The Judicialization of Religion

Published date01 September 2018
Date01 September 2018
The Judicialization of Religion
Tamir Moustafa
Throughout the second half of the twentieth century, one Muslim-majority
country after another adopted constitutional provisions meant to incorporate
Islam into the legal order. In what is now a familiar pattern, leaders sought
to harness the legitimating power of Islamic symbolism. But rather than
shore up state legitimacy, these provisions opened new avenues of contesta-
tion. In countries where judicial institutions are robust, religion of the state
clauses have helped to catalyze a “judicialization of religion,” wherein courts
were made to authorize an “official” religion and/or render judgment on the
appropriate place for religion in the political order. This study theorizesone
aspect of the judicialization of religion through the illustrative case study of
Malaysia. The study examines how shifting political context provided oppor-
tunities for activist lawyers to advance sweeping new interpretations of
Malaysia’s Religion of the Federation clause and, with it, a new vision for
state and society.
Throughout the second half of the twentieth century, one
Muslim-majority country after another adopted constitutional provi-
sions meant to incorporate Islam into the legalorder. The Malaysian
Constitution declares that “Islam is the religion of the Federa-
The Constitution of Pakistanrequires that state law conform
to “the injunctions of Islam as laid down in the Holy Quran....”
Egyptian Constitution affirms that “Islam is the religion of the state
… and the principles of Islamic jurisprudence are the chief source
of legislation.”
In all, over half of all Muslim-majority countries
have constitutions that declare Islam the religion of state and a con-
siderable number require that state law must be derived from, or
come into conformity with, Islamic jurisprudence.
Please direct all correspondence to Tamir Moustafa, School for International Stud-
ies, Simon Fraser University, 7200-515 West Hastings Street, Vancouver, British Colum-
bia, Canada V6B 5K3; e-mail:
The full clause reads, “Islam is the religion of the Federation; but other religions
may be practised in peace and harmony in any part of the Federation.” Many regard
Article 3 as merely symbolic, but Schedule 9 of the Malaysian Constitution also details
specific areas of law that fall under the purview of state-level religious councils and sha-
riah courts.
Article 227. Article 2 also provides that “Islam shall be the state religion of
Article 2.
For a summary of analogous constitutional provisions in other Muslim-majority
countries, see Moustafa (2018).
Law & Society Review, Volume 52, Number 3 (2018)
©2018 Law and Society Association. All rights reserved.
In what is now a familiar pattern, state leaders adopted these
provisions to harness the legitimating power of Islamic symbolism.
But far from consistently shoring up state legitimacy, these provi-
sions sometimes open new avenues of contestation. In states
where judicial institutions are robust, religion of the state clauses
helped to catalyze a “judicialization of religion.”
This phenome-
non is not derivative of a more general “judicialization of poli-
Rather, the judicialization of religion has its own unique
catalysts, dynamics, and political effects. I define the judicialization
of religion as a circumstance wherein courts are made to adjudi-
cate questions and controversies over religion, thereby authoriz-
ing an “official” religion and/or rendering judgment on the
appropriate place for religion in the legal and political order.
This is not to say that religion is a distinct, monolithic, or
stable object. Quite the opposite, religion is complex, fluid, and
Yet, as Winnifred Sullivan insightfully notes, “modern
law wants an essentialized religion” (2005: 155).
How courts
work to square this circle is fraught with tensions and contradic-
tions. On the one hand, courts are jurispathic. That is, by authoriz-
ing an official version of religion, they kill off the alternatives for
the purpose of state law (Cover 1983: 40). And yet judicialization
simultaneously stimulates jurisgenesis by way of the “radiating
effects” of courts.
In this infinite regress “the fecundity of the jur-
isgenerative principle … creates the problem to which the court
and the state are the solution” (Cover 1983: 40). The judicializa-
tion of religion therefore entails repeated cycles of legalization,
reification, contestation, and yet more jurisgenesis – a process that
goes well beyond the court of law to encompass broader sociolegal
The term “judicialization of religion” has been used in a few prior studies, includ-
ing Sezgin and Ku
¨nkler (2014) and Fokas (2015).
Tate (1995: 28) defines the judicialization of politics as “the process by which
courts and judges come to make or increasingly to dominate the making of public policies
that had previously been made…by other governmental agencies, especially legislatures
and executives….”
This is assuming we accept the category of “religion.” For more on religion as a
constructed category – one that is easily reified and essentialized by scholars and practi-
tioners alike – see Asad (2009), Masuzawa (2005), Nongbri (2013) and Smith (1963).
As Cover explains, “Creating legal meaning [of religion] requires not only the
movement of dedication and commitment, but also the objectification of that to which
one is committed” (1983: 45).
Cover defines “jurisgenesis” as “the creation of legal meaning…through an essen-
tially cultural medium” (Cover 1983: 11). Galanter coined the term “radiating effects” in
his critique of doctrine-centric legal scholarship and judicial impact studies, which, he
argues, assume that “the authoritative pronouncement of the highest courts penetrate
automatically – swiftly, costlessly, without distortion – to all corners of the legal world.”
Galanter explains that “such influence cannot be ascertained by attending only to the
messages propounded by the courts. It depends on the resources and capacities of their
various audiences and on the normative orderings indigenous to the various social loca-
tions where messages from the courts impinge” (1983: 188).
686 The Judicialization of Religion

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