Friday, November 19, 2021

Shameless Self-Promotion--Talking Law and Religion With Ravi Prakash and the Folks at MNT News Network (India) Broadcast Sunday 21 November 2021


The folks at the MNT News Network (India) were kind enough to invite me to spend some time speaking with Ravi Prakash (Advocate on Record at Supreme Court of India) on a broad ranging set of topics related to religious liberties and their connection with political and economic governance.Great thanks as well to Abhishek Chauhan and Ashish Jiwane for making this possible.

The interview will be aired on the MNT Network. The conversation ranged across a broad range of topics.  These included the construction of the idea of religion by or outside of the state and lawmaking or recognition authority; the tensions between neutrality and  religious accommodation, religion and nationalism; democratic principles and capture by instrumentalities of institutionalized orthodox religions; the tensions between individual religious liberty including the liberty to embrace and leave a faith community and collective religious authority within a state law system; religions and perceptions of decay in liberal constitutionalism, religions and the shaping of economic policies and practices; global production and the normative overlay of religious systems; the universalization of standards for regulation religious and economic systems especially as they may overlap.

I written synopsis of the interview follows below--but the conversation was considerably richer. Please watch this Live Program on any of the links that follow (YouTube; Facebook; Twitter). The interview goes live 8.30 PM Delhi time (10.00 AM New York time).





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MNT English Weekly: Larry Catá Backer and Ravi





1.     How do we construct the idea of ‘religion’ to enhance democratic principles and representations?

a. Who has the power to construct this idea of religion; the state? Orthodox religious institutions? The individual?

b. And to what end? Religion, like the family, may be constructed externally--by societal institutions that find the concept and its practices useful--or it may be self-constructed by a community of believers.

c. The objective of enhancing democratic principles and of maintaining social stability and peace may not always align in the development of a meaning for religion.

d. and there are greater complications when the state seeks to intervene in an effort to define religion and then to manage levers of privilege among them

2.     Whether ‘religion’ and secular principles which is essentially based on ‘equal opportunity for all’ are at loggerheads at each other in present context?

A lawyer’s answer: it depends. Which principles?  If we are talking about the principle of full participation in politics for individuals then the firm principles of religion may produce challenges that make debate and compromise difficult.  If one speaks to societal participation the issues becomes harder where religious principles may seek to favor members in the societal and economic spheres.  Discrimination in a liberal democracy grounded in religion becomes the great challenge. In the other hand religions can aid in the opening of society in terms of anti-discrimination as well.

3.     It is dangerous proposition to link ‘religion’ with the idea of ‘nationalism’ – how do you see the modern rise of extremist groups/ intolerant religious groups capturing the political power?

There are two problems.  The first is the use of religion as a proxy for the identification of social realities and efforts at affirmative action or protection.  In that case--for example the Malaysian constitution’s definition of a Malay that combines birth, ethnicity and religion--the use of religion as a social marker can serve a purpose but still be problematic in the long run for a society that seeks to minimize the social effects of religious difference.

The second goes to the rise of groups, organized around or through religion, that seek to challenge the established order,.  Theirs is not merely an aggressive effort to privilege and impose their religion, and to suppress others--by force if necessary.  Theirs is also fundamentally to overturn any semblance of liberal democracy because for example they believe it corrupts religion, or permits an intolerable accommodation of abomination or apostasy or heresy. 

In a sense they are revolutionary powers that may work within the system but their core values would reject the system that permits their participation.  They are in this sense like Communist parties in liberal democratic states. And the issue then becomes the extent to which a state may tolerate this, and more difficult, how the state might diffuse its power.

4.     Whether such capture of political power is inherently against the principles of liberal constitutional democracy?

To the extent that capture changes the complexion of full participation in the political and social life of the state, and to the extent that it makes moving between religions more difficult, or adherence to a religion effectively mandatory, such capture  that is inconsistent with core liberal democratic principles.  But that a system like that can be created and maintained is evidenced all around us.

Capture can be understood in two dimensions.  The first touches on institution to institutional capture--the deep embedding and influence of the institutional leadership of mostly large orthodox religious establishments within the state apparatus. At its extreme, of course one moves closer to the ideal of theocratic constitutionalism.  That in turn will marginalize other religious communities.  In ¡states where multiple religious establishments are about equal in size, wealth and number, the possibility of competition or conflict over control or direction of the state apparatus can become quite difficult. The second touches on the application of democratic principles based on majority rule to popular politics. Where  individuals can be organized into religiously based parties, and to participate in national politics where political and religious parties align, then the principles of individual democratic participation, and the realities of effective collective (factional) political participation may not necessarily collide, bit they become polycentric in the sense that political organization and religious collective authority may be blended in ways that may change the equality of individuals within a democratic republic where political power is factional and collective.  

In both cases the complexion of liberal democracy changes.  Either mass politics becomes a means of expressing collective factional power, or such factional power is exercised directly.  In both cases the fundamental tension between individual participation and a liberal democratic principle of political action through association  may collide with principles of neutrality  at least with respect to the political prerogatives of religions establishments.

5.     A lot of work and literature exists on the aspects of ‘freedom’, ‘choice’ and ‘religion’- which essentially focused on ‘Religion & individual liberty’. Do you think, it also enhances social democracy as a collective principle specially in a set up where society is divided into grades in term of caste and class?

The protection of religions as institutions may be as important as the protection of the liberty of individuals to shop in the marketplaces of religious choice. But protection itself becomes a difficult issue.  PASSIVE PROTECTION merely ensures that institutions are not burdened because of their nature and operations. These would be based on anti-discrimination programs. ACTIVE PROTECTION would extend protection into affirmative action programs. In both cases, though, the real issue is ENFORCEMENT.  How does one translate these institutional protections into a practical reality.  AND THE TEST is not whether it works for the big religious institutions, but whether it extends real protection for the marginal sects, for the religious institutions considered heretical by the great orthodox religious institutions and especially froo protection for the establishment of new and breakaway sects. In socially conservative and traditional societies this becomes difficult. It is hard enough in secular societies.

6.     There has been instances of decay in ‘constitutional principles’ and leading scholars across the globe are collectively discussing about ‘How to save constitutional democracy’?  What is your opinion as whether the principles of religious freedom call for a new interpretation in the present day scenario?

Saving constitutional democracy or saving a specific understanding of liberal democracy enshrined in a constitutional document? More importantly perhaps saving democracy from whom--from the people it serves (that is protecting the people against their baser instincts or their temporary passions) or protecting the normative temple of ideals built into a document that may no longer reflect the customs, expectations, and traditions of the people.  These become very difficult questions.  In a sense the question actually points to the failure of the leadership class, those with the responsibility of maintaining the vitality of societal and political principles to instill them well among the nation’s people from generation to generation.  And yet this class rarely is held to account for their failures. 

The result is the need either for re-education (a long term project) or accommodation to suit the times, temper and power configurations in the service of stability and the protection of the core values of constitutional democracy.  To that end it is always useful to revisit principles of religious freedom within a constitutional polity.  And here there ought to be great sensitivity between freedom for individuals (against the state and the religious orthodoxy) and the power and privileges of the institutions of religion. See Marquette Article 1998.

7.     Whether Religion shapes the economic aspects of democratic governance or not? If yes, can we have a new set of religious principles which democratize the economic structure in an unequal society?

Religion seeps into all aspects of life.  Here an stringer anti-discrimination principle would be useful  But again the significant question revolves around the mechanisms of enforcement.  By the state? By individuals? And one cannot forget the power of retaliation at the societal level whatever the formal structures of state power and its use may be.

8.     How do you see the public- private interface of economic corporations shaping freedom of ‘religion’ across the globe?

This is a difficult one. The easy answer is that enterprises must conform to local conditions and sensibilities.  But that gets harder where such conformity then violates core values of the company’s home state or of the religious sensibilities of the foreigners. It gets even more difficult where the home state government insists that the law of the company’s home must be appliqued in certain respects to its foreign operations.  No one had a problem with this when the US started to apply this principle against public corruption abroad.  But where it is extended to other areas, especially those tinged with religious significance, the problems become more difficult.

9.     Whether there should be universalization of standards and claims against the global giants like Facebook, Alphabet, Tesla, Microsoft, Amazon etc.?

Everyone loves the idea of universal standards.  No one has yet, except in very very limited circumstances, been successful in producing such global consensus. Certainly as a matter of law rather than societal expectations the take is enormous and unlikely to be successful. And it becomes more difficult where the regulated organ is meant to serve as the substitute or new open square for political, social, and economic and religious discussion. Here it is impossible to mediate except at the margins and even there it will produce divided opinion.

10.  Whether the traditional measures and approach of ‘Labour Welfare’, ‘Principles of Economic Security’ needs to be relooked in backdrop of pandemic and emerging scenarios thereto? 

Yes, of course. But not necessarily because of the transformation of religious sensibilities or the assertion of religious collective power but despite that. A society does not endure very long where its people go hungry and where a sense of movement toward popular aspirations are blocked.  A society like that can endure certainly, but not as a liberal democratic order.  And there is the rub for religion, for people, and the popular welfare--prosperity and stability require compromise, but compromise may be quite difficult for institutions whose orthodox positions may not suffer debate.  Yet where such institutions are only a part and not the whole of a democratic order then at least with respect to issues of prosperity, social stability, and popular welfare, religious institutions will have to find a way of detaching those from their theology enough to make active and fair participation in the polity possible.

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