Religious Freedom and Public Order: Fundamental-Rights Lawfare

• In Event: Itineraries of Liberalism in the Global South

Abstract

Building on constructivist theories concerning national-identity formation as well as liberal institutionalisttheories regarding the political power of constitutional and international law, this paper examines the ways in which—counterintuitively—human rights provisions concerning religious freedom (‘subject to public order’) underpin exclusionary (majoritarian) articulations of national identity. Specifically, I examine what I call fundamental-rights lawfare—a pattern in which some of those who self-identify with a given religious majority are cast as ‘heretics’ whose otherwise peaceful beliefs and practices are said to disturb public sentiments in ways that pose an existential threat to public order. When constitutional courts endorse this securitizing move, they use internal others to define the outer limits of the nation. Highlighting an exclusionary application of familiar human-rights provisions, I examine the link between fundamental-rights lawfare and majoritarian national-identity formation in Muslim-majority Pakistan and Malaysia as well as Orthodox Russia, authoritarian China, and democratizing Indonesia.

Author

• Matthew J. Nelson, University of London, SOAS