In this guest post, cross-posted with permission from Religion Going Public, Post-Doctoral Research Fellow at the University of Oslo Faculty of Theology, explains that “Civil servants determine the shape and scope of religion in every section of society. Here’s how they get away with it.”
The literature and news cycles on religious freedom tend to be dominated by big, principally important cases, where the foundational principles of liberal democracy are in the balance. Seeking out news items or scholarly analysis of religious freedom, a handful of usual suspects tend to pop up, from the brutal persecution of religious minorities at the hands of so-called Islamic State or the present crisis surrounding the Rohingya minority in Myanmar, and to the infamous Hosanna-Tabor decision of the United States Supreme Court in 2012 and the controversial S.A.S. decision of the European Court of Human Rights (ECtHR) in 2014. Throughout these cases, readers and analysts alike easily get the impression that the right to religious freedom is under constant threat, with our highest-ranking politicians, judges and commanders-in-chief as our only hope of redemption.
In recent years, the overemphasis on headline-gripping cases and its potential to distort and misrepresent the way people actually live out their lives has rightly been countered by a wave of critical scholarship. Large-scale research projects like ReligioWest at the European University Institute, the Politics of Religious Freedom project at UC Berkeley, and the Grassrootsmobilise project at the Greek ELIAMEP foundation have pointed to the harmful potential and conceptual challenges arising from a fundamental disconnect between legal and “lived” forms of religion. Like Eleanor Roosevelt’s famous dictum about human rights, this wave of criticism has served to highlight the crucial importance of the “small places, close to home – so close and so small that they cannot be seen on any maps of the world”.
The machine in the middle
While criticism of top-down approaches to religious freedom that only address the big issues is important and pertinent, it has largely ignored the machinery where the majority of decisions on religious adherence and allegiance by legal means are made: Working at the steady, sometimes infuriatingly slow pace of an old engine, the mills of administrative law and bureaucratic practice grind out decisions on the boundaries of religious beliefs, practices, organizations, buildings, garments and dietary products every day, and at a massive scale. Far removed from the spotlight of the news cycle, critical scholarship or political discourse, civil servants from a broad and growing array of modern nation-states determine the proper nature and scope of religion, oftentimes as a small, even happenstance part of their jobs.
In the Norwegian legal system alone, more than 30 separate legal acts overseen by a variety of different ministries, directorates and county governors regulate and determine “religion”, each with its own paper trail of circulars, advisory notes, opinions and former decisions for the eager bureaucrat to dive into, should the occasion arise. Added to this is the instances where bureaucrats are faced with religious organizations, doctrines or practices that somehow challenge their templates, moulds and pre-written standard decisions.
The decisions of civil servants determine the shape and scope of religion in virtually every section of society. From the zoning of public and private land for the construction of temples, mosques, churches or community centres, to the criteria for religious advertisement, hate speech, broadcasts or publications, and to the regulations governing religious observance in public institutions, from hospitals and prisons to schools and public transit. Their densely written decisions are rarely publicized, with access usually restricted to the concerned parties, who are frequently unfamiliar with the technical jargon and reasoning underpinning the final verdict. Obviously, this is not a challenge that is unique to religion, but one that is typical of administrative law: As Bruno Latour has observed regarding the intricacies of French administrative law, its existence and working methods is almost totally unknown by the French people themselves.
A legal vernacular for religion
However, as legislators and policymakers have become increasingly concerned with the role of religion in society, a large and growing body of laws, policies and regulations on religion has been adopted in order to deal with what is perceived to be the “comeback” of religion to the public sphere over the course of the last decades. This ongoing “juridification” of religion can be detected across different layers of legal regulation, from international and constitutional law to statutory, administrative and informal regulatory systems. While the proliferation of norms and the flagship decisions of courts at the international level tend to grab the headlines, the vast majority of decisions, verdicts and opinions produced as an effect of the growing number of norms take place at the administrative level.
In this process, which resembles the “vernacularization” of international law among non-governmental organizations working to promote human rights, civil servants effectively translate the dicta of international, constitutional and statutory legal rules to fit in with their own daily work. As a result, legal regulations of religion are injected into the rationale and legal materials cited to support administrative decisions, which tend to draw on a broad and complicated set of circulars, practice summaries, guidance notes and supplementary legal materials. While these documents will usually derive, at least in theory, from authoritative legal texts, the majority of support materials will deal with the former decisions of civil servants and views from experts, concerned ministries and other public entities, who have their own ways of interpreting the actual scope of legislation in their day-to-day work.
Tips of the iceberg
Every once in a while, administrative decisions or regulations percolate up to gain the attention of politicians, rights activists, the news media and the courts, thus putting the spotlight on potential disruptions between the original intent of legislators and the experiences of people “on the ground”, whose diverse and complicated lives and challenges cannot possibly be adequately captured by the letter of the law. These cases have been amply covered in the recent, critical literature on religious freedom.
One example is the Florida court overseeing the Warner case examined in minute detail in Winnifred F. Sullivan’s book The Impossibility of Religious Freedom (2005), another is the cottage industry of scholarship investigating the origins and ramifications of the apostasy case against the Malayan convert Lina Joy, a third is the multiple decisions of the ECtHR on the legitimacy of various bans on religious head coverings, which by now has almost become its very own sub-discipline of scholarly inquiry. Throughout these cases, and the scholarly literature that surrounds them, legislators, lawyers, judges and expert witnesses are frequently found to misconstrue or distort the lived religious experiences of the defendants, more often than not putting religious minorities at a disadvantage.
Important as these observations are, they provide little in terms of explanation and analysis of the machinery in between – the intermediaries who have been set with the task of applying and giving substance to the airy promises of international treaties and domestic legal bills. The resulting landscape is one of Manichean simplicity, where legal regulations of religion will inevitably do interpretative violence to the inherent complexity of “lived religion”, or inscribe or overemphasize a religious component where the situation on the ground is inherently more complex.
However, because of the lack of attention to what happens at the critical junctures where law becomes policy, and policies become decisions that concretely affect peoples’ daily lives, we simply do not know even the basic mechanisms (nor if there are any) whereby civil servants tend to determine religion. We know even less about how people tend to perceive the decisions made by bureaucrats in this area, nor do we know how well-informed they may be about their available legal remedies, or even their basic knowledge of the scope of administrative decisions that can have crucial influence on their daily lives.
The lack of knowledge about how civil servants translate laws on religion into regulations and policy documents, is, to some extent, a given. Even broad-based, multiple-researcher projects lasting several years could not possibly pretend to identify and systematize the bureaucratic apparatus of modern nation states and their dealings with religion comprehensively. At best, singular case studies like Franklin Presler’s classic study Religions under Bureaucracy (1988) and Maria Birnbaum’s recent Becoming recognizable. Postcolonial independence and the reification of religion (2014) can provide snapshots and glimpses of the ways in which bureaucrats approach and comprehend religion in specific instances. In my own work, I have sought out similar snapshots of bureaucratic attempts to pin down the essences of “religion”, ranging from the registration of religious organizations, via the technical review of new legislation on religion and the zoning of places of worship, and to the determination of refugee status based on religion-related persecution.
Across these instances, I have come to realize the deep truth in Edward C. Page’s observation that “[t]he hardest thing about offering an account of the world of everyday policymaking, where many choices and issues revolve around obscure substantive and procedural points that tend to interest few, is to avoid boring people and becoming bored oneself.” As civil servants pile on copious items of information, assessments, practice notes, decrees and semi-legal circulars to prop up their decisions with an air of authority, the citizen, scholar and journalist can easily be overwhelmed and disillusioned by the unshapely mass of information to be sorted and examined.
But herein lies the very crux of the issue: exactly because bureaucracy is massive, unwieldy and boring, it usually escapes the critical gaze of scholarship developed for more high-profile and immediately comprehensible cases involving controversy and conflict. More worrying still, the technical level of any analysis pretending to cover the entirety of the bureaucratic paper trail in any given instance quickly risks becoming too complex to fully comprehend for anyone beyond a very small and exclusive circle of competent readers – among whom bureaucrats themselves will constitute the clear majority.
Much in the same way as climate change, the challenges, scope and future development of the modern bureaucratic state are too uncertain and complicated for the majority of the population to pay any significant attention to the matter – and, as a result, the machine grinds on. To assess how the nuts and bolts of this machine fit together, what raw materials it depends upon and how their end products affect their surroundings, critical scholars need to pay considerably much more attention to the fine print and the forms, regulations and directives that are the hallmarks of modern bureaucracies.
Cite this article as:, “Being Boring – How Bureaucrats Determine Religious Freedom” in Law & Religion UK, 20 October 2017, https://www.lawandreligionuk.com/2017/10/20/being-boring-how-bureaucrats-determine-religious-freedom/
I think this would have been a more easily understandable essay if the author had given us a concrete example of how civil servants ‘get away with’ determine the shape and scope of religion in society.
And the sentence:
‘throughout these cases, and the scholarly literature that surrounds them, legislators, lawyers, judges and expert witnesses are frequently found to misconstrue or distort the lived religious experiences of the defendants, more often than not putting religious minorities at a disadvantage’
is unsupportable without any supporting evidence.
Thank you for your comment, and sorry for the delay in responding to it, I only became aware of it after Frank Cranmer notified me of it. Certainly, you are right that the essay as a whole – and certainly sweeping statements like the one you comment specifically – is unsupportable without evidence .
Regarding your first, more general comment – how civil servants ‘get away with’ determine the shape and scope of religion in society’ – my specific examples would be from my own work – how civil servants determine refugee status, determine zoning regulations and approach the question of registering religious organizations. Were I to include examples of this, it would not only go beyond the boundaries of the blog format, but likely also exemplify the snoozing potential of bureaucratic practice, as it would be pretty boring stuff (thus including it would likely strengthen my initial point, though also prevent readability). That being said, please have a look at my other writings in this area to get more examples: https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2628873 (refugee issues are in the pipeline, as are zoning issues).
To your second point, it was intended to summarize some of the overarching finds in the critical literature on law and religion, and as with the other point I cannot summarize it all here, but I would particularly urge you to read Winni Sullivan’s book “The Impossibility of Religious Freedom” and her analysis of a court case concerning grave memorials in Florida, where the heterogeneous religious practices of Catholics were found to be insufficiently backed up by formal religious authority to gain legal protection.
If you want an example of judges misconstruing the lived religious experience of an applicant, Hämäläinen v Finland  ECHR 787 is not a bad illustration. The GC just didn’t grasp the idea that two devout Lutherans believed in the indissolubility of their marriage. We noted it here.
But I’m sure Helge can defend himself.
An interesting article on the powers and limits of civil servants to interpret what is ‘best’ for public discourse – as a game of consequences. It not what is (or was) intended by our betters in the UK civil service but they do undermine the beliefs of many citizens by simply (repeating the statutory EU mandate) that is all religions are considered ‘equal’ (if you are of the secular sort then all religions are equally bad).
There is truth in that, IF one cannot discriminate between ‘any’ religious experience then ‘all’ religious objectives are suspect. Any that are imbued with good intentions and having shared responsibility is part of our very intimate existence is deleted. Taken away by largely anonymous individuals and quasi-governmental bodies that leave us with a sad loss of the human spiritual side of life; that has given us meaningful ‘charity’ – as in having public benefit, traditional family values – (you cannot run a state on anarchist functions) and a clear roadmap. The end result of all civil servants meddling will be Karl Marx with the ‘no-appeal’ process installed – that will be standard EU group process via ECHR. We are where we are and I am sure that most senior (UK) civil servants are quite comfortable with the status-quo of EU influence. No surprise where legislation is going in the EU confines either. Here in the UK we are much more flexible and interpretative by the courts (one hopes). Our existence may depend on it, our spiritual lives even.
I’m somewhere between Helge Årsheim and Philip Searle on this.
On the one hand, I don’t see how, in a liberal democratic state that respects human rights, one can operate on any other basis than that “all religions are considered ‘equal’”, unless, of course, a religion requires its adherents to do things that are otherwise illegal under the criminal law, like human sacrifice. (And, incidentally, it’s not an EU mandate: it’s Article 9 of the European Convention on Human Rights, which we were signed up to long before the EU.) Equally, I can perfectly well see how that might mean that “religion and belief” might become such a fuzzy concept that it proves impossible to be consistent about what the term covers and what it does not. Some of the decisions by the Charity Commission for England and Wales about what organisations are “religious” for the purposes of charity law seem to demonstrate that lack of consistency. And then there was the Court of Appeal judgment in Segerdal in 1970 which was just intellectually sloppy even by the standards of the time.
On the other hand, perhaps Helge is rather too hard on civil servants. I don’t dissent from the view that, to the citizen, bureaucracy can be seen as “massive, unwieldy and boring”. But part of the reason is that, in a democratic state, civil servants are obliged – entirely correctly, in my view – to operate according to a set of objective rules objectively applied. And if they don’t apply them objectively, the Administrative Court will be very quick to cry “foul”.
Which is surely as it should be: the last thing we want or need is civil servants acting out of caprice. We’ve got politicians to do that…
Thank you for your comments. Just to be clear: I do not really intend to be hard on civil servants (I served as one for a brief while and recognize some of the challenges they are faced with) – I very much see both the legitimacy and need for regulation.
The pejorative adjectives I attached to bureaucratic practice were primarily intended to challenge my peers in the field of law and religion – and obviously also beyond – to see beyond both the more “fun” work of examining high profile case law on religion and the potential distortions of “lived religion” engendered by the legal procedure, and to also approach the intermediaries and go-betweens that can be found the large, unwieldy middle section between high courts and people’s lives,
Fair enough: I plead guilty to being much better at case-law than I am at looking at the wider social context!
I remain of the view that it is a pity the author failed to give any examples of how ‘the machinery in-between’ affects a religious life. Without such the last paragraph is impossible to understand.
Not entirely certain which paragraph you are referring to, but here are some example of how the machinery in between affects a religious life (these examples are from Norway, but most can be found also in other jurisdictions):
– every day, case officers in the immigration service determine whether claims of religious persecution are genuine claims
– civil servants at county governor’s offices regularly determine the status of organizations seeking state approval and funding, which also generates a
number of auxiliary legal benefits, determining whether their religiosity aligns with the requirements of the act on faith communities
– under the execution of sentences act, prison wardens determine the extent to which inmates are allowed to exercise and manifest their religious convictions
– the conservation authority regularly reviews whether alterations to churches made by local congregations to make the buildings more practical are in violation of the conservation status of culturally significant churches
– case officers in municipalities regularly review applications for the zoning of land for religious buildings, determining which building features can be allowed or not
Thank you. Very helpful.
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