in general operate on a secular basis, and thus expect religious groups to express themselves on these terms. The news media apply their regular news criteria on religion and spirituality. The outcome, in actual news coverage of religious practices and institutions, may be a mediatized image compared to the religious self-conception and worldview. The third form of mediatized religion Hjarvard terms ‘banal religion’. This is not necessarily banal in a condescending way. The term denotes the bits and pieces or remix of religious symbolic elements to be found in popular cultural products, like films (e.g. The Twilight Saga) transforming religious imaginations in fandom interactions (Petersen 2012). The mediatization of religion may take different forms in various parts of the world, depending on the religious, social and media context, Hjarvard reminds. The three forms of mediatized religion may also ‘differ in terms of religious content, control over the communication, and the formatting of religious issues’. The formatting is of particular interest here, which Hjarvard sees as part of the media language in wide sense, namely ‘the various ways that the media may format the message and construct the communicative relationship between sender, content, and receiver’ (Hjarvard 2013: 81–82). News on religion has to be formatted on regular news criteria, while banal religion is formatted according to the genres of popular culture. Although ‘format’ plays a role here, it is as part of a more systematic formatting that builds up to one of the ‘forms’ of mediatized religion.

Formatting of religion through mediatization The ‘plausibility structure’ for religion – of the socially constructed ‘sacred cosmos’ that Peter Berger described (1967) – is weakened in the cultural diversity of today’s Europe. The ‘mediated construction of reality’, that 118

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is, the mediatization processes, contribute significantly to this development, alongside major changes like individualization, commercialization and globalization. I will briefly point out three of the main consequences of mediatization to religion, without in any way claiming that mediatization is the only cause of these transformations. However, mediatization contributes to the formatting of religion from below by new user patterns and from above through new technological infrastructures. It’s about transformation of authority. First, mediatization implies that people get more of their information and horizon of understanding through interaction via various media. In a diverse cultural setting people’s knowledge of different religious practices and traditions depends heavily on what one gains from the media, in particular, when one shares a limited ‘plausibility structure’ in religious communities. The formatting of religion in media, then, becomes increasingly important for people’s conception of religion. Second, mediatization supports diffuse forms of religion, in particular, within popular culture. Hjarvard points out how television series may ‘become authoritative voices that evoke meanings about religion’ (2016: 13). This also applies to fiction that treats conflicts where religion is involved. In network media, even more than with entertainment media, ‘authority rests not only on recognition by “followers” but also on the authority’s sensibility and attentiveness to its followers’ emotions, perceptions, and practices’ (ibid.). Third, mediatization contributes to weaken traditional religious authority. In online environments, in particular, religious authority is weakened due to the many voices in the fragmented media spaces. Digital competence may give rise to new forms of authority that challenge traditional religious authority. Mediatization theory has enabled scholars to explain these shifts (Campbell 2017, 2012, 2007). Such transformations of authority may create or stimulate conflicts. Simmel (1955 [1908]) regards conflict as part of the social dynamic.

The dynamics of mediatized conflicts Danish media scholars explore The Dynamics of Mediatized Conflicts (Eskjær et al. 2015) in a Northern European setting. They employ an inclusive notion of conflict as socially disruptive situations that involve two or more contenders. ‘Mediatized conflicts’ denotes that media and communication technologies influence the balance of power between those in conflict (Hjarvard et al. 2015: 2). Simon Cottle introduced the term mediatized conflict ‘to emphasize the complex ways in which media are often implicated within conflicts while disseminating ideas and images about them’ (Cottle 2006: 8). 119

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Hjarvard et al. (2015) identify three forms of media dynamics that become particularly explicit during conflicts. The media may amplify, frame or co-structure conflicts. The three dynamics are not mutually exclusive. They do not make a typology of mediatized conflicts. Rather, they ‘represent the inner mechanisms that shape the course of action of mediatized conflicts’ (p. 11). First, media may expand and amplify conflicts through coverage and distribution in various channels, be it news networks or social media. Through network services conflicts may easily be spread and amplified across borders, and even go global. Amplification concerns volume, speed, reach and level of involvement in the actual conflict (pp. 9–10). The initial formatting of the conflict may be changed through reformatting in other media in other countries or contexts, and thus further amplified or maybe downplayed. Framing and performative agency make a second form of mediatized dynamics. This type applies to representation, performance and dramaturgy on conflicts in the news or other media genres (pp. 9–10). The concept of media formatting applies in particular to this type, as framing (Entmann 1993) and presentational modes imply deliberate choices of what to include and exclude and how to present and wrap up stories on conflicts. Third, on a larger scale, considering media as part of the public sphere and involved in various institutions, the media are part of the communicative resources in society. Media practices are both embedded in and constitutive of structural relations of power. Thus, ‘media are involved in co-structuring power relations over the course of a conflict’ (Hjarvard et al. 2015: 9–10). At this level, media formatting implies the structural conditioning of how various media are able to – and have the power to – influence the outcome of an ongoing conflict. Let us here concentrate on the mediatizing outcome of media formatting on religion – in particular, cultural conflicts related to religion.

Conflicts over media formatting of religion Mediatized conflicts over religion follow the general dynamics of mediatized conflicts. Mediatized conflicts do not take place in media alone. The media intervene in social, cultural and political conflicts. When the media spark controversies, there are usually tensions in society that they relate to. The Danish cartoon crisis in 2005–06 is a case in point. Jyllands-Posten’s publication of the set of caricatures of the Prophet Muhammad framed a tension over immigration and the Muslim presence inherent in Danish society at the time. Jyllands-Posten framed it as a challenge to freedom of expression. The newspaper engaged artists to draw the cartoons (i.e. performative agency). So, initially this was an example of the 120

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second form of mediatized dynamic, initiated by the newspaper into a latent or partly open cultural conflict. Fuelled by imams travelling to the Middle East to mobilize on the provocation they felt by the caricatures, the media soon stepped in to amplify the controversy into an open conflict. News and comments on the Internet travelled even faster than the imams, igniting fire – literally – in Muslim-dominated parts of the world. International news media followed. The local Danish case turned into a partly global example of the first form of mediatized dynamic. In the long run this particular mediatized conflict came to co-structure power relations over news media’s use of caricatures, over the practices of freedom of expression and over relations to Muslim minorities in Western countries. The initial publication of Jyllands-Posten thus became an example of the third form of mediatized conflict as well. This case, then, encompasses the whole range of dynamics of mediatized conflicts. The caricature crisis played back onto Muslims and Islam and onto the relation between Islam and other religions. The cartoon controversy formatted religion according to all three dynamics of mediatized conflicts. This Danish case became a highly charged example of mediatization of religion that echoed around the world (Eide et al. 2008). Mediatized conflicts that are being related to religion may make people afraid or unsecure. In secularized Scandinavia, with a strong Lutheran tradition, Islam is perceived as a threat by a large share of the population. A survey from April 2015 showed that Islam was seen as a threat to the national cultures by more than half of the Danes, by nearly half of the Norwegians and approximately by 4 of 10 Swedes. This was the case by men more than women, by older people more than younger, by those who feel a stronger belonging to Christianity more than those who do not or only weakly so and by those who discuss news on religious extremism daily or weekly more than those more rarely do so. Around 30 percent reported to discuss news on religious extremism daily or weekly. The discussions may primarily take place in close social settings, like in the family, with friends or possibly at school or the workplace. However, the information that people rely on for their discussions on religious extremism primarily comes from the news media (Lundby et al. 2017). Thus, the media representations may be important in formatting the understanding of religion among people and their emotional and practical responses to said conflicts.

Conclusion Religion in contemporary modern societies is practiced in media-saturated environments. This chapter has drawn on some of the sociologists that tried to grasp the challenges of modernity to religion some hundred years ago. 121

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Durkheim and Simmel’s understanding of individual and collective representations of social form and content may still be valid. They understood social reality and the importance of social interaction. However, they did not know the modern media and were not able to reflect on mediated communication. Nor did Berger and Luckmann (1966), picking up on these ‘classic’ sociologists half a century later, integrate the media in their exploration of ‘the social construction of reality’ in general or of religion in particular. Today, the media take a significant part in the formatting of religion. It’s impossible to understand religion in modern societies without taking the media into account. This chapter argues that religious practices and religious institutions partly are being shaped through mediated communication. It’s not primarily a question of dissemination, of spreading the ‘message’. Rather, the media environment conditions religious activity and influences religious representations. The ongoing mediation of religion works on the basis of the formats applied by various media. Be it the secular sacred of the news media, in the mix of symbolic elements in popular entertainment media, or in ‘digital religion’ in networking media: Individual cases or episodes of communication play back and imprint onto the form of religion or sacrality that is at stake. Over time, these processes may aggregate to a transformation of the involved practices and institutions. ‘Formats’ in media production and reception may turn into social and cultural ‘forms’. This broader media formatting is captured by the term mediatization. Mediatization research has gained momentum with the media multitude. There still is a way to go before mediatization research reaches the historicity, specificity and measurability that Ekström et al. (2016) call for. However, in trying to understand the formatting of contemporary religion, there is no option to go back. We have to ‘concentrate on the significance of the processes of mediation and mediatization without and outside of which no religion would be able to manifest or reveal itself in the first place’, as Hent de Vries (2001: 28) reminded us.

Acknowledgements I want to thank Stig Hjarvard and the editor of the book, Marius Timmann Mjaaland, for constructive comments on an early draft of this chapter.

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8 DO THE TOLEDO GUIDING PRINCIPLES POLITICISE RELIGIOUS EDUCATION? Robert Jackson

Introduction The presentation of religions through educational processes in schools primarily involves questions concerning aims, which in turn raise further issues, such as the selection of religions to be covered; the ways in which religions are represented by teachers, textbooks and other resources; the methods through which they are interpreted; and whether students are given opportunities for critical analysis and reflection after they have gained some knowledge and understanding of religions. The representation of religions such as Islam in the media often provides negative examples of the ‘politicisation’ of religions, illustrating how religions are ‘formatted’ through changes in the perception and conceptualisation of religion. Religious education policy makers, academics and teachers have been concerned to respond to such negative examples of politicisation, sometimes by emphasising the right of citizens to freedom of religion or belief within democratic societies. However, such educational responses have themselves been accused of negatively politicising – or even ‘securitising’ – religious education. The present chapter begins by offering a short guide to current debates about religious education in Europe, distinguishing between religious education as ‘nurture’ or ‘instruction’ and religious education as ‘education about religions’, discussing shifts in public education policy from ‘nurture’ to ‘education about religions’ and considering different varieties of the latter approach. Some examples of current policy are given from different European nations, and then the contributions of two inter-European human rights institutions are summarised, both of which are concerned with promoting the value of freedom of religion or belief within democratic societies. The chapter goes on to focus on the work of one of these 127

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bodies, the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe, and gives a critical response to the claim that a publication from this institution – Toledo Guiding Principles on Teaching about Religions and Beliefs – both ‘politicises’ and ‘securitises’ religious education.

The term ‘religious education’ ‘Religious education’ is a term used in a variety of ways. Traditionally, it has involved a nurturing aim, or instruction in the beliefs and values of a particular religion. There are examples of religious instruction/nurture which are ‘closed’, where the main aim is to inculcate particular beliefs and values and to avoid even knowing about alternative positions. Other examples of religious nurture are more ‘open’, enabling young people to relate the beliefs and values of their family heritage to those held by others in society (e.g. Cooling et al. 2016). Since the 1960s, the term ‘religious education’ has also been used in educational literature written in English to refer to education about religions. This form of religious education is intended to make a contribution to the general education of all students, regardless of background. There is no aim to evangelise or to promote a particular religion. It has been argued that such a form of education is intrinsically worthwhile as a component of a liberal education which should cover all fundamental areas of human knowledge and experience (Jackson 2014b, 2016). Some educators work with this as the only aim to be pursued within the classroom; religious education is about knowledge and understanding of religions, just as science education is about knowledge and understanding of science (Jensen 2008). Others would also include other instrumental aims such as furthering students’ personal development – contributing to their moral and spiritual development – and/or contributing to their social development, for example, as citizens who need to learn to be able to live together harmoniously with others embracing a variety of religious and philosophical positions (Jackson 2015a, 2016). An important issue is the relationship between ‘nurturing’/instruction forms of religious education and those which seek to develop knowledge and understanding of religions, and sometimes the personal or the personal and social development of students. Some more ‘outward-looking’ forms of religious nurture are compatible with education about religions, especially approaches which include aims associated with personal and social development. For example, there have been cases of publicly funded schools in highly multicultural areas of England which embrace an open form of 128

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learning about religions, working collaboratively with more outward-looking faith-based schools (Mckenna, Ipgrave and Jackson 2008). However, there are supporters of inclusive public religious education who would argue against the public funding of any school promoting a particular religion (e.g. Romain 2006), just as there are supporters of religious instruction who are opposed to any form of religious education which has learning about a variety of religions and beliefs as its fundamental purpose (Gearon 2013a).

From religious education as ‘nurture’ towards ‘education about religions’ in publicly funded schools What were the principal reasons for change and for debate about the nature of religious education in publicly funded schools? These undoubtedly include processes of secularisation, and reactions to secularisation, especially after the events of 9/11 in the United States, through an acknowledgement of the increased visibility of discussions about religion in the public sphere. The pluralisation of the religious and cultural landscape of many countries, mainly through the migration of peoples, is a second key factor, bringing a range of different living religious traditions to European states, many of which previously were associated with one or more subtraditions of Christianity. Globalisation is a third factor, including localglobal connections. The reactions to such plurality at the individual level are various. These include the formation of individualised and often eclectic religious or spiritual worldviews; re-configured traditional religious positions (sometimes taking account of on-going adaptations to ethnicity and culture, as well as issues related to citizenship); fundamentalist positions, sometimes influenced by transnational factors; overtly atheistic stances; and indifference. Each country has its own very particular history of religion and state which remains a vital influence on – and ingredient of – change, whether that be adaptation to new circumstances or conservative reaction. The encounter of secularisation and supranational influences, on the one hand, and of structures related to specific histories of religion and state, on the other, accounts for the diversity of policy and practice in many European countries. With regard to religious education in state-funded schools, there are those who try to maintain some form of religious ‘nurture’, sometimes related to the idea of national or cultural identity, while others embrace plurality, seeing the state school as a provider of education about religions and other worldviews, with religious teaching being the prerogative of 129

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families, religious communities and private schools. Some variations on these themes are to be found in different European states, with more than one variant sometimes occurring at the same time in the same country (Rothgangel, Jackson and Jäggle 2014; Rothgangel, Jäggle and Schlag 2016; Rothgangel, Skeie and Jäggle 2014). Changing views of general educational policy are also influential on religious education in many states, sometimes indirectly so. Increased attention to testing and league tables, and the prioritisation of so-called ‘core’ subjects, can have a negative effect on fields such as religious education. The Organisation for Economic Co-operation and Development’s (OECD) Programme for International Student Assessment (PISA) has concentrated attention on 15-year-old school pupils’ performance in mathematics, science and reading and, in practice, has reduced attention to subjects such as religious education and the arts. Such trends have also influenced teacher training. Turning to a few concrete examples from different parts of Europe, a range of justifications for the inclusion or exclusion of particular forms of religious education can be found across different European countries. In some, there has been an appeal to the democratic right of parents to choose a form of religious education which is consistent with their own belief. Thus, the Netherlands has had a history of ‘pillarised’ education in which state funding supports schools nurturing young people in a wide range of religious and philosophical traditions, according to parental choice (Rothgangel, Jäggle and Schlag 2016). Religious education in the Republic of Ireland traditionally has been determined by the Roman Catholic Church, while in Northern Ireland, historic religious, cultural and political divisions have led to separate educational provision along the Catholic/Protestant divide and continuing controversy about the role of religion and religious education in public schooling. Policy and practice in examples such as these are the subject of sometimes intense debate (Rothgangel, Jackson and Jäggle 2014). To take an example from Northern Europe, the development in Norwegian education policy in the post-1945 period has many features similar to other Nordic countries, moving from a social-democratic period (1945– 70), through an intermediate phase of progressive education in the 1970s and entering a continuing phase of globalisation. In the post–World War II period, the emphasis in Norwegian policy has been on common public education for all, but with a limited number of private schools providing an alternative (including small, theologically conservative Protestant Christian schools based in local communities, as well as Waldorf and Montessori schools). In 1997, state-funded education covering religions and values 130

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was broadened to cover religious and worldview diversity (although when first introduced, the new subject met with considerable suspicion and protest from non-Christian minorities), and in 2008 was broadened further (following a judgement by the European Court of Human Rights), and then the balance was changed yet again in 2015, giving more attention to the cultural significance of Christianity (Leidland 2016; Rothgangel, Skeie and Jäggle 2014). The situation in France reflects the distinctive French history of religion and state. Historically, the school system was secularised in the 1880s, followed by a formal legal separation of church and state in 1905. Religious education, understood as nurture within a particular faith, is prohibited in French state education. However, time has been allocated for children from religious backgrounds to receive instruction privately, with responsibility for this given to families and religious institutions. An objective study of religions is permitted in state-funded schools and can be taught through various curriculum subjects, such as French language or art, but this is not compulsory, and there is no separate subject devoted to religion (Rothgangel, Jackson and Jäggle 2014). In some states, especially those with a majority of students attending publicly funded schools that include pupils from a wide variety of religious and secular backgrounds, there has been a move towards education about the variety of religions (and sometimes secular worldviews) to be found in society, or towards examining the contribution of religions to the development and expression of culture. This has been the case, for example, in England, Wales and Scotland, all of which include the study of religious diversity as an important element of religious education, sometimes combining this with the aim of assisting young people in formulating their own viewpoints, whilst respecting the right of others to express different religious or non-religious positions. In the case of Scotland, the subject has been broadened to include non-religious, as well as religious, perspectives on moral issues. In these cases, the intention is not to nurture all students in a particular religious faith, but rather to give them an educated understanding of the religious beliefs, practices and values of their own tradition and those of their fellow citizens. Balancing the liberal education argument of including all aspects of human experience and culture (including religion) within the curriculum with arguments about increasing tolerance towards others or increasing social cohesion, or with arguments concerned with the personal or moral development of pupils, is a topic of on-going discussion in many European countries. In all national cases, ‘religious education’ is a matter of debate. Although there are theological conservatives who argue for a return to traditional 131

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forms of religious instruction or nurture in all schools, the dominant trend has been one of liberalisation, with many confessional approaches moving in an inclusive direction, influenced by religious and secular plurality within their own countries and by associated inter-faith and inter-worldview dialogue. In those countries which concentrate on educating ‘about’ religions, there is on-going discussion about the aims of the subject (for example, how can one achieve a balance between education about religions and helping young people to formulate their personal worldviews?) and about the inclusion of non-religious worldviews as well as religions. It is also the case that various European research studies have shown significant interest amongst adolescents in learning about religious diversity (e.g. Jackson 2012; Jackson and McKenna 2016). In concluding this section, it should be emphasised that, despite being different processes, there can be some significant overlap between certain approaches to faith-based nurture and impartial approaches to religious education which introduce students from a variety of backgrounds to religious diversity. The two are not incompatible and incommensurable paradigms in the sense used by Thomas Kuhn (Kuhn 1996).

European human rights institutions An important supranational influence on and contributor to the debates about the nature and conduct of religious education in European states has been work conducted within two European human rights institutions, namely the Council of Europe and the Organization for Security and Co-operation in Europe, especially through its Office for Democratic Institutions and Human Rights. Both of these organisations justify the study of religions and other worldviews in publicly funded schools primarily on the basis of human rights. Since the human rights codes support the idea of freedom of religion and belief within democratic societies, it is argued that in order to promote a culture of living together in peace, citizens ought to have knowledge and understanding of religious and worldview diversity so that stereotypes are avoided and dialogue is promoted. Both organisations also recognise the right of parents to raise their children within a particular religious or worldview context while, at the same time, recognising the individual rights of children and young people, especially as they develop towards maturity.

The Council of Europe The Council of Europe was established in 1949 as an institution promoting human rights (as expressed in the 1948 Universal Declaration of 132

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Human Rights) across Europe. It now has 47 member states and a remit that includes educational activity concerned with the inter-related fields of human rights education, education for democratic citizenship and intercultural education. Since 2002, the Council of Europe has conducted projects on promoting the study of religions (and latterly the study of religions together with non-religious convictions) as a dimension of intercultural education in publicly funded schools across Europe (Jackson 2014a). In 2008, following an educational project on the religious dimension of intercultural education, the Committee of Ministers (the foreign ministers of the member states) issued a recommendation supporting teaching about religions and non-religious convictions in public schools (Council of Europe 2008). Such Council of Europe recommendations are not legally binding, but are intended as tools for discussion by policy makers and, in this case, teachers and teacher trainers in the 47 member states. In 2010, the Council of Europe and the European Wergeland Centre (a Council of Europe–related education resource centre based in Oslo) set up a joint committee to produce advice to member states on utilising the 2008 recommendation. The result was the publication of the book Signposts: Policy and Practice for Teaching about Religions and Non-religious Worldviews in Intercultural Education (Jackson 2014b). Some of the strategies recommended in Signposts are currently being developed further through followup research and development activities organised by a group of European universities, including Stockholm (Sweden), Warwick (UK) and the Norwegian University of Science and Technology in Trondheim. (More detail on the Council of Europe’s work in this field can be read in Jackson 2014a, 2014b, 2016, 2018a).

The Office for Democratic Institutions and Human Rights of the Organization for Security and Co-Operation in Europe The Office for Democratic Institutions and Human Rights (ODIHR) is a branch of the Organization for Security and Co-operation in Europe (OSCE), based in Warsaw rather than in the OSCE headquarters in Vienna. The ODIHR exists ‘to provide support, assistance and expertise to participating States and civil society to promote democracy, rule of law, human rights and tolerance and non-discrimination’ (www.osce.org/odihr). The ODIHR has no involvement with matters of military security, disarmament or border issues, and is concerned with ‘the human dimension of security’ (OSCE/ODIHR 2011), notably dealing with what the Helsinki Final Act (OSCE 1975) acknowledged as one of its 10 guiding principles: ‘respect 133

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for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief’. The main function of the ODIHR has been to produce educational materials dealing with topics such as antiSemitism (e.g. www.osce.org/odihr/57591) and to combat racial intolerance (e.g. www.osce.org/odihr/83821?download=true). The OSCE is chaired by representatives of its 57 participant states (for one-year terms and in rotation). In 2006, members of the Advisory Council of the OSCE proposed developing a document that would assist educators in teaching about religions and beliefs in public schools. This idea was acted upon by the Spanish chairmanship in 2007, and the task was undertaken by the ODIHR. Thus, ODIHR assembled a group of experts – including members of the Advisory Council on Freedom of Religion or Belief, together with invited scholars, some of whom were educators working in fields such as religion and intercultural education – to discuss the shape of such a document and to write it jointly. The group met for a preparatory meeting in Toledo in March 2007, and drafts of Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools (OSCE/ ODIHR 2007) were completed after a series of meetings and revised in time for publication at the OSCE’s Ministerial Council meeting in Madrid in November 2007.

Summary To sum up so far, the term ‘religious education’ and its equivalent in other languages is understood in different ways. Traditionally it has meant nurture into a particular faith. Starting around the 1960s, influenced by processes of secularisation, pluralisation and globalisation, ‘religious education’ has also come to mean ‘education about religions’. The varieties of religious education taught within publicly funded schools in different parts of Europe reflect both the histories of religion and state in particular countries, and the influences of and reactions to factors such as secularisation and pluralisation. Two European human rights institutions – the Council of Europe and the OSCE – have supported the broadening of religious education in state-funded schools and have supported models which emphasise learning about religions and beliefs, partly as a means to support the human rights of citizens to freedom of religion or belief. Both organisations also support the right of parents to educate their children in the religion or belief traditions of the family; thus, although they are different processes, appropriate to different contexts, ‘religious nurture’ and ‘religious education’ are, in principle, compatible.

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The Toledo Guiding Principles as the politicisation and securitisation of religious education? The question has been raised by Liam Gearon as to whether an emphasis on human rights and education for democratic citizenship – what he calls the ‘historical-political paradigm’ – politicises religious education (Gearon 2013a). He goes further in arguing that the development of the Toledo Guiding Principles represents not only the politicisation but also the securitisation of religious education (Gearon 2012a, 2012b, 2013b). A response to this view is offered later, and Gearon’s critique of the Toledo Guiding Principles is identified as part of a wider strategy to identify any form of education about religions as an inherently anti-religious activity and to support the view that religious education can only be initiation into a particular religious way of life. It is important to note that my response is specifically to Gearon’s misrepresentation of the Toledo Guiding Principles, and is not a denial that there are issues in relation to religious education and security policies. I have myself made a critique of the UK government’s Prevent policy, pointing out some potentially negative impacts on classroom discussion and dialogue (Jackson 2016). Gearon gives a critique of the work on religions and beliefs in public schools carried out by the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) (Gearon 2012a, 2013a, 2013b). He portrays the OSCE as ‘a Cold War security organisation’ (Gearon, 2012a: 155). The OSCE/ODIHR’s Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools are accused of ‘bringing military and security concerns into the classroom’ (Gearon, 2012b: 231), a classroom which becomes ‘The Counter Terrorist Classroom’, to quote the title of one of Gearon’s articles (Gearon 2013b).

The OSCE as the ‘source’ of the Toledo Guiding Principles? Gearon does not engage directly with the content of the Toledo Guiding Principles or the book’s relationship with human rights. Rather, he states: It is the security sources of such guidance not the guidance itself which seem questionable. For the closer and more integrally political and security organisations are concerned with religion in education (its guiding principles, even its pedagogy), the more they risk replicating the very totalizing and extremist structures they oppose. (Gearon 2012b: 231)

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So what are these ‘security sources’? Gearon mentions briefly the OSCE’s concern with what it calls the human dimension of security, but he does not explain it, nor does he discuss the OSCE’s fundamental role in conflict prevention, which is clearly linked to the OSCE decisions and declarations (Strohal 2007), and he does not explain the nature and role of the ODIHR within the OSCE. As indicated earlier, the ODIHR functions ‘to provide support, assistance and expertise to its participating states and civil society to promote democracy, rule of law, human rights and tolerance and non-discrimination’ (www.osce.org/odihr) and is not involved with military security, disarmament or border issues. Its remit is the ‘human dimension of security’ (OSCE/ODIHR, 2011), notably addressing ‘respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief’. The main role of the ODIHR has been to produce educational materials dealing with topics such as combating anti-Semitism (e.g. www.osce.org/odihr/57591) and racial intolerance (e.g. www.osce.org/odihr/83821?download=true). Experts may be invited to participate in the work of the ODIHR, and there was, at the time of the development of the Toledo Guiding Principles, an Advisory Council on Freedom of Religion or Belief consisting of independent experts from throughout the OSCE region. This included specialists, mostly academics working in law, politics or education. Some experts were active members of religion or belief organisations (including a rabbi, an imam and a Russian Orthodox arch-priest). However, they were not selected on the basis of their religious affiliation, but because of their academic and professional expertise. The initial idea for producing a document on teaching about religions and beliefs was put forward in 2006, not by the OSCE directly, but by members of the Advisory Council. This was acted upon by the Spanish chairmanship in 2007. Thus, the ODIHR assembled a group of experts to discuss the shape and content of such a document. This group met first in Toledo in March 2007 and included members of the Advisory Council on Freedom of Religion or Belief, plus invited scholars, some of whom were educators working in fields such as religious and intercultural education. Invited experts, speaking independently, gave presentations on specific topics. Although contributors came from different countries (e.g. the UK, United States, the Russian Federation and the Netherlands), no one represented a national government or was an employee of OSCE or ODIHR. The term ‘teaching about religions and beliefs’ was used, incorporating non-religious worldviews as well as religions, reflecting Article 18 of the Universal Declaration of Human Rights. The ODIHR maintained a coordinating and facilitating role in producing the Toledo Guiding Principles, 136

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but left the development of the final document to the Advisory Panel and invited experts. Thus, the Office for Democratic Institutions and Human Rights ‘produced’ the Toledo Guiding Principles only in the sense of acting as a facilitating agency, enabling an interdisciplinary group of experts to collaboratively write a book aiming to guide policy makers and others in helping students in publicly funded schools to understand something of the diversity of religion and belief that exists currently in the world. This had a primary aim of developing understanding of religions or beliefs, seen as a key element (but not a sufficient condition) for promoting tolerance of religious and worldview diversity (Strohal 2007: 9). As is made clear in the document, there was no intention to present education about religions and beliefs as an alternative to religious nurture (OSCE/ODIHR 2007: 34–38), nor was there any suggestion that a study of religions and beliefs could only have a single aim. Gearon’s representation of the Toledo Guiding Principles and their development as ‘bringing military and security concerns into the classroom’ (Gearon 2012b: 231) misrepresents the document and its production (see Jackson 2015c for a fuller discussion).

Gearon’s wider strategy In contextualising Gearon’s representation of the Toledo Guiding Principles, it is important to provide some background about his general critique of what he classifies as a variety of secular pedagogies of religious education, or education about religions. All of these he regards as inherently secularist and anti-religious (Gearon 2013a). They are distinguished from ‘initiation into the religious life’, which Gearon holds to be the only authentic form of religious education. Drawing on the language of Thomas Kuhn’s philosophy of science, Gearon labels each of these pedagogical approaches as a ‘paradigm’. In Kuhn’s philosophy of science, an accepted scientific view is eventually supplanted by a new ‘paradigm’. The old ‘paradigm’ becomes redundant and retains only historic interest; a ‘paradigm shift’ has taken place (Kuhn 1996). The transition from Aristotelian to Newtonian mechanics is an example of such a ‘paradigm shift’. Gearon identifies five so-called paradigms whose ideas and methods are rooted in post-Enlightenment academic disciplines, which he regards as inherently secularist. These ‘paradigmatic disciplines’ he labels as phenomenological, psychological, philosophical, sociological and political (Gearon 2013a: 105), with each having a corresponding religious education pedagogy – phenomenological, psychological-experiential, philosophical-conceptual, socio-cultural and historical-political. As with Kuhn’s paradigms, Gearon’s 137

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are presented as mutually exclusive – with the exception of the sociocultural and historical-political paradigms, which are described as being complementary (a position which ignores Kuhn’s principle that a new paradigm, by definition, supersedes all others). Gearon’s view that all of these paradigms are supplanted by what he calls the ‘scriptural-theological’ paradigm – which involves the initiation of learners ‘into the religious life’ – also raises a number of serious critical questions about the internal logic of his thesis. I have written in some detail elsewhere pointing out the inconsistencies and illogicalities in Gearon’s account, including his assumption that any particular so-called paradigm of religious education is associated only with a single aim. In the case of the historical-political paradigm (linked to the Toledo Guiding Principles, for example), that single aim is said to be the promotion of tolerance (see Jackson 2015b, 2015c, 2018b). It is also the case that Gearon’s assumption that all work in fields such as sociology, social anthropology, psychology and post-Enlightenment philosophy is inherently secularist because of the origins of the disciplines it employs ignores the wide range of viewpoints and on-going theoretical and methodological debates within these fields, including continuing reflections by those working in these subjects about their nature and assumptions (e.g. Evans-Pritchard 1962; see also Jackson 1997: 30–32).

Conclusion Having been involved in the development of parts of the Toledo Guiding Principles from a fairly early stage, it was clear to me that there was no clandestine agenda for its production, no direct involvement in shaping or writing the text from employees of the OSCE or ODIHR and no attempt by the OSCE or ODIHR to influence writers or advisers to omit certain ideas or to introduce others. Especially important in the present context, there was no attempt in the document to replace activities related to religious nurture with education about religions and beliefs. The rights of parents or legal guardians, children and minorities are emphasised (OSCE/ODIHR 2007: 34–38). The Office for Democratic Institutions and Human Rights acted as a facilitating agency, enabling an interdisciplinary group of experts to work together to produce a document aiming to guide policy makers and others in helping young people in publicly funded schools to understand something of the diversity of religion and belief that exists currently in the world. This had a primary aim of developing understanding of religions or beliefs, seen as a key element (but not a sufficient condition) for promoting tolerance of difference (Strohal 2007: 9). There was never any intention – and this is completely clear from the document itself – to present such 138

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education about religions and beliefs as an alternative to religious nurture, nor was there any suggestion that a study of religions and beliefs could only have the single aim of increasing ‘tolerance’. Gearon’s representation of the Toledo Guiding Principles and their development as ‘bringing military and security concerns into the classroom’ (Gearon 2012b: 231) is very different from the reality. Moreover, when examined in the context of Gearon’s wider discussion of paradigms of religious education, it seems clear that the critique of the Toledo Guiding Principles is part of a wider agenda to discredit any form of religious education which does not involve the initiation of young people into a religious way of life. However, Gearon’s critique does draw attention to the possible distorting effects of assuming that religious education in publicly funded schools has the single goal of increasing students’ levels of tolerance. If religious education set out to ‘format’ religions in such a way as simply to develop a positive attitude towards them, rather than providing accurate knowledge and developing genuine understanding, it would be open to serious criticism. However, the work of both the ODIHR – and indeed of the Council of Europe (Jackson 2016) – emphasises the vital importance of gaining accurate knowledge and understanding, as far as possible, from the religious ‘insider’s’ perspective. As both the ODIHR and the Council of Europe recognise, such knowledge and understanding are necessary, but not sufficient, conditions for guaranteeing an increase in tolerance. As both institutions acknowledge, students also need to be given opportunities for critical analysis, reflection and dialogue after they have gained some knowledge and understanding of the religions so that they are in a position to make informed personal judgements about positions they tolerate, respect or regard to be true. Finally, although educators should always be wary of being manipulated by politicians and others, support for research and development concerning studies of religions (or of religions and nonreligious worldviews) is a legitimate concern for bodies such as the OSCE/ ODIHR and the Council of Europe, provided that participants are enabled to work freely and openly in the pursuit of scholarly enquiry and goals promoting a broadly based liberal education (Jackson and Everington 2017).

References Cooling, T., Green, B., Morris, A. and Revell, L. (2016) Christian Faith in English Church Schools: Research Conversations with Classroom Teachers. Bern: Peter Lang. Council of Europe (2008) ‘Recommendation CM/Rec(2008)12 of the Committee of Ministers to Member States on the Dimension of Religions and

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Non-Religious Convictions within Intercultural Education’ available online at: https://wcd.coe.int//ViewDoc.jsp?Ref=CM/Rec(2008)12&Language=l anEnglish&Ver=original&BackColorInternet=DBDCF2&BackColorIntran et=FDC864&BackColorLogged=FDC864 [accessed 15 August 2016]. Evans-Pritchard, E. E. (1962) ‘Religion and the Anthropologists’ in Social Anthropology and Other Essays, ed. E. E. Evans-Pritchard, 155–171. Glencoe, IL: The Free Press. Gearon, L. (2012a) ‘European Religious Education and European Civil Religion’ British Journal of Educational Studies, 60:2, 151–169. Gearon, L. (2012b) ‘The Securitisation of Religion in Education’ in New Perspectives in Religious and Spiritual Education, ed. T. van der Zee and T. Lovat, 215–233. Münster: Waxmann. Gearon, L. (2013a) Master Class in Religious Education: Transforming Teaching and Learning. London: Bloomsbury. Gearon, L. (2013b) ‘The Counter Terrorist Classroom: Religion, Education, and Security’ Religious Education: The Official Journal of Religious Education Association 108:2, 129–147. Jackson, R. (1997) Religious Education: An Interpretive Approach. London: Hodder and Stoughton. Jackson, R. (ed.) (2012) Religion, Education, Dialogue and Conflict: Perspectives on Religious Education Research. London: Routledge. Jackson, R. (2014a) ‘The Development and Dissemination of Council of Europe Policy on Education about Religions and Non-Religious Convictions’ Journal of Beliefs and Values: Studies in Religion & Education 35:2, 133–143. Jackson, R. (2014b) Signposts: Policy and Practice for Teaching about Religions and Nonreligious Worldviews in Intercultural Education. Strasbourg: Council of Europe Publishing. Jackson, R. (2015a) ‘Inclusive Study of Religions and Other Worldviews in Publicly-Funded Schools in Democratic Societies’ in The Future of Religious Education in Europe, ed. K. Stoeckl and O. Roy, 7–18. San Domenico di Fiesole: European University Institute. Jackson, R. (2015b) ‘Misrepresenting Religious Education’s Past and Present in Looking Forward: Gearon Using Kuhn’s Concepts of Paradigm, Paradigm Shift and Incommensurability’ Journal of Beliefs and Values: Studies in Religion & Education 36:1, 64–78. Jackson, R. (2015c) ‘The Politicisation and Securitisation of Religious Education? A Rejoinder’ British Journal of Educational Studies 63:3, 345–366. Jackson, R. (2016) Inclusive Study of Religions and World Views in Schools: Signposts from the Council of Europe. Strasbourg: Council of Europe Publishing. Jackson, R. (2018a) The Council of Europe and a Human Rights Rationale for ‘Education about Religions and Beliefs. Södertörn Lectures Series, Lecture 13. Stockholm: Södertörn University. Jackson, R. (2018b) ‘Paradigm Shift in Religious Education? A Reply to Gearon, or When Is a Paradigm Not a Paradigm?’ Journal of Beliefs & Values, DOI: 10.1080/13617672.2018.1469327

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Jackson, R. and Everington, J. (2017) ‘Teaching Inclusive Religious Education Impartially: An English Perspective’ British Journal of Religious Education 39:1, 7–24. Jackson, R. and McKenna, U. (2016) ‘The “Young People’s Attitudes to Religious Diversity” Project in the Context of Warwick Religions and Education Research Unit (WRERU) Research’ in Young People’s Attitudes to Religious Diversity, ed. E. Arweck, 3–18. London: Routledge. Jensen, T. (2008) ‘RS Based RE in Public Schools: A Must for the Secular State’ Numen: International Review for the History of Religions 55:2/3, 123–150. Kuhn, T. S. (1996) The Structure of Scientific Revolutions. Chicago: University of Chicago Press. Leidland, M (2016) ‘Kampen om RLE-fagets verdigrunnlag. En analyse av høringssvarene knyttet til forslaget om å endre RLE til KRLE’ Unpublished Master Thesis. Oslo: MF. McKenna, U., Ipgrave, J. and Jackson, R. (2008) Inter Faith Dialogue by Email in Primary Schools: An Evaluation of the Building E-Bridges Project. Münster: Waxmann. OSCE (1975) Conference on Security and Co-Operation in Europe (CSCE): Final Act of Helsinki, 1 August, Organization for Security and Co-Operation in Europe, available at: www.refworld.org/docid/3dde4f9b4.html [accessed 17 August 2016]. OSCE/ODIHR (2007) Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools. Warsaw: Organisation for Security and Co-Operation in Europe, Office for Democratic Institutions and Human Rights, available at www.osce.org/item/28314.html. OSCE/ODIHR (2011) OSCE Human Dimension Commitments, Vol. 1: Thematic Compilation, 3rd ed. Warsaw: OSCE Office for Democratic Institutions and Human Rights (ODIHR). Romain, J. (2006) Letter to The Times, 13 April. Rothgangel, M., Jackson, R. and Jäggle, M. (eds.) (2014) Religious Education at Schools in Europe, Vol. 2: Western Europe. Göttingen: Vienna University Press/ V&R unipress. Rothgangel, M., Jäggle, M. and Schlag, T. (eds.) (2016) Religious Education at Schools in Europe, Vol. 1: Central Europe. Göttingen: Vienna University Press/V&R unipress. Rothgangel, M., Skeie, G. and Jäggle, M. (eds.) (2014) Religious Education at Schools in Europe, Vol. 3: Northern Europe. Göttingen: Vienna University Press/V&R unipress. Strohal, C. (2007) ‘Foreword’ in Toledo Guiding Principles on Teaching about Religions and Beliefs in Public Schools, 9–10. Warsaw: Organisation for Security and Co-Operation in Europe, Office for Democratic Institutions and Human Rights.

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9 SALIENT OR SILENCED How religion and terrorism are formatted in school Trine Anker and Marie von der Lippe

Introduction In an international study on young people and religion education (RE),1 students aged 14–16 years were asked where they get information about religions (Bertram-Troost et al. 2014).2 The results from the Norwegian sub-project showed that school was one of the most important sources for students to get information about religion, independently of their worldview backgrounds. For secular students (students answering ‘no religion’ when asked in the survey), school was clearly the most important source of knowledge about religion (von der Lippe et al. 2015: 28). For Christian students, both school and family were considered important sources of information, while family followed by school and religious community were the most important sources of information about religion for Muslim students. The same study also found that students consider media and the Internet to be important sources of information about religion, but still less important than school, family and religious communities. Another result from the same study showed that school was one of the few venues where students actually talk about religion and where different religious topics are discussed. In particular, RE was considered to be a subject where students could learn about different religions and worldviews (von der Lippe et al. 2015: 28). The findings from this study and others (Valk et al. 2009) indicate that RE is one of the most important venues where young people gain knowledge and learn about religion today. How religion is represented and dealt with in the classroom, and how this influences young people’s perceptions of religion, may in turn be part of the formatting processes of religion, namely how religion is shaped or constructed in the classroom by the actors and by the conditions they operate within (see Lundby 2019). In this chapter, we look closely at such formatting processes in RE by specifically 142

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focusing on how controversial issues related to religion and terrorism are represented and dealt with in the classroom.

Learning about religion in public schools Although the focus on religion and terrorism, radicalization and extremism, has increased in the last couple of years, the paradigmatic shift in the political and educational discourse on religion and terrorism began with the terror attacks in the United States on 9/11 in 2001. According to religion educator scholar Robert Jackson, ‘the attacks on the World Trade Center and other targets on September 11, 2001, acted as a “wake up call”’ for educational policy makers (2008: 152). Previously, both the European Union and the Council of Europe had shown rather low interest in issues related to religion and integration, as well as religion education in schools. This focus changed after 2001, and different European bodies have played a key role in developing new educational strategies ever since. Although educational policies have been concerned with the right of freedom of religion and belief while responding to the politicization of religion after 9/11, this has also led to critiques for securitizing RE in schools (Jackson 2019). At the moment, there is an on-going debate throughout Europe on how the state should relate to religion in the schools and on the principles that should govern RE in public schools. In particular, the Council of Europe and the Organization for Security and Co-operation in Europe (OSCE) have been instrumental in developing new education strategies in recent years.3 The latest publication from the Council of Europe, entitled Signposts: Policy and Practice for Teaching about Religions and Non-religious World Views in Intercultural Education (Jackson 2014), shows that individual countries vary greatly when it comes to the place and legitimacy of RE in schools. Different countries have chosen different models, and studies reveal major differences among the Council of Europe’s member states (Jackson 2014). Several attempts have been made in recent years to identify and categorize the various forms of religion education in school, but it has proven difficult to find an adequate, all-inclusive terminology (Bråten 2014; Jackson 2014). This is in part because RE is closely linked to the given cultural context, to the given relationship between state and religion and to the individual state’s national legislation (Glendenning 2008: 23). While some countries still have confessional RE, which is closely related to religious nurturing, other countries, like Norway, have a non-confessional subject, where students learn about different religions and worldviews. In Norwegian public schools, RE is a compulsory subject. This means that students, regardless of their own religion or worldview, take part in the 143

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same RE lessons. This goes for all students in primary, secondary and upper secondary schools. The RE subject is non-confessional, and the students learn about different religions, life stances and ethics. For students who choose the general studies programme in upper secondary school, religion and ethics (Religion og etikk) is a common core subject in the third and final grade, when students are typically aged 18 or 19. Although there are elective subjects at the upper secondary level, religion and ethics is mandatory. The subject is meant to both impart knowledge and provide moral instruction, and emphasizes the students’ identity and moral development. Perceptions of RE, what students are supposed to learn and why, are still highly debated in Norway, and while religion education scholar Geir Skeie (2014: 41) has described RE as a ‘“seismograph” for tensions and changes in the relationship between diversity, nation, religion, human rights, citizenship and identity issues’, another religion education scholar, Bengt-Ove Andreassen (2008), has argued that RE has been occupied with positive and harmonious representations of religion, rather than more controversial issues and conflict-orientated perspectives. These latter claims are mainly based on textbook research in religion education and didactics (Andreassen 2008, 2014). Audun Toft (2017), a scholar in religion studies, on the other hand, has found that RE teachers make extensive use of topics concerning religious conflicts in RE classes. Through classroom observation, he and Liv Ingeborg Lied found that teachers constantly have to compete with possible entertainment on the Internet for the students’ attention (Lied and Toft forthcoming). Hence, topics such as religion and violence seem to catch the students’ attention. These findings might not contradict Andreassen’s (2008, 2014) findings, but instead show how conflict perspectives are taken into the classrooms not by textbooks, but rather by current media debates. To explore these issues further, we have investigated students’ and teachers’ perceptions of classroom practices in RE in order to contribute empirically based perspectives to this debate. What we consider controversial issues, and what we teach as controversial, relates to how controversial issues are defined and identified and to teaching practices and pedagogical methods. In the following, we look more closely at broader perspectives within educational science concerning the topic ‘controversial issues in the classroom’, before we discuss some empirical examples from recent classroom research in RE.

Controversial issues in education In the article ‘The Teaching of Controversial Issues: An Evaluation’, the historian Robert Stradling (1984: 121) defines controversial issues as issues 144

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that deeply divide society. Such issues, he states, have different and contradictory solutions based on different value systems. This means that the content of issues will vary depending on the given context. An anthology based on Stradling’s (1984) definition of controversial issues emphasizes that controversial issues in social science studies must be dealt with contextually and that there are no simple strategies or solutions on how to do that (Ljungren et al. 2015). Such contextual understanding of controversial issues is valid for education. A scholar in educational philosophy, Michael Hand (2008: 213), makes a division between teaching something as controversial or settled. To teach something as controversial means to present a topic where different views are held and different answers are presented as possible. The alternative to teaching something as controversial is to teach it as settled or resolved, which means that there is a value-based moral answer to the question. In other words, whether an issue is regarded as controversial is not only topic related, but is also embedded in values and educational practices. This raises difficult normative questions on what we teach as controversial and what we teach as settled (Hand 2008: 213). In this context, the representation of religion and terrorism is an intriguing case. Should students learn about religion and terrorism in RE, and if so, what should they learn? Should religion and terrorism be taught as a controversial issue, where students are presented with a whole range of views and perspectives, or should it be taught as settled and resolved? Representations of controversial issues in the classroom and subsequent discussions might cause tensions and controversy among students, and in turn represent a risk to students’ feeling of safety in the classroom. Lately, the debate on so-called ‘trigger warnings’, written and verbal statements that are meant to alert consumers about potentially distressing material, demonstrates how sensitive these issues have also become at the university level (Knox 2017). What we consider controversial, however, depends on a range of factors, and teachers and students might have different understandings of what is controversial and what is not. In the Norwegian RE context, issues concerning abortion and euthanasia, for instance, are still treated as controversial, but can arguably also be taught as more settled. According to scholars in social studies like Sarah Philpott et al. (2011: 32), controversy in the classroom is nothing less than dangerous: ‘It is intimidating and divisive. It makes teachers and students ill at ease [. . .]. Controversial issues divide society [. . .]. Dealing with these issues in the classroom can disturb peace and stability of the scholastic environment. It can set students against each other’. In other words, controversial issues may contribute to deep tensions in the classroom, not only between the 145

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students, but also between students and their teacher. Nevertheless, Philpott et al. (2011) argue that controversy, in the end, is what defines social studies – it is, in short, the essence of social studies: Dealing with controversial issues involves dissent, diversity, and decision-making. There are few topics related to history, geography, or government that are not steeped in controversy and conflict. Economics focuses on scarcity and competition for resources, goods, and services. Sociology and anthropology deal with conflict and survival of groups and cultures. History includes human conflicts as genocide and racism. Controversy and conflict are, in fact, the essence of the social studies. (Philpott et al. 2011: 32) Hence, studies of the past and the present do not leave an option regarding whether or not to go into controversial issues, according to Philpott. Controversial issues are, rather, at the heart of social and historical studies.

Formatting religion and terrorism in RE In recent years, the relationship between religion and violence has been most explicitly seen in what are sometimes referred to as religiously motivated terror attacks – or incidents of terrorism where religion, in one way or another, is considered to be included as part of the rationale. In a previous study on how young people talk about religion (von der Lippe 2009, 2011), one of the main findings was that young people relate religion and conflict first and foremost to Islam. However, their way of expressing themselves changed in different settings and situations. While most students did not perceive religion as a source of conflict in their personal lives, several students related religion to conflicts on a macro level, and students were especially affected by ‘dominant’ media representations of Islam. Islam was, in turn, associated with 9/11, terrorism, suicide bombers, Osama bin Laden and the Taliban. In the classroom, students drew on this media discourse, tending to be more negative about Islam and Muslims in this context than they were in subsequent interviews (von der Lippe 2009, 2010). Even Muslim students were influenced by dominant discourses from the media and public debates. At the same time, they tried to establish alternative discourses and representations of Islam. These more everyday discourses did not, however, gain the same hegemonic position as the dominant ones in the classroom.

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While most students did not experience religion as a cause of conflict on the personal level, several students related religion and conflict on a macro level – mainly referring to Islam. The same tendency was found in several other studies in different European countries during the European REDCo project (see ter Avest et al. (eds.) 2009). More recent observations in RE classrooms and in interviews with Muslim students show equally that this dominant discourse on Islam is still present and is related to recent terror attacks in Europe and to the role of the Salafi jihadist terrorist organization ISIS (Islamic State of Iraq and the Levant) (Toft 2017). According to Toft, this representation of Islam differs from the representation of other religions and is strongly influenced by today’s media representations of Islam (Lundby this volume). Focusing on how religion and terrorism are dealt with in RE, the terror attacks in Norway on 22 July 2011 have been less debated. During the attacks, 77 people were killed in Oslo and on the Island of Utøya. Anders Behring Breivik, an ethnic Norwegian right-wing extremist, conducted the attacks, and most of the victims were young people attending a political summer camp at Utøya. Deeply inspired by so-called counter jihadist writers and ideologists (Asprem 2011: 8), Breivik was driven by an extreme hatred of Islam and Muslims. However, he deliberately chose not to attack Muslims, as he was afraid that it would lead to a stronger anti-racist movement, rather than supporting a racist perspective (Bjørgo and Gjelsvik 2017: 5). Instead, he attacked what he called the ‘Cultural Marxists’, represented by the Workers Youth League (AUF), the Labour Party’s (Arbeiderpartiets) youth organization in Norway. According to Breivik, the Cultural Marxists are responsible for the multiculturalist policies that are facilitating a Muslim invasion. These ideas reflect the Eurabia conspiracy theories (Bangstad 2014; Bjørgo and Gjelsvik 2017). In other words, Breivik had a strong ideological motivation for his actions (Asprem 2011; Bangstad 2014).4 However, this was not lifted to the forefront in the public discussions in the aftermath of the terror attacks, and, according to the Swedish social science scholar Hans Löden (2014), the public debate in Norway was, in general, depoliticized. Breivik was constructed as a domestic alien, opposing typical Norwegian values (Löden 2014). Breivik’s actions were characterised by anti-democratic, anti-feminist and anti-Islam discourses (von Brømssen 2013). These discourses are not unique to Breivik, but are found also in other right-wing extremist ideologists and recent identity politics in Europe (Asprem 2011; Salomonsen 2013; Sørensen 2013; Grung and Leirvik 2012). In the anthology, Saving the People: How Populists Hijack Religion, the political scientist Olivier Roy

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(2016: 191) states that we can see an increased standardization and formatting of popular arguments about Islam and Christianity across Western countries. Arguments usually found in the ideologies of the extreme right have become popularized through established political parties. This new wave of populist movements promotes a Christian heritage that is connected to identity rather than to belief (Roy 2016: 186). It presents a nostalgic idea about a harmonious past, changed by the ‘foreign’ culture of Islam, facilitated by the political left. Breivik plays a part in the ideology of the lost past. Just a few hours prior to the terror attacks, he published a 1500-page document on the Internet (2083 – A European Declaration of Independence) under the pseudonym Andrew Berwick. In the document, he presented a thought experiment about a family who time-travels from the nice and safe 1950s, and is shocked and terrified by their experience of our present society. He blames what he calls the Cultural Marxists for the destruction of Europe, and he articulates his hatred of Islam and Muslims. Breivik presented himself as a ‘cultural Christian’, not as a religious person per se, and he identified with the Norse god Odin. According to a scholar in the study of religion, Egil Asprem (2011: 25), this kind of reconstructed neopaganism is not unusual among right-wing extremists in modern Europe. The theologian Jone Salomonsen (2013) claims that Breivik was drawing on different mythologies, trying to put them into a larger cultural context in order to defend his own agenda. Because of the religious and ideological motivation behind Breivik’s actions, we found an educational interest in looking closer at how this national incident was dealt with in Norwegian schools. We wanted to explore issues concerning religion and terrorism and how this takes part in formatting religion and terror in RE. We conducted a study among students aged 18–19 in upper secondary schools, and one of our main findings was that school has been a weak source of information about the incidents and students have had few opportunities to discuss the terror attacks with teachers in the classroom (Anker and von der Lippe 2015, 2018b). The same study shows that students have a genuine interest in discussing the relationship between religion and terrorism in particular in RE in order to comprehend the terrorist acts and Breivik’s motives in a wider societal context: ‘The students who have responded to the survey generally agreed that Breivik and his actions should have been addressed specifically in religious education, together with the implications for ethics and tolerance, in order to combat xenophobia and religious extremism’ (Anker and von der Lippe 2015, 2018b: 281). This shows that there is an awareness and interest among young people about the potential to discuss challenging and controversial issues concerning religion and terrorism in RE. A follow-up study 148

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with Norwegian RE teachers (Anker and von der Lippe 2016, 2018a) confirmed many of the results from the student survey. At the same time, the interviews with a selection of teachers broadened the perspectives and contributed to more detailed knowledge. The teachers seemed to have at least three common reasons for avoiding topics concerning the terror attacks. The first was related to curriculum, time and testing. Teachers are under great pressure to meet the competence goals in different subjects and to achieve solid results for their students. When issues regarding religion and terrorism are not officially covered by the currently designated curriculum and textbooks or tested on exams, it is difficult for teachers to prioritize the topic. This, in turn, is a result of the increasing standardization of the educational system internationally (Duckworth 2015). A second reason relates to the teachers’ lack of academic knowledge about the relationship between religion and terrorism (Quartermaine 2016), as well as a lack of knowledge on how to teach such controversial and sensitive issues (Philpott et al. 2011). A third explanation may be related to the closeness of the events in historical time (Duckworth 2015), the teachers’ own grieving processes and an intended desire to protect their students. Some of the teachers expressed that they found the terror attacks too close in time to be able to teach about them well. This finding also shows that concepts of time are both relative and personally strongly emotional. When compared to findings from other studies in the UK and the United States, it is clear that teachers across the nations find it difficult to teach controversial issues on religion and terrorism in the classroom (Quartermaine 2014; Duckworth 2015). In an American study on how the terror attacks on 9/11 and collective memory have been dealt with in US classrooms, Cheryl L. Duckworth (2015) found that one in four teachers never (or rarely) raised the topic (Duckworth 2015: 49–50). In another classroom-based study from England, Quartermaine (2016) investigated both student and teacher perspectives on religion and terrorism as a topic in RE. She found that students had an urgent need to discuss the relationship between religion and terrorism in the classroom, while teachers experienced this as demanding and tried to avoid it, despite the fact that political requirements demand teachers in the UK address issues of religion and terrorism to prevent radicalization and extremism (Davies 2016; Quartermaine 2016).

Teaching religion and terrorism in RE The issue of whether or not religion and terrorism should be a topic in RE is an important one. At the moment, religion and terrorism and the 149

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so-called fight against extremism and radicalization are high on the political agenda. The role of school and education is highlighted, and democracy and citizenship education are perceived as important contributions to peace and social cohesion. The extent to which controversial issues on terrorism and extremism should be included in education in general, and more specifically in religion education, is accordingly discussed in several international studies (Davies 2016; Gearon 2013; Quartermaine 2016). Despite a general lack of research on teaching controversial issues in RE, recent classroom research shows that students are eager to bring controversial issues into RE lessons whether the teachers like it or not (von der Lippe, 2009, 2010; Quartermaine 2014, 2016). The same studies show that discussions on controversial and sensitive issues on religion and terrorism can be especially challenging for teachers in RE. As the British religion education scholar Angela Quartermaine (2016: 25) has expressed: ‘For RE in particular, approaching these topics is challenging, because teachers are torn between adhering to political discourses, protecting children from violence, as well the dynamics of “good” RE teaching that encourages critical thinking’. In other words, teachers need to balance political discourses, different worldviews and critical thinking (Quartermaine 2016: 25). In her classroom research in England, Quartermaine (2016) found that teachers tended to avoid controversial issues in their lessons. At the same time, she found that students were eager to discuss these issues. While critical voices like Liam Gearon (2013) argue that including issues concerning religion and terrorism in RE risks ‘subjecting religion to political purpose and security interest’ (143), Quartermaine (2016: 22) argues on the basis of her findings that we cannot escape the discussions about terrorism and religion: they are already happening within RE classrooms. In order to avoid political and securitization rhetoric, she states that clearer guidance for educators needs to be provided (Quartermaine 2016: 22). As a result of terrorist attacks on European ground with links to Islamic terrorist organizations, the political attention given to education policy has, according to Jackson (2014), become extensively focused on ways to counter terrorism, radicalization and extremism. In the UK, the so-called Prevent Strategy and recent legislation like the Counter-Terrorism and Security Act of 2015,5 are two cases in point. Indeed, recent UK education policy has become much more closely intertwined with national security and intelligence issues (Davies 2016: 6). This change in policy has led many Muslim students to be afraid of speaking freely in the classroom ‘in case they are seen as making jihadi comments’ (Davies 2016: 6). At the same time, teacher unions are objecting to teachers being agents of the state’s counter-terror efforts (Davies 2016: 6). 150

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According to a scholar in international education, Lynn Davies (2016), the political guidance in the UK seems to understand the importance of open discussions in the classroom, and indeed emphasizes the importance of schools as safe spaces in which students, together with peers and competent teachers, can discuss sensitive issues and learn how to challenge extremist ideas. On the other hand, recent legislation requires schools to identify children who are at risk of radicalization and to make appropriate interventions (Davies 2016: 6). The same goes for teachers at the university level. An important question here is whether students will believe they can speak freely in the classroom when they know that their teacher might report them. This makes it even more challenging for teachers to moderate discussions on religion and terrorism in their classrooms. These issues only show some of the complexities associated with addressing controversial issues on religion and terrorism in RE. While the debate in the UK has been rather heated, issues concerning how the terror attacks in Norway on 22 July 2011 have been dealt with in Norwegian schools seem to have slipped under the radar.

Conclusion Violent terrorist attacks are presented by the mass media almost on a daily basis. Social media distributes live broadcasts from terror attacks happening in different parts of the world, sometimes even before the official news agencies do. Several apps even make it possible to stream live videos. In this way, young people are potentially exposed to serious uncensored violence from terrorist attacks on their cell phones and computers every day. In Norwegian schools, many students are allowed to use their cell phones during the day, and almost every student in upper secondary school has his or her own computer in the classroom. Sometimes this access means that news about terror attacks will occur during a school lesson – and in this way, these conflicts can pass directly into the classroom. How issues concerning religion and terrorism are dealt with in the classroom is therefore of current interest. Recent classroom studies in religion education in upper secondary schools in Norway (Toft 2017)6 and interviews with Muslim students show that Islam and terrorism is a frequent and salient topic in RE lessons. This seems to be strongly related to media representations and current acts of terrorism, and Muslim students experience this as a stigmatization of Islam. On the other hand, the terrorist attacks in Norway have, to a certain degree, been silenced in lessons and teachings, and Breivik’s right-wing ideology has not been part of the content of RE. This means that religion and terrorism are still mainly connected with Islam in the school context. 151

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Knowing that school is one of the most important sources of information about religion and one of the most important places where religion and religious issues are discussed, this might take part in formatting religious violence as particularly Islamic. As long as students are confronted with these controversial issues frequently in public debates and media representations, a broader and more systematic approach to these topics in religion education would present students with more complex images of religions. It is not only what we choose to teach, but also what we choose not to teach that shapes perceptions of religions in the classroom.

Notes 1 In this chapter the term ‘religion education’ is deliberately chosen to avoid the implication that studying religion is somehow ‘religious’. 2 This was an international follow-up study of the European REDCo project (Religion in education. A contribution to dialogue or a factor of conflict in transforming European societies), running from 2006 to 2009. 3 See Jackson (2008) for a complete overview. 4 Counter-Terrorism and Security Act of 2015: www.legislation.gov.uk/ ukpga/2015/6/contents/enacted. Accessed 16.02.2018. 5 Prevent Strategy 2011: www.gov.uk/government/uploads/system/uploads/ attachment_data/file/97976/prevent-strategy-review.pdf; Counter-Terrorism and Security Act of 2015: www.legislation.gov.uk/ukpga/2015/6/contents/ enacted. Both accessed 16.02.2018. 6 The study ‘Mediatized conflicts in public schools’ is part of the international project ‘Engaging with Conflicts in Mediatized Religious Environments (CoMRel)’: www.hf.uio.no/imk/english/research/projects/comrel/. Accessed 16.02.18.

References Andreassen, B.-O. (2008) ‘Konfliktperspektiver i religionsundervisning og religionsdidaktikk – en bredere og bedre tilnærming til religion?’ Acta Didactica Norge 2:1. Andreassen, B.-O. (2014) ‘Christianity as culture and religions as religions: An analysis of the core curriculum as framework for Norwegian RE’ British Journal of Religious Education 36:3, 265–281. Anker, T. and von der Lippe, M. (2015) ‘Når terror ties i hjel. En diskusjon om 22. juli og demokratisk medborgerskap i skolen’ Norsk Pedagogisk Tidsskrift:2, 85–96. Anker, T. and von der Lippe, M. (2016) ‘Tid for terror. Læreres håndtering av kontroversielle spørsmål i skolens religions – og livssynsundervisning’ Prismet:4, 261–272.

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Anker, T. and von der Lippe, M. (2018a) ‘Controversial issues in religious education: How teachers deal with terrorism in their teaching’ in Researching religious education, ed. F. Schweitzer and R. Boschki, 131–143. Münster: Waxmann Verlag. Anker, T. and von der Lippe, M. (2018b) ‘Coming to terms with terrorism? A case study on How schools are dealing with the terror attacks of 22 July 2011 in Oslo and Utøya’ in Religion and dialogue in the city case studies on interreligious encounter in urban community and education, ed. J. Ipgrave, T. Knauth, A. Körs, D. Vieregge and M. von der Lippe, xx–xx. Münster: Waxmann Verlag. Asprem, E. (2011) ‘The birth of counterjihadist terrorism: Reflections on some unspoken dimensions of 22/7’ Pomegranate: The International Journal of Pagan Studies 13:1, 17–32. Bangstad, S. (2014) Anders Breivik and the rise of Islamophobia. London: Zed. Bertram-Troost, G., Shihalejev, O. and Neill, S. (2014) ‘Religious diversity in society and school: Pupils’ perspectives on religion, religious tolerance and religious education: An introduction to the REDCo research network’ Religious Education Journal of Australia 30:1, 17–23. Berwick, Andrew (aka Anders Behring Breivik) (2011) 2083: A European declaration of independence. www.washingtonpost.com/r/2010-2019/Washing tonPost/2011/07/24/National-Politics/Graphics/2083+-+A+European+ Declaration+of+Independence.pdf Bjørgo, T. and Gjelsvik, I. M. (2017) Right-wing extremists and anti-Islam activists in Norway: Constraints against violence. Report from the Center for Research on Extremism, The Extreme Right, Hate Crime and Political Violence, University of Oslo. Bråten, O.H. (2014). ‘New social patterns: old structures? How the countries of Western Europe deal with religious plurality in education’ in Religious Education at Schools in Europe. Part 3 Northern Europe, ed. M. Jäggle, M. Rothgangel, and G. Skeie, 19–44. Göttingen: Vandenhoeck & Ruprecht. Brømssen, K. von (2013) ‘2083: A European declaration of independence: An analysis of discourses from the extreme’ Nordidactica 13:1, 12–33. Davies, L. (2016) ‘Security, extremism and education: Safeguarding or surveillance?’ British Journal of Educational Studies 64:1, 1–19. Duckworth, C.L. (2015) 9/11 and collective memory in US classrooms: Teaching about terror. London: Routledge. Gearon, L. (2013) On holy ground: The theory and practice of religious education. London: Routledge. Glendenning, D. (2008). Religion, Education and the Law: A Comparative Approach: A Guide to Irish Law. Haywards Heath: Tottel Publishing. Grung, A.H. and Lerivik, O. (2012) ‘Religionsdialog, identitetspolitikk og kompleksitet’ Norsk antropologisk tidsskrift:1, 76–84. Hand, M. (2008) ‘What should we teach as controversial? A defense of the epistemic criterion’ Educational Theory 58:2, 213–228.

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Jackson, R. (2008) ‘Teaching about religion in the public sphere: European policy initiatives and the interpretive approach’ Numen 55:2–3, 151–182. Jackson, R. (2014) Signposts: Policy and practice for teaching about religions and non-religious world views in intercultural education. Council of Europe. Jackson, R. (2019) ‘Do the Toledo guiding principles politicise religious education?’ (this volume). Knox, E.J.M. (2017) ‘Introduction: On Trigger Warnings’ in Trigger Warnings: History, Theory, Context, ed. E.J.M. Knox. Lanham: Rowman & Littlefield. Lied, L.I. and Toft, A. (forthcoming) ‘Let me entertain you: Media dynamics in public schools’. Ljungren, C., Unemar Öst, I. and Englund, T. (eds.) (2015) Kontroversiella frågor: Om kunskap och politik i samhällsundervisningen. Malmö: Gleerups utbildning AB. Löden, H. (2014) ‘Peace, love, depoliticisation and the domestic alien: National identity in the memorial messages collected after the terror attacks in Norway 22 July 2011’ in National Identities, 1–20. London: Routledge. Lundby, K. (2019) ‘Media formatting religion and conflict’ (this volume). Philpott, S., Clabough, J., McConkey, L. and Turner, T.N. (2011) ‘Controversial issues: To teach or not to teach? That is the question!’ The Georgia Social Studies Journal:1, 32–44. Quartermaine, A. (2014) Pupils’ perceptions of terrorism from a sample of secondary schools in Warwickshire. PhD thesis. Warwick: University of Warwick. Quartermaine, A. (2016) ‘Discussing terrorism: A pupil-inspired guide to UK counter-terrorism policy implementation in religious education classrooms in England’ British Journal of Religious Education 38:1, 13–29. Roy, O. (2016) ‘Beyond populism: The conservative right, the courts, the churches and the concept of a Christian Europe’ in Saving the people: How populists hijack religion, ed. N. Marzouki, D. McDonnell and O. Roy, 185–203. Oxford: Oxford University Press. Salomonsen, J. (2013) ‘Kristendom, paganisme og kvinnefiendskap’ in Akademiske perspektiver på 22. Juli, ed. A.R. Jupskås, 103–114. Oslo: Akademika forlag. Skeie, G. (2014) ‘Young people and the European dimension in a Norwegian context: Migration and national critical events as challenges to citizenship education’ Journal of Social Science Education 13:3, 36–43. Sørensen, Ø. (2013) ‘En totalitær mentalitet: det ideologiske tankegodset i Anders Behring Breiviks manifest’ in Akademiske perspektiver på 22. Juli, ed. A.R. Jupskås, 103–114. Oslo: Akademika forlag. Stradling, R. (1984) ‘The teaching of controversial issues: An evaluation’ Educational Review 36:2, 121–129. ter Avest, I., Josza, D.-P., Knauth, T., Rosón, J. and Skeie, G. (eds.) (2009) Dialogue and conflict on religion: Studies of classroom interaction in European countries. Münster: Waxmann Verlag. Toft, A. (2017) ‘Islam i klasserommet: unge muslimers opplevelse av undervisning om islam’ in Ungdom og religion, ed. I.M. Høeg, 33–49. Oslo: Universitetsforlaget.

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Valk, P., Bertram-Troost, G., Friederici, M. and Béraud, C. (eds.) (2009) Teenagers’ perspectives on the role of religion in their lives, schools and societies: A European quantitative study. Münster: Waxmann Verlag. von der Lippe, M. (2009) ‘Scenes from a classroom: Video analysis of classroom interaction in religious education in Norway’ in Dialogue and conflict on religion: Studies of classroom interaction in European countries, ed. I. ter Avest, D.-P. Josza, T. Knauth, J. Roson and G. Skeie, 174–193. Münster: Waxmann Verlag. von der Lippe, M. (2010) Youth, religion and diversity: A qualitative study of young people’s talk about religion in a secular and plural society: A Norwegian case. PhD thesis. Stavanger: Universitetet i Stavanger. von der Lippe, M. (2011) ‘Reality can bite: Perspectives of young people on the role of religion in their world’ Nordidactica 2, 15–34. von der Lippe, M., Skeie, G. and Jozsa, D.-P. (2015) ‘Youth as pilots of the future: A comparative study of Norwegian students’ views and experiences with religion in education’ Religious Education Journal of Australia 31:2, 23–29.

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The aim of this chapter is to consider the tendency to navigate religious diversity by turning to law.1 The chapter discusses how such a turn to law may affect the understanding of and working through the matters at hand and puts forward suggestions for how to critically examine the formatting of religion that takes place through law. The discussion is largely theoretical. However, the chapter ends by presenting some tentative suggestions with regard to concrete ways of navigating religious diversity. In 2015, the policies of the city of Helsinki, the capital of Finland, caused something of a stir when the city’s guidelines regarding the dress code of the city’s employees became well known. The city requires that clothes conform to standards of hygiene and safety, and this sets restrictions for persons working in hospitals, kitchens and public parks. But beyond this, there is flexibility, and in practice it means that, for example, day-care teachers in city nurseries can wear a niqab, which is a full-body veil that also covers the face apart from the area just around the eyes. Issues like these relating to the visibility of religious belonging of persons working in the public sector give rise to debates in which we encounter a number of different ways of approaching the matters at hand. Some of the voices are clearly xenophobic. Some, in turn, seem genuinely worried that the niqab will make it difficult for the women wearing it to participate in society, thus weakening their position. Some of the responses focus on issues of communication: Does the face veil obstruct the carers in question in their educational tasks or does it not? Some raise concerns of identification and security: What if an unknown person enters the nursery in the guise of the niqab? And some, in turn, question whether or not this breaches the idea of ‘neutral’ public institutions, an idea which they consider central to any modern democratic state which among its population counts persons who

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represent a number of different religious and non-religious life-views. The state should not align itself with, privilege or endorse religion in this way.2 They find that this attitude and position on the part of the state, public authorities and institutions results in equal treatment of all believers and non-believers alike. It is, in fact, an appropriate way to deal with diversity. No one is treated better or worse than the other. Hence, no discrimination, marginalisation or exclusion takes place. This way of thinking has recently found expression, for example, in the 2010 French ban on face coverings.3 Now another way to look at these matters – which still is not as frequent in, for example, the Finnish public discussion, in the sense that I do not see that the terminology would have caught on there in the same way as it has in, for example, Canada or the United Kingdom – is to look at issues like these from the perspective of ‘reasonable accommodation’. As Lori G. Beaman (Beaman, 2012, p. 2), a well-known expert on matters of religious diversity and religion and law, has noted: “[In Canada,] reasonable accommodation as a legal response or principle was originally isolated in employment law as a mechanism of response, by employers to employees’ requests for flexibility in relation to their religious practices”, be it with regard to dress, observation of holy days or diet, or the like (Beaman, 2012, p. 2). Accommodation was considered appropriate “as long as [it] did not cause the employer undue hardship” (Beaman, 2012, p. 2). However, the idea of reasonable accommodation has long since freed itself from the context of employment law and instead “emerged as one of the ways within . . . [a] multicultural framework” to think about and manage diversity more broadly (Beaman, 2012, p. 5). Reasonable accommodation with regard to a number of different identity markers signals “the importance that society attaches to protecting”, for example, religious freedom and “to showing respect for minorities” (Beaman, 2012, p. 2). Translated into terms of neutrality, what we are dealing with here is a neutrality, which according to a recently finished European-funded FP7 project called RELIGARE stands for ‘inclusive state neutrality’ and ‘justice as even-handedness’. It means that the attitude on part of the state, public institutions and indeed also other semi-public actors should be positive towards religions and other life-views, collaborating with them and striving to treat them in an equally accommodating manner, paying attention also to their particular needs and interests (Foblets and Alidadi, 2013, pp. 8–9); (Sorsa, 2015, pp. 49–50). Now, as many have pointed out, including Beaman herself most forcefully, there necessarily arises here the in no way easy question of where the boundaries should be drawn for what the state has to accommodate: To what extent does it include protection of illiberal positions or even parallel religious legal orders? Is there a danger that we find ourselves on a slippery 157

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slope where one boundary after another is pushed through and we risk ending up in a situation with other grave forms of inequality, as the sexual or other non-discrimination rights of some, for example, with regard to reproduction or the choice of one’s partner, are sacrificed in favour of the religious rights of others (Beaman, 2012, p. 6)?4 Given that schemes of reasonable accommodation rely on some form of articulations of group identity – even if formally there would be no need to prove so-called group disadvantage, such as is required in cases of perceived direct or indirect discrimination (Alidadi, 2012, pp. 707–708) – is there the risk that we end up cementing traditional conventional social categories instead of affirming the multitude of ways in which individuals and groups in late modern societies negotiate their identities (Beaman, 2012, pp. 7–8)? We also have to ask whether reasonable accommodation assigns the ultimate power of interpretation to religious and cultural majorities rather than minorities, and in this way essentially preserves the status quo and protects the hegemony of the majority culture (Beaman, 2014, p. 93),5 be it in society at large or indeed within various groups. Despite this poignant criticism, this approach still builds on the important insight that the supposedly secular majority cultures of states like Finland, for example, despite their best intentions, could be faring in part rather poorly when it comes to recognising religious and non-religious minority views and concerns, the example of allowing the wearing of the niqab in nurseries in Helsinki being – of course, at least according to some – a positive example to the contrary. A way to seek to deal with the dilemma of a slippery slope has been to turn to human rights law as a normative framework for equality, nondiscrimination and empowerment, and also more generally putting trust in the rule of law and the ‘blind’ justice of the legal system that they will provide us with models and solutions that secure equal treatment and factual equality. Trust is put in law’s ‘disciplinary’ potential.6 Human rights is today one of the dominating vocabularies for justice and equality. Moreover, while not solely a ‘legal phenomenon’, the last 70 years have seen the factual expansion of the human rights legal framework through codification processes on an international and regional level and the ratification and incorporation of human rights treaties as part of national law, as well as the increasing litigation and case law that we find, for example, in the European Court of Human Rights, and which is expressive also of the way that people have taken these rights to heart and act on them. All of this makes human rights part and parcel of a multidimensional phenomenon which scholars have titled juridification.7 For reasons of time and space, here I limit myself to saying some words about the way that Lars 158

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Blichner and Anders Molander have explicated this concept. According to them, juridification has five dimensions which in various ways may relate to each other. While it is by no means a new phenomenon to regulate life in its various dimensions through law (Loick, 2014, p. 762), juridification to them denotes an increase in constitutional amendments and guarantees, such as the establishment of a legal order, rules on separation of powers, competences, individual rights, etc., but also constitutive norms in the form of legal doctrines. It also denotes the differentiation and expansion of legal regulation on area after area of human life, as well as the fact that (modern) societies to an increasing extent seek to settle conflicts with the help of law. It further means redistribution and displacement of power, for example, to lawyers, courts and judges. Certain groups are held to be experts and authorities. Lastly, ‘legal framing’ also forms part of this juridification, meaning that individuals, groups and other entities start to articulate their self-understanding ever more in legal terminology, as ‘legal subjects’ with individual rights, etc., in accordance with the articulation of religion, for example, which the legal framework provides,8 for purposes of obtaining recognition for their views. Molander and Blichner make clear that there are not necessary causal links between the five dimensions, but that these have to be examined substantially empirically and can take different shapes (Blichner and Molander, 2008, p. 49). Yet returning to the matter of a slippery slope, to my mind, and that of many others, things are not this easy, such that we could simply turn to human rights law or indeed general law for solutions. This conclusion follows from what happens to our perception of things when a question or matter is ‘juridified’ and conceptualised and normatively structured through a legal vernacular. For what needs to be pointed out is that law sets forth frames of meaning and shapes our vision of human life and behaviour, including articulating an understanding of, and dealing with, diversity. And alongside other scholars in a critical legal studies tradition – and as a scholar indebted also to the insights of the tradition of political theology – I consider legal protection, including that of minorities, to be an ambivalent affair. Law does not, per definition, prevent marginalisation in all its dimensions, nor does it simply ‘empower’. Indeed, often enough during the last years, there have been certain recurring issues and themes related to religion that have triggered a call for deeper reflection of seeming paradoxes and ambivalences in contemporary adjudication. For example, and returning to the case of the niqab, whereas the city of Helsinki has taken a pragmatic stance when it comes to dress codes, the response to this matter on the part of European human rights law 159

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would likely be much less benevolent given the way the European Court of Human Rights in its current jurisprudence portrays the matter largely as a conflict of fundamental rights and incommensurable values and has shown insufficient understanding for the viewpoints of veiled women and girls.9 I will not look into this case law in more specificity here, nor into the critical observations that have followed in its wake.10 But I want to reflect a bit more generally on the reasons for why legal regimes that put forward seemingly neutral standards for equal treatment do not in and off themselves prevent differential treatment in matters of faith in all its dimensions. The thing is that law makes sense of some things while downplaying the significance of other things. Beyond addressing disputes that arise and regulate societal life, law is “a species of social imagination” (Rosen, 2006, pp. 8–9, 11–12); (Slotte, 2010, pp. 186–187), a way to conceive of social life. We cannot assume that law would somehow be above and beyond all life. Laws are human products, and the interpreters of the law are human institutions with various commitments that affect the kinds of decisions that are made. Someone always has to make the concrete decisions, and this is linked to value choices and the subjective assessment of the ‘evidence’ of the case. As Martti Koskenniemi has put it: “[legal rights have] no meaning independent from the way [they are] interpreted by the relevant authority” (Koskenniemi, 2001, p. 36). For this reason we need to ask how things are framed, how legal decisions are taken with regard to matters of religious accommodation, who makes these decisions and on what basis are they made? We have to study actual situations that are construed, for example, as a legal conflict involving a potential violation of religious freedom and which we find documented in case law. We have to study the application of the law to understand what the law is taken to mean. This is vital, for example, in the case of human rights that are formulated in a very general manner. I want to combine these observations with the further observation that ‘minority’ is not necessarily about being numerically inferior, although it importantly can be about that too. The difference between majority and minority is not just quantitative, but as Eliska Pirková has put it in reference to Gilles Deleuze and Félix Guattari: “Majority is rather a constant against which all evaluation is completed and by which all others can be evaluated and allotted to their ‘proper’ social location”. It is about non-dominance (Pirková, 2015, p. 46). Hence, it is also possible that a numerically inferior group can dominate a larger part of the population. Having the theme of this chapter in mind, religion and law, this means that we need to critically analyse the kinds of understandings of religion – and indeed other identity markers – which guide law when it takes a stand 160

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on diversity and the space of freedom that should be afforded individuals and groups, for example, in matters of faith. In which ways does law here contribute to creating and maintaining majority and minority positions, and what are the distributive consequences of this in Finland and elsewhere? That is, what understandings of religion occupy a dominant position when it comes to law, and how does this affect the regulation of religion and management of diversity – to the benefit or detriment of religious minority non-dominant positions? During the last few years, researchers have critically investigated the perceptions of religion that we encounter in national and international law, the limits and emphasis of these perceptions.11 For reasons of space, I here simply want to mention some observations that Nathaniel Berman has made regarding human rights law. Following Berman, human rights law provides us with particular tools for approaching and dealing with matters of religious diversity and freedom in matters of faith. The notion of religion that currently guides human rights institutions is deceptively ‘fruitful’ when what is seemingly at stake, according to Berman, is the balancing of interests of states and of individuals and of states and of groups. Conflicts stand in focus. It accords to a formalist and likewise pragmatist approach on part of human rights institutions and international law more generally (Berman, 1995–1996, pp. 829–830). Current international legal imagination limits the space of ‘absolute’ religious freedom to the inner person – where the core of faith resides – and the private space (see e.g. Slotte, 2012 (2010)). This makes the public space a space for legitimate compromise and balancing of ‘relative’ rights and interests, even though we are here talking about ‘human rights’. Formal distinctions and categories considered neutral – in the sense that they would cover all belief systems – help human rights institutions to simultaneously seemingly guarantee religious freedom in its most vital aspects and weigh heavy claims against each other (Berman, 1995–1996, p. 829), as is the case in situations where religious accommodation may or may not be called for. As Jürgen Habermas has said in another context when describing the ambivalence of the “form of juridification itself” (Blichner and Molander, 2008, p. 50), in order for a “situation to be regulated [through law, it] ‘has to be subjected to violent abstraction, not merely because it has to be subsumed under the law, but so that it can be dealt with administratively’” (Blichner and Molander, 2008, p. 50; Habermas, 1987, p. 363). Thus what we encounter is an idea of ‘religion’ that “is both overtly universal and covertly particularist” (Berman, 2012, p. 49), displaying, as the RELIGARE project has phrased this “considerable cultural and religious 161

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specificities” in the “legal ordering” (Foblets and Alidadi, 2013, p. 18),12 of religion. Berman calls attention to the contingent nature of formal legal categories and distinctions, asserting that perceiving them as neutral obscures the fact that law functions on the basis of particular ideas about religion and its proper place and the boundaries that should not be transgressed. Law aspires to “discipline and transmute” and ‘domesticate’ religion, promoting ‘good’ and counteracting ‘bad’ religion (Berman, 2012, pp. 38, 47). Building on these observations, we could say that the way the sacred is here being managed obscures the character of deeply held religious convictions when human rights institutions rephrase these as relative rights claims, thus ignoring the fact that, as Berman notes, “claims are often enough not articulated” in that language, “but [instead] in the name of”, for example, “divine law – the kind of claims that cannot be adjudicated so easily, at least in the modern rights-balancing form of adjudication” (Berman, 1995–1996, p. 829). What this means is that, at the moment, human rights institutions deal with only some aspects of religion. There is exclusion. What does this example of the results of studies of international human rights law tell us? To put it tentatively, it seems to imply that simple references to the legal framework will not do when it comes to negotiating diversity and dealing with protection, inclusion and exclusion. A simple faith in law has to be abandoned, if ever it existed. And in the last part of this chapter, I simply want to suggest a direction in which to proceed from here. Any study that seeks to approach issues related to freedom in matters of faith and navigate religious diversity, be it with regard to the potential here of national, regional or international law, will have to map the current religious landscape and identify challenges seemingly related to religious diversity and problems facing religious minority positions. Here you need firsthand input from stakeholders. Importantly, as the late Saba Mahmood has noted in her book Religious Difference in a Secular Age: A Minority Report, [E]ven though religious minorities occupy a structurally precarious position in all modern nation-states, the particular shape this inequality takes – its modes of organization and articulation – is historically specific. Consequently, the means by which religious minorities wage a struggle against this inequality, as well as the paradoxes and contradictions such struggles generate, vary according to context. (Mahmood, 2016, p. 11) 162

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To this you also have to add a mapping of the current legal framework that addresses religion and seeks to guarantee freedom and equality in matters of faith. This will also importantly include judicial actors applying the law. Just as with the previous observation with regard to stakeholders, here an in-depth, comprehensive and contextual understanding of the purposes, issues and perspectives that are afforded significance in adjudication processes and decision-making in individual cases is key, so as to – in the words of Jason A. Springs – counteract “excessive discursive analytical tendencies” (Spring, 2016, p. 3).13 Moreover, so as to get a more profound idea of the legal imagination with regard to religion and how religious minority positions are constructed and managed, you have to deepen the analysis further. You need to – as I want to call it – ‘de-naturalise’ and ‘de-neutralise’ seemingly neutral general legislation and shine a light on those underlying value assessments and ideas, for example, with regard to religion and faith in a broad sense and the concepts of minority, law itself, statehood and citizenship that form the basis and direct the application of the law, influencing what is taken as worthy of protection. The contention is that existing models for responding to and affirming diversity in various ways build on particular views of religion and its relation to and place in society as a whole.14 Thus, this more profound analysis of key notions will reveal how, in fact, denoting something as ‘religious’ authorises specific configurations of power. The framing is political.15 This may not be to the detriment of minority religions and other life-views and their adherents, but it can be so and can contribute to processes of othering. This striving to understand the logic of today’s legal imagination and uncover that which forms silent ‘self-evident’ presuppositions that structure legal imagination with regard to religion, for example, in the area of family law, migration law or employment law also includes a further step which consists in analysing the historical grammar of these same key concepts and categorisations, the claim being that historical notions affect contemporary legal conceptualisation of religion and that they do so in ways that contribute to unequal treatment of believers.16 That is, by studying the historical grammar we reach a greater understanding of why the distributive outcomes currently take the form that they do. We catch a glimpse of certain structuring categories, embedded in and expressive of majority culture, which have remained reasonably stable over time. Thus, while processes of juridification affect the perception of the social space and human life, the ways of settling conflicts, and displace other vocabularies and ways of reasoning, this does not necessarily mean a clearcut break with other previously dominant imaginaries – anything but. 163

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This, by the way, is a central issue which the project “Protestant Legacies in Nordic Law: Uses of the Past in the Construction of the Secularity of Law” is looking into during 2016–19. The Lutheran Reformation influenced the institutional context of law, the normative theories about the law, legal concepts and constructions (Research Plan, 2015, pp. 5–6); (Schwarz Lausten, 2011); (Tamm, 2005); (Mäkinen, 2006), and the project builds on the idea that the Nordic reception of basic Lutheran theological commitments and ideas regarding law (two regiments, three estates and natural law), in conjunction with minority perspectives, [has persisted in]to [the] 21st century, and has paved the way for [among others] a specific interpretation of the secularity of law in the Nordic countries. (Research plan, 2015, p. 5) In the same vein, “religious roots in Europe [at large] still play a central but subtle part . . . in the identity construction and institutional embedding of norms and values behind the law” (Research plan, 2015, p. 13). The project pays special attention to minority perspectives on Nordic law throughout the 500 years under investigation (Research plan, 2015, p. 5). An overall claim of the project is that we need to thoroughly investigate the extent to how “past and present theological normativity has influenced [the] understanding of the law of the land” (Research plan, 2015, p. 8) and how the Lutheran heritage and Protestant present may be used or alternatively misused, thereby affecting the possibility of Nordic countries preparing for and coping in a good manner with a religiously ever more pluralist future (Research plan, 2015, pp. 8, 13). An analysis, the steps of which I have sketched out here and such as is performed in the mentioned project, will help show in a concrete, nuanced and context-sensitive manner, the ways in which – and why – law often enough does not live up to our expectations of being able to tend to the needs of all kinds of believers, being instead exclusionary in a way that contradicts the ideals it praises.17 Or as the earlier-mentioned project phrases it, we will encounter examples of ‘tensions’ and “the darker sides of majority cultures on law” (Research plan, 2015, p. 5). Summing up, what we strive for and hopefully achieve through these different research steps is to destabilise the relationship of legal institutions, including human rights institutions, with the phenomenon of religion. Moreover, we will have put into question the leading liberal idea of legal institutions being about impartial protection of religion, being themselves neutral arbiters outside of the phenomena of the ‘sacred’.18 164

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Returning to Berman and his observations with regard to international law, the way that religion is approached and handled obscures the character of religious convictions and practices, at least in the sense that at the moment, international and other legal institutions, we may assume, deal with only some aspects of religion. They cannot honestly say that they are including religion in all its variety. However, nor should they think that this would be possible given the indeterminate character of the phenomenon that we are here dealing with. Moreover, the way that religion is being handled, at least at the level of international law, also obscures the character of the management of the legal (including human rights) institutions itself (Berman, 1995–1996, pp. 830–831).19 What is Berman getting at here? What would it mean to follow him on this point? It is obvious that by taking over jurisdiction in the first place, human rights institutions and other legal institutions already intrude in religious practices in a way that ‘insiders’ may consider an intrusion and violation. This, however, these institutions must accept. For it is clear that we have to moderate between contradictory claims and competing passions. We have to take a stand and participate in a constant redefinition of the socially acceptable forms of the sacred. This is a legitimate task: What do we want to endorse, and what do we not want to endorse?20 Yet given that a manysided analysis of the kind I have sketched out here will have shown the limits and ‘biases’ of current legal accounts, the question is in which way solutions can be sought and how minority, non-dominant religious positions can be acknowledged in law, in education, in the workplace and in the public sphere in general. For reasons of space, I here simply want to say that, with reference to Berman and other scholars in the critical legal tradition, it could be suggested that we need to re-conceptualize the standard account of the relationship between human rights (and other legal) institutions and religion. Human rights institutions have to conceive themselves as within an undivided sphere of the sacred where they participate in a discussion about what is acceptable and desirable. They form part of a dialogue about the boundaries of faith. In this dialogue, one needs to be explicit about the various visions, and quoting Berman, “evaluate them substantively and allow them to compete for our passion with alternative images” (Berman, 1995–1996, p. 831). Here, current human rights institutions are carriers of a certain vision where particular things are held to be fundamental, even ‘sacred’.21 They can put forward this vision, to which so many all over the world sign up, but also need to self-reflexively and self-critically explore it – and the concrete forms it currently takes – in dialogue with others. 165

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So solutions, be it in a national or an international context, must be sought by giving space to and evaluating substantively different visions of accommodation and equal treatment, among them also the visions put forward by law.22 And while taking into consideration the needs, interests and rights of other individuals, groups and society at large, it is important to explicitly give adequate voice to the perspectives of religious minorities as groups and their adherents, and, crucially, also of those persons who find themselves in a religious non-dominant position, without necessarily identifying themselves with any institutionalised religion. As sociologists have pointed out, people today constantly construct and reconstruct their identities, including their religious identities, and perform them in different ways, and while identity is negotiated through dialogue with others, it is not about conforming to models imposed from the outside (Sandberg, 2015b, pp. 2–3). Instead, the subjectivities of each individual have become “a, if not the, unique source of significance, meaning and authority” (Heelas and Woodhead, 2005, pp. 3–4, as quoted in Sandberg, 2015b, p. 2). This also applies to the rationale for the wearing of symbols like particular forms of dress such as the niqab (Bacquet, 2015).23 In fact, the fluid nature of identities has always rendered international jurisdiction difficult, according to Berman in his study of early 20thcentury legal attempts to deal with religion (Berman, 2012, p. 42). However, this management can be based on more or less explicit self-critical awareness of the purposes for which religious difference is protected, and so forth. When it comes to providing religious minorities with appropriate conditions for functioning, in Finland and elsewhere, it may be important to look into legislative changes needed, amendments to and reconceptualisation of the current legal frameworks. It would seem important, however, to develop context-based, practical solutions, with in-built flexibility, that do not end up promoting rigid either/or scenarios – that is, something either is or is not a violation – such as are often enough unfortunately favoured by law, or cementing or consolidating identities by leaving no room for the development and change of identities. Returning to scholars mentioned in this chapter, somewhat surprisingly perhaps, while the RELIGARE in its summary report of findings concludes that “the tool of human rights ‘allows for diversity only under certain limitations, thereby conditioning and at times even distorting religious experiences’” (Foblets and Alidadi, 2013, p. 13, quoting Alidadi and Foblets, 2012, p. 10), given that the framework for handling, for example, freedom of religion “derives its language and working categories from [Eurocentric] 166

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historical and dominant values” (Foblets and Alidadi, 2012, p. 10), they propose that this deficit can be countered by way of “using the important additional tool of legally enshrined reasonable accommodation on the basis of religion and belief” (Foblets and Alidadi, 2013, p. 13). It seems counter-intuitive, perhaps, to believe that that legal framework would be any less conditioned, yet the RELIGARE summary report states that “the full potential of these instruments has arguably not been tapped” (Foblets and Alidadi, 2013, p. 13).24 Mahmood, in turn, broadens the perspective. She includes in her book on religious difference in a secular age a reflection on “the ideal of religious equality, [and] its significance as a legal mandate versus a human aspiration that characterizes our modern secular imaginary”, as she puts it. Her suggestion is that these two dimensions of religious equality are distinct, neither reducible to the other and each requiring different kinds of social action. Inasmuch as secularism reduces the ideal of religious equality to a politics of rights and recognition, it privileges the agency of the state, which is far from a neutral arbiter of religious differences. In such a context, [she asks] what social, ethical, and moral resources are available in a secular polity to realize interreligious equality, resources that do not reflect or serve the imperatives of the state. (Mahmood, 2016, p. 28) In contrast, Beaman, whom I mentioned at the beginning and who associates the language of accommodation closely with the language of law, is critical with regard to the fruits which this union brings. She says that: The call to manage religious diversity from various sectors has produced a response that has largely been framed in terms of tolerance and accommodation . . . [and it has] produced an overreliance on law and legal solutions and a tendency to look to top-down, or vertical solutions. (Beaman, 2014, p. 89) Beaman is critical of how law, with its common focus on conflicts, frames diversity as a “negative” matter to be “dealt with”, or ‘managed’ (Beaman, 2014, pp. 90, 92). In an attempt to move beyond the problems related to the languages of ‘reasonable accommodation’ and law – echoing hereby the diversified 167

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and less stat-centred reflection that Mahmood calls for – Beaman puts forward the notion of ‘deep equality’, by which she means a living, delicate process (Beaman, 2014, p. 96). According to her, we need to focus on the micro level and on how people in their every-day lives successfully navigate diversity and “work out difference” (Beaman, 2014, p. 90). We need to learn from these many micro-level positive examples. Sure enough, in practice people also fail to navigate diversity, and they do not always get along with that which is different. This Beaman concedes (Beaman, 2014 p. 92). However, she wants to focus on the positive stories, and one of the micro-level examples that she mentions relates to a debate that arose when a picture of two day-care teachers wearing the niqab started to circulated in Québécois media. Some of the parents of the children whom these two day-care teachers were taking care of and educating responded to the commotion by way of an open letter to the media. In this letter, they conceded that they initially had had their misgivings. But above all, they praised the love and excellent care that their children were receiving, and they underscored that the day-care teachers and the parents were united in their dedication to what was in the best interest of the children. They displaced the focus from religious difference to shared views on child rearing (Beaman, 2014, pp. 101–102).

Notes 1 This chapter was written as part of the author’s personal Academy of Finland Academy Research Fellow project “Management of the Sacred – A Critical Inquiry” (2013–18). It further in some instances draws on a few ideas from the international research project “Protestant Legacies in Nordic Law: Uses of the Past in the Construction of the Secularity of Law” (2016–19), which during the time of writing was awarded funding from the Humanities in the European Research Area (HERA). 2 For a discussion of similar aspects, see e.g. Foblets and Alidadi (2013, pp. 24–25). Part of the ideas presented in this chapter have also been elaborated in the essay ‘Neutraaliudesta, normeista ja niqabeista’, www.areiopagi. fi/2016/04/neutraaliudesta-normeista-ja-niqabeista/ (last visited 17.9.2016). 3 Loi interdisant la dissimulation du visage dans l’espace public, www.assembleenationale.fr/13/ta/ta0524.asp (last visited 2.5.2016). For a critical analysis of the aims of the legislation banning face veiling in France and in Belgium, see e.g. Brems et al. (2013). For a recent comprehensive discussion of the issue of veiling and legal responses to the practice, see Brems (ed.) (2014). 4 The RELIGARE project, for example, singles out such cases related to gender equality and equal treatment of sexual minorities as ‘hard cases’ where religious accommodation clashes with other fundamental rights (Foblets and Alidadi, 2013, p. 11). For a discussion, see also e.g. Alidadi (2012, pp. 700–701).

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5 See also e.g. Alidadi (2012, p. 711), who further refers to Bader (2007, p. 167); and Modood (2012, p. 136). 6 Vocabulary borrowed from Berman (2012, pp. 45–46). Sure enough, it can also go the other way around. In an article written before the case of Eweida and Others v. the United Kingdom (Application nos. 48420/10, 59842/10, 51671/10 and 36516/10, European Court of Human Rights, Judgment (15 January 2013), Katayoun Alidadi puts forward ‘reasonable accommodation’ as a way to deal with limitations shining through in the jurisprudence of the European Court of Human Rights (and earlier the European Commission of Human Rights), as far as recognising the need to accommodate religious beliefs and practices in the work space is concerned. Often enough in the past, the freedom to resign has been considered a sufficient safeguard for individuals who found it difficult to reconcile, for example, particular work tasks or working hours with their religious commitments (Alidadi, 2012, pp. 702–706). 7 For similar observations, see e.g. Blichner and Molander (2008, p. 37). 8 For a thorough analysis of the various dimensions mentioned here, see e.g. Blichner and Molander (2008, pp. 36–54). With regard to juridification of religion, see e.g. Sandberg (2011, pp. 193–195), as well as more comprehensively Årsheim and Slotte (2017). 9 See e.g. the cases of Dahlab v. Switzerland, Application no. 42393/98, European Court of Human Rights, inadmissibility decision (15 February 2001), ECHR 2001-V; Leyla Ş ahin v. Turkey, Application no. 44774/98, European Court of Human Rights, Grand Chamber Judgment (10 November 2005); Dogru v. France, Application no. 27058/05, European Court of Human Rights, Judgment (4 December 2008), and Kervanci v. France, Application no. 31645/04, European Court of Human Rights, Judgment (4 December 2008); S.A.S. v. France, Application no. 43835/11, European Court of Human Rights, Grand Chamber Judgment (1 July 2014); Ebrahimian v. France, Application no. 64846/11, European Court of Human Rights, Judgment (26 November 2015). For two efforts to articulate in an academic context (with links also to the earlier mentioned RELIGARE project), a ‘pragmatic’ and ‘functional’ approach on the part of society and its law to the matter of full-face veiling, see Ferrari (2013) and Christoffersen (2013). 10 For a critique, see e.g. Evans, (2006); Slotte (2012 (2010)); Bhuta (2014); Peroni (2014b); Fokas (2015); Trispiotis (2016). 11 See e.g. Sullivan (2007); Slotte (2012 (2010)); Bhuta (2014); Peroni (2014a); Årsheim (2015); Danchin (2015); Hurd (2015); Mahmood (2016, pp. 167–180). 12 In another context with regard to the ‘family’, rather than ‘religion’. 13 See also Spring (2016, p. 4). I am grateful to Helge Årsheim for drawing my attention to this article and its perspective of the matters at hand. 14 Cf. an article where I analyse the ways in which religious education within the Finnish school system gives expression to particular views of religion and society (Slotte, 2013). 15 See e.g. Slotte (2012 (2010)); Mahmood (2012, p. 429). I have, for example, elsewhere argued that within European human rights law as presently interpreted, practices regarded as ‘religious’ are accommodated by

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17 18

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and subordinated to certain ‘liberal-secular’ assumptions about politics, law, statehood and citizenship (Slotte, 2012 (2010)). See also, e.g. Bhuta (2014). For such studies, see e.g. Asad (2003); Cavanaugh (2009); Taylor (2007); Danchin (2007/2008); Slotte (2012 (2010)). Robert W. Hefner has made the important observation that: “There is a tendency among proponents and critics of liberal freedom alike to overintellectualize and homogenize the genealogy of religious freedom in the modern West. This simplification results in part from a tendency to conflate philosophical genealogies of religious freedom with a more comprehensive sociology of the real and existing varieties of ethicoreligious practice and governance” (Hefner, 2015, p. 128). We need to be aware of this risk of overlooking the intricacies of historical trajectories and struggles to affect religious governance; the actors with their diverse motives, the powers and discourses involved (Hefner, 2015, pp. 128–129). Still, while we can surely also find discontinuities – the histories of rights may be “multiple, discontinuous, and fragmentary” (Bhuta, 2014, p. 10), and I do not want to propose some form of teleology, put forward a ‘monofocal’ ‘evolutionist’ history (Dressler and Mandair, 2011, p. 20) or resort to “[g]enealogical determinism” (Spring, 2016, p. 7) – historical notions do influence (for lack of a better word, we could perhaps also talk of ‘recurrences’): The conceptualization of religion in contemporary human rights discourse, and law more generally. The discourse carries a legacy. The ‘egalitarian imaginary’ of human rights, for example, that is ostensibly neutral, ‘non-political’ and ‘agnostic’ when it comes to religion de facto privileges some believers over others. This can be related to the point made by Hans Joas in his contribution to this volume, namely that we must “make a sharp conceptual distinction between the sacred and religion – at least in the sense that we must eschew any tendency to derive the sacred from religions and instead view religions as attempts to interpret the experience of the sacred” Joas (2016, p. 27). They are not alone in this. And I guess something similar is the case, for example, to the extent that Nordic legal institutions fail to acknowledge the way they are indebted to and building on particular religious heritages. It is a task which, if Berman is to be believed, has not changed but perhaps even intensified. As Berman puts it: “Even more so than in the interwar period, we live in a world in which proponents of religion as a vehicle for stabilizing and sanctifying existing state and international legal orders compete with proponents of religion as a vehicle for destabilizing those orders – as well as one marked by fierce controversy about what kind of religious forces play which roles” (Berman, 2012, p. 13). See also e.g. Berman (1995–1996, p. 830). ‘Human dignity’ is something often mentioned here as a thing held sacred. Michael Ignatieff has famously stated that some consider human rights ‘sacred’ and thus, these rights are “articles of faith” (Ignatieff, 2003, p. 53). See also e.g. Joas (2016, pp. 37–38). For an insightful contribution that argues that ‘human rights’ and ‘religious freedom’ may still have a role to play in safeguarding individuals and groups,

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despite the criticism that scholars engaging in so-called deconstructive work have directed against this discourse as – among other things – a vehicle of state domination, see Spring (2016). Springs argues that European human rights law allows for “alternative reading[s]” (Spring, 2016, p. 13) and “interpretative flexibility” (Spring, 2016, p. 14). 23 As is pointed out in the Summary report of the RELIGARE project: “the symbolic meaning of the full-face veil . . . varies from person to person . . . and can never be ascertained with certainty” (Foblets and Alidadi, 2013, p. 25). 24 However, see also Alidadi (2012), for a thorough account of the multiple ways in which ‘reasonable accommodation’ could be helpful and hold appeal not simply in a strictly legal sense, helping to counter some of the drawbacks of a human rights and a non-discrimiation law framework. In the article, Alidadi also evaluates the merits of the idea of ‘deep equality’ that Beaman puts forward as an alternative to reasonable accommodation.

References Alidadi, K. (2012) ‘Reasonable Accommodation for Religion or Belief: Adding Value to Art. 9 ECHR and the European Union’s Anti-Discrimination Approach to Employment?’, European Law Review, 37(6), 693–715. Alidadi, K. and Foblets, M.-C. (2012) ‘Framing Multicultural Challenges in Freedom of Religion Terms: Limitations of Minimal Human Rights for Managing Religious Diversity in Europe’, Netherlands Quarterly of Human Rights, 30(4), 388–416. Årsheim, H. (2015) Lost in Translation? Religion-Making at Four UN Human Rights Committees, 1993–2013. Ph.D. dissertation. Oslo: Akademika. Årsheim, H. and Slotte, P. (2017) ‘The Juridification of Religion?’, Brill Research Perspectives in Law and Religion, 1(2), 1–89. Asad, T. (2003) Formations of the Secular: Christianity, Islam, Modernity. Stanford: Stanford University Press. Bacquet, S. (2015) ‘Religious Symbols and the Making of Contemporary Religious Identities’, in Sandberg, R. (ed.) Religion and Legal Pluralism. Farnham; Burlington: Ashgate, 113–130. Bader, V. (2007) Secularism or Democracy? Associational Governance of Religious Diversity. Amsterdam: Amsterdam University Press. Beaman, L. G. (2014) ‘Deep Equality as an Alternative to Accommodation and Tolerance’, Nordic Journal of Religion and Society, 27(2), 89–111. Beaman, L. G. (2012) ‘Introduction: Exploring Reasonable Accommodation’, in Beaman, L. G. (ed.) Reasonable Accommodation: Managing Religious Diversity. Vancouver; Toronto: UBC Press, 1–12. Berman, N. (2012) ‘“The Sacred Conspiracy”: Religion, Nationalism, and the Crisis of Internationalism’, Leiden Journal of International Law, 25(1), 9–54. Berman, N. (1995–1996) ‘Legalizing Jerusalem or, of Law, Fantasy, and Faith’, Catholic University Law Review, 45(3), 823–835.

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Bhuta, N. (2014) ‘Two Concepts of Religious Freedom in the European Court of Human Rights’, South Asian Quarterly, 113(1), 9–35. Blichner, L. C. and Molander, A. (2008) ‘Mapping Juridification’, European Law Journal, 14(1), 36–54. Brems, E. (ed.) (2014) The Experiences of Face Veil Wearers in Europe and the Law. Cambridge: Cambridge University Press. Brems, E. et al. (2013) ‘Uncovering French and Belgian Face Covering Bans’, Journal of Law, Religion and State, 2(1), 69–99. Cavanaugh, W. T. (2009) The Myth of Religious Violence: Secular Ideology and the Roots of Modern Conflict. Oxford; New York: Oxford University Press. Christoffersen, L. (2013) ‘A Quest for Open Helmets: On the Danish Burqa Affair’, in Ferrari, A. and Pastorelli, S. (eds.) The Burqa Affair across Europe: Between Public and Private Space. Farnham; Burlington: Ashgate, 171–188. Danchin, P. G. (2015) ‘Religious Freedom in the Panopticon of Enlightenment Rationality’, in Sullivan, W. F. et al. (eds.) Politics of Religious Freedom. Chicago; London: University of Chicago Press, 240–252. Danchin, P. G. (2007/2008) ‘The Emergence and Structure of Religious Freedom in International Law Reconsidered’, Journal of Law and Religion, 23(2), 455–534. Dressler, M. and Mandair, A. (2011) Secularism and Religion-Making. New York: Oxford University Press. Evans, C. (2006) ‘The “Islamic Scarf” in the European Court of Human Rights’, Melbourne Journal of International Law, 7(1), 52–73. Ferrari, S. (2013) ‘In Praise of Pragmatism’, in Ferrari, A. and Pastorelli, S. (eds.) The Burqa Affair across Europe: Between Public and Private Space. Farnham; Burlington: Ashgate, 5–14. Foblets, M.-C. and Alidadi, K. (eds.) (2013) Summary Report of the RELIGARE Project. Available at: www.religareproject.eu/system/files/RELIGARE%20 Summary%20Report_0.pdf Fokas, E. (2015) ‘Directions in Religious Pluralism in Europe: Mobilizations in the Shadow of European Court of Human Rights Religious Freedom Jurisprudence’, Oxford Journal of Law and Religion, 4(1), 54–74. Habermas, J. (1987) The Theory of Communicative Action. Boston: Beacon Press. Heelas, P. and Woodhead, L. (2005) The Spiritual Revolution: Why Religion Is Giving Way to Spirituality. Oxford: Blackwell. Hefner, R. W. (2015) ‘Varieties of Religious Freedom and Governance: A Practical Perspective’, in Sullivan, W. F. et al. (eds.) Politics of Religious Freedom. Chicago; London: University of Chicago Press, 127–134. Hurd, E. S. (2015) Beyond Religious Freedom: The New Global Politics of Religion. Princeton; Oxford: Princeton University Press. Ignatieff, M. (2003) Human Rights as Politics and Ideology. Edited and with an introduction by Amy Gutmann. Princeton: Princeton University Press. Joas, H. (2016) ‘Sacralization and Desacralization: Political Domination and Religious Interpretation’, Journal of the Society of Christian Ethics, 36(2), 25–42.

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Koskenniemi, M. (2001) ‘Human Rights, Politics and Love’, Mennesker & Rettigheter, 1(4), 33–45. Loick, D. (2014) ‘Juridification and Politics: From the Dilemma of Juridification to the Paradoxes of Rights’, Philosophy and Social Criticism, 40(8), 757–778. Mahmood, S. (2016) Religious Difference in A Secular Age: A Minority Report. Princeton; Oxford: Princeton University Press. Mahmood, S. (2012) ‘Religious Freedom, the Minority Question, and Geopolitics in the Middle East’, Comparative Studies in Society and History, 54(2), 418–446. Mäkinen, V. (ed.) (2006) Lutheran Reformation and the Law. Leiden: Brill Academic Publishers. Modood, T. (2012) ‘Is There a Crisis of Secularism in Western Europe?’, Sociology of Religion, 73(2), 130–149. Peroni, L. (2014a) ‘Deconstructing “Legal” Religion in Strasbourg’, Oxford Journal of Law and Religion, 3(2), 235–257. Peroni, L. (2014b) ‘Religion and Culture in the Discourse of the European Court of Human Rights: The Risks of Stereotyping and Naturalising’, International Journal of Law in Context, 10(2), 195–221. Pirková, E. (2015) ‘The Categorization of Minorities in the European Context’, in Gozdecka, D. and Kmak, M. (eds.) Europe at the Edge of Pluralism. Cambridge; Antwerp; Portland: Intersentia, 43–57. Research Plan of the HERA-Funded Project (2015) ‘Protestant Legacies in Nordic Law: Uses of the Past in the Construction of the Secularity of Law’. On file with the author. Rosen, L. (2006) Law as Culture. Princeton, NJ: Princeton University Press. Sandberg, R. (ed.) (2015a) Religion and Legal Pluralism. Farnham; Burlington: Ashgate. Sandberg, R. (2015b) ‘The Impossible Compromise’, in Sandberg, R. (ed.) Religion and Legal Pluralism. Farnham; Burlington: Ashgate, 1–17. Sandberg, R. (2014) Religion, Law and Society. Cambridge: Cambridge University Press. Sandberg, R. (2011) Law and Religion. Cambridge: Cambridge University Press. Schwarz Lausten, M. (2011) Reformationen i Danmark. Copenhagen: Anis. Slotte, P. (2013) ‘Freedom of Religion, Freedom of Conscience and Education: A Nordic Example’, in Durham, Jr., W. C. et al. (eds.) Law, Religion, Constitution: Freedom of Religion, Equal Treatment, and the Law. Farnham; Burlington: Ashgate, 331–368. Slotte, P. (2012 (2010)) ‘The Religious and the Secular in European Human Rights Discourse’, Finnish Yearbook of International Law, 21, 231–286. Slotte, P. (2010) ‘On Law, Language and Human Embeddedness’, in Christoffersen, L. et al. (eds.) Law and Religion in the 21st Century: Nordic Perspectives. Copenhagen: Djøf Publishing. Sorsa, L. (2015) Kirkkona valtiossa: Katsaus Suomen evankelis-luterilaisen kirkon valtiosuhteen edellytyksiin ja uudistuspaineisiin. Kirkon tutkimuskeskuksen verkkojulkaisuja 41. Kirkon tutkimuskeskus. Available at: http://

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sakasti.evl.fi/julkaisut.nsf/097E1791EA9D20EBC2257E2E0012D577/$ FILE/verkkojul kaisu41.pdf Spring, J. A. (2016) ‘Tentacles of the Leviathan? Nationalism, Islamophobia, and the Insufficiency-yet-Indispensability of Human Rights for Religious Freedom in Contemporary Europe’, Journal of the American Academy of Religion, 1–34. Sullivan, W. F. (2007) The Impossibility of Religious Freedom. Princeton: Princeton University Press. Tamm, D. (2005) Retshistorie: Danmark – Europa – globale perspektiver. 2nd edn. Copenhagen: Djøf. Taylor, C. (2007) A Secular Age. Cambridge: The Belknap Press of Harvard University Press. Trispiotis, I. (2016) ‘Two Interpretations of “Living Together” in European Human Rights Law’, Cambridge Law Journal, 75(3), 580–607.

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11 TOWARDS RE-SACRALIZATION OF NORDIC LAW? Lisbet Christoffersen

Introduction: the question to be analyzed and its historical background1 On January 30, 2017, the general assembly of the Church of Norway, by 83 votes out of 112, decided to introduce a new liturgy for same-sexmarriages. The new liturgy, which is in operation from February 1, 2017, is an appendix to the already existing rituals for marriage, dating from 2003. The decision is historic in many ways. In this chapter I do not focus on the question of same-sex-marriage or religious blessing of these. It is thus not my intention to get involved in the discussions concerning theological legitimacy of the decision, that is, the discussion which is hidden behind the numbers of votes. Instead, my focus is on legality, the question of competences: What made the General Assembly of the Church of Norway competent to decide on this liturgy? That is: What made the decision legal? Such questions about legality might seem odd to readers outside the west Nordic countries.2 For most readers in Europe and in the United States it seems obvious that the legal basis for a decision concerning rituals is made internally in the Church. For them, a church is defined, among others, through its right to self-governance, at least when it comes to liturgy and rituals. Thus, for external readers, the question of legality and that of theological legitimacy are intimately linked to each other. In the west Nordic countries, however, the Reformation also led to royal legislative competences over not only ecclesiastical law, or jus circa sacra, but also internal affairs in the Lutheran churches, such as rituals, etc., jus in sacra. With the absolutist legislation (Norwegian Law of 1687) the concept of ‘church’ even disappeared, and the law only spoke of how the king and the state organized the religious dimensions of civil service. In Norway, the royal competence was from 1814 regarded as a prerogative for the king, even though the gradual introduction of parliamentary government after the political crisis in 1884 to some extent developed into a situation of 175

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general parliamentary control over the royal competences regarding rituals and appointments of the clergy, as with any other royal prerogative.3 These decisions had to be taken by the king in council since 1913, with the prime minister’s countersignature as a condition for the validity of these royal resolutions. During WWII, the majority of priests and bishops in the Church of Norway decided to separate the civil servant dimension of their function from the ecclesial dimension, turning down the civil servant element (and the income from the state) as a protest against the Nazi regime of the time. Consequently,4 a commission just after WWII tried to change the status of the Church of Norway into a more independent body. The result was meagre when seen through the eyes of those who wanted a distinction between state and church. The events did, nonetheless, push the development into, among others, the General Synod in 1984, with the competence to decide on the church books (rituals, etc.) delegated by the government from the king.5 In 1996 a new law on the Church of Norway was passed clarifying the powers for several independent bodies of the Church and confirming the already existing legal status of the local churches and congregations as independent, legal bodies. Even though a legal approach to the Church of Norway undoubtedly would describe the Church as a state Church, relying on state powers, the state now fully acknowledged that the Church should be seen as a church, that is, as a religious community.6 This implied that the Parliament endorsed the principle that the state, according to the constitutional rules from 1814 to 2012, was obliged to govern the Church according to its evangelical-Lutheran identity. Less clear was whether a general interpretation of the Church of Norway as a religious community would also imply that the Church was legally protected by general norms on freedom of religion and belief (FROB). Practice was, among others, that the king, in council, appointed priests and bishops until 2012, including situations where clericals were appointed against the voices and advice given from Church bodies, based on the argument that the state represented also the Church members. All this is history. In 2017 Norway celebrated the 500-year jubilee of the Lutheran Reformation (dated from the 95 theses on the church door in Wittenberg) by changing the legal status of the Church of Norway.7 The Church is from January 1, 2017, by law established as a legal subject, a legal person of its own. The question discussed in this chapter is thus: Does the new legal status of the Church of Norway imply that the decision regarding religious rituals for same-sex marriages, which came after the Church had acquired its new status, is based on some sort of independent sui generis competence 176

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for the church as church? Alternatively, is the competence derived from the statutory law, which (dis)-established the Church of Norway with certain competences?8 In that case, is the Church of Norway still, in all its dimensions including rituals, etc., a ‘by law established’ Church, or is it only the organization of the Church (the ‘ordering’), which is by law established – or even less? Such questions are, of course, mostly of theoretical interest.9 No one imagines that the Norwegian Parliament in a foreseeable time would pass a law, aimed at withdrawing the competence regarding rituals from the Church Assembly and returning the competence to the king or to the Parliament. One can, however, imagine a future where the General Assembly of the Church of Norway wanted to exclude baptized Norwegians from being members of the Church on grounds established in internal ruling. Or one could imagine a future where the newly established rituals were made redundant (here the number of votes in the first decision appears relevant). Would it then be possible for the Norwegian Parliament by law to re-establish the situation? Or is it no longer possible to withdraw the competence given to the Church of Norway, because the Church is now covered by constitutional or international legal norms on freedom of religion and belief that give the Church a legislative power of its own, independent of the law of the land? If the latter is the case, then gateways are open for a re-sacralization of (parts of) Norwegian law. One could of course argue that internal regulations made by the Church of Norway are not ‘law’, but ‘governance’. However, that does not change anything. Naming internal regulations of the Church ‘governance regulations’ does not change their effect. The crucial question is: Would it be possible for a future Church Assembly to change or strengthen the norms in order to establish a more rigorous church discipline over its members, or to withdraw membership rights, without any possibility for the Parliament, the government or the Norwegian courts to take any legal steps? If that is the case, then a re-sacralization of a legal order has taken place. Secular Norwegian administrative law on ecclesiastical affairs has changed identity into canon law of the Church of Norway. Another question is whether this is a new situation; I come back to that in the discussion in the end of this chapter.

Theoretical basis: Norwegian constitutional theory In order to establish a theoretical basis for answering the question regarding re-sacralization of parts of Norwegian law, it appears relevant to identify basic norms in Norwegian constitutional law. Which legislative, executive 177

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and judiciary powers are there? Which institutions are competent with regard to these powers? Can some of Parliament’s legislative competences be delegated to other institutions, and with what consequences? Answers to these classical questions in constitutional law help us to frame the puzzle regarding legislative competences for the General Assembly of the Church of Norway. It is tempting to take a point of departure from the traditional book on constitutional law in Norway (Andenæs by Fiflet 2006), which in its 10th volume states that: One thing is for sure: the Parliament can only delegate legislative powers, the Parliament cannot renounce its right to legislate. A law on delegation can anytime be recalled by new legislation. A law on delegation does also not hinder that the parliament itself legislates in the field. The question whether international human rights protects the Church of Norway from types of legislation is not discussed by Andenæs/Fiflet. Neither do they discuss whether the Church in principle is covered by international human rights concepts. Based on the Norwegian Constitution (also in its pre-2012 form, including the explicit protection of freedom of religion and belief in 1964), they establish what they call a “protection for religious communities” [et trossamfunnsvern] against involvement from state authorities in internal matters. Referring to a case from 2004, they even accept that the Norwegian courts cannot deal with a case concerning membership of a religious community, in particular, a mosque. Following that case, religious communities in Norway seem to have a wide-ranging autonomy, even labelled as ‘sovereignty’. Also Eivind Smith in his book Constitutional Democracy (3rd vol, 2015) underlines that “competences, that are not in the constitution clearly constituted with another established state-power, will remain with the parliament”. Smith, however, also refers to “the material limits for parliamentary competences, deriving from constitutional human rights”. Smith also underlines that delegation is only limited in time and space: the Parliament can always withdraw the given competences, even though they are given by law (the obvious principle of lex posterior). Smith further underlines that although it is also possible to delegate legislative competences regarding private law matters, one should generally warn against too broadly formulated delegations of competences where the law on delegation only includes few or no limits for what it is possible for the receiver of the delegated powers to decide.

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According to Norwegian constitutional law theory, Parliament thus has the legislative competences, unless constitutional human rights establish a material framework, against which legislation is not possible. Delegation of the Parliament’s legislative competences is possible by law only and within the possible purpose formulated in the constitution. A delegation of legislative power can be withdrawn again or even supplemented by parliamentary law at any time. Freedom of religion and belief does, however, establish a significant limitation of state powers [trossamfunnsvern]. Smith develops the discussion further by referring to the concept of relative constitutional protection, introduced into the Norwegian constitutional debate by other scholars (Smith 2015a, p. 357 ff). In a conflict between legislative interpretation of the constitution and the interpretation of a citizen in a case against the state from a private individual or private organization regarding the interpretation of a piece of legislation against the constitutional basis, this concept implies that the parliamentary interpretation of the constitution should be given higher weight. The argument behind this position is that the courts should not overturn democracy in its legislative powers. Parliamentary democracy, contrary to the non-elected judges, gives legislation legitimacy. Smith’s position is clear: He does not accept a better position for Parliament in the interpretation of relations between legislation and the constitution, especially not if the conflict regards material protection of individuals or groups, as is the case in relation to FROB. The consequence would be that any protection of constitutional rights would vanish (Smith 2015a, p. 360). Apart from that, the argument is also that the constitution itself does not establish such a power for the Parliament. If the Parliament wanted to change material rights and legislate against them, then Parliament must first change the constitution. So goes the argument. As long as the constitution establishes material protection for, for example, FROB rights, these material rights must also be respected by the legislative powers. It is interesting against this background to see how Smith analyses FROB. And his position is as clear as that of Andenæs/Fiflet: FROB is a wall against legislation into the religious communities. Smith names this wall ordre public, meaning that some (but not all!) criminal law violations are prohibited for everyone, no matter which religious conviction might be behind the breaking of the law. Among these crimes, Smith mentions murder, manslaughter, bodily harm and offence against the person. The point is that for Smith, ordre public is not an argument for any legislative intervention into internal affairs in religious communities or any intervention into practices of freedom of religion or belief for the individual.

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The general standpoint in Norwegian constitutional law is thus that freedom of religion and belief limits the legislative powers of the Parliament and establishes a material wall against legislative interventions. Such legislative interventions can, of course, also not take form of delegation by law, since the legislative powers do not have the competences – in general, the competences are constitutionally given to the religious community when it comes to internal affairs. The question is now this: Which legislative competences does Parliament have regarding the Church of Norway? Does the constitution (after 2012) also for the Church of Norway establish a wall of separation, making the Parliament incompetent regarding legislation in internal matters (such as rituals)? Or is the Parliament competent and does the decision regarding same-sex marriages rely on a delegation from Parliament? Andenæs/Fiflet does not discuss this matter.10 Smith in his 2015 publication is of course fully aware of the constitutional development in these matters, but he speaks softly. He seems to think that the Church of Norway already as a State Church is covered by the concept ‘freedom of religion and belief’,11 and was so already before the changed constitution. He also underlines that the Church of Norway was threatened in its freedom of religion and belief by the previous competences for the king in the Norwegian Constitution. Whether the revised constitution changes the situation will, for Smith, depend on whether the Church is given legal personality so that it can sue the state. In his 2015 publication, Smith does, however, not say which impact that would have. He restricts himself to underline that FROB rights in general do include a right for religious communities to internal self-decision, including a right to establish criteria for election of their own leaders, etc. (Smith 2015a, pp. 391–392). In a previous article, published before the constitution was changed (and thus probably as a voice in the constitutional debate), Smith argued that any legislation which concerns internal affairs in the Church of Norway in a different manner from how other religious communities are affected would at least require a clear constitutional background. Even with a clear constitutional backing, however, Smith still problematized whether international obligations would allow the state to interfere into internal matters of a Church of Norway which had received legal personality and thus the possibility of suing the state (Smith 2006, p. 47).12 Building on Smith, the point of departure in an analysis of the legal basis for the decision of the Church of Norway General Assembly concerning ritual for same-sex marriages thus seems to be that such a decision for the Church of Norway also is based on internal legitimacy, legally based on freedom of religion and belief. Should the legislative power think otherwise, 180

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now or later, then it would have to build upon an argument, which was clearly based on constitutional orders that again could be accepted in international courts. In the following parts of this chapter, I will discuss how the legislative powers have understood their competences regarding rituals for the Church of Norway (and other similar matters) in relation to the process of changing the constitution, the legislation established alongside and the legislative process establishing Church of Norway as an independent legal entity. The question is whether there are any elements left of a theory of ‘by law delegated’ competences for the Church of Norway, or whether the theoretical standpoint, leading to a sui generis competence for the Church of Norway, based on freedom of religion and belief, has fully taken over. In what follows, I will first discuss the constitutional change of 2013 alongside the parallel legislation and afterwards the legislation of 2016 (in force January 1, 2017) concerning establishing the Church of Norway as an independent, legal body.

Constitutional change of 2013 and parallel legislation The religion clauses of the Norwegian Constitution were changed on May 21, 2012, by a decision in the Parliament.13 The proposal (constitutional proposal no 10, 2007–2008)14 was based on an agreement of April 10, 2008, between all the political parties represented in Parliament. This political agreement is included in the constitutional proposal and is thus relevant for the interpretation of the new text. The political agreement was however only binding for the parliamentary period 2009–13, which means that a changed political landscape within the norms in the amended constitution could change the ideas behind it. Most of the political agreement was thus not constitutionalized and does not bind the interpretative analysis of the constitution. The political agreement consisted of seven items:15 • • • • • •

The Church of Norway shall have an independent basis in the constitution. The Church must still be regulated through one law on the Church, however, without being an independent legal subject. Priests, bishops, etc., should still be regarded and salaried as civil servants of the state. The regional and central administration of the Church should still be part of the state administration. General public law on insight in decisions are still binding for the Church. The municipal involvement in Church administration and decision making should be kept. 181

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The changed wording of the constitution, relevant for the purposes of this chapter, is as follows: Article 16: All inhabitants of the realm shall have the right to free exercise of their religion. The Church of Norway, an EvangelicalLutheran church, will remain the popular church of Norway16 and will as such be supported by the State. Detailed provisions regarding its organizational framework17 will be laid down by law. All religious and belief communities should be supported on equal terms.18 The second and third sentences establish a right and obligation for the Parliament to legislate in ‘detailed provisions’ concerning the organization of the Church. There is no such competence (rights or obligations) in relation to other religious communities in Norway. Thus, the changed constitution of 2013 did exactly what Smith warned against – established a legal basis for legislation concerning the Church of Norway different from the legislation concerning other religious communities. The question is now whether the changed wording in the constitution also re-established the Church of Norway regarding the competence to regulate internal affairs such as rituals, or whether it only established a competence to regulate concerning the ordering or organization of the Church structure. This question was already central in the preparation of the constitutional changes, as well as in the legislation alongside with the constitution. In its first analysis, the governmental department argued that this formulation, on the one hand, clarifies that Parliament can and must legislate for the Church of Norway independently from, but also in further detail, as in regard to other religious communities. On the other hand, the department argued, is the wording concerned with the ordering of the Church [‘ordning’ in Norwegian language]. The question is, said the department, where the line shall be drawn in the future between the parliamentary legislative competences and the norm-giving competences of the Church of Norway.19 The department thus still wanted to be able to identify a norm-giving competence of the Church. Whether that should be based on delegation or be seen as based on a sui generis competence is not clear in these first reflections. Later in the process, the department even more clearly expressed that there must be a limit for parliamentary regulations of the Church of Norway. This time also FROB was part of the discussion. The wording of Article 16 in the constitution underlines, said the department, that the Church of Norway is a religious community and that it is as such, the state must support the church. This wording together with the 182

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material limit for legislative competences within FROB implies, that parliament cannot go too far into internal affairs of the Church of Norway and that ‘ordering’ concerns the organization of the church, not the internal affairs.20 This time, the department clearly stated that a wall of separation between legislative competences of the state and normative regulatory competences of the Church exists on basis of freedom of religion and belief norms. Even this position did obviously not clarify the ground sufficiently. There was still a legal possibility that the constitution opened not only for legislation concerning the structure and competences of the Church but also for legislation concerning the content of internal affairs, such as rituals. Therefore, the department in 2007–08 in the first proposals regarding legislation alongside with the changed constitution proposed a ‘justin-case’ piece of legislation.21 According to the proposal, the Law on the Church of Norway should clearly in § 24 state that “the Church Assembly as the leading representative body in the Church of Norway decides on the liturgy, rituals, etc., to be used in the Church”.22 In the Parliament, the question of how to interpret the proposed legislation was also discussed. The parliamentary committee thus added that the intention of the constitutional change was to clarify the free position of the Church of Norway as a religious community. This implies that the religious practice in the church will no longer be the task of the state. The state must however support the church as a religious community as well as support other religious communities equally. The parliamentary committee approved of the understanding that these changes represent a new fundament for the development of the Church of Norway as an independent religious community. The committee equally underlined how central it is to ensure that the changes contribute to the purpose for the Church of Norway to remain an open, inclusive and democratic people’s church.23 The changed constitution made it impossible to proceed with the royal decrees concerning the internal affairs (rituals, etc.) of the Church of Norway. The ‘ordering’ of the Church was still the competence of the Parliament. Thus, the Church of Norway, through its Church Assembly, received its competences regarding the rituals from the state by law. And most of the arguments presented from both the department (the government) and the Parliament were arguments underlining that this was a just-in-case piece of 183

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legislation: The Church already had this competence as a faith community. Most of the arguments, but not all. One should not underestimate the last sentence in the comments from the parliamentary committee referring the Church of Norway to the basic goal set up as a precondition for the entire constitutional change: the Church of Norway must be open and inclusive. This requirement was mainly fulfilled through what has been called a democratic reform, which should ensure a broader democratic basis for the decisions taken in the church bodies.24 I do, however, get the feeling that there is more to it from both the department and the majority in Parliament. The pressing question was if all Norwegians baptized in the Church and wishing to be married in the Church could also be so in the future. And if all baptized members of the Church could be allowed to serve in the Church if they fulfilled requirements concerning knowledge, etc. Or whether their civil status as homosexuals would in the future (still) be a hindrance, even though such hindrances had been repealed by law in society as such. These questions had been given a lot of attention in the Church of Norway over the past 20 years, and decisions now required clarity of the legal basis. Now it returned to the agenda just after the change of the constitution and the legislation, placing the competences by the General Assembly of the Church of Norway: A report from February 1995 from the Bishops’ meeting suggested with a majority of five out of eight, that homosexual praxis should be accepted in the church, also among employees (including church ministers). A clear majority in the Church Assembly later the same year (November 1995) however rejected employment of people with a homosexual praxis as well as any liturgical practice regarding same-sex-marriage, including a prayer for same-sex-couples. In 1997 it was further underlined that people, living in same-sex-couples, could not take up a service in the church. A possible conflict with labour law was not accepted: It must be possible to be a church, was the argument. The questions were raised again in the Church Assembly in 1999, based on two concrete cases in 1998 and after re-election of the Church Assembly. Now the bishops (in May 1999) accepted individual and separate praxis among the bishops, even though the Church Assembly in its decision of May 1999 was not amused. A new analysis was published in January 2006, and discussed in the Church Assembly in November 2006. A new decision in the Church Assembly in September 2007 rejected with a vast majority the former decisions of 1995, without putting other decisions instead. The table was now open for individual decisions – and in the same time, the parliament changed the 184

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law on marriage and made same-sex-couples equal with couples of opposite sex in the law (in force from 1st January 2009). In the Nordic countries, pastors in the churches have traditionally had powers to perform marriages with civil validity. The Norwegian law of 2009 underlined, that this could only be done in Church of Norway (and any other religious community) on basis of a ritual that – for Church of Norway – was approved by the King (according to the constitutional system before 2012). This development already in May 2009 forced the Church Assembly to reconsider the question of a ritual concerning same-sex-marriages. A committee to consider the matter was organized, but did not deliver any results, until 11 February 2013, that is: well after the changed constitution as well as relevant legislation, confirming the competences of Church of Norway in ritual matters, was in force. – however, again the report of February 2013 did not lead to any decision in the competent bodies of the Church of Norway, neither at the general assembly in 2014 or 2015. By decision at the general assembly, a principled acceptance of a ritual for same-sex-marriages won majority, but the ritual should still be formulated, discussed and approved of. This happened in the course of summer 2016, after which the church assembly consequently could accept and acknowledge the ritual at its meeting 25–31 January 2017. The new liturgy is in force from 1st February 2017.25 The question of whether people, living in same-sex-couples could be ordained for services in the Church of Norway, was indirectly solved by the non-decision in 2007, where the former rejecting decisions were dissolved. The question regarding rituals for same-sex-marriage was, however, pending and still so after the change of the constitution. One could reflect on, whether this delay came by accident – or whether it had to do with what still could be interpreted as unclear competences in core internal matters, such as decision-competences regarding rituals etc. The point of departure in constitutional theory was, as mentioned,26 that churches, and even the Church of Norway before the changed constitution, have FROB rights when it comes to competences for the state to decide on, especially rituals. If the state should have competence in such matters, constitutional theory would thus require that the competence be clearly backed by the constitution. The wording of the 2012 constitution (regulation of the ordering of the Church) did, however, leave sufficiently clear interpretative room for a position arguing that the state still had the competence. Thus, the need for the ‘just-in-case’ legislation placing the competence with the Church Assembly. Some would, however, argue that this was still not enough. If the formulation in the church law, § 24, on competences for General Assembly 185

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in ritual matters, was regarded as a delegation, then the constitutional understanding would still be that the state could withdraw this competence, or even legislate alongside with the competence in the General Assembly. One could thus argue that the 2012 change of the Church law did not clearly enough answer the question of whether this piece of legislation was delegation by law or whether it was a confirmation of a sui generis status according to FROB. Norwegian constitutional theory did, however, point to a possible way out of the dilemma.27 If the Church of Norway acquired legal personality, then the Church would have access to suing the state and thereby involve the courts in solving the legal dilemma on whether there is a wall between state and church in liturgical matters (sui generis) or whether the 2012 law, § 24, is a delegation of state powers by law.

Impact of the 2017 change of the Church of Norway into a legal entity Of the seven points in the political agreement of 2008 regarding the Church of Norway, only one point was concerned with the constitutional basis for the future. That was the formulation of the constitutional Article 16 on the Church of Norway as an evangelical-Lutheran church remaining the popular (or perhaps even the people’s) church of Norway and as such supported by law. The other six points in the political agreement concerned the administrative basis, where the political agreement would uphold the administration of the Church of Norway as part of the state administration, uphold priesthood as a part of the ordinary public hierarchy (including pension rights, etc.) in state and municipality and would uphold the existing economic model. The entire political agreement was only binding to the end of the parliamentary session, that is, to the end of September 2013. A new majority in Parliament could change all points. It would, however, take more, both legally and politically, to change the constitution (the first point) due to rules on how to change the constitution than to change the other six points, since they were only based on ordinary legislation. Moreover, since the political agreement clearly stated that it was only binding for one parliamentary period, no one could argue that the legislative and administrative points were preconditions for the constitutional dimension (or the other way around).

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When the new Parliament and the next government took seats, those who had hoped to see the problems solved for the next long period had to realize the weakness they already knew regarding this part of the 2008 political agreement. The Solberg government, which took seats in October 2013 and remained in office after the public elections in 2017, stated in its governmental program (2013), that it would establish “a clear distinction between church and state”, and “lead a politic which makes it possible for the church to uphold the status as an open church for everyone”. – “The government will formulate one law for all faith and life-stance communities”; and the government will “ensure that internal self-decision-powers is a reality in all faith- and life-stance communities”.28 The Solberg government was renewed and widened after the public elections in 2017. The governmental programme (2018) states that the government will “complete the distinction between state and church”.29 With the 2012 reform as ‘the constitutional reform’, this new reform was less intruding and therefore called ‘administrative’ [forvaltningsreformen]. There is, however, no doubt that with these latter changes, the real changes in the status of the Church of Norway were to be implemented. From previously having been part of the Norwegian state to becoming nearly almost, although not fully, a private entity in line with other religious communities (that would require further constitutional changes), but at least an entity barely part of the state anymore. With this political programme, the Department of Cultural Affairs (with the section on Church Affairs) developed a paper sent out for public remarks called ‘The State and the Church of Norway – A Clear Distinction’.30 Based on the comments on this paper, a revised paper was formulated by the Department of Cultural Affairs in March 2015 to be discussed at the General Assembly in the Church in the spring of 2015.31 Based on the reactions from the church assembly, a final proposal was sent to Parliament,32 and discussed in the committee on church, education and research affairs in its recommendation.33 The law on the Church of Norway as an independent legal subject has been in force since January 2017. At this same time an administrative reform took place: All previous civil servants, among them all priests, bishops, etc., are servants of the Church with the General Assembly as the ultimate employer. The idea from the department was originally, comparable to the forms of regulation in Denmark and Iceland, that the Church of Norway should

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still be regulated in a special law which did not make it a private law entity. It meant that not only the different bodies in the Church, but also their mutual competences, as well as in their functions as employers, would be regulated by law. It was especially underlined that the church assembly as the supreme body in the Church should act according to powers which were limited by law. The local congregation councils should also keep their independence as legal bodies, with the consequence that they could sue the General Assembly if the latter overstepped its competences. The department also wanted to build in some institutions to take care of conflicts internally in the Church, since the internal division of powers within the Church was seen as a central dimension of the law.34 The church assembly, however, resisted all these points and so did the organization, functioning as the employer.35 This appears when one reads the final paper sent to the church assembly on March 3, 2015. It is already remarkable that the General Assembly is now included as an official body in the legislative process.36 And the content is even more striking: •

•

•

•

The proposed body, by law established to take responsibility of internal conflicts, is now no longer part of the proposals,37 which means that the church assembly itself decides whether it wants to organize any internal bodies for conflict resolution or whether it wants to function as a private law employer without any internal redress system. The general position is thereby that the church assembly, as far as possible, is allowed to regulate the competences internally in the Church.38 The church assembly is therefore also given a general competence to organize the Church, including which functions the bishop’s committee shall have in the future and which functions shall be delegated from the church assembly to other bodies.39 There is even a reference arguing that the Church of Norway should act as – and be bound by legislation – as other private employers are.40 This change, for example, of the priests from civil servants to private employees seems rather dramatic; the department has therefore also had several meetings with the organizations covering employees in the Church of Norway. The question of competence to decide on rituals is discussed once again. This time the voice is clear and the Church of Norway receives full competence as sui generis. There is no reference to any theory on delegation. The argument is the following: International law on corporate freedom of religion and belief also covers Church of Norway. This is a consequence of that

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individual freedom of religion and belief also must include a collective dimension, and that such religious communities must have freedom to perform their religious beliefs according to their rituals, symbols and traditions of common values and norms. The religious community, including the Church of Norway, on basis of the individual members’ freedom of religion and belief must have a right on independent basis to decide on the frames for the ritual life and development of faith within the religious community.41 The church assembly did however succeed in changing the Church of Norway into a hierarchical organization. There were still political forces in Norway who wanted to keep a more traditional church, especially with respect to local independence. Parts of both political forces and Norway’s broader population are hesitating to move to a too hierarchical church – whereas others want one common church under the regulation of the church assembly. Here the Swedish and Finnish models are present as ‘shadow-models’, mentioned even by some congregation councils as something not fully received in this proposal.42 The department found it too early to implement models that would lead to further central governance of the Church. In its proposal to the Parliament, the department thus underlines that the local congregations are still legal subjects. The Church is, as it is underlined in the legislative proposal to the Parliament, no hierarchical entity. The local congregations are independent legal subjects, and the church assembly can only regulate local matters, if they have a clear competence in law to do so.43 The sustained independence for the local congregation councils seems to have been a central point in the reform politically. This point is thus also underlined in the recommendations from the parliamentary committee.44 The question is burning: The parliamentary members from the social-democratic party underline in their recommendations that they do not necessarily support a further development where the local congregations might be hierarchical elements into one, unified church organization.45 Also the question about a guarantee in the future to be able to have access to local priestly services seems to have played a central part. The new church law therefore states that the Church of Norway must still provide priestly service in all congregations (which here seems to be part of the concept of ‘popular’ or ‘peoples’ church),46 and the independence of the vicars and those who function as bishops are upheld by law. On the other

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hand, the priests are no longer obliged to live in the congregational vicarages, and there are no requirements in the proposed law on how a priestly service must be organized. The idea of one congregation–one priest–one vicarage seems to disappear in the Norway to come. And it seems as if the current Solberg government wants these questions discussed, not in government and Parliament, but internally in the Church.47

What is a ‘folkekirke’? The ‘official’ translation of the Norwegian Constitution does not use the concept ‘folkekirke’. It simply translates the relevant wording as ‘established church’.48 The ‘establishment’ dimension, however, appears in the sentence, promising that the Church ‘as such’, that is, as evangelical-Lutheran and as folkekirke will be supported by the state. But what does it mean that the evangelical-Lutheran Church of Norway is a folkekirke? The concept is common in Scandinavian vocabulary in relation to the historical majority churches,49 and the wording in the Norwegian Constitution of 2012 is derived directly from the Danish Constitution of 1849. In the Danish Constitution, the meaning has become double: Folkekirke means the church, of which the majority of the population is members. Folkekirke in the Danish version is also by most scholars interpreted in the same way as indicated by the Norwegian parliamentary translation, the established church, that is, the Church, governed in all its dimensions by (parliamentary) law, including the delegations possible within the limits set by statutory law.50 In the Norwegian debate around the constitutional formulation, voices have suggested that the wording folkekirke should have an impact on the ordering of the Church. Tønnessen, for example, suggests51 that the organizational structure in the Church of Norway should consider citizenship, ensuring that the members of the Church had such rights also. And Moxnes in the same context suggested, that the legislation regarding the organizational structure of the Church of Norway legally should ensure rights for the members of the Church.52 Eivind Smith (2015b) discusses the concept of folkekirke from a constitutional perspective. He does not put much weight in the fact that the wording in the Danish and the Norwegian constitutions are the same. They were formulated in quite different situations with 165 years between them, and the old Danish constitutional wording cannot be binding for how the same words should be understood constitutionally in a 21st-century Norway, building as much as possible on equality between religions and independent religious communities. I tend to agree – also because it seems that 190

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nearly nobody in the preparatory works have used the references to Danish religion politics or constitutional understanding, which does not stand out in a Scandinavian context as modern. The wording folkekirke could, however, still be constitutionally relevant, even though a Danish parallel does not seem to be the most attractive. For both Smith and myself, the most striking thing is the coupling of folkekirke with an idea of openness and inclusiveness, both theologically, geographically and in practical terms (that is, openness for people’s wish to use the church in their ordinary life). Smith rightly points to the attempts from the legislative authorities to ensure this openness and inclusiveness through a strong, internal democracy, but, as he also rightly states, a church with strengthened identity as religious community (faith community) invites its members to strengthen those dimensions of the identity that are not necessarily comfortable for everyone (Smith 2015b, p. 66).53 But this is precisely the argument for, why I think – contrary to what Smith suggests – that one must interpret the Norwegian constitutional use of the term folkekirke as legally relevant. And with the same general argument concerning constitutions that Smith already uses as the general argument on relations between the constitution and legislation:54 If the Norwegian Parliament does not want to have its legislation bound by the wording in the constitution (here the wording folkekirke), then the Parliament must change the constitution first. The point is that one must interpret the wording folkekirke in the constitution as a constitutional limitation against how far legislators and the leadership in the Church of Norway can change that specific Church from having been a Church whose internal structure was decided by all Norwegians through parliamentary democracy into a Church based on religious premises only. The question is whether a requirement regarding ‘democratic’ organization of the Church internally is enough to meet this constitutional requirement. It is hard for Smith to imagine that the wording folkekirke could appear as a central parameter in a future court case concerning employment or other legally relevant decisions from the church bodies, not because he necessarily sees the concept as irrelevant, but because he thinks it is too unclear and does not see when it could become relevant. I do not have problems in foreseeing exactly that case. Collective freedom of religion and belief and the rights acquired through that concept are said to rely on the freedom of belief of individual church members, and that dimension is, as already mentioned, underlined in the preparatory works in the legislation on the Church of Norway. One could, however, easily anticipate that conflicts arise in the future between Church members 191

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and Church leadership.55 That is exactly one of the demanding dimensions within the concept of church autonomy (Christoffersen 2010, see also Christoffersen 2015). The Scandinavian states have in the Nordic majority churches kept have kept the balance between church leadership and individual church members and ensured that church members’ rights are not overlooked; that is, they have ensured freedom and access for common individuals, more commonly known as citizens than as active religious persons, although still church members (Christoffersen 2018). Examples of such future court cases could be, for instance, a conflict over new decisions from the Church regarding employment or regarding access to becoming delegates in Church bodies or regarding access to religious rituals for the family, all of whom must be baptized members (which up until now have been the only requirements). The Church could thus decide that baptism alone was not enough anymore. A new requirement could mandate regular church attendance (e.g. 12 times a year).56 How would a Church member react to that? Smith tries to foresee such a court case. The first question is whether the member could actually bring such a conflict to the courts. A previous case regarding eight Muslims who were excluded from a mosque does not promise too much, since the case was not accepted by the courts.57 One could then foresee an internal dispute at some bodies established in order to take care of internal conflicts – but even that is not ensured in the new law on the Church of Norway as legally independent. If the Church member does not have access to justice, either internally or in the courts, then I would imagine that the only remaining avenue for such a member of the Church of Norway would be to try to persuade the courts to take the case by reference to the constitution. In that case, the identification of the Church of Norway as constitutionally being a folkekirke could become an argument, because it seems to promise that the Church of Norway does have more obligations towards its members than other Norwegian religious communities have towards their members. Further, exactly that sort of requirement could change the political process regarding the Church of Norway, and a new majority in Parliament might want to withdraw or change the recent legislation by, for example, requiring the Church to organize internal bodies for redress or by giving members statutory-based legal rights against the Church. The Church of Norway could, of course, react to that by suing the state – and again here I imagine that the term folkekirke in both its dimensions would become legally relevant, both as a requirement regarding ensuring rights for members and as a competence for legislative powers to legislate concerning the Church. Consequently, the 2012–17 legislation does precisely that: it establishes the 192

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Church of Norway by law. But it does not ensure sui generis rights for the Church if the Church uses these rights to restrict the rights for ordinary members. One could therefore argue that the law on the Church of Norway ought to ensure rights for the Church members in such possible conflict situations, as well as ensuring access to bodies to get such rights clarified.

By law established and sui generis The questions discussed in this chapter are whether the Church of Norway still is to be regarded as a church established by law, whose legal powers are based on delegation by law of state powers. The other possibility is that this church established by law at least in some elements, namely regarding powers to decide on rituals, relies sui generis on legal competences derived from its members’ freedom of religion and belief. The question is legally relevant in order to identify to which extent the Church of Norway also as a folkekirke is legally limited in its decisions or whether it – precisely as folkekirke – can decide through its own bodies what it takes to be a folkekirke in the 21st-century religiously pluralistic Norway. The Parliament could of course re-organize the church order, based on the constitutional Article 16. It is also my understanding that the wording of Article 16 – both folkekirke and Evangelical-Lutheran – includes some limitations to the possible change of the normative function of the Church of Norway by its own internal bodies. The Parliament must thus have some competence to be ‘co-interpreter’ of these two central concepts in a possible conflict with church bodies. On the other hand, as long as the Church of Norway is by law established with legal personality, this implies that the Church could sue the state/the legislative powers in such a situation and argue that the state, contrary to FROB rights of the Church, had legislated against the Church’s collective freedom of religion and belief. There is no doubt that the legislative powers in close concertation with the church assembly of the Church of Norway has tried to come as far as possible to a new, legally independent body with sui generis rights to not only decide on rituals and other matters closely linked to jus in sacra. The route followed is also driven as far as possible regarding internal rights to decide on internal organization, jus circa sacra, even though the constitution undoubtedly confirms the Parliament with that right. The constitution, on the other hand, is clear: The Church of Norway is an established church. The Parliament has the competence to establish it as evangelical-Lutheran and as folkekirke. This competence is not limited with constitutional references to collective freedom of religion and belief. 193

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Equality between the Church of Norway and other religious communities in the country must be ensured economically, but the constitution does not only open up a structural difference regarding parliamentary legislation concerning the organization of the Church, the jus circa sacra matters. The constitution presupposes such a constitutional difference. That is so, because the Church of Norway is the majority church, supposedly open for the majority of baptized Norwegians – and if a future development might show that the presupposed openness becomes impossible, then the Parliament has a right to take legal steps and change the law. As long as the Norwegian Constitution is formulated as it is, the Church of Norway is a bylaw–established church. The state has the powers to re-organize this church by law, including changing the legal status from an independent legal personality back into the position as part of the state hierarchy. The legislative powers of the state to organize the church order can therefore also establish legal rights for church members, based on the concept of folkekirke. With legal personality, the Church of Norway could, of course, sue the state in a situation where the state took legislative steps to change the organization. I will, however, question whether a concept of collective freedom of religion and belief, very well known for those who wrote the constitution, could overthrow the constitutional decision to let the organizational powers remain with the state. A different and much more difficult matter is whether the Church of Norway could claim the right to the competence regarding rituals, not based on delegation by law of state powers, but based on a sui generis argument. The argument would then be, as it also is in the preparatory works, jus in sacra questions is a competence of the collective on basis of the individuals’ freedom of religion and belief. This argument can be backed by many sub-arguments. One is that in such theological decisions, theological legitimacy and legal legality must go hand in hand. Another is that this combined effort of theological and legal legitimacy was exactly the purpose of the entire change. That is an argument which is empirically supported by the fact that the Church of Norway did not take its decision concerning rituals for same-sex marriage before the Church had acquired legal personality to sue the state if the state involved itself in the matter.58 A further argument for accepting a sui generis position would be to refer to the previous royal decrees regarding rituals in the Church of Norway as based on the king, who by constitutional order himself must be an evangelical-Lutheran. This requirement, which is still part of the constitution, was combined with the previous constitutional requirement that at

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least half of the members of the Norwegian government had to be members of the state church so that these members could take part in decision making regarding internal affairs of the church. The argument goes59 that this made the king’s governance of the church an internal affair – the king was (and maybe still is?) simply seen as the first among equals or the first in the priesthood of all believers, implying that the king had religious legitimacy to take these decisions. This argument is a perfect example of how we use the past in the legitimation of the present.60 That the king’s competence once was based on a theological idea of the priesthood of all believers does not necessarily imply state powers presently are bound to the same line of argumentation. It is tempting in this area to rely on an equality argument: The state cannot legislate further into the rituals of the Church of Norway than into other religious communities (which is the other side of the coin, called collective freedom of religion and belief, based on individual freedom of religion and belief). This is also the most often used argument in the preparatory works. I do, however, think that, even though it is very vague and unprecise, there still is some sort of protection of the members of the Church of Norway against decisions that are clearly in conflict with equity, when compared to the previous situation. I also think this is the background for why the Church of Norway General Assembly did not decide on a ritual for same-sex marriage until after the 2017 legislation giving the Church legal personality was in force. On the one hand, the Church wanted to underline that the legitimacy in these matters generally are with decisions taken in church bodies. On the other hand, the church bodies wanted to acknowledge that they as a folkekirke building on traditions from the state church were (morally? politically?) obliged to take the entire group of members into account when deciding on church rituals. The Church of Norway decided on a new ritual allowing for the marriage of same-sex couples and thereby including broad groups of society into the Church, just after the Church had acquired legal personality, in order to show that theological legitimacy, subsequent sui generis legality and by-law–established legality could be the same in the Church of Norway after 2017.

Re-sacralization? There is a general tendency in international law on religions to peel off conflicts in and with religious communities from (secular) law. Court

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decisions in the US Supreme Court acknowledge to a wide extent a wall of separation between state powers (not only executive, but also legislative and judiciary) and religious communities, with the consequence that employers cannot execute their rights according to ordinary law if they are employed in religious communities.61 Also decisions by the European Court of Human Rights argue that collective freedom of religion and belief is a right to be balanced with other human rights (such as family rights) against private individuals who simultaneously are church members or church employees and claim their (other) human rights.62 The argument is that the secular law and the secular state are not as such legitimized to regulate church affairs and can only regulate the selfgovernance of religious communities, if this is necessary in order to protect the security, etc. of others and a regulation of the core of FROB rights is disputed. By this argument, however, two developments can be seen. First, in the competition between individual church members’ rights and the rights, argued by the collective, represented by the bodies of the church organization, the individuals tend to lose their rights. That was not the case in the Nordic Lutheran majority churches. Just the opposite. Here, the Nordic states protected the individuals against too aggressive religious requirements from the side of the ordained ministers.63 Second, the secularity of the state and the law is only upheld by peeling off legal problems that the state does not want to deal with. Consequently, the Nordic states can foresee a future with parallel, legal orders where it is not the obligation of the state to ensure freedom of religion and belief for the individual and the collective within the states’ own legal order. Freedom of religion and belief will instead – again – be ensured through conflicts between two parallel legal orders, a secular and a religious, as it was until the Reformation. Visioning this future, it is completely correct for the home page of the Church of Norway to compare the 2017 legislation concerning the legal personality of the Church of Norway with the pre-Reformatory situation. Norway seems to wish for a new, religiously pluralistic situation with parallel legal orders between a totally secular state with no responsibility for religion and belief (apart from the economic, also based in the constitution) and many religious legal orders. This might not be seen as re-sacralization in Norway, since the dominant narrative concerning the legal basis for the king’s orders on religious rituals opens up another interpretation. But seen from outside, the development certainly looks like a secularization of Norwegian state law at the cost of a sacralization of laws concerning religious life in Norway. 196

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Notes 1 I am thankful to Professor Eivind Smith, Faculty of Law, University of Oslo, to professor (mso) of practical theology, ph.d. Ulla Schmidt, Aarhus University, to professor of sociology of law, ph.d. Bettina Lemann Kristiansen and to docent em., dr. theol, Anna Marie Aagaard, Aarhus, for extremely relevant comments to previous drafts of this article. All interpretations and possible mistakes of course remain on my shoulders. 2 The West Nordic Countries are Denmark, Norway and Iceland that share some of the legal consequences of the reformation of 1536/7 onwards, jf Christoffersen, Andersen and Modéer (eds.) (2010). 3 For a good overview over the development, however, underlining what he saw as the problematic dimensions of state involvement in church affairs, see Aarflot (2016). See also further articles, published together with Schmidt (2014). 4 The process towards church independence was much longer, but the events during WWII are highlighted in several contributions, see e.g. Morland (2018). For an overview, see also Schmidt (2006). 5 Delegation from Royal Prerogative was the undisputed legal basis for these powers before the 21st-century change of constitution, see among others St. Meld. nr 17 (2007–2008) on the State and the Church, p. 24. 6 See e.g. St.Meld. 17 (2007–2008), part 3.5.3. 7 https://kirken.no/nb-NO/om-kirken/aktuelt/2017-et-kirkehistoriskmerkear/ 8 Ulla Schmidt (2014, p. 106) poses partly the same question by asking, whether the legislative powers on basis of the revised constitution of 2012 can only organize the external organization of the Church of Norway, or whether there is also a constitutional basis for the legislative powers to decide on internal matters. 9 Andreas Aarflot in his recent article raises the same type of questions by underlining, that “(der) savnes en tydeligere markering av den normgivningskompetanse som dette innebærer”. [a clarification of the legislative competences, based on the legal subjectivity of the Church of Norway, is necessary] (Aarflot 2017, p. 211). 10 The 10. vol is as mentioned from 2006. The book is thus published a couple of years before the proposal, that lead to the reformulated constitution. 11 Which in itself is remarkable. In a recent public report on the legal status of the Danish national church [Betænkning 1544/2014 Folkekirkens styre] this author took the same position, but was overthrown by the majority, including representatives of the Ministry of Justice and the Chairperson, Hans Gammeltoft-Hansen, former Ombudsman, former professor, dr.jur., and co-founder of the Association of Ecclesiastical law. See the mentioned public report, chapter 9.4.3., p 235. 12 “Dersom man skulle ønske å gjøre unntak fra dette utgangspunkt gjennom lov, er det vanskelig å se noe annet enn at det vil måtte kreves særskilt hjemmel i grunnloven selv. . . . Men om det i forhold til Norges konvensjonsbestemte forpliktelser om religionsfrihet vil være tilstrekkelig å hjemle lovbestemmelser av en slik karakter i den nasjonale grunnloven, er i beste fall et åpent spørsmål”

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13 The decision followed the common procedure for constitutional changes in Norway: two decisions in Parliament, each of them on each side of general elections, the latter by qualified majority. There is no public referendum as requirement for changing the constitution, which is thus easier than in Denmark. The constitutional changes were published 15 June 2012. 14 Grunnlovsforslag nr. 10 (2007–2008) Grunnlovsforslag fra Torfinn Opheim, Anders Anundsen, Ine Marie Eriksen Søreide, Rolf Reikvam, Dagrun Eriksen, Rune J. Skjælaaen og Odd Einar Dørum. Dokument nr. 12:10 (2007–2008) 15 1.Den norske kirke skal ha særskilt forankring i Grunnloven, jf. ny § 16. 2. Den norske kirkes organisering og virksomhet skal fortsatt reguleres ved en egen kirkelov, uten at kirken defineres som eget rettssubjekt. 3. Staten skal fortsatt lønne og ivareta arbeidsgiveransvaret for biskoper, proster, prester og andre som tilsettes i kirkelige stillinger av regionale og sentrale kirkelige organer, dvs. at disse fortsatt skal være statstjenestemenn. 4. Den regionale og sentrale kirkelige administrasjonen skal fortsatt være en del av statsforvaltningen. 5. Forvaltningsloven og offentlighetsloven skal fortsatt gjelde for lovbestemte kirkelige organer. 6. Staten skal fortsatt sørge for at kommunene har lovbestemt plikt til å finansiere den lokale kirkes virksomhet. 7. Den kommunale representasjonen i kirkelig fellesråd videreføres som i dag. 16 The translation on the home page of Stortinget (see subsequent footnotes) here has “Established Church of Norway”. The same translation is used in the Danish Parliament. This translation, however, presupposes a legal interpretation of the wording. 17 The translation on the homepage of Stortinget here has ‘as to its system’. 18 www.stortinget.no/en/In-English/About-the-Storting/The-Constitution/ 19 En slik ordlyd vil markere Den norske kirke som folkekirke og kirkens særlige stilling “som saadan” overfor staten. Den vil også tydeliggjøre at Stortinget fortsatt kan og skal gi særskilt lovgivning om Den norske kirke. Ordlyden vil videre uttrykke at lovgiveren fortsatt kan gå lenger i å regulere Den norske kirke enn andre tros- og livssynssamfunn. Den typen lovgivning som særlig nevnes, er lovgivning om Den norske kirkes “Ordning”. Dette omfatter bestemmelser om kirkens ytre organisering. Det bør utredes nærmere hvordan kirkeloven skal utformes, blant annet hvordan grensen mellom Stortingets lovgivningsmyndighet og Den norske kirkes egen normgivningsmyndighet som trossamfunn skal trekkes, når prerogativet i § 16 oppheves. Departementet legger til grunn at kjernen i Stortingets lovgivning er angitt ved formuleringen “Ordning”. Videre vil prinsippet om tros- og livssynsfrihet trekke en grense for e hvor langt Stortinget vil kunne gå i sin lovgivning om Den norske kirke og kirkens virksomhet. Det vil dessuten være nødvendig å klargjøre grunnlaget for utøvelsen av den myndigheten som i dag utgår fra § 16. Dette gjelder den myndigheten som i dag er delegert til Kirkemøtet på det gudstjenstlige feltet, og det gjelder Kongens myndighet som kirkestyre til blant annet å regulere prestetjenesten. En klar forutsetning er at Kirkemøtet fortsatt skal utøve den myndigheten som møtet i dag har fått delegert fra Kongen og § 16. Dette kan sees som et spørsmål om å gjøre delegasjonen til Kirkemøtet permanent. Det videre arbeidet med kirkelovgivningen må også ta opp andre spørsmål som grunnlovsendringene vil reise. (st meld 2007–08 s 72)

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20 “antar departementet at forslaget til ny § 16 og prinsippet om tros- og livssynsfrihet vil innebære en tilstrekkelig skranke mot for inngripende lovgivning om indrekirkelige forhold. Ordlyden i forslaget til ny § 16 i Grunnloven vil markere Den norske kirke som folkekirke og kirkens særlige stilling ‘som saadan’ overfor staten. – Den tydeliggjør også at Stortinget fortsatt kan og skal gi særskilt lovgivning om Den norske kirke, og den uttrykker at lovgiveren fortsatt kan gå lenger i å regulere Den norske kirke enn andre tros- og livssynssamfunn. Den typen lovgivning som særlig nevnes, er lovgivning om Den norske kirkes ‘Ordning’. Dette omfatter bestemmelser om kirkens ytre organisering”. (2011, Kirkeforliket – konsekvenser av eventuelle endringer i Grunnlovens bestemmelser om statskirkeordningen i stortingsperioden 2009–2013. Høringsnotat 1. februar 2011, s. 18–19) 21 Prop. 71 L (2011–2012) Proposisjon til Stortinget (forslag til Lovvedtak) Endringer i kirkeloven m.m. s. 34: “I og for sig kunne en tenke sig at Kirkemøtet, også uten eksplisitt lovhjemmel, ville ha myndighet til å fastsette liturgier og det tlihørende regelverket. Departementet ga likevel i høringsnotatet uttrykk for at de beste grunnene taler for å tydeliggjøre i en ny lovbestemmelse at Kirkemøtet har myndighet til å vedta liturgier mv. til bruk i Den norske kirke. Departementet lægger til grunn at en ny lovbestemmelse om gudstjenstlig myndighet i princippet ikke trenger å bety at det er Stortinget som utstyrer Kirkemøtet med denne myndigheten. Lovbestemmelsen sikter mot å tydeliggjøre og bekrefte at Kirkemøtet besitter denne myndigheten i kraft av sin rolle som trossamfunnet Den norske kirkes øverste representative organ. Den eksplisitt rettslige virkningen av den foreslåtte bestemmelsen er at den begrenser regjeringens ansvar og myndighet på dette området. Når lovgivningen bekræfter at det ligger til Kirkemøtet å fastsette kirkens gudstjenstlige bøker, avgrenser den regjeringens instruktionsmyndighet vedrørende dette. Dermed avgrenses også regjeringens ansvar for saksområdet”. 22 “Som øverste representative organ i Den norske kirke fastsetter Kirkemøtet alle gudstjenstlige bøker i Kirken”. 23 Innst. 202 L (2011–2012) Innstilling til Stortinget fra kirke-, utdanningsog forskningskomiteen, s. 3: “Komiteen viser til at grunnlovsendringene som følger av kirkeforliket har som intensjon å klargjøre Den norske kirkes frie stilling som trossamfunn. Dette innebærer at den religiøse virksomheten i Kirken ikke lenger vil være statens oppgave. Det er imidlertid statens oppgave å understøtte Kirken som trossamfunn, og å understøtte andre tros- og livssynssamfunn på lik linje. Komi t e e n slutter seg til forståelsen av at endringene representerer et nytt grunnlag for utvikling av Den norske kirke som selvstendig trossamfunn. K omi t e e n vil samtidig understreke viktigheten av å etablere sikkerhet for at endringene bidrar til å bevare Den norske kirkes mål om å være en åpen, inkluderende og demokratisk folkekirke”. 24 I do not go further into this – for a detailed analysis, see the papers in Askeland and Schmidt (2016). 25 https://kirken.no/nb-NO/om-kirken/samfunnsansvar/homofilisaken1992-2015/ 26 See Eivind Smith (2015a, p. 390 ff). 27 Smith (2015a, a.st.).

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28 Politisk Plattform. Sundvolden-plattformen. Sundvolden, 7. oktober 2013, pkt 7: Fornyelse, administrasjon og kirke. Troens- og livssyn. Uddrag: Både samfunnet, kirken og staten er best tjent med et tydelig skille mellom kirke og stat. Regjeringen legger vekt på at Den norske kirke er av stor betydning for mange nordmenn, og vil føre en politikk som sørger for at kirken oprettholder statusen som en folkekirke for alle. Regjeringen vil: * utarbeide en helhetlig lov om tros- og livssynssamfunn. * Sikre at den indre selvbestemmelsesretten skal være reell i alle tros- og livssynssamfunn”. (further points are not relevant in this context). 29 “Fullføre skillet mellom stat og kirke, og sikre vedlikehold av verneverdige kirkebygg”, the Jeløya-platform, 14th january 2018, www.regjeringen.no/ no/dokumenter/politisk-plattform/id2585544/#k11. The financial support to the Church of Norway is now given as block grants, jf Prop 1S (2016–2017). Instead of chaning the law on the Church of Norway, the government will now also develop one law for all religious communities in Norway, including the Church of Norway, see www.regjeringen.no/no/ tema/tro-og-livssyn/arbeidet-med-en-helhetlig-tros-og-livssynspolitikk/ helhetlig-lov-om-tros-og-livssynssamfunn/id2511821/, updated 27 Febr 2018. 30 Staten og Den norske kirke – et tydelig skille. Høringsnotat 2. september 2014. Kulturdepartementet. It should be noted, that there is a clear distinction between the word ‘distinction’ (tydelig skille) and the word ‘separation’ (in Scandinavian ‘adskillelse’. How clear dependes on the concrete legislative changes). 31 Kulturdepartementet: Forslag til endringer i kirkeloven for behandling i Kirkemøtet: Staten og Den norske kirke – et tydelig skille. 3. Mars 2015. 32 Prop. 55 L (2015–2016) Proposisjon itl Stortinget (forslag til lovvedtak): Endringer i kirkeloven (omdanning av Den norske kirke til eget rettssubjekt m.m.). 33 Innst. 256 L (2015–2016) Innstilling til Stortinget fra kirke-, utdanningsog forskningskomiteen om Endringer i kirkeloven (omdanning av Den norske kirke til eget retssubjekt m.m.) 34 Høringsnotat 2. september 2014: Staten og Den norske kirke – et tydelig skille. Høringsfrist 1. november 2014, s. 19–20. 35 Kirkens arbejdsgiverorganisation, KA. 36 Until the 3 March 2015, all papers were formulated as general papers from the department, sent out to all involved parties. With the 3 Mars 2015paper, the partner to be discussed with, was only the Church of Norway General Assembly. 37 Kulturdepartementet, 3. mars 2015, p. 45. 38 A.st. s. 49–50. 39 A.st. s. 42–43. 40 A.st. s. 32–35. 41 “Internasjonal rett om korporativ trosfrihet (frihet til sammenslutning i religiøse fellesskap) gjelder også for Den norske kirke. Dette følger av at den individuelle rleigionsfriheten med nødvendighet også må omfatte frihet til å slutte seg sammen i religiøse fellesskap, og at slike fellesskap må ha frihet til at medlemmene kan utøve sin tro i form av ritualer, symboler og tradering (overlevering) av felles verdier og normer. Med grunnlag i

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42 43 44 45 46 47 48

49

50 51 52 53

54 55 56

medlemmenes individuelle trosfrihet må trossamfunnet – også Den norske kirke – på selvstendig grunnlag kunne fastsette bl.a. rammene for trosfellesskapets rituelle liv og trosopplæring”. Kulturdepartementet Forslag til endringer i kirkeloven for behandling i Kirkemøtet, 3. mars 2015, s 17. My translation. The formulation is repeated in the proposal to the parliament, pkt. 2.1.5, s. 9. Kulturdepartementet, mars 2015, s. 44. Aarflot (2017) is a discussion of this idea of local independence within Church of Norway. Prop. 55 L (2015–2016) pkt. Innst. 256 L (2015–2016) Innstilling til stortinget fra Kirke-, utdanningso gforskningskomiteen, s. 1. Komieteens medlemmer fra Arbeiderpartiet og Senterpartiet, Innst. 256 L, s. 4, 2. spalte. Innst 256 L – 2015–2016, s. 2, 1. sp. Jf. the political platform for the current government, presented in footnote 29. Den norske Kirke, en evangelisk-luthersk Kirke, forbliver Norges Folkekirke og understøttes som saadan af Staten. Nærmere Bestemmelser om dens Ordning fastsættes ved Lov. https://lovdata.no/dokument/HIST/lov/ 1814-05-17-20120521 is translated into: The Church of Norway, an Evangelical-Lutheran church, will remain the Established Church of Norway and will as such be supported by the State. Detailed provisions as to its system will be laid down by law. www.stortinget.no/en/In-English/ About-the-Storting/The-Constitution/ See for a discussion of the (many) different possible translations of the concept into English, among others Lisbet Christoffersen, Svend Andersen & Kjell A. Modéer (eds): Law & Religion in the 21st Century – Nordic Perspectives, DJØF Pbl, 2010, p. 145 ff. This author has also in the Danish context suggested that folkekirke should imply people’s church or popular church, and that the ‘ordering’ of the church structure should not imply a competence to organize the internal matters. See e.g. Gammeltoft-Hansen (2006). Tønnessen (2006) Moxness (2006) “Den innebygde spenningen i dette synet som ligger i muligheten – eller faren – for at kirken kan komme til å opptre som et trossamfunn i den forstand at den rendyrke en egenart som ikke passer til alle, bliver sjelden eller aldri tatt opp”. Smith (2015b), s. 66. See also p. 68: Spenningen mellom åpenhet og tanken om en kirke som et fellesskap rundt læresetninger som medlemmene selv oppfatter som sentrale, er i sig selv tilstrekkelig til å begrunne at det resultat som så mange i den politiske prosessen har ønsket seg, ikke uten videre er gitt. [the possible conflict between openness and the idea of the church as a community around traditions that the members themselves regard as central, is in itself an argument for realizing the the result so many in the political process has wanted does not automatically appear]. See Smith (2015b, p. 360 ff) on the constitutional limitation regarding legislation into material human rights. This is a possible conflict, which Smith has not discussed in his works. In a Danish case from the 1970s a church minister required that the parents appeared for church services 12 times a year as a condition for baptizing

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57 58

59 60 61

62 63

their children. The church minister was dismissed in order to protect the rights of the baptized members of the church. Many other examples could be mentioned. Islamic Cultural Center, Rt. 2004 s 1613 (33). See, for an explanation (Andenæs by Fiflet (2006)). The chronological order of things was based on internal ecclesial discussions, including an election in 2015 which made clear space for an open folkekirke argument. My point is,that exactly this internal ecclesiastical discussion is related to the fight for aquring legal personality. See Aarflot 2015 for the most recent account of this argumentation. For this concept, see the research project ProNoLa – www.teol.ku.dk/pronola. Examples could be Burwell vs Hobby Lobby and Hosanna-Tabor EvangelicalLutheran Church & School vs Equal Employment Opportunity Commission. See further Oxford Journal of Law and Religion, vol 4/2015, special issue on ministerial exemption, edited by Pamela Slotte and Helge Aarsheim. See e.g. Spanish, Rumanian and German cases, referred in the same special issue as mentioned in footnote 59. At least when we talk about the 20th century. Any Norwegian reading this chapter would, however, think of Hans Nielsen Hauge (1771–1824) and his imprisonment in 1804 for not having obeyed the (Danish) priests.

References Aarflot, Andreas (2016): “Motivs and Perspectives in the Reform Process of the Church of Norway”, in Harald Askeland and Ulla Schmidt (eds.): Church Reform and Leadership of Change, Church of Sweden Research Series, vol. 12, Pickwick Publications, Eugene, Oregon, pp. 18–37. Aarflot, Andreas (2017): “Rettslig handleevne lokalt og sentralt i Den norske kirke – Refleksjoner over rettssituasjonen etter den siste revisjon av kirkeloven” [Legal Personality locally and centrally in the Church of Norway. Reflections based on the latest revision of the law on the Church], LOV OG RETT, Vol. 56, no. 4, pp. 195–214. Andenæs, Johs. by Arne Fliflet (2006): Statsforfatningen i Norge [Norwegian Constitutional Law], 10. udg, Oslo: Universitetsforlaget. Askeland, Harald and Ulla Schmidt (2016): “Introduction”, in d.s. (eds.): Church Reform and Leadership of Change, Church of Sweden Research Series, vol. 12, Eugene, OR: Pickwick Publications. Christoffersen, Lisbet (2010): “Church Autonomy in Nordic Law”, in Lisbet Christoffersen, Svend Andersen and Kjell a. Modéer (eds) (2010), Law and Religion in the 21st Century – Nordic Perspectives, Copenhagen: DJØF Pbl, pp. 563–592. Christoffersen, Lisbet (2015): “The Argument for a Narrow Conception of Religious Autonomy”, in Oxford Journal of Law & Religion, Vol. 4, no. 2, 6, pp. 278–302. Christoffersen, Lisbet (2018): “Fri og lige adgang til Vorherre. Kirken og retten 1901–2017” [Free and Equal Access to Our Lord: The Church and

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the Lawa 1901–2017], in Niels Henrik Gregersen and Carsten Bach Nielsen (eds.): Reformationen [The Reformation], vol. 3, pp. 195–228, Odense: Syddansk Universitetsforlag. Christoffersen, Lisbet, Svend Andersen and Kjell A. Modéer (eds.) (2010): Law & Religion in the 21st Century: Nordic Perspectives, Copenhagen: DJØF Pbl. Gammeltoft-Hansen, Hans (2006): Kommentarer. § 4, 6, 66–69 [Commentaries on the Danish Constitutuion, art’s 4, 6, 66–69 (Regulations Concerning Church and Religion)] i Henrik Zahle (red): Danmarks Riges Grundlov med kommentarer, København: DJØF forlag, 2. Udg. Morland, Egil (2018, forthcoming): “New Relations between State and Church in Norway”, accepted for publication in European Journal of Theology. Moxnes, Halvor (2006): “‘Åpen, inkluderende folkekirke’: Hvilke rettigheter har folk flest i folkekirken?” [Open, Inclusive People’s Church: Which Rights Do Ordinary People Have in the Church?], in Njål Høstmælingen, Tore Lindholm and Ingvild Plesner (eds.): Stat, Kirke og Menneskerettigheter [State, Church and Human Rights], Oslo: abstrakt forlag, pp. 118–127. Schmidt, Ulla (2006): “Endring og tilhørighet blant kirkemedlemmer og borgere: – Hovedlinjer I debatten rundt Gjønnesutvalgets utredning” [Change and Church Belonging among Members of the Church and the Citizens], in Ulla Schmidt (ed.): Endring og tilhørighet – Statskirkespørsmålet i perspektiv [Change and Belonging: State-Church-Discussion in Perspective], Trondheim: Akademisk Forlag. Schmidt, Ulla (2014): “Stat og Religion i Norge i dag” [State and Religion in Norway Today], in Øystein Ekroll, Søren Hjorth, Einar Vegge (eds.): Vor Kristne og Humanistiske Arv – betraktninger ved 200-årsjubileet for Grunnloven [Our Christian and Humanist Heritage: Reflections around 200-Years Jubilee for the Norwegian Constitution], Trondheim: Nidaros Domkirkes Restaureringsarbeider, pp. 92–115. Smith, Eivind (2015a): Konstitusjonelt Demokrati. Statsforfatningsretten i principielt og komparativt lys. [Constitutional Democracy: Constitutional Law, Enligtened Principally and Comparatively], 3rd ed., Oslo: Fagbok forlaget. Smith, Eivind (2015b): “‘. . . forblir Norges folkekirke’: Om Grunnlovens ordvalg og dets juridiske konsekvenser” [Remain the Peoples Church of Norway: On Constitutional Wording and It’s Legal Consequences], i Stephanie Dietrich, Hallgeir Elstad, Vidar L. Haanes and Beate Fagerli (eds.): Folkekirke nå. Oslo: Verbum, pp. 60–71. Smith, Eivind (2006): “Statskirke?” [State-Church?], in Njål Høstmælingen, Tore Lindholm, Ingvild Plesner (eds.): Stat, Kirke og Menneskerttigheter [State, Church & Human Rights], Oslo: Abstrakt, pp. 36–60. Tønnessen, Aud. V. (2006): “Medborgerskap og kirkeordning” [Citizenship and Church Structure], in Njål Høstmælingen, Tore Lindholm and Ingvild Plesner (eds.): Stat, Kirke og Menneskerettigheter [State, Church and Human Rights], Oslo: abstrakt forlag, pp. 128–139.

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Legal sources (after date of publication) NOU 2006:2: Staten og Den norske kirke. Utredning fra Stat-kirke-utvalget oppnevnt ved kongelig resolusjon av 14 Mars 2003 (Gjønnes-utvalget) Stat s Kirke. Om forholdet mellom staten og Den norske kirke. Hovedtrek i Gjønnes-utvalgets Rapport. 2006. Ot.prp. nr. 33 (2007–2008) Om lov om endringer i ekteskapsloven, barnelova, adopsjonsloven, bioteknologi-loven mv. (felles ekteskapslov for heterofile og homofile par) St. Meld. Nr. 17 (2007–2008) Staten og Den norske kirke. Grunnlovsforslag nr 10 (2007–2008). Dokument nr 12:10 (2007–2008) Kirkeforliket – konsekvenser av eventuelle endringer i Grunnlovens bestemmelser om statskirkeordningen i stortingsperioden 2009–2013 Høringsnotat 1. februar 2011 DET KONGELIGE FORNYINGS-, ADMINISTRASJONS- OG KIRKEDEPARTEMENT. Prop. 71 L (2011–2012) Endringer i kirkeloven m.m. Innst. 292 L (2011–2012) Innstilling til Stortinget fra kirke-, utdannings- og forskningskomiteen om endringer i kirkeloven m.m. Lovsamling for Den norske kirke. Lover, forskrifter, ordninger og bestemmelser. 9. reviderte utgave. Kirkerådet 2013. Betænkning 1544 Folkekirkens styre. Betænkning fra Udvalget om en mere sammenhængende og moderne styringsstruktur for folkekirken. Kirkeministeriet – April 2014. Politisk plattform. Sundvolden-plattformen. 16.10.2013. Statsministerens kontor. Regjeringen.no. Kulturdepartementet: Høringsnotat 2. september 2014: Staten og Den norske kirke – et tydelig skille. Høringsfrist 1. november 2014. Kulturdepartementet. Forslag til endringer i kirkeloven for behandling i Kirkemøtet. Staten og Den norske kirke – et tydelig skille. 3. mars 2015. Prop. 55L (2015–2016) Proposisjon til Stortinget (forslag til lovvedtak) Endringer i kirkeloven (omdanning av Den norske kirke til eget rettssubjekt m.m.) Innst. 256 L (2015–2016) Innstilling til Stortinget fra kirke-, utdannings- og forskningskomiteen om Endringer i kirkeloven (omdanning av Den norske kirke til eget rettssubjekt m.m.) Ny vigselsliturgi vedtatt. Den norske Kirke, kirken.no (hentet 23–02–2017). Prop. 9 L (2016–2017) Proposisjon til Stortinget (forslag til lovvedtak): Endringar i lov om trudomssamfunn og ymist anna og i lov om tilskott til livssynssamfunn (om statstilskott til Den norske kyrkja til pensjonspremie og eigenkapital) Prop 1S (2016–2017) Proposisjon til Stortinget. For busjettåret 2017.

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