How do we foster more plural, inclusive societies? In this blog post, Dr Jaclyn Neo of the National University of Singapore’s Faculty of Law writes how the “top-down” regulation of religion and implementation of laws could advance the freedoms of religious minorities and promote covenantal pluralism. This post is based on Neo’s recent journal article.
How diverse groups should live together peacefully is a perennial question that has occupied scholarly discussion, policy deliberations, and social commentary. Studies on diverse and often divided societies dovetail with the search for optimal institutional design to manage different manners of plurality. This discourse is often framed by contending ideas of universalism vs. particularism, individual rights vs. community/social interests, and liberalism vs. communitarianism or even authoritarianism.
There is however often a dimension of enquiry that tends to be under-valued, and this is the need for and efficacy of proportionate and principled regulation of religion to ensure peaceful coexistence within religiously plural societies. In a recent article in The Review of Faith & International Affairs, I engaged the philosophy of covenantal pluralism from the perspective of the need to better understand and evaluate the “top-down” dimensions of a healthy multi-faith society/polity, which include not only legal protections for free exercise of religion but also fair and balanced legal regulation of religion. I argue that contrary to claims influenced by religious economies scholarship, mere deregulation of religion does not necessarily result in a sustainable environment of robust pluralism everywhere. In particular, a ‘free market’ theory is risky in societies marked by deep religious diversity (and not just minor denominational divides), and where there is a strong majority. Under unregulated conditions, robust pluralism is unlikely to flourish if there is no strong set of civic virtues to support itself. Ernst-Wolfgang Böckenförde’s (sometimes controversial) insight bears emphasizing here: the liberal state, committed to religious and ideological neutrality, cannot guarantee its own prerequisites and ensure social solidarity.
Instead, there is a need to squarely face the idea that states do regulate religion, and that what is needed is a way to evaluate and formulate prudent legal regulation. The concept of covenantal pluralism has great potential to lead to deeper and more productive conversation on this perennial question of managing diversity. Its approach is holistic, moving beyond mere “tolerance” to embracing “mutually respectful engagement with people of other faiths or no faith, a commitment to seeking joint solutions to shared problems, the absence of coercion, unfettered access to spiritual information, and the integration not assimilation of minorities.” This is a practically-oriented view that is rooted in reality. It recognizes the interaction between state and society as multidimensional, interactive, and mutually constitutive.
Taking top-down legal and policy parameters seriously is crucial because of a dominant thinking within religious freedom advocacy and scholarship that tends to oppose any governmental regulation. Grim and Finke’s argument that “government restriction of religious freedom holds a powerful and robust relationship with violent religious persecution” is valuable but it bears interrogating, beyond the general claims, exactly what is the correlation between regulation and social relations, and what are the complexities and ambiguities of the causal interrelationships. Laws that have an impact on religion are not all made the same. There is a question of who is being protected, and who is being de facto advantaged. The lack of regulation can favor the powerful and the dominant, as they are most able to defend themselves against hostile attacks in a free market of ideas. For instance, where there are no laws regulating hate speech, religious groups, particularly non-dominant minority groups, could find their religious freedom greatly circumscribed in practice and their psychological and emotional well-being harmed because of unregulated and unsanctioned hate speech against them.
In addition, there may be a gap between laws on the books and laws in action. This means that even if the laws of the state may seem highly restrictive of religious freedom, in practice these laws may not be enforced, whether intentionally or unintentionally. The law’s impact may be mostly expressive. Even if this might be criticized as implicitly coercive, the fact remains that the direct impact of the law is limited. Lastly, it may well be that certain laws that proscribe religious behavior, particularly those on public order grounds or that regulate some forms of hate speech, may well be crucial in guarding against social hostilities. Such laws may be supported by soft norms which operate in the background to regulate behavior.
Constitutional arrangements also matter. For instance, in confessional states, religion is regulated as part of the governmental framework, whether through the imposition of conditions as a prerequisite to the allocation of funding, or through direct state provision of religious services such as the building of religious institutions and the administration of religious bureaucracies. Even in a strictly separationist state where there is an adamant insistence on the separation of state and religion, the state’s regulatory powers are often exercised to control or to shape religious activity, including through its powers of registration and taxation. Indeed, the regulation of religion is not only a reality but often considered a necessity in many states.
Once we get out of assuming the virtue of deregulation of religion, everywhere, we can then turn to asking how to establish strong structures and norms in ensuring robust pluralism, which can support bottom-up initiatives as advocated under covenantal pluralism. Laws are needed to establish preconditions and set the minimum standards to enable each person to exercise freedom in a manner consistent with the freedom of others. Laws could ensure that in exercising our freedoms, we do not harm others and deny others the ability the exercise the same freedoms we demand for ourselves. Indeed, the form and substance of the top-down approach is significant in shaping the social context of inter-group relations. Where such laws are not available, the social norms of dominant groups could monopolize the sociopolitical space and result in one-sided laws.
Indeed, in reality, there is no such thing as an unregulated space. Just because laws do not directly identify religion as its object of regulation, this does not mean there is no legal “regulation” of religion. Laws on registration of societies, on the granting of charitable status, on land zoning, on taxation, on noise pollution, and even on traffic control are not laws regulating religion per se, but all have an impact on how adherents practice religion, individually and collectively.There are times when neutrally framed laws could have disproportionately adverse impact on certain religions and certain religious practices.
The creation and maintenance of robust pluralism for all is too precious and too precarious to be left to the good will, good faith, and good sense of individuals and groups, or to chance. Nor should it be up to the whims of governments. The key question should not be whether the state regulates religion – they do – but how to ensure that such regulations are in pursuance of legitimate public interests and are proportionate. Once we accept that some regulation of pluralism could be appropriate, we can then meaningfully examine what controlling principles could advance the cause of freedom for all, especially for religious minorities. A balance is necessary; even while acknowledging that there is no single one-size-fits-all solution, there is also a need to eschew extreme particularism, which could lead to claims of exceptionalism that serve to shield abusive practices from criticism. What we need is a normatively pluralist idea of regulation of religion. Covenantal pluralism, with its aim of expanding the conversation on pluralism and its realization, has the potential to move us in this right direction.
Note: This piece gives the views of the author, and not the position of the LSE Religion and Global Society blog, nor of the London School of Economics.