The Judicialization of Religion

• Published date: 01 September 2018
• Date: 01 September 2018
• DOI: http://doi.org/10.1111/lasr.12350

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-

tion...”

1

The Constitution of Pakistanrequires that state law conform

to “the injunctions of Islam as laid down in the Holy Quran....”

2

The

Egyptian Constitution affirms that “Islam is the religion of the state

… and the principles of Islamic jurisprudence are the chief source

of legislation.”

3

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.

4

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: tmoustafa@sfu.ca

1

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.

2

Article 227. Article 2 also provides that “Islam shall be the state religion of

Pakistan.”

3

Article 2.

4

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.

685

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.”

5

This phenome-

non is not derivative of a more general “judicialization of poli-

tics.”

6

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

contested.

7

Yet, as Winnifred Sullivan insightfully notes, “modern

law wants an essentialized religion” (2005: 155).

8

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.

9

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

5

The term “judicialization of religion” has been used in a few prior studies, includ-

ing Sezgin and Ku

¨nkler (2014) and Fokas (2015).

6

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….”

7

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).

8

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).

9

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