Silvio Ferrari is Professor of Law and Religion at the University of Milan and is a Resident Fellow at CTI. His current project seeks to find a way beyond the impasse of interpreting religious freedom as “either a chimera or a colonialist instrument.” Josh Mauldin: Your project seeks to chart a middle way between a “skeptical/relativistic” and a “Western-Centered” conception of religious freedom. Could you speak to how you became interested in this topic?
Silvio Ferrari: As I see it, freedom of religion is contested from two different angles. On the one hand there are the epigones of the project of modernity; that is the project that has its most important roots in the Enlightenment. This approach suggests that freedom of religion, as it is conceived and regulated in our laws, does not deliver what it promises, that is, the possibility to practice one’s religion on equal footing with the followers of other religions. Therefore they propose to get rid of the right to freedom of religion and to rely on a set of other rights (freedom of expression, association, etc.) that could better perform the same job. On the other hand there are the supporters of a post-modern project. For them freedom of religion, as it is conceived and regulated today, is a European construct based on a notion of religion that is rooted in Western and Christian history. This notion and the corresponding right have been exported through the colonial domination all over the world and superimposed on the existing notions of religion and religious freedom. Today these conceptual and legal tools have become useless not only outside the Western sphere of influence, but also within it: the increasing religious and cultural diversity requires different strategies and tools, that the Western legal tradition is no more able to provide. Therefore, they conclude, Western scholars should look elsewhere, for example to the legal traditions of countries like India or Indonesia.
Summing up, freedom of religion is either a chimera or a colonialist instrument. Without denying the part of truth that is contained in these analysis, I think that their conclusion risks to throw out the baby with the bath water. In my opinion, the Western legal tradition of religious freedom has something to offer in the dialogue with the traditions that developed in other parts of the world: the subjective character of freedom of religion, the fact that it has to do first of all with a person and his or her conscience. Sometimes we lawyers have impoverished this personal dimension, reducing it to the right to choose the religion I like better. This has excluded the communitarian dimension of personal life and also the fact that choices are not a purely intellectual matter—they are rooted in experiences. If we are able to recover these components of the notion of freedom of religion, I think we can find the “middle path” you mentioned in your question.
JM: We are now three months into our Inquiry our Law and Religious Freedom. How has the atmosphere of CTI shaped the way you are thinking about your project?
SF: I have been pleasantly surprised by the degree of convergence of our research projects and discussions. I did not expect that theologians, lawyers, political philosophers, and historians—people coming from different scientific fields and with different personal histories—would share so many basic convictions about freedom of religion: an appreciation of the way freedom of religion is granted in many Western countries, but also the feeling that this protection is based on a rather thin conception of religion and religious freedom; critical attention to the way freedom of religion is granted in other parts of the world, trying to distinguish what we can learn from them and what we can offer them; a search for paths that overcome a purely procedural foundation of liberal democracy and connect it to a set of shared values; the attention for value and legal pluralism that should avoid the domination of one or a few privileged worldviews and ensure the coexistence and dialogue of different individuals and communities. I am not saying that we are all of the same mind; there are significant differences of opinion among us. But we all share the same feeling that it is time to move the discussion forward on freedom of religion, fully engaging the resources provided by our cultural backgrounds. This has provided an optimal setting for my research.
JM: As a legal scholar with an expertise in the field of law and religion, what are your thoughts about interdisciplinary work between theologians and legal scholars?
SF: I am a scholar of “law and religion” and one could think that under this umbrella the relationship between lawyers and theologians flourished. It is not so. At least in Europe, theologians seldom have an interest in law and lawyers tend to ignore theology. I am not a theologian and cannot assess the impact this lack of dialogue has had on their studies, but the backlash on legal research has been huge. I shall give just one example. Most scholars of law and religion ignore the law of religions, Jewish law, Canon law, Hindu law, etc. They study the law of the State concerning religions and think that the knowledge of the different forms of religious law is useless or at least optional. It is like giving an answer without listening to the question. If I do not know what Jewish law requires from a Jew, how can I try to solve the problems deriving from the obligations that Jewish law imposes on an individual in matters concerning food, days of rest, and so on? If lawyers would have had more familiarity with theologians, it is likely that this ignorance would have been less extreme, because theologians would have provided their knowledge of religious practice, including religious law.
JM: What do you see as some of the biggest challenges regarding law and religious freedom in the contexts in which you are working?
SF: The main challenge is religious and cultural diversity. Today people with a different cultural tradition and religious faith are much more likely to live side by side than in the past. They bring with them their own conceptions of religion and of freedom of religion. For some people wearing a scarf or a turban has nothing to do with religion, for others this is a religious practice. Reconsidering our traditional notion of religious freedom, which took shape in a largely Christian society, to include people of different faiths is the main task we have in front of us. It is not an easy task because it requires a double knowledge. First, I need to know the cultural and religious tradition of the “other,” so that I can correctly understand the question he or she poses to “my” legal system; then I need to know in depth my own legal tradition, so that I can adequately answer that question. This brings us back to the theologians-lawyers relationship. These questions are never purely legal questions; they always have a theological dimension. Understanding and answering them requires an approach capable of combining these two dimensions, law and religion.