This is part two of a two-part series. You can read part one here.
In the first part we discussed the structure of legitimacy under which constitutional democratic states operate and some historical criticisms of those structures. Now, we will analyze how that constitutional democratic structure relates to substantive rights in relation to religious freedom and interpretation of religious identities.
Considerations on the Default Political Legitimacy and Supremacy of Certain Regimes
In the previous section we explored a general trend in contemporary thinkers who — while recognizing the flaws in the existing democratic-constitutional-secular-liberal regime (the ideal in international politics) — locate these flaws in something external to the regime as a kind of consequence of history. Legal scholar Faizan Mustafa and historian Irfan Habib are two prominent examples from the legal and political theory fields who have strong commitments to secular democratic projects. They view the existing BJP government as simply having violated the basic social-contract which underlies constitutional rule (namely, adhering to the rule of law).
What is never asked is the larger question of legitimacy of these institutions. For example, if the U.S. government attempts to engage in unconstitutional activity either in the legislative or executive function, it is the role of the judiciary to prevent and oppose this. However, the judiciary can easily justify the given violation by reference to some kind of rational necessity that all three branches of government must necessarily uphold. This happened during the construction of the post-9/11 security state, in which all three branches of government did not meaningfully “check” the power of the other, even when prior constitutional certainties were being entirely rethought and revoked.
Say there was some grave violation that could not be justified for the common citizen by reference to some other rational policy goal — what recourse does this citizen have to hold any institutions accountable? How can they hold politicians accountable, for example, for the Iraq war and the resulting casualties? The philosophical and political assumption of a constitutional order of this kind, is that the system itself is somehow functionally and procedurally geared towards normatively “good” outcomes. This is empirically challenged by events such as the election of a populist leader who undermines the democratic and constitutional ethos of the state to begin with, while perfectly aligning with the actual procedural or functional process of the state. There is necessarily the need for these institutions to be staffed and directed by agents who are committed to a certain spirit or vision of how these institutions are meant to operate. The absence of these agents will allow for the instrumentalization of those same institutions towards ends they are not normatively meant to realize, but can no longer effectively prevent (the BJP overtaking Indian political, legal, and social architecture being a prime example).
Like all states, democracies have goals, and will use any means to accomplish them when necessary. In these circumstances, the checks and balances system is less effective or present. Professor Wael Hallaq has written convincingly on the need to re-understand the checks and balances approach to governance as perhaps entirely imaginary: unable to meaningfully curb state-power domestically or internationally.
Thinkers like Mustafa and Habib never consider these inherent limitations and ironies within the liberal-democratic-constitutional regime, instead it is assumed to be the default idea of “good governance.” Institutions which include within themselves an “out,” a kind of inherent exception-making capacity, will eventually collapse the rule of law if sufficient justification is present. And since sufficient justification is defined by these very same institutions, we see countries such as France and India claiming that simply wearing a hijab is sufficient a violation to disregard the considerations of freedom of religious practice.
The Essential Aspect Test and Islamic Identity
Moving back to the question of the Hijab ban in India, the foundational question that the court answered was the right to religious freedom under Article 25 at a threshold level. For our purposes, we must first define what this right refers to.
For example, how do we determine what is included within “religion” itself, such that we can then attach to it the various rights to freely choose and practice it? After the 1954 case of Shirur Mutt, the courts adopted the “Essential Religious Practice” test. The test looks at whether the given practice is actually an essential aspect of the religion, as determined by judicial interpretation (it is hard to even define what sources they will use to arrive at an answer since this has varied so much in the jurisprudential history on the matter).
For Mustafa, this is but a thinly veiled method for the constitutional regime to infringe upon religious practice and define essential aspects of a religion themselves, entirely separate from the legal, scriptural, and theological bases of a religion. The court extends their power far beyond their traditional scope and does so in an incredibly inconsistent fashion. In some cases, the courts themselves will seek to undertake some journey of exegetical interpretation, and in other cases will look not at any religious sources but just common practice in some irrelevant industry.
For example, in Fasi v. Superintendent of Police (1985), the court considered the question of whether maintaining a beard was an essential part of Islamic religious practice. Instead of consulting any sources or experts, they reasoned that they had seen various public Muslim figures not sporting beards and thereby it was deemed a non-essential religious practice. Clearly, as Mustafa points out, this is neither rigorous nor consistent. For Mustafa such an “essentiality” test must be entirely removed from the judicial capacity, and we must adopt an “affirmative” test like that in the United States, where once a practice is determined to be religious by the religious party themselves there is a strong presumption in its favor. An individual should be free to determine what is “essential” to his or her own religious practice as an act of agency.
However, is it not this aspect of autonomy and individual expression that also deeply misunderstands what the women are fighting for? The women are not fighting for their individual right as agents to wear the hijab as some show of personal religious interpretation. This sense of non-agency is actually important, in that the women are saying “this is not something I can opt out of in my religion but personally want to uphold.” The idea of defining religious practice as “something I define as an agent” is not merely a semantic difference – it has profound implications for how the state caters to these identities, which we will discuss below.
The state recognizes identities in relation to how the citizenry understands themselves, and then caters to the identities of their constituencies through recognizing them, offering them benefits, trying to gain their support, etc. For example, the state must first understand how and why I identify as a “man” or “woman” and what constitutes the demands of such an identity, before they can try and operationalize my identity for political support. It would be useful then to distinguish between different kinds of identities that the state must mediate, and where an “Islamic” or “Muslim” identity would then fit into the state’s function.
The state relates to the majority of identities in a kind of transactional fashion – the party or regime most likely to succeed is the one who can draw together the largest and strongest coalition of various identity groups by offering the groups various benefits and rights. On this basic threshold, democracy is good and so are modern states, as they are required to cater to minority identities since theoretically they must be democratically popular to take power, and then democratically accountable to maintain power.
However, this requires us then to start categorizing different kinds of identity groups since each of them must be catered to in different ways. I propose 4 distinct categories on how “identity” in an essential sense is categorized, and point at some underlying differences in how we categorize different identities, including “Muslim.”
The first kind of identity is an ontologically essential category. An ontologically essential identity is that which you are essentially, based on discrete ontological characteristics, which are usually unchanging. For example, man, woman, and dog are ontological facts about a thing determined from various discrete characteristics.
You may disagree that such characteristics exist, in which case you just do not believe in ontologically essential identities; however, the concept is still different than, say, me referring to someone as a doctor. A person being a doctor is much more contingent and transient than them being a man. The amount of effort required to stop them from being a doctor would simply be to prevent them from getting the requisite education or stripping them of their license even – however to stop them from being a man, a woman, or even a particular racial makeup would be infinitely more difficult.
There are some ontological differences between you and others for which we could construct some set of characteristics and then form identity groups. Even those who seek to deconstruct traditional gender and sex binaries must admit at some basic level there is a difference, for example, between even a trans-man and a trans-woman – one is a man and one is a woman (ironically this holds true whatever your opinion on trans identity). Which one is which is up to the interpretive method of the observer, but no one would say they are the same, and both would say these differences are some essential characteristic of that person, much different than defining themselves as a doctor.
The second kind of identity is an ethos identity or a worldview identity. I argue that we have two kinds of worldview identities — an agential identity and a non-agential identity.
An agential identity is any identity in which the subject or subjects who qualify or identify as the identity, themselves construct the substance of what it means to be that identity. For example, most people today adhere to a code of civic nationalism, where to be an American simply means to accept X beliefs and then go through a procedure of citizenship. What it means to be an “American” is self/defined by Americans themselves. As another example, we as Canadians can dislike gay marriage today and then legalize it tomorrow — all while being entirely consistent to being “Canadian,” so long as there is some consensus that this shift is now what it means to be Canadian.
The final category is non-agential identities. These are identities one chooses to adopt, but then cannot choose to actually substantively shape. This is entirely different from an agential- identity such as civic nationalism. With an agential-identity, for example, we can come together as a community of Americans and amend our constitution and amend what it means to be American. A non-agential ethical identity then, is one which cannot substantively define its own contents through self-referential agency. In fact, when we ask “who has the right to speak for Islam?,” Muslims agree foundationally that only God and His prophets and messengers can do so, and then the others upon whom God has delegated authority (normatively, the scholarly class).
The question then becomes one of delegated authority. We already assume we do not have the agency to define the content of such identities, some delegated authorities simply use interpretive methods to discover what is already their proper and natural content, either in the world or in the eyes of God.
The “Islamic identity” or a “Muslim identity” is a non-agential identity: you can choose to be a Muslim, but have much less agency in determining what a “Muslim” actually is. Every human theoretically has the agency either to be a Muslim or not be a Muslim, in a way they do not have the agency to be a certain race or not be that certain race. Yet, unlike identities like “American,” Muslims are not free to choose the substantive content of their identities. You cannot simply make up what it means to be a Muslim — it is already a fact of the Qur’an, Prophetic sunnah, etc.
Thereby we see a clear disparity between these different kinds of identities: ontologically essential identities, agential identities, and non-agential identities. Ontologically essential identities cannot be chosen at the threshold, but beyond that one can essentially have unlimited agency in defining what that identity means.
For example, what does it mean for example to be white or black or Asian or Hispanic (or some more specific group such as Anglo or Sub Saharan African)? Are there some particular rituals, practices, beliefs, you have to uphold or implement in order to maintain your identity? Will your identity somehow be negated by you not implementing some practices or implementing others? The point being that there is almost nothing that is required of you a priori, in and of itself, as a result from your ontologically essential identity, nor is there anything that can actually remove this identity from you or negate it. An agential identity is simply an identity you choose at the threshold, and then also have a strong capacity to define that identity as well.
Returning to the American example, one can choose to be American, even if it is difficult one can become one voluntarily. But once one chooses to be an American citizen, they can then also choose, in a general kind of consensus, what it means to be American. What it means to be American changes, and can continue to change so long as the social consensus of Americans think it should. However, if someone thinks being American is some timeless and essential category that never changes, they think it is a non-agential category. If they think you cannot choose to be an American, that it is just some select group of genetics that grants you access into this category, then they view it as an ontological category. This fluidity is present in many conceptions of identity; some people view gender as a kind of ontological identity, others view both gender and even biological sex as a kind of agential identity one simply identifies with and then can shape endlessly as they please. Regardless, the particular way in which one constructs their identity will have consequences for how that identity is then referred to in the political, legal, social, and even religious discourses of larger society.
Islam is, in my view, a non-agential category. You can choose to be Muslim or not to be. Nothing logically or ontologically prevents you from simply leaving the faith, or entering it. However, once you enter the agential threshold, you are completely powerless to actually shape what it means to be Muslim to a very large extent. You are obligated to pray five times a day, to fast, give charity, etc. None of these can change, and even what it means to be Muslim and how you should relate to your faith are largely pre-defined for you. Empirically, there is very little room for some social consensus of Muslims to come together and simply change what it means to be a Muslim — it is defined by God and not by the human adherents to the faith. This is clearly different than how most people construct national, social, and increasingly even gender and sexual identities.
Islam is a much different kind of identity than race, sex, or civic conceptions of nationality. This entirely changes then how the nation-state responds to Islam in legal, political, and philosophical encounters. Most postmodern conceptions of identity see it as a kind of free-floating liquid self that is constantly able to determine its own substance through agency — “I define what it means to be a man — what it means to be a woman,” etc.
For liberals, they maintain the ontological barrier while postmodernists and progressives collapse even this. They claim even the ontological category is restrictive and must be cast aside. The state must attempt to cater to all of these different kinds of identities while simultaneously restricting all these identities to make sense of its own position and limit alternative claims to power and conflicts between different identity groups. The state generally does this through a neutral conception of “rights,” which are uniformly given to all groups, regardless of distinctions between identity formation; all three kinds of identity groups have the exact same rights.
This causes an obvious problem, namely that groups who can determine the substance of their own identities will have a much easier time dealing with state legislation while maintaining stable identities compared to those who do not. To help illustrate this, imagine I am a Canadian who thinks that Canadians should have absolute freedom of speech, as a matter of substantively constructing my own identity. The state limiting free speech then has actually only negated my particular conception of identity, and all that is required for consistency between the state and my identity, is for the state to either reform my Canadian identity to not require free speech, or to simply say I am free to choose not to support free speech given that this is not essential to my identity. The latter is possible because for agential ethical identities, they have the agential capacity to reshape the meaning of their identities (assuming what it means to be Canadian is not an objective fact of the world). I could simply gather all the Canadians in the universe (perhaps some are in galaxies far away) and reshape the definition of what it means to be Canadian to minimize conflict with state legislation.
This is different with Islam. Firstly, Muslims themselves do not get to create the substantive basis of the identity. Even if I were to gather every Muslim in the world and try to abolish the daily prayers, it is an objective fact we cannot change. This presents a stark problem to the state, since they cannot pass laws that negate this identity without an unavoidable conflict. Partially, this is an epistemic problem — nation-states are consciously constructed as a kind of social framework, and so the idea of “Canadian” is not something that simply exists in nature. Islam consciously defines itself however as an ontological fact, literally something found in nature so to speak (nature here being analogous to divine revelation). What it means to be Muslim is an objectively true fact of the world, regardless of whether every Muslim or non Muslim agrees.
For the Canadian, the state can simply tell him “think differently” or “this is not essential to/won’t stop you from being Canadian” — but that is because the complete agency to define your identity also necessitates logically that nothing is actually essential to your identity. If an identity has complete agential capacity to define itself, then it cannot actually prevent the state from determining any single aspect of it as non-essential, since nothing actually is essential to that identity. If an identity is simply some vacuous category, an empty term the substance of which is filled in entirely by any possible adherent, the state has a kind of unfettered power to regulate and reshape that identity at will, all while normatively never actually clashing with that identity. The only way an identity could somehow maintain that it has essential aspects which cannot be changed, is if those aspects are located somehow outside the social process’ which define it (i.e. that it is some objective fact of the world that nobody is allowed to interfere with). Being Muslim is a prime example of such an identity.
Consider also that the state can simply engage in large social processes to make most people also think this right is not essential to, and won’t hinder, living out that identity. For example, how “women’s only spaces” are increasingly becoming part of a larger conversation about how we define women, and whether a space such as that is unduly oppressive to trans-women. It would not be somehow a negation of women’s identity logically for the state to say “being a woman does not require women’s only spaces”. For those who see women also as a kind of agential identity one simply chooses for themselves what a woman is, the state does not even have to require an ontological threshold – woman is simply what they define it as and conversely also whatever the state defines it as. While historically part of being a “woman” and having certain rights was defined by the access to women’s only spaces for biological females, now “woman” has expanded such that neither that right nor any biological threshold is even necessary to identify as a “woman.” This lack of essentiality simultaneously liberates the category/identity “woman” from certain limitations, while denying it many of the historical protections that defined its development and understanding.
Returning to Muslims, to say “it is not an essential aspect of Islam to wear the hijab” is wrong on multiple levels. The court, and state in general, are always looking for a way to remove any aspect of religion that would be seen as “essential” or non-negotiable. To do this, they construct the Muslim identity as having complete agency to determine the substance and essential aspects of the identity. However, if neither the state nor the individual have the right to determine the substance or essential parts of the faith, and it is determined by God, then the court must be much more careful in how it regulates such an identity. Some blanket law that prevents all groups from wearing hijab would be treated much differently, for example, by a group who wears it for fashion and those who wear it as a religious obligation.
Despite offering less agency to the subject to construct the essential aspects or substance of their identity, non-agential identities such as Islam offer more legal protection from state encroachment on the purely conceptual level, if we assume the role of the state is to cater as many identities as possible. The state will necessarily have to utilize blanket laws that protect its own interests, prevent identities who feel their interests are not represented from overthrowing the state, and manage conflicts between different identities as well. Thereby, the secular state specifically has a very strong and rational public policy motivation to encroach on religion as much as possible and to limit as much of it to agential determinations as possible. However, to do this it would have to violate many of its precepts on protecting certain identities, and essentially collapse the justification of the secular state altogether as effectively able to respect religious practice.
The Indian example is a good one because one can ask why the courts chose to say “hijab is not essential” as opposed to saying “we are simply going to say practicing Islam in this context is illegal.” Such a statement would have the same effect but would cause the crisis between religious identity and the state to emerge more forcefully — Muslims may feel the secular constitutional state cannot effectively respect religious identity or practice, and we must seek alternatives. To prevent such an immediate clash, the state deems Islamic identity as a kind of self-constructed agential identity, for which the state can actually never refuse essential practices because no practices can actually be deemed essential by any objective authority. Even if the ulema were to say “X is essential,” the court can then simply say “it is not essential to have the ulema’s opinions considered in Islam.” The liberal progressive deconstruction of religion from it’s transcendent roots and authorities, which seeks to upend it and reformulate it from the position of the sovereign individual, creates a kind of infinite regress crisis of authority in which without that objective transcendent base, there is no legitimate authority to answer these questions.
Paradoxically then, Mustafa’s suggestion that people should just be able to individually decide what their religion considers essential seems naïve and counter-productive. If the essentiality is not actually inherent to the religious identity, the state is well within their rights to say “if this is only according to you, and your personal determinations, we are not actually limiting any essential aspect of your identity”. In other words, even if the state accepts any personal individual’s determination of essentiality, they could simply ask “why not X? or Y?.” If there is nothing essential altogether, then any particular point of focus is as essential and as non-essential as any other.
Whereas for the Muslim, there is no way to logically maintain that the essentiality and substance of their identity is outside of their control (the orthodox position) and also simultaneously something they themselves should change and define (the postmodern and progressive conception increasingly adopted by modern states). Instead, the state is forced to confront an identity that cannot be reasonably integrated through casual blanket legislation, and that conceptually prevents encroachment in any kind of regime that attempts to respect religious identities. Again, this is due to the lack of agency in being able to define the substance of the identity, while those identities that have absolute agency are at the whims of the state in terms of how the state chooses to define them.
Here, I will only lay out these basic considerations on how increasingly we see Islam represented as a kind of agential identity. It will not actually protect Muslims from encroachment upon their rights in a legal sense, rather it will only accelerate the collapse of any practical capacity to practice Muslim rituals and obligations. If an act is “your choice” and not any essential part of your religion, then we can simply prohibit it while still maintaining that we are protecting religious freedoms and identity. It is if we assume the inability to make this choice, for example hijab an objective religious obligation, that the state is in the difficult position of either allowing religious practice to continue out of concern for its essential nature, or now banning an essential aspect of that religious practice and having to concern themselves with the difficulties associated with that, including possible civil retaliation.
This also makes clear the strong social-cultural pressure on Muslims to also understand their tradition increasingly in the agential sense, such that no matter how many rights are possibly taken away, one can retort that it should have no bearing on the Muslim, was never central to being Muslim, was only cultural, etc. This kind of rhetoric attempting to “liberate” Muslims from the supposed shackles of not being able to determine much of the substance of their own identity, the way that is possible for many other identities today, has actually provided a strong conceptual tool for understanding why religious identity is so important to Muslims. It has also provided a stronger conceptual consideration of the limitations of the modern state in its ability to encompass Muslims as part of its constituency. The Muslim women in India are already vehemently refusing, and for those who understand individual expression as the avenue by which religious freedom can be secured, these are thoughts to consider.
According to thinkers like Mustafa, granting all individuals a kind of sovereign right to interpret their religious traditions helps in protecting religion from state-overreach. However, as I argue above, it is the very shift from the interpretive and constructive burden of the substance of an identity from some transcendent source towards a human one, that then facilitates state overreach to begin with.
If we as Muslims increasingly define the tradition as groundless or baseless, we lose the epistemic basis upon which we can say the state does not have a right to adjudicate the substance of religion. We have forced the construction of the substance of religious identities into the sphere of individual choice, something that is within both the interpretive and regulatory right of the state, as opposed to religion which is just within the regulatory right, and still offers the possibility of some authentic and normative religious tradition.
As Muslims, we should be proud of our identity, even the difficulties it requires us to adhere to and subject ourselves to. It may, at first, seem like a strong strategy to simply justify absolute agency to religious freedom so everyone can practice as they wish.
However, when considering the expanded scope of encroachment that this would then offer the state as a legal tool, and subjected campaigns to re-socialize people into assuming their identity has no substantial basis outside of their own agential determinations, the above strategy is difficult to support. In fact, it is partially in adopting Mustafa’s view that whatever is essential to the religion is determined by the individual, that the state can offer the simple counter-argument that they can change it, as it does not negate their religion. Conversely, if an actual essential aspect of faith is asked to be changed, when it is non-agential, we see a legitimate clash between religious identity and national interests, in a way that is more conducive to reimagining the future of the nation-state and what kind of role religious identities will play in shaping the political foundations of an alternative formulation.
When we see an attempt to construct Islam as self-determining identity, we should categorically reject such statements, and think about the differences between an Islamic identity and a sex identity, a racial identity, a national identity, etc. These differences then structure the relationship of the state to us as an identity group and motivate socialization processes that seek to piecemeal dismantle the foundational cores of Islamic identity. It is our job to continuously make clear the role of Islamic identity construction as simply “discovering” the given divine truths and laws, which we are trying to approximate to the best of our abilities, not something we are constructing ourselves based on a desire for self-expression. This will strengthen the defense against state-overreach into the interpretive realm of religion, even where regulatory power continues to exist, and allow us to continue to properly demand the right to our religious practices as something we cannot compromise under any circumstances.
 Hallaq, Wael. The Impossible State: Islam, Politics, and Modernity’s Moral Predicament. Reprint, Columbia University Press, 2014
Used throughout – Faizan Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, 2017 BYU L. Rev. 915 (2018). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2017/iss4/9
About the Author: Faizan Malik is a student studying political science in Toronto. His interests include Islam, critical theory, and liberalism.
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