Law and religion, in comparison: The co-making of two epistemic fields
academic workshop in preparation for a journal special issue
3~5 September 2024, Chiba University, Yamanaka Seminar House
The act of comparing has been instrumental to the scholarly study of both religion and law. While the concept of “religion” is an abstraction that relies entirely on the assumption that certain ideas and practices are similar across geographical and historical contexts, the comparison of different legal systems within one society – legal pluralism – or between two or more national contexts – comparative law – have consisted of the bread and butter of legal expertise across the disciplines. Interestingly, criticism against the ahistorical and apolitical usages that the comparative foundations of the studies of “religion” and “law” rely upon arose almost simultaneously in the late 1990s[1]. Today, nearly thirty years later, the political embeddedness of these two concepts is taken for granted and has led to a plethora of context-sensitive research on the “making of religion” and the “making of law”. Notably, this shift of scholarly perspective has also led to an increased interest in the comparative study of the intersections of law and religion, especially in their mutual influence under national and international law and their historical entanglement in terms of language and logic[2].
This workshop (and journal special issue) builds on the above trends with a particular focus on 1) the ways in which, in specific contexts, religion and law come into being, are fabricated, conceived, interpreted or updated in conjunction with and under the influence of each other; and 2) how this co-making of religion and law stems from and is integral to the comparisons made by people with a stake in situations where either law and/or religion epistemically fail(s) them.
Previous interdisciplinary studies on religion and law have already emphasized the worldwide “struggle between actors of different type and scale, some of whom blur religious/legal boundaries, while others commit themselves to sustaining or reintroducing these categorical distinctions” (Kirsch and Turner 2009, 6)[3], but there has not been sustained effort to understand how such contradictory but often simultaneous processes interact and contribute to acts of religion-making and law-making. In other words, unlike earlier research, this workshop is less concerned with claims of authority, power, sovereignty, and social order – all of which undoubtedly form the basis of both religious and legal discourse – and more about claims of special knowledge. The basic question we ask is: how do religion and law interact, all the while co-making each other into epistemic claims?
Our interest in religion and law as epistemic fields stems from, again, simultaneous developments in two largely distinct fields of study: the sociology of religion and the anthropology of law. Indeed, while anthropologists of law have recently turned their attention to the making of law into a professional practice that relies on environment-mediated knowledge (for example, how technological innovation in organ transplantation affects legal understandings of a patient’s declaration of intent to donate their organs; see Takano and Nakazora 2021[4]), sociologists have argued that studying how “knowledge” is claimed and justified, could help us unsettle the taken-for-granted distinction between (irrational) “belief” and (rational) “knowledge” and include in the study of religion, claims that have long been ignored or their impact underestimated (for example, conspiracy theories or “pseudo-science”; see Robertson 2021[5]).
This workshop is multi-disciplinary. Scholars from the fields of the history of religion, sociology of religion, anthropology of religion, and the anthropology of law examine sources and analyse ideas and practices from Japan, India, Indonesia, Singapore, Cambodia and France. The project is funded by the Japan Society for the Promotion of Science (grant 22K00070: 2022-2025). Titles and abstracts of each paper follow the workshop’s schedule below.
Tuesday 3 September
3pm arrival at Yamanaka Seminar House
4pm welcome remarks and summary of the five preparation meetings held online on 6 March, 10 April, 8 May, 5 June, 3 July
5pm presentation by Ioannis Gaitanidis (Chiba University)
7pm dinner+discussion
Wednesday 4 September
7.30am breakfast
8.30am presentation by Ernils Larsson (Uppsala University and Kokugakuin University)
9.30am presentation by Moe Nakazora (Hiroshima University)
10.30 coffee break
11am presentation by Sayaka Takano (Chuo University)
12am lunch
1pm presentation by Korefumi Nakano (Tohoku University)
2pm presentation by Aki Murakami (Komazawa University)
3pm coffee break
3.30pm presentation by Hiroki Tanaka (Meiji University)
4.30pm wrap-up by Ioannis Gaitanidis
6pm dinner+discussion
Thursday 5 September
7.30am breakfast
8.30am discussion and planning of journal special issue
10.00am farewell remarks and end of workshop
Titles and Abstracts
“What was your state of mind when you bought it?”: The Co-Constitution of Legal Understandings of Religion and Consumption in the History of Spiritual Sales
Ioannis Gaitanidis (Chiba University)
The impact of the rise of consumerism on religious ideas and practices has long occupied scholarly interest, but it is only recently that doubts have been cast on the essentialist distinctions made between “religion” and “the market”. The last decade has, in fact, produced a plethora of works that blur such distinctions and argue, for example, that neoliberalism might be understood as a religious occupation of the economy, or that religious organisations and multinational companies share a certain corporate form. Much less has, however, been written about the intersections between – and co-making of – religion and the legal frameworks that regulate consumption. This paper delves into the history of “spiritual sales,” a peculiar legal category of consumer issue identified by Japanese lawyers in the mid-1980s and encoded in 2018 in the Consumer Contract Law, which protects consumers from all kinds of fraud. I will show how the development of this category, originally associated with the activities of a specific religious organization, expanded and transformed in conjunction with updates to consumer law that were meant to deal with an increasing variety of sales methods that distort the consumer’s decision-making process. By assuming rational choice as the prerequisite of legality, consumer lawyers found themselves having to avoid making value judgements about religious beliefs, all the while accusing religious practitioners of manipulating the minds of their clients. This conundrum eventually led to the legal understanding of fraud and duress extending beyond the traditional parameters of manipulation through misinformation and covering various psychological states of mind that consumer laws seldom deal with.
Odd outsiders or subversive anti-statists? Litigating the religious freedom of Jehovah’s Witnesses in Japan and Singapore.
Ernils Larsson (Uppsala University and Kokugakuin University)
Criticism of Japan’s record of upholding religious freedom is not uncommon in Western scholarship on religious litigation in the country, and as is clear from rulings on state-religion relations, at least in the higher echelons of the judiciary, there exists a widely held belief that Japan as a state is mostly homogenous in terms of ethnicity and culture. Nevertheless, in key rulings in the 1980s and 90s, the Japanese judiciary conclusively emphasized that the constitution offers freedom of religion and conscience, and that because of this, public actors need to ensure that minorities are not unfairly kept out of public spaces, including hospitals and the public education system. Unlike in Japan, the Singapore government consistently highlights the significance of pluralism and inter-ethnic coexistence as key to national identity, with particular emphasis given to the nation’s status as a multireligious nation in which Muslims, Hindus, Christians, Sikhs, and adherents of Chinese religion live together harmoniously. At the same time, courts ruling on religious freedom in Singapore do not appear to place the same importance on accommodating minorities as do their Japanese counterparts. This can be seen in a number of lawsuits which emphasize the responsibility for individuals to compromise with their personal beliefs in order not to contravene the public good, but it is perhaps most apparent in the outright ban of Jehovah’s Witnesses, a consequence of the adherents refusal to participate in Singapore’s mandatory national service. This paper will apply a comparative perspective to consider how religious freedom is litigated in Japan, as a supposed homogenous nation but with a huge pluralism in terms of religious communities, and Singapore, as a proudly pluralistic city-state in which religious communities are expected to work together with and support the government. The paper will focus especially on the comparison of what values are emphasized in rulings on religious freedom, whether the focus is on tolerance or social cohesion.
The Co-Making of Law and Religion over the Rights of Nature: A Comparison of the Processes of Transformation of the Ganges River and of the Amami Rabbit into Juridical Persons
Moe Nakazora (Hiroshima University)
Comparative research on the legal aspects of the rights of nature has so far consisted of two kinds. Some scholars compare how different legal systems impact court judgements implicating the rights of nature and how such judgements then influence distinct systems of environmental protection. Other researchers analyse how cultural contexts inform in varied ways the legal debates surrounding the rights of nature. This paper opens a third avenue for reflection: instead of focusing on an analysis of existing laws or court judgements, I compare how the legal concept of rights of nature becomes entangled with religious matters in the process of a court of law reaching its decision. To achieve this, I compare two cases. The 2017 environmental public interest litigation in the Uttarakhand High Court, which granted the Ganges River in India the ‘same legal rights as humans’; and the Amami Oshima court case (1995~2000) against the construction of a golf course, in which the plaintiffs were four animal species, including the Amami rabbit. By comparing how lawyers compared and translated the legal concept of ‘rights of nature’ with people’s religious interests, feelings, objects and natural entities, I aim to clarify the mutual generation of law and religion in a court of law.
How to Perceive and Navigate a “Legal Vacuum” in Religion-Related Cases: A Legal Anthropological Approach to Jōri and Rechtsvinding
Sayaka Takano (Chuo University)
In the Japanese context, a significant issue in the intersection of law and religion is how the judiciary should handle ‘disputes within religious organisations’. This arises, for instance, when in disputes about whether or not to grant ownership of a temple to a priest who has been stripped of his priesthood, the court needs to determine if a priest’s saying contradicts the doctrines of their religious community. The Japanese Supreme Court’s jurisprudence has evolved from an initially assertive stance on intervention to emphasising neutrality and non-interference, notably in the 1989 Rengeji case, where, in a very rare turn of events, the Japanese legal concept of jōri was brought in to deal with a situation in which there were no clear procedural rules. Jōri is one of the determinants of law; something judges rely on in the absence of statutes or customary law in civil trials. As it transpires by its definitions, such as “natural reason” and “path of things”, jōri plays the role of filling in the assumed “holes” in law. In comparison, in the Indonesian context, there is a similar concept of rechtsvinding or penemuan hukum, which can be roughly translated as “finding of law.” Although both jōri and penemuan hukum can be traced back to the founding era of each country’s national legal system, the difference is that the former is handled rather carefully to prevent the judges from having too much room for discretion. However, the latter has gained more attention in recent years. Through a comparison of court judgements explicitly related to religion in Japan and Indonesia through the concepts of jōri and rechtsvinding respectively, I will try to understand how “justice” is imagined in situations of a legal vacuum.
“I Have A License”: Shared Knowledge about the Law among Traditional Healers and Clients in Cambodia
Korefumi Nakano (Tohoku University)
The Kru are traditional healers whose practice is partially regulated by Cambodian state laws. This paper will employ ethnographic data on the interactions between Kru and their clients to consider how laws relevant to such practices are interpreted in daily settings. Since the 1978 Alma Ata Declaration, many states have tried to regulate the activities of traditional healers in order to integrate them into community healthcare systems. In Cambodia, the therapeutic component of the Kru’s traditional practice has been accredited through a license system. However, only a few Kru have obtained this license due to economic and geographical factors. This means that some Kru have sometimes been assisted by their clients in evading regulations by lending and borrowing licenses and falsifying testimonies. This situation is reinforced by the fact that the Kru without licenses, form targets of police investigations, from which they can only escape through bribes. In other words, the Kru and their clients have sometimes acted “in compliance with the law” to avoid being noticed by law enforcement officers so that their traditional medical practice could continue. This situation reveals the existence of a sort of a “shared knowledge” among people in regard to how they understand and interpret the laws concerning traditional therapeutic services. By comparing and examining several cases, I aim to clarify this shared knowledge regarding Cambodian law and its handling of traditional medical practices.
“Not Near My Home”: The Intertwining between Japanese Burial Laws and “Religious Feelings” about Cemeteries
Aki Murakami (Komazawa University)
This paper compares and discusses the process by which vague feelings of aversion to cemeteries are materialized in a court of law. In recent years, the number of ossuaries erected in Japan has increased as it has become popular to store remains in inexpensive and conveniently accessible structures instead of the traditional headstones. This development, however, has also led to lawsuits against the construction of such ossuaries by residents living near the site. A dispute commonly heard in this type of trial concerns distinct interpretations of the Graveyards and Burials Act, which stipulates that cemetery administration is to be carried out in a manner “compatible with the religious feelings of the people.” Does aversion to having graves built near one’s home consist of a “religious feeling?” If that is the case, courts can claim that neighbours of cemeteries have the right to oppose their construction. Interestingly, this type of lawsuit has been contemporaneous with other types of complaints against cemeteries in Japan. Again, the plaintiffs are usually neighbouring residents, but the reason for their complaints concerns a different aspect of the culture surrounding death. Ninety-nine per cent of the dead in Japan are cremated. This is, of course, not the case for the Muslim minorities, who are buried. As a result, some residents in the vicinity of Muslim cemeteries have claimed fears of water contamination and ended up in court. By discussing these contentious issues surrounding burial and cremation and placing them against the wider social changes that Japan has been experiencing in recent decades, such as depopulation, I aim to show and compare how “religious feelings” about cemeteries materialize in the course of litigation.
From laïcité to catho-laicité: French secularism and implicit comparisons behind the rise of “sects”
Hiroki Tanaka (Meiji University)
This paper discusses the implicit comparisons that drove a transformation of French-style secularism (laïcité) under a regime of moral panics surrounding the so-called sects in contemporary France. Laïcité was established at the beginning of the 20th century as a principle of separation of church and state in the conflict between the French Republic and the Catholic Church, but since the late 20th century its nature has changed as Islam and the so-called sects have become “social problems.” In this article, by wading through legal and policy documents related to the “sect issue,” I argue that the social problematisation of “sects” arose simultaneously with the restoration of relations between the Republic and the Church. As a result, the change from modern laïcité to modern catho-laicité was driven by the conceptual distinction between “(right) religion” and “(wrong) sects.” The discussion in this paper will reveal that the concept of laïcité and the concepts of religion/sect have been reorganized in France in a synchronic manner since the late 20th century, a period that was also characterised by religious pluralism.
Endnotes
[1] The beginnings of the critical study of religion marked by the publication of Russell T. McCutcheon’s Manufacturing Religion: The Discourse on Sui Generis Religion and the Politics of Nostalgia (Oxford University Press, 1997) overlap with the often-cited criticism of legal pluralism by anthropologist of law Simon Roberts in his essay, “Against Legal Pluralism: Some Reflections on the Contemporary Enlargement of the Legal Domain” (The Journal of Legal Pluralism and Unofficial Law 30(42): 95-106, 1998)
[2] See Oraby, Mona and Winnifred Fallers Sullivan’s “Law and Religion: Reimagining
the Entanglement of Two Universals (Annual Review of Law and Social Science 16: 257-276, 2020)
[3] Kirsch, Thomas G. and Bertram Turner, Permutations of Order: Religion and Law as Contested Sovereignties (Routledge, 2009).
[4] Takano, Sayaka and Moe Nakazora, “Toward an Anthropology of the ‘Making of Law’” (Bunka Jinruigaku [the journal of the Japanese Society of Cultural Anthropology] 86(1): 127-138, 2021)
[5] Robertson, David G., “Legitimizing Claims of Special Knowledge: Towards an Epistemic Turn in Religious Studies” (Temenos: Nordic Journal for the Study of Religion 57(1): 17-34, 2021)