Law and the Governance of Religious Feelings

• In Event: Poster Session: Religion and Politics & Political Networks
  In Poster Session: Poster Session: Religion and the State

Abstract

The connection between jurisprudence and emotion has gained the attention of scholars of international law. Studies have examined how strong emotions may aid in the constitution of states of legal exception, how emotions influence legal decision-making, as well as the potential for recuperating certain emotions as misunderstood but positive sources of normative legal orders. Rather than focus on emotions as drivers of legal dynamics, this paper asks how law constitutes certain emotions as both legible to state recognition and as sites of state intervention. Focusing on cases surrounding the protection of ‘religious feelings,’ this paper draws on archival records in conjunction with contemporary legal disputes to examine historical constructions of ‘religious feeling’ and their legacies on contemporary legal institutions and constitutions. For instance, in 2013 Russia made international news when it was made a criminal offense to “insult the feelings of religious believers.” Widely decried as an assault on free speech and the foundations of a secular civil society, few sources note that in fact Spain, Israel, Poland, Finland, India, Germany, and many other countries around the world hold similar laws. Nor is this just a Russian Orthodox idiosyncrasy: the 1994 European Court of Human Rights case Otto-Preminger-Institut v. Austria hinged on whether the Austrian state could censor a satiric movie that was accused of harming Catholic feelings or if this violated freedom of expression. Conceding that freedom of expression had been impinged, nonetheless the majority found the state does have an overriding legitimate claim to prevent ‘religious feelings’ from being aroused if doing so would ensure peace in democratic society. A century or so earlier, in British India colonial administrators set up similar laws and directives aimed at preventing offense to “religious feelings” of indigenous populations lest they stir resistance, even as these very administrators were engaging in the codification and institutionalization (and thus profound intervention in) all other aspects of local religious practice. In India these legal categories have not only persisted but also been strengthened in post-colonial modern constitutions. How have colonial era practices of circumscribing and reforming religion become the normative international legal and popular framing of religious feelings? What are the consequences for how actors understand and choose to identify their discursive practices as expressions of religious feeling?

Insofar as religious feelings come to be understood as legible legal objects, I argue we can understand them as emotional practices that have been competently performed for their intended audience. How and under what conditions religious feelings come to acquire centrality as markers of political and legal legibility, however, deserves scrutiny. For instance, how has the historical recognition of religious feelings by legal authorities shaped how actors understand their own means of redress? And, when have legal categories of religious feelings, at first applied in contexts that show a misrecognition or reformation of local actors’ activities or self-conceptions, then themselves become the dominant framing for how actors practice emotions in public in order to acquire legal protection? In other words, how are religious feelings naturalized via the legal process? This paper examines the genealogy of these legal manuevers to demonstrate and question to what extent such mechanisms counter-intuitively operate less as guarding ‘religious feelings’ per se than as tacit guarantors of state favored and majority group’s emotional practices.

Scholars interested in the entanglement of law and emotion often do so in order to devise programs to expand the arena of law into more explicit regulation and governance of certain emotions or emotional dynamics. In contrast, this study suggests reexamining this commonly shared belief in the necessity of legislative authorization for a single and authoritative state-mediated relation between religious feelings and political order.

Author

• Gina Giliberti, Northwestern University